UKPC Hired Car

Edna_Basher wrote: »

Now that they have been provided with the details of the vehicle's keeper (i.e. you), UKPC should not be looking to apply to the DVLA to obtain the registered keeper's details (i.e. the hire company). Therefore, the hire company should not receive anything from UKPC and there should be no subsequent Notice to Hirer.

However, UKPC like to do things their own way and we can't be sure what they'll do next.

We can be sure of one thing - they've quoted the wrong paragraph from POFA. Given that a windscreen notice was issued, they should have quoted from Paragraph 8 not Paragraph 9.

StaffsSW wrote: »

Ok - it's worth checking to see if the garage is the Registered Keeper or not. Many bodyshops source via Circle Leasing, and most rental Citroens are supplied on lease terms by PSA.

It may have gone from PSA > Circle Leasing > your garage > You

As the keeper of the above vehicle at the time of the PCN, I wish to appeal the parking charge notice UK Parking Control (UKPC) issued against it. I would like to have the parking charge notice cancelled based on the following grounds:

1. Failure to comply with the strict requirements of POFA
2. No evidence of Landowner Authority
3. The signs in this car park are not prominent, clear or legible from all parking spaces and there isn't any lighting on the signs
4. BPA Code of Practice & PoFA - further non-compliance - Appeal Rejection Letter.

1. Failure to comply with the strict requirements of POFA

In the case of a PCN issued in respect of a hire vehicle, in order to have the right to use the provisions of Schedule 4 of POFA to claim unpaid parking charges from a vehicle's hirer, an operator must:

1) deliver a Notice to Keeper to the vehicle-hire firm in full compliance with POFA, Schedule 4, Paragraph 8 or 9 (as the case may be);

UKPC hasn't issued a notice to keeper.

2) be provided with the documents specified under POFA, Schedule 4, Paragraph 13 (2) and;

These have not been received

3) deliver a Notice to Hirer to the vehicle's hirer in full compliance with POFA, Schedule 4, Paragraph 14.

Again, these have not received.

POPLA has promised that my case will be independently reviewed by one of its professional assessors taking into consideration the relevant law, guidance and standards and the BPA Code of Practice. The requirements set out in Schedule 4 of POFA are quite straightforward for any reasonable professional to understand and I expect that all POPLA assessors shall have a clear understanding of this particular piece of relevant law. It should therefore be very obvious to POPLA that UKPC has failed to comply with Schedule 4 of POFA.

The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4, POFA; the conditions that the Creditor must meet in order to be able to hold the Hirer liable for the charge are set out in Paragraph 14.

Paragraph 14 (2) (a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the Hirer with a copy of the documents mentioned in paragraph 13(2) (i.e. (a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; (b) a copy of the hire agreement and (c) a copy of a statement of liability signed by the hirer under that hire agreement), together with a copy of the Notice to Keeper

UKPC did not provide us with a copy of any of these documents.

Further, UKPC's should have Issued a Notice to Hirer according with the requirements of Paragraph 14(5) including:

Contrary to the requirements of Paragraph 14(5)(a), UKPC's PCN to me did not inform the hirer that by virtue of this paragraph any unpaid parking charges may be recovered from the hirer;
Contrary to the requirements of Paragraph 14(5)(b), UKPC's PCN to me did not refer the hirer to the information contained in the Notice to Keeper;
Contrary to the requirements of Paragraph 14(5)(c), UKPC's PCN to me did not warn the hirer that if, after the period of 21 days beginning with the day after that on which the notice to hirer is given, the amount of unpaid parking charges referred to in the notice to keeper under Paragraph 8(2)(f) or 9(2)(f) (as the case may be) has not been paid in full, the creditor will (if any applicable requirements are met) have the right to recover from the hirer so much of that amount as remains unpaid.

POPLA must not attempt to presume that the hirer is appealing this PCN on behalf of the driver. For the avoidance of doubt, I am simply exercising my right as hirer to appeal this PCN in my own name in exactly the same way as any other vehicle keeper or hirer is entitled to do

2. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.
7.3 The written authorisation must also set out:
a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d who has the responsibility for putting up and maintaining signs
e the definition of the services provided by each party to the agreement.

3. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

These photos were taken at 04.00 hrs. The closest sign to the parking bay in question, is more than 30 metres away and is not visible whilst driving at night as it is too small, written in small font and not illuminated.

The signage within the carpark is not visible at all during the night time hours and there are not enough signs in all areas of the car park. There are no lights and photos are only illuminated by the flash on the camera.

There are no signs at all on the Archer’s Road entrance and throughout most of the estate.

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

link:

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

link:

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park there other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

The letters seem to be no larger than .40 font size going by this guide:

link:

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

link:

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2!!!8221; letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3!!!8221; or even larger.''

...and the same chart is reproduced here:

link:

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

link:

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.


4. BPA Code of Practice & PoFA - further non-compliance - Appeal Rejection Letter.

PoFA 2012 Paragraph 9(2)(e) which states:

(e) state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i) to pay the unpaid parking charges; or
(ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;

UKPC’s appeal letter states that the keeper should notify the operator of the driver's details, but the legislation says the operator can only invite the keeper to do so.

Coupon-mad wrote: »

in the middle a few times, needs changing to UKPC.

I wouldn't have this because you said there was no NTK at all, so the 'letter' in question was just the standard one begging to know who was driving (presumably?) and wasn't a NTK and should not be judged as one, nor treated as a hybrid NTK (which it wasn't):