Euro Car Parks - lease car, I jumped the gun with appeal, help!

jimnastics · 17 October 2019 at 10:05AM

I received an NTK (issued 11/09) from Euro Car Parks for an overstay (happened on 08/08), the NTK was issued 34 days after the event. After my initial research I believed that I could appeal this mainly on the 14 day rule for NTK to be sent, and as such sent the standard response:

Dear Sirs,

I have just received your Notice to Keeper xxxx for vehicle xxxx

You have failed to comply with the requirements of Schedule 4 of The Protection Of Freedoms Act 2012 namely, but not limited to, failing to deliver the notice within the relevant period of 14 days as prescribed by section 9 (4) of the Act. You cannot, therefore, transfer liability for the alleged charge from the driver at the time to me, the keeper.

There is no legal requirement to name the driver at the time and I will not be doing so.

Any further communication with me on this matter, apart from confirmation of no further action and my details being removed from your records, will be considered vexatious and harassment. This includes communication from any Debt Collection companies you care to instruct.

Yours sincerely,

The appeal was rejected as expected and I have been given a POPLA code, however I have since discovered that I should have treated this differently as my car is on a personal lease. It's with VWFS and they hold the V5, and are the keeper.

I still have over a week to put in my POPLA appeal, however I now have no idea how to approach it. Should I continue down the path I started? Or should I now say in the POPLA appeal that my initial appeal to ECP was incorrect? I'm also still struggling to understand what the situation is with a lease car, no other documents apart from the NTK have been recieved from ECP.

Any help much appreciated!

Fruitcake · 17 October 2019 at 10:41AM

It is not a disaster. Tell the scammers immediately that this is a hire/lease vehicle as a stand alone statement.
Tell the hire/lease company that you are dealing with this and they must not pay the charge.
Construct your PoPLA using all the usual points making non-PoFA complaint NTK point 1. In that point, state since this is a hire lease vehicle they have failed to comply with the relevant sections of the PoFA (13 and 14 I think.) Quote the relevant sections and explain how they have failed.

How did you get the NTK? Did the hire/lease co send it to you? Did they name you as hirer/lessee? Did you get a NTH not a NTK?

jimnastics · 17 October 2019 at 10:52AM

Fruitcake wrote: »

It is not a disaster. Tell the scammers immediately that this is a hire/lease vehicle as a stand alone statement.
Tell the hire/lease company that you are dealing with this and they must not pay the charge.
Construct your PoPLA using all the usual points making non-PoFA complaint NTK point 1. In that point, state since this is a hire lease vehicle they have failed to comply with the relevant sections of the PoFA (13 and 14 I think.) Quote the relevant sections and explain how they have failed.

How did you get the NTK? Did the hire/lease co send it to you? Did they name you as hirer/lessee? Did you get a NTH not a NTK?

Great, thanks Fruitcake. The NTK was received through the post addressed to myself, direct from ECP, saying I was the "registered keeper". It's definitely a standard NTK and not an NTH. I haven't heard anything from my leasing company VWFS...

jimnastics · 17 October 2019 at 11:28AM

I have just spoken to VWFS who have clarified that they are indeed the registered keeper, and so for ECP to have got my details VWFS must have provided it to them. I guess at least they didn't pay it themselves and add it to my next payment, which I understand can happen...

Redx · 17 October 2019 at 11:32AM

Agreed , so treat it in that you are lessee and also the keeper , the appeal has been done as keeper

If they reject the appeal , which is normal , you should get a Popla code like has happened here

POFA helps you here , so go to the newbies faq sticky thread and read the Edna basher advice for lease and hire vehicles

Put together a popla appeal from hire or lease threads , starting with POFA

The issues you raised about your initial appeal are irrelevant , concentrate on the legal issues , which is all popla care about

Fruitcake · 17 October 2019 at 12:32PM

jimnastics wrote: »

Great, thanks Fruitcake. The NTK was received through the post addressed to myself, direct from ECP, saying I was the "registered keeper". It's definitely a standard NTK and not an NTH. I haven't heard anything from my leasing company VWFS...

jimnastics wrote: »

I have just spoken to VWFS who have clarified that they are indeed the registered keeper, and so for ECP to have got my details VWFS must have provided it to them. I guess at least they didn't pay it themselves and add it to my next payment, which I understand can happen...

Good. You need confirmation from the lease Co in writing that they gave your details as the lessee/hirer.
The scammers failure to send you a NTH compliant with the PoFA will be one of your main PoPLA appeal points.

The_Deep · 17 October 2019 at 12:34PM

[FONT=Times New Roman, serif]Nine times out of ten of these tickets are scams so consider complaining to your MP, it can cause the scammer extra work.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies[/FONT]

Coupon-mad · 17 October 2019 at 5:15PM

jimnastics wrote: »

Great, thanks Fruitcake. The NTK was received through the post addressed to myself, direct from ECP, saying I was the "registered keeper". It's definitely a standard NTK and not an NTH. I haven't heard anything from my leasing company VWFS...

This is normal for all hire cases, and the lack of enclosures is why you will win at POPLA.

I still have over a week to put in my POPLA appeal, however I now have no idea how to approach it.

Read any other POPLA hirer thread by using those words as your keywords.

jimnastics · 21 October 2019 at 11:01AM

Fruitcake wrote: »

Good. You need confirmation from the lease Co in writing that they gave your details as the lessee/hirer.
The scammers failure to send you a NTH compliant with the PoFA will be one of your main PoPLA appeal points.

Is it critical for me to get that written confirmation from VWFS that they gave my details to ECP in writing? My POPLA appeal needs to be in by this coming Friday, so I'm concerned about that coming through in time. Could I instead assume that my details were given to ECP on the date they issued me the NTK (11/09 is the "Date Issued" on the NTK, 08/08 is the "Date of Event"). Or will that not pass with POPLA?

Coupon-mad · 21 October 2019 at 11:25AM

Is it critical for me to get that written confirmation from VWFS that they gave my details to ECP in writing?

No. Just copy any POPLA hirer thread showing a similar appeal.

It's not about the dates.

jimnastics · 21 October 2019 at 11:54AM

Great, thank you. This is my current draft, are there any other point I should be pushing?

1. Failure to comply with the strict requirements of the Protection of Freedoms Act 2012 (POFA)

In the case of a Parking Charge Notice (PCN) issued in respect of a hire vehicle, in order to have the right to use the provisions of Schedule 4 of the POFA 2012 to claim unpaid parking charges from a vehicle's hirer, the creditor must:

1) as per POFA 2012 Schedule 4, paragraph 14(2)(a), the creditor must have given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;

Euro Car Parks did not provide me with a “notice to hirer”.

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 Euro Car Parks 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 (i.e. the notice that had originally been sent to the lease company (as Registered Keeper)).

Euro Car Parks did not provide me with copies of any of these documents, (a), (b) or (c).

POPLA must not attempt to presume that the hirer is appealing this PCN on behalf of the driver. For the avoidance of doubt, we are simply exercising our right as hirer to appeal this PCN 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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

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 authorised on the material date, 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 but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal 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. Vehicle Images contained in PCN: BPA Code of Practice – non-compliance

The BPA Code of Practice point 20.5a stipulates that:

"When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."

The PCN in question contains two close-up images of the vehicle number plate. Neither of these images contains a date and time stamp “on the photograph” nor do they clearly identify the vehicle entering or leaving this car park (which is also not identifiable in the photos as of any particular location at all).

The time and date stamp has been inserted below (but not legibly part of) the images. The images have also been cropped to only display the number plate. As these are not the original images, I require Initial Parking Limited to produce evidence of the original "un-cropped" images containing the required date and time stamp and to evidence where the photographs show the car to be when there is a lack of any marker or sign to indisputably relate these photos to the location stated.

<picture from PCN will be here>

Figure 2: Images from PCN – NtK

4. Signage

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

I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the £sum, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

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:

http://imgur.com/a/AkMCN

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:

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

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 where 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:

http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

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

http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

''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' 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' or even larger.''

...and the same chart is reproduced here:

http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

''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:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

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.

Euro Car Parks - lease car, I jumped the gun with appeal, help!

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