POPLA appeal advice requested

Is it worth appealing? No one has commented at all, so I'm disappointed in the appeal I have written above as it seems irrelevant. Should I just pay the £60 & chalk it up as wasted time & money

Okay thank you Coupon-mad & KeithP... I will wade through post#3, however, I was put off because I can't remember if I've told them I was the driver or it would be deduced I was because I sent back a copy of the original parking ticket I bought on the day. And it looked like all the appeals were based on not admitting you were the driver - do I still stand a chance even if I have admitted being the driver, can I go for small signage and my point 6 no loss incurred as I had paid for parking.

Coupon-mad wrote: »

No!
...
That POPLA appeal is far too short and will lose. You don't seem to have found the template POPLA appeal points we provide in the NEWBIES thread, third post of that sticky, top of this forum? NO LINK... and read the third post there all about POPLA, go there now and show us a much better POPLA appeal effort, please.

After a bout of brain fog & crisis of confidence - I've got my $h1t together, I can't let them win so here's my best attempt...(formatting has gone to pot when I cut & pasted from word, (had a go at it in edit mode)) also there were links in the original post I used to base my appeal - do I leave them in or take them out when submitting my appeal proper? I've got 28 days from 21/06/18, so need to get this sorted by end of week...

Appeal re POPLA code: 85######## !!!8211; Mrs A BCDEF v Smart Parking Ltd
For the Vehicle Registration: BB## BBB. I, the registered keeper of this vehicle, received a letter dated ##/##/2018 acting as a notice to the registered keeper, PCN No:TC########. My online appeal to the Operator !!!8211; Smart Parking !!!8211; was submitted and rejected via a letter dated ##/##/2018. I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds: I am writing to you to lodge a formal appeal against a parking charge notice sent to myself as registered keeper of the vehicle in question. I contend that I am not liable for this parking charge based on the following points:
1. Smart Parking has no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges.
2. On this day there were issues with one of the parking machines. If a keypad fault when this machine was certainly malfunctioning caused the system not to record the VRN correctly, then that is a matter within Smart Parking!!!8217;s control, and I should not be held accountable.
3. Breach of the BPA Code of Practice on ANPR.
4. The charge is a penalty, breaches the Consumer Rights Act 2015 and is prohibited/unfair under the CPUTRs. (It is not saved by ParkingEye v Beavis).
5. The signs are not prominent, clear or legible from all parking spaces

1. Smart Parking has no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges.
I do not believe that this operator has any proprietary interest in the land such that it has no standing to make contracts with drivers or to pursue charges for breach in its own name. I contend that they merely hold an agreement to maintain signs and to issue 'tickets' as a deterrent to car park users.
!!!8226; I put the operator to strict proof otherwise because it cannot be assumed that any agent on site has any more than a bare licence.
!!!8226; I require an unredacted, contemporaneous copy of the landowner contract (including the User Manual which forms a vital part of that contract).
This is required so that I may see
!!!8226; the definition of services provided by each party to the agreement, as well as any exclusions (e.g. exempt vehicles, users, days or times)
!!!8226; as well as defined grace periods;
!!!8226; the land boundary and the areas or specific bays enforced;
!!!8226; the various contraventions and confirmation of the agreed !!!8216;charge!!!8217; which may or may not be £100.

I do not believe that the contract allows Smart Parking to charge paying visitors £100 for a system or keypad error.
It is submitted that to charge for this event is highly unlikely to be a feature of the agreement with the landowner. That is why a generic, bland witness statement with a lack of definition of contraventions will NOT counter this argument.
Regarding Section 7.3 of the BPA Code of Practice, I require evidence of full compliance:
!!!8220;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.''

2. On this day there were issues with one of the parking machines.
The driver parked and upon trying to pay the charge, she had problems with the machine keypad not accepting the full & complete VRN. She believes it eventually accepted it despite the machine malfunctioning more than once and contends that she typed it in correctly.
The system was complicated because drivers cannot readily see that the machine has not accepted the full VRN until the ticket is printed.
Such systems have been criticised as unfair and not consumer-friendly. In fact the driver paid correctly, for the two hours of parking - and was in the carpark for just under the 2 hours. If a keypad fault when this machine was certainly malfunctioning caused the system not to record the VRN correctly, then that is a matter within Smart Parking!!!8217;s control, not the driver!!!8217;s fault, as was found in Claim No: C0FC15W4, ParkingEye v Ms G. before Judge Middleton at Bodmin County Court on 26/10/16:
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In this case under appeal now, in all probability, there was a machine failure as in the above similar court case from last week. The driver tells me that there is no notice to explain what to do in the event the ticket does not print the VRN in full. Payment was made as the signs require and the lack of complete VRN on the ticket remains a mystery like that exposed by the Judge in the recent Bodmin case linked above.
Modern ticket machines do not let you enter a registration unless the ANPR detects that the vehicle is in the car park. Smart Parking could enable this on their systems, but this would cut down on the number of parking charges they could issue, because relying on mistakes is the central core of their business.

3. Breach of the BPA Code of Practice on ANPR.
It is submitted that this charge was not properly given because it breaches the BPA Code of Practice regarding ANPR which requires checks to be made to ensure that a charge is !!!8216;appropriate!!!8217; before issuing a PCN.
The payment made for 2 hours would in fact be very easy to identify if this operator had carried out the necessary checks required in the BPA CoP, so I suggest these checks were not made and that the operator has contravened the requirements of professional diligence; a duty of consumer-facing service providers.
I put this operator to strict proof that these checks were made (showing full records from that day including the VRN list of payments around the time in question) and to explain why a charge was issued when they would indisputably have identified the matching 2 hour payment. The operator would have been in no doubt that the car parking was paid for, had they made the required checks. And the situation is fully within this operator!!!8217;s control. As cameras are used to record number plates entering and leaving then they should be connected to the ticket machines. As a number-plate begins to be typed, a truly !!!8216;connected!!!8217; system would find the ANPR image and simply require the driver to confirm that this is their vehicle, and the system would show the time of arrival (all details known to the system already). To charge under these circumstances with a faulty machine, was not !!!8216;appropriate!!!8217; or fair and contravenes the ANPR requirements of the BPA CoP.
Further, the signs fail to inform a driver what the ANPR data will be used for. When paying in good faith having typed in the VRN, the driver had no idea that secret camera data would later be used against her to bind her to a charge she knew nothing about and did not agree to. She thought the cameras were there for security, due to the lack of any other information (a black icon showing a camera communicates nothing). Failure to tell a driver how the data will be used is an ICO breach AND a !!!8216;misleading omission!!!8217; of a material fact !!!8211; prohibited by consumer law, bringing me to my next point:
4. The charge is a penalty, breaches the Consumer Rights Act 2015 and is prohibited/unfair under the CPUTRs. It is not saved by ParkingEye v Beavis.
I am having to guess, as - as already mentioned - the machine was not working properly, that the failure of the machine to generate a complete ticket caused the system to fail to record the VRN against that £2, similar to the Bodmin case that found in the drivers favour. No evidence has been produced either way by this operator as to the cause of the issue nor any consistently-stated facts that made £100 charge payable.
This situation is an 'ordinary' contract involving no overstay and no breach of the legitimate interests of the landowner. This was a simple consumer/trader transaction with a ticket for parking being purchased in good faith and produced by a machine and can be very easily distinguished from the case of ParkingEye Ltd v Beavis.
In the case of ParkingEye Vs Cargius it was held that the Beavis case did not apply since parking was paid for rather than free for a limited period. The judge distinguishes it by reasoning that in Beavis the charge was justifable as it was their only income, whereas in a paid car park, only the hourly charge is being lost by overstaying (e.g. £2); anything above that is clearly a penalty. Since, with this appeal, the parking fee has been paid in full for the time the car was in the car park as clearly evidenced on the ticket and backed by the ANPR photographs !!!8211; The parking charge is a penalty and so not enforceable - the parking charge does not represent the loss suffered, and so, as a penalty, is not enforceable. This is backed up by the signage produced states that a parking charge notice would be issued for a !!!8220;failure to comply!!!8221; with the terms of parking. This wording seems to indicate that the charge represents damages for a breach of the parking contract. Accordingly, the charge must be a genuine pre-estimate of loss. Which it can!!!8217;t be as no loss has been suffered.
Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position. At 47 in the Court of Appeal Judgment, it was held:
''When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 14 1 at 148: !!!8220;But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.!!!8221;"
And at the Supreme Court it was held at 14. '' ... where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty...''
At 22, the Supreme Court explored Lord Dunedin!!!8217;s speech in Dunlop and separated complex cases (Beavis) from ordinary/standard contracts with a transaction and tariff paid at a machine:
''Lord Dunedin's... four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''

This is NOT a 'more complex' case by any stretch of the imagination.
At 32, it was held that a trader, in this case a parking company:
''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance.
In the case of a straightforward damages clause, that interest will rarely extend
beyond compensation for the breach, and we therefore expect that Lord Dunedin!!!8217;s four tests would usually be perfectly adequate to determine its validity. ''

Clearly a charge !!!8216;out of all proportion!!!8217; to the tariff - which was paid in any case - is an unfair penalty to the mind of any reasonable man. A huge charge arising under the excuse of an unexplained event such as a keypad or system error is unjustified and unfair, if the remedy is out of all proportion with the 'breach' and the (completely different) Beavis case does NOT apply to this argument.
The Consumer Rights Act 2015 supports my position that the failure in performance of the keypad and/or failure by the operator to diligently carry out the necessary checks to ensure charges are not issued inappropriately, is unfair and unenforceable:
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- Schedule 2:'Consumer contract terms which may be regarded as unfair':
!!!8217;!!!8217;A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations...!!!8217;!!!8217;
''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''
This charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which does NOT supersede other defences. It turned on completely different facts and related only to that car park with its own unique complexity of commercial justification. This case is not comparable.

The Consumer Protection from Unfair Trading Regulations 2008 also supports my position that this commercial practice of charging for their own system failure is unfair:

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Prohibition of unfair commercial practices"3.!!!8212;
(1) Unfair commercial practices are prohibited.
(2) Paragraphs (3) and (4) set out the circumstances when a commercial practice is unfair.
(3) A commercial practice is unfair if!!!8212;
(a) it contravenes the requirements of professional diligence; and
(b)it materially distorts or is likely to materially distort the economic behaviour of the average consumer!!!8230;.
(4) A commercial practice is unfair if!!!8212;
(a) it is a misleading action under the provisions of regulation 5;
(b) it is a misleading omission under the provisions of regulation 6;!!!8221;

I have shown that Smart Parking have failed all of the above tests (my bold) which makes a charge under these circumstances prohibited and unenforceable.
The Beavis case established that the penalty rule was certainly eemed !!!8216;engaged!!!8217; in parking charge cases. Even if POPLA cannot consider consumer law (& why would it not?) then the evidence shows that this charge is the very essence of !!!8216;unconscionable!!!8217; which was the Beavis case definition of an unrecoverable penalty.

5. The signs are not prominent, clear or legible from all parking spaces
The signs and the machine tariff board (and the small screen itself on the malfunctioning machine) were contradictory and crowded with different terms, so this is not an example of !!!8216;plain intelligible language!!!8217;, contrary to the Consumer Rights Act 2015:
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68 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.
It is submitted that the driver did not have a fair opportunity to read any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case where the terms were concise and far clearer with no tariff lists which is the primary prominent information on the board. In the Beavis case, the signs were unusually clear. The Supreme Court were keen to point out within hours of their decision that it related to that car park and those signs and facts only so it certainly does not supersede any other appeal/defence about a different car park:-
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The terms appear to be displayed inadequately at the machine, where only the tariffs are in comparatively large font. I put the operator to strict proof as to the size of the wording of the terms, which seem to be no larger than .40 font size going by this guide:-
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As evidence that this is inadequate notice, Letter Height Visibility is discussed here:-
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''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. However, if you... 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:-
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''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.''
Under Lord Denning's Red Hand Rule, the parking terms should have been simpler and effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear, concise and prominent in large lettering, as was found to be the case in the car park in 'Beavis'.
I put this operator to strict proof of where the car was parked and how their signs appeared on that date, at that time, from the angle of the driver's perspective when parked. 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.

Well - uploaded my appeal to POPLA - took 4 attempts, refused to upload my videos of carpark so ended up just uploading my PDF file - the actual appeal (will save video for court case if it comes to it) Just like to say thanks for the lack of support/feedback re: my draft appeal - didn't even get a sarky comment regarding paragraphing & volume of text! Will plod on regardless...