UKPC POPLA left site appeal

[JHH001]

Hi

 

After following all the steps advised on the forum, UKPC have finally issued the POPLA code, so I am now at the stage of drafting my appeal to submit to POPLA.

 

To give some background, UKPC issued a windscreen ticket as the vehicle owner/driver left the site. The NTK to keeper was issued within the correct time period.

 

So now my appeal has reached POPLA stage and I have drafted an appeal based on the following grounds:

 

Evidence for leaving site

The notice to keeper states that the vehicle owner/driver left the site. Therefore for this reason a parking charge of £100 is due. I require evidence from UKPC, which shows the vehicle driver leaving the site. Such evidence should include photographs of the contravention and a site map and a picture of the signage that would have communicated to the driver the defined boundary of the site they are alleged to have left. No explanation has been provided as to what constitutes leaving the site and it has not been established whether the driver was on site all along. The evidence they've added online is simply a photograph of the signage and pictures of the car with the charge notice already stuck to it. If no such sign nor evidence exists then I contend that the driver could not have known where the car park site boundary began and ended and in the absence of evidence I deny that there was any contravention. I say there was no contract formed with the driver to pay a charge in 'exchange' for going off site; there was no consideration, offer nor acceptance and no site boundary defined.

 

The burden of proof shifts to UKPC to prove otherwise and to explain why their attendant (presumably) watched a driver walk towards the edge of an undefined boundary, yet made no attempt to stop/warn the driver nor even ascertain if a passenger had already been dropped at the door of the premises. The attendant also had a legal duty under contract law, to mitigate any loss. In VCS v Ibbotson, Case No 1SE09849 16.5.2012:

 

District Judge McIlwaine stated 'you say he left the premises...where does the premises start and where does the premises finish?...there is a duty to mitigate the loss.' In this case now under POPLA appeal, I contend that UKPC have neither demonstrated any evidence that there was a breach nor shown that their operative took any steps to mitigate any loss.

 

Contract with landowner

UKPC do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that UKPC has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract or terms & conditions of parking. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow UKPC to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

 

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

 

So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between UKPC and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013

 

Signage

Due to their high position, overall small size and the barely legible size of the small print, the signs in this car park are very hard to read and understand. I request that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs on this land, in terms of wording, position and clarity, do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2])

 

As such, the signs were not so prominent with their terms and conditions that they 'must' have been seen by the driver - who would never have agreed to pay £100 in a free car park in the event that they left the site- and therefore I contend the elements of a contract were conspicuous by their absence. The signage is not a contract or offer of a contract but an invitation to treat.

 

 

Please can you advise whether the above is sufficient and is a strong argument to go to POPLA?

 

Thanks in advance

[dx100uk]

Is this to do with

http://www.consumeractiongroup.co.uk/forum/showthread.php?457309-POPLA-appeal-with-UKPC

[JHH001]

No, that was from 2015 where the driver of vehicle parked in a disabled bay without a valid permit.

 

In this case the driver of the vehicle left the site, so was issued with a ticket.

 

 

I understand that rules have changed and UKPC have changed their NtK since then so wanted to seek advice.

 

Thanks

[ericsbrother]

The test case is VCS v Ibbotson as you realise.

 

 

As the claim is that the owner/driver left the site

they have to show which of these 2 people they identify as being the person they created the contract with.

 

 

i would be pressing the point that these are 2 different legal entities and they can only claim against 1 and this wording fails to identify that person at the outset.

 

 

Also the wording on the sign becomes critical because they rely on a general "customer parking only" or similar wording and leaving the site doesnt mean that you arent a customer as there is no prohibition to go elsewhere during your visit, ie to use a public toilet, cashpoint to apy for your goods etc.

 

 

If there was a prohibition from doing this then you would be trespassing and that it outside the remit of the parking co and a matter between you and th landowner ONLY.

 

POPLA deliberately misapply the law though, so dont be too surprised if you lose the appeal.

They were given the job under very tight constraints of what they can and cant accept as the old London Boroughs appeals service

 

 

who used to run POPLA made it very difficult for the parking cos to make money where they didnt deserve to by applying a similar level of burden of proof as you would get in a civil court and the parking co's got stuffed when they dissembled, lied or didnt co-operate.

[JHH001]

Thanks for the additional advice.

 

I will make an appeal on these grounds and hope for the best.