Smart Parking - any PofA experts?
Discussion
We've (company car) received a PCN from Smart Parking. I posted on Pepipoo about it and the advice was that Smart Parking's PCN fails to follow PofA and therefore the Register Keeper (Our Company) can't be responsible for the 'Fine'.
However this advise was given without anyone being able to read the PCN properly as the scanned text is very small. I've since copied and pasted the text on there and the advise has gone a bit quiet with the thread dying off!
So the PCN reads:
[i]Smart Parking Ltd have the right to seek payment of the parking charge for unauthorised parking of the vehicle on the land on the relevant data as owner of the land, on the basis of a contractual right to occupy or to have possession of the land, or acting as agent of the landowner.
A Parking Charge Notice (PCN) is payable with respect to the vehicle registration mark ****** for the alleged breach of advertised terms and conditions within 'WATERWORLD, STOKE-ON-TRENT' on ******
The signage, which is clearly displayed at the entrance to and throughout the carpark, states that this is private land and the carpark is managed by Smart Parking Ltd.
By either not purchasing the appropriate parking time or by remaining at the carpark for longer than permitted, in accordance with the terms and conditions set out in signage, the Parking Charge is now payable to Smart Parking Ltd (as the creditor).
A Parking Charge Notice of £100 is now due for payment and must be paid before the end of 28 days from the date of this notice. If the parking charge notice is paid before ****** the amount of the parking charge notice will be reduced to £60. If you were not the driver of the vehicle and you wish to provide the drivers details, lodge a dispute, appeal or query this must be made online or in writing. Please follow the instructions overleaf.
Following the landmark Supreme Court ruling of Parking Eye vs Bevis, it has now bee established that a parking charge notice issued on private land is enforceable. the court rejected claims that such charges are extravagant, exorbitant or unconscionable and advised that such charges act a necessary deterrent for breach of contract. If you feel you have sufficient grounds to appeal this notice you will find full details of the appeals process overleaf.[/i]
Note there's a date at the top of the notice (5 days after the alleged parking) but it doesn't say what this relates to - I presume it's the date they issued it. The only reference to time, is an ANPR entry time and ANPR exit time.
So, is there ground for PofA? Suggested letter is:
[i] Dear Sir,
Parking Charge Notice [xxxxxxxxxx] - Vehicle Registration [AA11AAA]
Formal Dispute of Parking Charge
We refer to the above-detailed Parking Charge Notice (“PCN”) issued by Smart Parking Limited (“Smart”) to our company, [ABC Limited (“[ABC]”)] in respect of an alleged breach of Parking Terms and Conditions at Waterworld, Stoke-on-Trent on [Date of Incident]. We confirm that [ABC] is the registered keeper of this vehicle and we write to formally dispute the validity of this PCN.
In order to be able to claim unpaid parking charges from a vehicle’s keeper, an operator must deliver a Notice to Keeper in full compliance with Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”). There are many reasons why Smart’s PCN does not comply with POFA and consequently, Smart has forfeited its right to utilise the provisions of POFA to claim unpaid parking charges from [ABC]. In order for you to understand why, we suggest that you carefully study the details of Schedule 4, Paragraph 9 in particular.
Please provide within the timescales specified under the British Parking Association Ltd Code of Practice written confirmation of Smart’s cancellation of this charge. Alternatively, should you still believe that Smart has a valid claim, please provide us with details of the Independent Appeals Service (POPLA) and a unique POPLA Reference Number so that we may escalate our dispute.
Please note, the contact details provided are of a representative of the company and not contact details of the alleged driver.
Thank you for your cooperation and we look forward to receiving Smart’s notification that this charge has been cancelled.
Yours faithfully,
Fleet Management Department,
[ABC Limited] [/i]
However this advise was given without anyone being able to read the PCN properly as the scanned text is very small. I've since copied and pasted the text on there and the advise has gone a bit quiet with the thread dying off!
So the PCN reads:
[i]Smart Parking Ltd have the right to seek payment of the parking charge for unauthorised parking of the vehicle on the land on the relevant data as owner of the land, on the basis of a contractual right to occupy or to have possession of the land, or acting as agent of the landowner.
A Parking Charge Notice (PCN) is payable with respect to the vehicle registration mark ****** for the alleged breach of advertised terms and conditions within 'WATERWORLD, STOKE-ON-TRENT' on ******
The signage, which is clearly displayed at the entrance to and throughout the carpark, states that this is private land and the carpark is managed by Smart Parking Ltd.
By either not purchasing the appropriate parking time or by remaining at the carpark for longer than permitted, in accordance with the terms and conditions set out in signage, the Parking Charge is now payable to Smart Parking Ltd (as the creditor).
A Parking Charge Notice of £100 is now due for payment and must be paid before the end of 28 days from the date of this notice. If the parking charge notice is paid before ****** the amount of the parking charge notice will be reduced to £60. If you were not the driver of the vehicle and you wish to provide the drivers details, lodge a dispute, appeal or query this must be made online or in writing. Please follow the instructions overleaf.
Following the landmark Supreme Court ruling of Parking Eye vs Bevis, it has now bee established that a parking charge notice issued on private land is enforceable. the court rejected claims that such charges are extravagant, exorbitant or unconscionable and advised that such charges act a necessary deterrent for breach of contract. If you feel you have sufficient grounds to appeal this notice you will find full details of the appeals process overleaf.[/i]
Note there's a date at the top of the notice (5 days after the alleged parking) but it doesn't say what this relates to - I presume it's the date they issued it. The only reference to time, is an ANPR entry time and ANPR exit time.
So, is there ground for PofA? Suggested letter is:
[i] Dear Sir,
Parking Charge Notice [xxxxxxxxxx] - Vehicle Registration [AA11AAA]
Formal Dispute of Parking Charge
We refer to the above-detailed Parking Charge Notice (“PCN”) issued by Smart Parking Limited (“Smart”) to our company, [ABC Limited (“[ABC]”)] in respect of an alleged breach of Parking Terms and Conditions at Waterworld, Stoke-on-Trent on [Date of Incident]. We confirm that [ABC] is the registered keeper of this vehicle and we write to formally dispute the validity of this PCN.
In order to be able to claim unpaid parking charges from a vehicle’s keeper, an operator must deliver a Notice to Keeper in full compliance with Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”). There are many reasons why Smart’s PCN does not comply with POFA and consequently, Smart has forfeited its right to utilise the provisions of POFA to claim unpaid parking charges from [ABC]. In order for you to understand why, we suggest that you carefully study the details of Schedule 4, Paragraph 9 in particular.
Please provide within the timescales specified under the British Parking Association Ltd Code of Practice written confirmation of Smart’s cancellation of this charge. Alternatively, should you still believe that Smart has a valid claim, please provide us with details of the Independent Appeals Service (POPLA) and a unique POPLA Reference Number so that we may escalate our dispute.
Please note, the contact details provided are of a representative of the company and not contact details of the alleged driver.
Thank you for your cooperation and we look forward to receiving Smart’s notification that this charge has been cancelled.
Yours faithfully,
Fleet Management Department,
[ABC Limited] [/i]
What are they saying about Non Pofa compliance. For all the hype I found PEPIPOO very poor unfriendly bunch. Not very helpful in my experience. I was asking about a YBJ fine from London not Private parking.They need to explain why it isn't compliant. Just stating that with no substance is useless. I assume you feel the same as you have come here.
MSE is much more helpful and friendly bunch.
They can't achieve keeper liability if they don't comply with POFA that the crucial fact here. Hence the need to comply with that act.
I haven;t come up against this lot before but don't think they are sharp and should be easy to beat.
Write to them with the below points> They are almost certainly going to not bother to pursue you.
1) This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used.
Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met as stated in paragraphs 5, 6, 11 & 12. Smart Parking have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording:-
’’The notice must be given by— (a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.’’
The applicable section here is (b) because the NTK was delivered by post. Furthermore, paragraph 9(5) states: ’’The relevant period…is the period of 14 days beginning with the day after that on which the specified period of parking ended’’
The NTK sent to myself as Registered Keeper arrived some 3 weeks after the alleged event. Even if they had posted it on the same day that they describe as the ‘Date Issued’ (which Smart Parking never do in any case at all because they use a third party batch-mail system, Whistl or iMail or similar, which adds up to a week before a letter is posted) it would be impossible for the notice to have been actually delivered and deemed ‘served’ or given, within the 'relevant period' as required under paragraph 9(4)(b).
This means that Smart Parking have failed to act in time for keeper liability to apply. Furthermore, it is clear that Smart Parking know this because they have used the alternative version of their template ‘Parking Charge Notice’ – the one with a blank space near the bottom of page one and no reference to ‘keeper liability’ or the POFA.
The PCN also fails to identify the facts that caused a charge to arise and fails to describe the unpaid parking charges that they allege were unpaid at the machine. 7(2) states: ’’The notice must - (b) inform the driver of the requirement to pay parking charges in respect of the specified period of parking and describe those charges, the circumstances in which the requirement arose…and the other facts that made those charges payable…’’
This NTK stated that ‘’either’’ there was not appropriate parking time purchased ‘’or’’ the vehicle remained longer than permitted (neither of which is a ‘fact’). In their rejection letter Smart Parking have acknowledge evidence provided that a ticket was purchased, however, have revealed too late that they contend that ‘it is a motorists responsibility to ensure they purchase a valid ticket’ on the date in question. Not only is this not true but it is an alleged ‘fact’ that the NTK failed to state in the first place. If this operator should change their story yet again for POPLA and perhaps try to show that a ‘wrong VRN’ gave rise to the charge, POPLA please note that that would prove my point that this NTK has no ‘facts’ and also fails to describe those parking charges which they contend remain ‘unpaid’ by the driver.
So, this is a charge that could only be potentially enforced against a known driver and there is no evidence of who that individual was - and that person was not me.
2) The operator has not shown that the individual who it is pursuing is in fact liable for the charge.
In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.
Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a charge cannot be enforced against a keeper without a POFA-compliant NTK.
The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot – they will fail to show I can be liable because the driver was not me.
The vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:-
Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.
There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''
No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v Smart Parking in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''
3) 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. 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.
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 the definition of services provided by each party to the agreement, as well as any exclusions (e.g. exempt vehicles, users, days or times) as well as defined grace periods; the land boundary and the areas or specific bays enforced; the various contraventions and confirmation of the agreed ‘charge’ 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:
“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.''
4) On this day there were issues with one or more of the parking machines.
The driver parked and upon trying to pay the charge, they had problems with the machine keypad not accepting the VRN. They believed it eventually accepted it despite the machine malfunctioning more than once and contends that they typed it in correctly.
Full payment was made for 1 hour. 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 control, not the driver’s fault, as was found in Claim No C0FC15W4, ParkingEye v Ms G. before Judge Middleton at Bodmin County Court on 26/10/16:
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 it was only upon returning to the car that they noticed the ticket had “51” printed upon it rather than the full registration number, as this is an un-staffed car park, they decided the common sense approach was to keep the ticket should there be any contact from Smart Parking. However Smart Parking have deemed the error on ticket issued by the machine is somehow a breach of their T&C’s and have upheld the issue of a PCN for a vehicle that had displayed a ticket for the correct fee and exited the car park within the allotted time.
5) 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 ‘appropriate’ before issuing a PCN.
The payment made for 1 hour 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 1 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’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 ‘connected’ 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 ‘appropriate’ 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 hey knew nothing about and did not agree to. They 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 ‘misleading omission’ of a material fact – prohibited by consumer law, bringing me to my next point:
6). 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 the driver has informed me that the machine was not working properly, that the failure of the machine to generate a ticket caused the system to fail to record the VRN against that .50p, similar to the Bodmin case that this operator recently lost. No evidence has been produced either way by this operator as to the cause of the issue nor any consistently-stated facts that made £85 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.
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. 141 at 148: “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.” ‘’
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’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’s four tests would usually be perfectly adequate to determine its validity.''
Clearly a charge ‘out of all proportion’ 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:
- Schedule 2: 'Consumer contract terms which may be regarded as unfair':
’’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…’’
''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:
’’Prohibition of unfair commercial practices’’: 3.—
(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—
(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...
(4) A commercial practice is unfair if—
(a) it is a misleading action under the provisions of regulation 5;
(b) it is a misleading omission under the provisions of regulation 6; ‘’
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 deemed ‘engaged’ in parking charge cases. Even if POPLA cannot consider consumer law (whyever not?) then the evidence shows that this charge is the very essence of ‘unconscionable’ which was the Beavis case definition of an unrecoverable penalty.
7) 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 ‘plain intelligible language’, contrary to the Consumer Rights Act 2015:
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:-
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:-
As evidence that this is inadequate notice, Letter Height Visibility is discussed here:-
''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” or even larger.''
...and the same chart is reproduced here:-
''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.
MSE is much more helpful and friendly bunch.
They can't achieve keeper liability if they don't comply with POFA that the crucial fact here. Hence the need to comply with that act.
I haven;t come up against this lot before but don't think they are sharp and should be easy to beat.
Write to them with the below points> They are almost certainly going to not bother to pursue you.
1) This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used.
Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met as stated in paragraphs 5, 6, 11 & 12. Smart Parking have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording:-
’’The notice must be given by— (a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.’’
The applicable section here is (b) because the NTK was delivered by post. Furthermore, paragraph 9(5) states: ’’The relevant period…is the period of 14 days beginning with the day after that on which the specified period of parking ended’’
The NTK sent to myself as Registered Keeper arrived some 3 weeks after the alleged event. Even if they had posted it on the same day that they describe as the ‘Date Issued’ (which Smart Parking never do in any case at all because they use a third party batch-mail system, Whistl or iMail or similar, which adds up to a week before a letter is posted) it would be impossible for the notice to have been actually delivered and deemed ‘served’ or given, within the 'relevant period' as required under paragraph 9(4)(b).
This means that Smart Parking have failed to act in time for keeper liability to apply. Furthermore, it is clear that Smart Parking know this because they have used the alternative version of their template ‘Parking Charge Notice’ – the one with a blank space near the bottom of page one and no reference to ‘keeper liability’ or the POFA.
The PCN also fails to identify the facts that caused a charge to arise and fails to describe the unpaid parking charges that they allege were unpaid at the machine. 7(2) states: ’’The notice must - (b) inform the driver of the requirement to pay parking charges in respect of the specified period of parking and describe those charges, the circumstances in which the requirement arose…and the other facts that made those charges payable…’’
This NTK stated that ‘’either’’ there was not appropriate parking time purchased ‘’or’’ the vehicle remained longer than permitted (neither of which is a ‘fact’). In their rejection letter Smart Parking have acknowledge evidence provided that a ticket was purchased, however, have revealed too late that they contend that ‘it is a motorists responsibility to ensure they purchase a valid ticket’ on the date in question. Not only is this not true but it is an alleged ‘fact’ that the NTK failed to state in the first place. If this operator should change their story yet again for POPLA and perhaps try to show that a ‘wrong VRN’ gave rise to the charge, POPLA please note that that would prove my point that this NTK has no ‘facts’ and also fails to describe those parking charges which they contend remain ‘unpaid’ by the driver.
So, this is a charge that could only be potentially enforced against a known driver and there is no evidence of who that individual was - and that person was not me.
2) The operator has not shown that the individual who it is pursuing is in fact liable for the charge.
In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.
Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a charge cannot be enforced against a keeper without a POFA-compliant NTK.
The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot – they will fail to show I can be liable because the driver was not me.
The vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:-
Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.
There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''
No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v Smart Parking in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''
3) 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. 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.
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 the definition of services provided by each party to the agreement, as well as any exclusions (e.g. exempt vehicles, users, days or times) as well as defined grace periods; the land boundary and the areas or specific bays enforced; the various contraventions and confirmation of the agreed ‘charge’ 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:
“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.''
4) On this day there were issues with one or more of the parking machines.
The driver parked and upon trying to pay the charge, they had problems with the machine keypad not accepting the VRN. They believed it eventually accepted it despite the machine malfunctioning more than once and contends that they typed it in correctly.
Full payment was made for 1 hour. 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 control, not the driver’s fault, as was found in Claim No C0FC15W4, ParkingEye v Ms G. before Judge Middleton at Bodmin County Court on 26/10/16:
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 it was only upon returning to the car that they noticed the ticket had “51” printed upon it rather than the full registration number, as this is an un-staffed car park, they decided the common sense approach was to keep the ticket should there be any contact from Smart Parking. However Smart Parking have deemed the error on ticket issued by the machine is somehow a breach of their T&C’s and have upheld the issue of a PCN for a vehicle that had displayed a ticket for the correct fee and exited the car park within the allotted time.
5) 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 ‘appropriate’ before issuing a PCN.
The payment made for 1 hour 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 1 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’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 ‘connected’ 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 ‘appropriate’ 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 hey knew nothing about and did not agree to. They 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 ‘misleading omission’ of a material fact – prohibited by consumer law, bringing me to my next point:
6). 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 the driver has informed me that the machine was not working properly, that the failure of the machine to generate a ticket caused the system to fail to record the VRN against that .50p, similar to the Bodmin case that this operator recently lost. No evidence has been produced either way by this operator as to the cause of the issue nor any consistently-stated facts that made £85 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.
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. 141 at 148: “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.” ‘’
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’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’s four tests would usually be perfectly adequate to determine its validity.''
Clearly a charge ‘out of all proportion’ 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:
- Schedule 2: 'Consumer contract terms which may be regarded as unfair':
’’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…’’
''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:
’’Prohibition of unfair commercial practices’’: 3.—
(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—
(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...
(4) A commercial practice is unfair if—
(a) it is a misleading action under the provisions of regulation 5;
(b) it is a misleading omission under the provisions of regulation 6; ‘’
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 deemed ‘engaged’ in parking charge cases. Even if POPLA cannot consider consumer law (whyever not?) then the evidence shows that this charge is the very essence of ‘unconscionable’ which was the Beavis case definition of an unrecoverable penalty.
7) 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 ‘plain intelligible language’, contrary to the Consumer Rights Act 2015:
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:-
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:-
As evidence that this is inadequate notice, Letter Height Visibility is discussed here:-
''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” or even larger.''
...and the same chart is reproduced here:-
''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.
Edited by surveyor_101 on Thursday 16th March 13:46
Edited by surveyor_101 on Thursday 16th March 13:48
woodyTVR said:
We've (company car) received a PCN from Smart Parking. I posted on Pepipoo about it and the advice was that Smart Parking's PCN fails to follow PofA and therefore the Register Keeper (Our Company) can't be responsible for the 'Fine'.
It's not entirely clear - are you asking this as the company that is the Registered Keeper and wishes to kill this off rather than pass it on to an employee? Or has the company, as registered keeper, named you as the driver and given you the PCN? If it's the latter then PoFA has no relevance whatsoever and it is too late to use the "not compliant with PoFA" line of defence.Either way, get over to the MSE parking forum, there are several sticky threads and templates you can use.
spikyone said:
woodyTVR said:
We've (company car) received a PCN from Smart Parking. I posted on Pepipoo about it and the advice was that Smart Parking's PCN fails to follow PofA and therefore the Register Keeper (Our Company) can't be responsible for the 'Fine'.
It's not entirely clear - are you asking this as the company that is the Registered Keeper and wishes to kill this off rather than pass it on to an employee? Or has the company, as registered keeper, named you as the driver and given you the PCN? If it's the latter then PoFA has no relevance whatsoever and it is too late to use the "not compliant with PoFA" line of defence.Either way, get over to the MSE parking forum, there are several sticky threads and templates you can use.
“keeper” means the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed, unless the contrary is proved, to be the registered keeper;
So, usually, notice is sent to registered keeper (company car scheme), who advise them of the driver/keeper (The OP). So when the OP receives the second notice to keeper in his name, he can confirm to the parking scummers that he is the keeper as defined in the act, but not the driver.
They should not chase the registered keeper then, but be chasing him as keeper. So he can then rely on non compliance of the POFA to defend the claim against him as keeper, so long as he wasnt, or they carnt prove he was the driver.
That said, they may still chase the registered keeper, hoping they will just pay up, as they often do with lease cars, even after the contrary as been proven.
Pipipoo can be a bit of a pain, and most answers have already been done in other threads, so they tend to say do a search, rather than people answering the same questions many times a day, over and over again. Its good for research though, but time consuming.
Also, the NTK you have pasted, does not say that failure to pay the fee, or nominate the driver in the 28 days, means that they can pursue you as keeper as per the POFA. Surveyor is a bit of an expert, but if you look online at the POFA act itself, it isnt too hard to decipher, and see what they need to put in the NTK, so I have no idea how they fail to comply.
The reference to Beevis, is irrelevant. That was about costs which can be recovered under specific circumstances, so its just in there to scare you.
The reference to Beevis, is irrelevant. That was about costs which can be recovered under specific circumstances, so its just in there to scare you.
surveyor_101 said:
What are they saying about Non Pofa compliance. For all the hype I found PEPIPOO very poor unfriendly bunch. Not very helpful in my experience. I was asking about a YBJ fine from London not Private parking.They need to explain why it isn't compliant. Just stating that with no substance is useless. I assume you feel the same as you have come here.
That was about the size of it. I asked about PofA as another thread on there suggested they'd had a ticket cancelled using that line of attack. I was given a reply saying Smart Parking are rubbish and fail to comply with PofA and given the above template letter to use - the poster did say he couldn't read my PCN though as it was too small so I manually wrote out the contents - that's when it all went a bit stroppy and quiet. I added the bit about contact details as the Smart Parking system makes you enter a name when entering an appeal. I want to be sure that I'm quoting the right reasons etc. as you only get one chance. Surveyor - Is the text you've posted what I should use in my defence? I'm reading this on the phone at the moment so it's hard to follow - I'll read it properly tonight.
Thanks all for your comments.
Tom_C76 said:
HantsRat said:
Did you park where you shouldn't have or exceed a time?
You're not allowed to ask that in these threads, PH members can ignore all parking rules unless they own the land in question at which point people ignoring the rules is terrible...woodyTVR said:
That was about the size of it. I asked about PofA as another thread on there suggested they'd had a ticket cancelled using that line of attack. I was given a reply saying Smart Parking are rubbish and fail to comply with PofA and given the above template letter to use - the poster did say he couldn't read my PCN though as it was too small so I manually wrote out the contents - that's when it all went a bit stroppy and quiet. I added the bit about contact details as the Smart Parking system makes you enter a name when entering an appeal. I want to be sure that I'm quoting the right reasons etc. as you only get one chance.
Surveyor - Is the text you've posted what I should use in my defence? I'm reading this on the phone at the moment so it's hard to follow - I'll read it properly tonight.
Thanks all for your comments.
Yeh my mate got stuck in a badly done non complaint box junction and they got stroppy with me and said bang to rights pay up, do you even know what a box junction is idiot etc. Surveyor - Is the text you've posted what I should use in my defence? I'm reading this on the phone at the moment so it's hard to follow - I'll read it properly tonight.
Thanks all for your comments.
Apparently anything I said after that was tedious!
Still waiting on my mates appeal. He was trying to turn right he thinks but they called it porkies.
woodyTVR said:
That was about the size of it. I asked about PofA as another thread on there suggested they'd had a ticket cancelled using that line of attack. I was given a reply saying Smart Parking are rubbish and fail to comply with PofA and given the above template letter to use - the poster did say he couldn't read my PCN though as it was too small so I manually wrote out the contents - that's when it all went a bit stroppy and quiet. I added the bit about contact details as the Smart Parking system makes you enter a name when entering an appeal. I want to be sure that I'm quoting the right reasons etc. as you only get one chance.
Surveyor - Is the text you've posted what I should use in my defence? I'm reading this on the phone at the moment so it's hard to follow - I'll read it properly tonight.
Thanks all for your comments.
Yes pop in a letter of email. They will note your not low hanging fruit and get bored.Surveyor - Is the text you've posted what I should use in my defence? I'm reading this on the phone at the moment so it's hard to follow - I'll read it properly tonight.
Thanks all for your comments.
Also if you can find the landowner we can go for them, got a few cancelled that way and gift vouchers so it works.
Smart Parking PCNs should be easy to overturn. Their PCNs are not POFA compliant and they never go to court, as far as I am aware.
If it helps, here's my challenge letter. They wrote back by return and cancelled the PCN.
Dear Sirs
Re: PCN No. ....................
I challenge this 'PCN' as keeper of the car, on these main grounds:
a) Your Notice To Keeper fails to comply with the strict requirements of POFA 2012 so there can be no keeper liability.
Consequently you have forfeited any right to hold me, as keeper, liable for any charge.
For example, sections 2(e) and 2(f) have been ignored completely. There are other non-compliances.
b) The sum is disproportionate and does not represent a genuine pre-estimate of loss.
c) It is a ‘ free’ car park without ticketing. Your loss is nil. The sum is extravagant and unconscionable and cannot bejustified.
d) There is no evidence that you have any interest in the land.
e) I believe that the signs were not seen/are ambiguous and the predominant purpose is to deter so there is no contract
to pay this charge, which is a penalty.
Formal challenge:
There will be no admissions as to who was driving and no assumptions can be drawn.
You must either;
1) Cancel the notice
2) Pursue the driver and stop pursuing the keeper.
3) Reject this challenge and provide a POPLA code
Yours faithfully,
Etc..
Extract from POFA 2012 Sched 4, Para 9 follows:
....goes on to quote a couple of relevant clauses....
If it helps, here's my challenge letter. They wrote back by return and cancelled the PCN.
Dear Sirs
Re: PCN No. ....................
I challenge this 'PCN' as keeper of the car, on these main grounds:
a) Your Notice To Keeper fails to comply with the strict requirements of POFA 2012 so there can be no keeper liability.
Consequently you have forfeited any right to hold me, as keeper, liable for any charge.
For example, sections 2(e) and 2(f) have been ignored completely. There are other non-compliances.
b) The sum is disproportionate and does not represent a genuine pre-estimate of loss.
c) It is a ‘ free’ car park without ticketing. Your loss is nil. The sum is extravagant and unconscionable and cannot bejustified.
d) There is no evidence that you have any interest in the land.
e) I believe that the signs were not seen/are ambiguous and the predominant purpose is to deter so there is no contract
to pay this charge, which is a penalty.
Formal challenge:
There will be no admissions as to who was driving and no assumptions can be drawn.
You must either;
1) Cancel the notice
2) Pursue the driver and stop pursuing the keeper.
3) Reject this challenge and provide a POPLA code
Yours faithfully,
Etc..
Extract from POFA 2012 Sched 4, Para 9 follows:
....goes on to quote a couple of relevant clauses....
jhiker said:
Smart Parking PCNs should be easy to overturn. Their PCNs are not POFA compliant and they never go to court, as far as I am aware.
If it helps, here's my challenge letter. They wrote back by return and cancelled the PCN.
Dear Sirs
Re: PCN No. ....................
I challenge this 'PCN' as keeper of the car, on these main grounds:
a) Your Notice To Keeper fails to comply with the strict requirements of POFA 2012 so there can be no keeper liability.
Consequently you have forfeited any right to hold me, as keeper, liable for any charge.
For example, sections 2(e) and 2(f) have been ignored completely. There are other non-compliances.
b) The sum is disproportionate and does not represent a genuine pre-estimate of loss.
c) It is a ‘ free’ car park without ticketing. Your loss is nil. The sum is extravagant and unconscionable and cannot bejustified.
d) There is no evidence that you have any interest in the land.
e) I believe that the signs were not seen/are ambiguous and the predominant purpose is to deter so there is no contract
to pay this charge, which is a penalty.
Formal challenge:
There will be no admissions as to who was driving and no assumptions can be drawn.
You must either;
1) Cancel the notice
2) Pursue the driver and stop pursuing the keeper.
3) Reject this challenge and provide a POPLA code
Yours faithfully,
Etc..
Extract from POFA 2012 Sched 4, Para 9 follows:
....goes on to quote a couple of relevant clauses....
That fine the one above addresses a number of points including reliance on the Beavis case. Many PPC's now hang their hat on this case. If you show understanding and how the judge interpreted key points in that case/ how it relates to yours they really have nowhere else to go!If it helps, here's my challenge letter. They wrote back by return and cancelled the PCN.
Dear Sirs
Re: PCN No. ....................
I challenge this 'PCN' as keeper of the car, on these main grounds:
a) Your Notice To Keeper fails to comply with the strict requirements of POFA 2012 so there can be no keeper liability.
Consequently you have forfeited any right to hold me, as keeper, liable for any charge.
For example, sections 2(e) and 2(f) have been ignored completely. There are other non-compliances.
b) The sum is disproportionate and does not represent a genuine pre-estimate of loss.
c) It is a ‘ free’ car park without ticketing. Your loss is nil. The sum is extravagant and unconscionable and cannot bejustified.
d) There is no evidence that you have any interest in the land.
e) I believe that the signs were not seen/are ambiguous and the predominant purpose is to deter so there is no contract
to pay this charge, which is a penalty.
Formal challenge:
There will be no admissions as to who was driving and no assumptions can be drawn.
You must either;
1) Cancel the notice
2) Pursue the driver and stop pursuing the keeper.
3) Reject this challenge and provide a POPLA code
Yours faithfully,
Etc..
Extract from POFA 2012 Sched 4, Para 9 follows:
....goes on to quote a couple of relevant clauses....
In the unlikely event Smart Parking reject your appeal they will supply you with a POPLA code. It'll cost Smart Parking around £30 to do this and even if it goes against you at POPLA it's not binding - you don't have to cough up.
As I said earlier, I don't think Smart Parking have ever gone to court.
As I said earlier, I don't think Smart Parking have ever gone to court.
jhiker said:
Smart Parking PCNs should be easy to overturn. Their PCNs are not POFA compliant and they never go to court, as far as I am aware.
If it helps, here's my challenge letter. They wrote back by return and cancelled the PCN.
How long ago was that? Many of your points are no longer useful since the Beavis ruling; b, c, and e all relate to losses/penalties/unconscionable charges. The Supreme Court found that the charges don't have to be a loss, and contractual penalties are acceptable if they are commercially justifiable. That turns on the specific circumstances of each case, so you would have to show how this case is distinguished from Beavis. But as it's a RK appeal on no keeper liability/no proof of driver, in theory nothing else should be needed.If it helps, here's my challenge letter. They wrote back by return and cancelled the PCN.
@Trax, on my earlier comments - I realise that the keeper need not be the RK under PoFA. However several judges have asked RKs whether they were driving, or whether anyone else could have been driving, in cases where lack of keeper liability has been raised as a defence.
But in the case where the RK has already named someone else to discharge their own liability (as with a company car), the named person is likely to find it much harder to use the "no keeper liability" defence with nothing to support that they were not, in fact, driving. Since small claims is based on a "balance of probabilities" rather than "beyond reasonable doubt" it becomes more of a lottery, and a parking company saying "he was already named by the RK" combined with a refusal to identify the driver could easily tip that balance in the mind of a grumpy judge.
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