POPLA Appeal - Evidence pack rebuttal

Rebuttal of evidence pack received from Total Parking Solutions Ltd.

[DATE]

Registered Keeper: [NAME]

PCN: [PCN NUMBER]

POPLA Appeal Number: [POPLA CODE]

Date evidence pack was received: [DATE]

Contents

POPLA Appeal - Evidence pack rebuttal

1) No landowner contract nor legal standing to form contracts or charge drivers

2) Poor signage / signage does not comply to the BPA:CoP

3) Poor quality / illegible photographic evidence, and

ambiguous ANPR evidence

4) The ‘Notice to Keeper’ fails to comply to the Protection of Freedoms act (PoFA)

5) No genuine pre-estimate of loss (GPEOL)

1) No landowner contract nor legal standing to form contracts or charge

drivers

Total Parking Solutions Ltd (TPS) has provided a 'witness statement' in Section B of their evidence pack instead of the relevant contract. This statement is redacted making it impossible to identify the alleged signatory, therefore making this piece of evidence worthless. Even if identification of the alleged signatory was possible there is still no proof that the alleged signatory has ever seen the landowner contract nor that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practise (BPA:CoP) to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.

As TPS are not the owners of this land and as such they cannot form a contract with the driver. TPS has failed to provide to provide evidence of a full un-redacted copy of their contract with the landowner which allows them to form such a contract.

TPS “Feels” that supplying a single page of their landowner contract, and heavily redacting it, is sufficient proof that they have a compliant landowner contract and the legal standing to form contracts and charge drivers. The contract evidence supplied by TPS is worthless, as it cannot be scrutinised for BPA:CoP compliance. TPS should stop using their ‘feelings’ and actually supply evidence so that they can be put to strict proof.

A witness statement as to the existence of such a contract is not sufficient. I believe there is no contract with the landowner that gives TPS the legal standing to levy these charges nor pursue them in the courts in their own name as creditor. This was shown to be the case by District Judge McIlwaine in VCS v Ibbotson, Case No 1SE09849, Scunthrope County Court, 16th May 2012 (transcript in the public domain). So as regards the strict requirements regarding the scope and wording of landowner contracts, TPS have breached the BPA:CoP section 7 and failed to demonstrate their legal standing, which renders this charge unenforceable.

Should a basic contract be produced mentioning parking charge notices, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.

In light of this, and in addition to these points, i will reiterate point 1 and 2 of my initial appeal, which TPS have failed to adequately address with their ridiculous quasi evidence:

1) No standing or authority to pursue charges nor form contracts with drivers

Total Parking Solutions do not own the land mentioned in their Notice to Keeper and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. Even if a contract is shown to POPLA, I assert that there are persuasive recent court decisions against Total Parking Solutions which establish that a mere parking agent has no legal standing nor authority which could impact on visiting drivers.

In ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013 District Judge Jenkins checked the ParkingEye contract and quickly picked out the contradiction between clause 3.7, where the landowner appoints ParkingEye as their agent, and clause 22, where is states there is no agency relationship between ParkingEye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between ParkingEye and motorists who used the land. This decision was followed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the Defendant. District Judge Jones concurred completely with the persuasive view in ParkingEye v Sharma that a parking operator has no standing to bring the claim in their own name. My case is the same.

2) Flawed landowner contract and irregularities with any witness statement

Under the BPA CoP Section 7, a landowner contract must specifically allow the Operator to pursue charges in their own name in the courts and grant them the right to form contracts with drivers. I require Total Parking Solutions to produce a copy of the contract with the landowner as I believe it is not compliant with the CoP and that it is the same flawed business agreement model as in Sharma and Gardam.

If Total Parking Solutions produce a 'witness statement' in lieu of the contract then I will immediately counter that with evidence that these have been debunked in other recent court cases due to well-publicised and serious date/signature/factual irregularities. I do not expect it has escaped the POPLA Assessors' attention that Total Parking Solutions witness statements have been robustly and publicly discredited and are - arguably - not worth the paper they are photocopied on. I suggest Total Parking Solutions don't bother trying that in my case. If they do, I contend that there is no proof whatsoever that the alleged signatory has ever seen the relevant contract terms, or, indeed is even an employee of the landowner, or signed it on the date shown. I contend, if such a witness statement is submitted instead of the landowner contract itself, that this should be disregarded as unreliable and not proving full BPA compliance nor showing sufficient detail to disprove the findings in Sharma and Gardam.

2) Poor signage / signage does not comply to the BPA:CoP

In rebuttal to the claim by TPS that the signage is clearly displayed, and there is signage at the car park entrance, i will refer to the BPA:CoP, which TPS fails to comply with, despite claiming otherwise:

Section 18, paragraph 2 (S18P2):

“Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use.”

And i draw your attention to this paragraph in the aforementioned Appendix B:

“The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead. Any text on the sign not intended to be read from a moving vehicle can be of a much smaller size.”

The evidence that TPS has provided in Section F, page 1, shows a vehicle entering the car park, specifically from the southern entrance, this is an alternative picture of that same entrance:

This particular entrance is approached from a 30mph road, and this entrance takes the form of a tight 180 degree bend, as demonstrated in this picture:

The “P” entry sign has been placed on the apex of this bend, and facing perpendicular to the direction of travel, as shown here:

To view this sign, a driver using this entrance would have to turn their head 90 degrees; forcing the driver to take their eyes of the road ahead, while at the same time, navigating a tight and complex bend, on a road that has a high level of pedestrian and vehicle activity.

Given the anticipated speed of a vehicle using this entrance (15mph as per BPA guidelines for a vehicle entering a car park from a 30mph road), and the complexity of the road, the decision by TPS to place the sign on the on the apex of the bend, and at a perpendicular angle, is a contravention of the following guideline: “The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead.”, it is not possible to drive around a 180 degree bend, and look at a sign, without needing to look away from the road ahead.

Even if it was capable to view the sign, safely, while driving through this entrance (which i submit that it is not), TPS have placed it in a position where it is not visible to driver until they have turned into the car park itself, this means that any driver is unable to make an informed decision before entry. This evidence, and the fact that i am writing this appeal, shows that TPS wishes to entrap motorists with their poor application of signage.

Next, i would like to draw your attention to Section 18, paragraph 10 (S18P10), of the BPA: CoP: “So that disabled motorists can decide whether they want to use the site, there should be at least one sign containing the terms and conditions for parking that can be viewed without needing to leave the vehicle. Ideally this sign should be close to any parking bays set aside for disabled motorists”

There is no signage immediately displayed to the users of the disabled bays as per BPA:CoP guidelines. The nearest signage is mounted on poles which face out in the road, there is no signage that clearly, easily, and safely readable from the nearby pavement; so i can only assume that TPS expects a disabled user to stand in the middle of a busy road to view their signage. This is unacceptable and unrealistic.

TPS flaunts the BPA:CoP while claiming to follow it, this shows that TPS lacks integrity and cannot be trusted. Flaunting BPA:CoP guidelines S28P1 and S28P8, are gross failures in themselves, but the fact that TPS is so inept that they have failed to follow both these guidelines means that drivers can easily enter, and use the car park, without having any idea that they are, or consenting to, being monitored by ANPR. They will also be unaware that they are even entering a controlled parking area.

In light of this, and in addition to these points, i will reiterate point 3 of my initial appeal, which TPS has failed to adequately address:

3)The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between Total Parking Solutions and the driver

I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because Total Parking Solutions are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance). Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) Total Parking Solutions have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival. The only signs are up on poles with the spy cameras and were not read nor even seen by the occupants of the car, who were there at the invitation of Jubilee Retail Park Weymouth, to shop and enjoy free parking as expressly offered to customers in the principal's advertising and website.

3) Poor quality / illegible photographic evidence, and ambiguous ANPR evidence

I refer to Section 20, Paragraph 5 (S20P5) of the BPA:CoP:

“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.”

With this in mind, i refer to the photographic evidence that TPS has provided in Section F, Page 1.

The photograph that TPS has provided in support of their spurious claim does not show a vehicle with the registration of [REDACTED], instead, all this picture shows is an unidentifiable blue car using the southern carpark entrance. The provided photographic evidence is of such poor quality that it breaches S20P5, specifically “All photographs used for evidence should be clear and legible” i submit that this evidence is not clear and legible, and can not be used to support any claim by TPS.

TPS claim that they have evidence of the vehicle with registration [REDACTED] entering the car park on [REDACTED] at [REDACTED], however, all they have provided is a blurry photograph with no legible identification. They can prove a blue car entered their car park at the given data and time, but their assertion that the car has the registration [REDACTED] is unfounded, and ambiguous at best.

TPS appear to have provided supplementary evidence in their rebuttal to support the claim that a car with the registration [REDACTED] entered the car park, specifically Section F, Page 2, this evidence is insufficient and ambiguous as it does not establish context, location, or time, and it is also digitally altered: it does not prove entry at the given time. All this shows is a picture that resembles the registration plate [REDACTED]. There is no accompanying timestamp. The image has also been heavily digitally altered by having a monochrome filter applied,  and they have digitally altered it further by cropping the image. Because it only shows a number plate there is no way to establish context of this image, it could have been captured from anywhere, at any time, on any day, and from any ANPR system that TPS has access to.

TPS claim that they check the ANPR system of this carpark regularly and daily, implying that they do multiple checks every day, yet they are unable to produce evidence from it that meets the standards of the the BPA:CoP, specifically S20P5, This demonstrates that TPS are incompetent with their ANPR system, and, inferring from the quality of the evidence submitted, lie about their maintenance and quality checks.

In light of this, and in addition to these points, i will reiterate point 5 of my appeal which TPS has failed to adequately address:

4) ANPR Accuracy and breach of the BPA Code of Practice 21.3

This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I say that Total Parking Solutions have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. I have also seen no evidence that they have complied with the other requirements in that section of the code.

In addition I question the entire reliability of the system. I require that Total Parking Solutions present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

So, in addition to showing their maintenance records, I require Total Parking Solutions to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from the cameras in this car park is just as unreliable and unsynchronised as the evidence in the Fox-Jones case. As their whole charge rests upon two timed photos, I put Total Parking Solutions to strict proof to the contrary.

4) The ‘Notice to Keeper’ fails to comply to the Protection of Freedoms act (PoFA)

I refer to the ‘Notice to Keeper’ presented in Section C, Page 1, of the evidence pack provided by TPS, And would wish to draw your attention to the following statement contained therein:

"...If, after 28 days beginning with the day after that on which this Parking Charge Notice was served payment has not been made in full, or we have not been provided with the name and serviceable address for the driver/hirer, under Schedule 4 of the Protection of Freedoms Act 2012, we do have the right (subject to meeting the requirements of the Act) to recover from the Registered Keeper the amount that remains outstanding"

This statement makes it clear that TPS is dealing with its claim in accordance with the requirements of Schedule 4 of PoFA. The requirements of Schedule 4 are quite clear in that there must be strict compliance with all of its requirements in order to take advantage of the rights granted under that Act to pursue the registered keeper in respect of a driver’s alleged debt.

The BPA:CoP also supports the need for strict compliance in Section 21, paragraph 5:

“If you want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and you have not issued and delivered a parking charge notice to the driver in the car park where the parking event took place, your Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9).”

TPS has however failed to comply in regards to paragraph 9(2)(h) of Schedule 4, PoFA 2012.

Whilst the ‘Notice to Keeper’ indicates that a payment is to be made to “Total Parking Solutions Ltd”, there is no specific identification of the “Creditor”, who may, in law, be TPS or some other party.

PoFA requires a ‘Notice to Keeper’ to have words to the effect that “The Creditor is….”

The wording of Paragraph 9(2)(h) of Schedule 4 of PoFA does not indicate that the “creditor must be named, but “identified”. To “identify” a “Creditor” a parking company must do more than name that person. The driver is entitled to know the identity of the party with whom he has legally contracted.

This view is supported by the Secretary of State for Transport. He has reserved to himself powers to make regulations to specify not only what must be said in a ‘Notice to Keeper’ but also what evidence should be provided.

He says “The purpose of this power is to leave flexibility to mandate the specific evidence which must accompany a notice to keeper if it becomes clear that creditors are attempting to recover parking charges without providing keepers with sufficient evidence to know whether the claim is valid”.

5) No genuine pre-estimate of loss (GPEOL)

TPS have now been given multiple opportunities to justify their charge for this alleged breach of an alleged contractual agreement, but they have failed to do so, this is because the charge is not a GPEOL. TPS cannot justify how an alleged 21 minute over-stay in a FREE car park incurred a loss of £70. They have failed to justify this cost because of the plain fact that it is unjustifiable; it is an arbitrary figure that they have invented, in an attempt to penalise and extort an innocent person.

Due to the time that has passed, and the multiple opportunities that have been given, any attempt by TPS to present justification that this charge is in fact a GPEOL would now be a statement after the fact, and therefore wholly unreliable.

In light of this, and in addition to these points, i will reiterate point 5 of my appeal, which TPS has failed to address:

5) No genuine pre-estimate of loss 

This car park is free and there is no provision for the purchasing of a ticket or any other means for paying for parking. There was no damage nor obstruction caused so there can be no loss arising from the incident. Total Parking Solutions notices allege 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. Given that Total Parking Solutions charge the same lump sum for a 21 minute overstay as they would for 150 minutes, and the same fixed charge applies to any alleged contravention (whether serious/damaging, or trifling as in my case), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.

This charge from Total Parking Solutions as a third party business agent is an unenforceable penalty. In Parking Eye v Smith, Manchester County Court December 2011, the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty. And in my case this was a free car park with no payment due whatsoever.

The Office of Fair Trading has stated to the BPA Ltd that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.

Total Parking Solutions and POPLA will be familiar with the well-known case on whether a sum is a genuine pre-estimate of loss or a penalty: Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79. Indeed I expect Total Parking Solutions might cite it. However, therein is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach.'' There is a presumption... that it is penalty when "a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

No doubt Total Parking Solutions will send their usual well-known template bluster attempting to assert some ''commercial justification'' but I refute their arguments. In a recent decision about a ParkingEye car park at Town Quay Southampton, POPLA Assessor Marina Kapour did not accept ParkingEye's generic submission that the inclusion of costs which in reality amount to the general business costs incurred for the provision of their car park management services is commercially justified. ''The whole business model of an Operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre-estimate of loss in order to be enforceable against the appellant.

My case is the same and POPLA must be seen to be consistent if similar arguments are raised by an appellant.

Additionally, The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.

Once again, I request that my appeal is upheld and for POPLA to inform TPS to cancel the Penalty Charge Notice.

Yours faithfully,

THE REGISTERED KEEPER