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Posted by: reg-number Wed, 13 Sep 2017 - 11:33
Post #1315736

Only just found this forum. Unfortunately the driver is already quite some way down the track in terms of appeal. Nonetheless, perhaps someone here can offer some insight/suggestions please.
I've read the FAQs and threads. I've also read up a little on some case histories such as Beavis, Cargius and Heggie.

Here's the sequence of events...
1. Driver picked up courtesy car while own car being repaired. Driver signed paperwork from courtesy car company stating that driver would be liable for parking fines and admin fees.
2. Driver parked courtesy car in Parking Eye Car Park which uses ANPR. The car park offers 30 mins free parking, charges apply thereafter. (For info, the driver had previously used the car park on an infrequent basis, and still has a valid ticket from parking their own vehicle 4 months prior).
3. Driver entered reg number in machine, paid for parking to cover 1 hour, displayed ticket in windscreen.
4. Driver returned within the paid for period and left car park.
5. Courtesy car returned a couple of days later. Parking ticket was in vehicle and was also returned.
6. PE contact courtesy car company who pass driver details to PE.
7. Courtesy car company write to driver with invoice for £54 admin fees relating to their handling of the PCN.
8. Driver advises courtesy car company that there will be no payment to them at this time.
9. Approx 5 weeks after the alleged parking offence PE contact driver with Parking Charge Notice of £100 for "not purchasing the appropriate parking or parking without a valid permit in accordance with the terms and conditions set out in the signage". The PCN has photos of the courtesy car entering and leaving the car park. Time in car park is stated as 57 minutes.
10. Driver immediately writes to PE Appeals Department setting out the circumstances (courtesy car, clearly remembered purchasing 1 hour ticket, entered reg details from key fob). Driver begins to think that it could be that they may have mistyped the unfamiliar car reg into the parking machine, so in the letter to PE the driver specifically requests PE to furnish details of all number plates entering the car park around the same time period.
11. PE respond to driver asking for valid parking ticket or PayByPhone transaction details. The number plate details that the driver requested are not provided by PE, nor is there even any acknowledgement of the driver's request in PE's letter.
12. Drivers writes in response to PE pointing out that the driver no longer has the ticket (and why) and that the number plate information requested previously by the driver has not been furnished by PE. Driver repeats the request for PE to provide number plate information in and out of the car park during the period in question with associated times.
13. PE write to driver stating that the appeal has been unsuccessful: "Our records confirm that no parking was purchased on the date of the parking despite there being payment methods available on the day in question". PE again fail to acknowledge the repeated request by the driver for number plate records, let alone provide the information requested. PE provide POPLA code.
14. Driver calls POPLA to get a better understanding of the Appeal process and stating that PE have not provided the number plate info requested. POPLA assure driver that they will request this of PE as part of the Appeals process.
15. Driver submits online appeal to POPLA. This includes a quite detailed response on the “operator evidence” and a further request for the number plate information. The comments made on the operator evidence included:
- Sufficient parking was purchased, and for a period in excess of the time parked
- PE have repeated failed to provide the number plate info and has thus failed to provide the full, necessary and sufficient evidence of all records to justify their reason for rejection beyond reasonable doubt
- The driver has not set out to deliberately enter wrong information into the parking machine nor to deprive PE of revenue. PE has suffered no loss. This appears to have been genuine human error
- It is the driver’s assertion that the parking machine log records should show that a payment was made for a vehicle that does not appear in the ANPR records on that day.
- Mention made of PE v Heggie case. (Many forum contributors will know that this case was upheld in Heggie’s favour: Heggie mistyped the number plate and PE provided records that showed Mr Heggie had typed in number plate details that were different to the vehicle parked). Driver therefore believed PE would furnish similar information on the basis they had done so previously. Driver believes PE have been unreasonable in not providing this information, as this may have enabled the issue to have been resolved earlier without the need for PE’s litigious approach.
- The operator allowed the “erroneous” payment transaction to proceed without any warning to the driver. PE could easily have matched ANPR records versus payment machine details to detect discrepancies. It’s reasonable to assume that the payment was associated with the correct vehicle and that as the prescribed fee was offered by the driver and accepted by the payment machine that there was no breach of contract.
- Ambiguous terms & conditions and parking contract – with specific reference by the driver to the three different types of sign provided in the “Operator Evidence”. The driver feels there are strong grounds to challenge whether a valid contract was ever actually formed at law.
- PE’s operator evidence also has typos and human error, so it’s unfair to punish the driver’s possible human error when the claimant is equally culpable.
- On the balance of probabilities, the driver has paid the correct fee for a vehicle occupying the space that the vehicle in the ANPR photo occupied and PE has suffered no loss.
16. POPLA uphold PE’s case that the driver has exceeded the permitted free stay without making a payment. The response states that PE’s T&C’s in the car park clearly state that “motorists must enter their full correct vehicle registration when using the machine”. POPLA’s response continues “The whitelist lookup provided confirmed no valid payment was registered to the appellant’s vehicle. The PCN was issued correctly”. I note that in the motorist’s comments to the operator’s case file he has questioned the clarity of the signage. However, the motorists comments are to comment on the operator’s case file and not an opportunity to raise new grounds appeal and as such, I have not considered it.”
17. PE send driver “letter before County Court Claim” setting out additional costs for solicitor and court (totalling £75) that will be added to the £100 PCN. Much mention made of the Beavis case that PE won.
18. Driver does not respond to letter. Feels that evidence requested was not provided. Admits possible human error (though this can’t categorically be known as the evidence that only PE hold has not been furnished). Driver also feels POPLA’s investigation not thorough enough – it did not address all points raised by the driver and has deliberately dismissed some - and has failed to apply common sense in its judgement. The driver does not believe that it’s fair or moral – and indeed may be discriminatory (against anyone who is dyslexic for example) to demand that the correct registration be entered and that there be no grounds for appeal on the basis of genuine human error. Driver feels there was no point in trying to “negotiate” with PE now as PE are not contactable by phone and PE have already clearly ignored the driver’s requests for information and are unlikely to change their approach.
19. Driver receives County Court Business centre claim form for £175.
20. Driver calls the courtesy car company to see the key fob. The car was no longer on their fleet. However the courtesy car company did say that “to improve accuracy” they no longer have the handwritten key fobs that were in place at the time of the incident.
21. Driver calls BPA who tell the driver that their Code of practice does not govern payment machines!
22. Driver incensed that common sense would have resolved the situation without the need for time-wasting appeals and litigation. Driver feels POPLA process was just a game. The real issue here is what is moral, decent, fair and honest. Driver responds online to County Court with Acknowledgement of Service and stating that the driver will dispute the claim in full. A defence is due to be submitted within 14 days. The driver intends to act as Litigant in Person – given the small claim amount involved the driver currently feels it would be inappropriate to oil the legal wheels for a simple day-to-day matter that should have long since been easily resolved and where the driver has made every effort to do so.

Sorry – all this is ever so wordy, but I hope helpful.
Any comments and/or suggestions on a defence would be appreciated.

Posted by: ostell Wed, 13 Sep 2017 - 12:01
Post #1315745

So have you told PE who was driving? Simple Yes or No.

You are the keeper of the car. PE cannot possibly know who was driving unless you told them, some editing of your initial post may be needed.

Did you get some additional paperwork with the Notice to Hirer from PE? ie did they comply with POFA 14 (2) (a): "the creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper" If you have outed the driver then this is irrelevant.

Posted by: hexaflexagon Wed, 13 Sep 2017 - 12:55
Post #1315754

In addition, exactly what does the contract with the hirer say?
You mention 'parking fine' but terminology is important here. You have received a parking charge, not a parking fine which would be issued by a statutory authority and result in a magistrates court action for non payment. If the hirer has limited their hire contract to 'fines' they can't pursue you for some alleged contractual breach.

Assuming the hire contract only mentions fine write to them requesting they cancel their invoice, and if they refuse and take the money from your credit card contact your card issuer and start a dispute procedure with them.

Posted by: reg-number Thu, 14 Sep 2017 - 08:04
Post #1315989

@ostell - thank you for your response.

Yes. This was perhaps implicit in item 10 where the driver wrote to PE - sorry for not making it explicit.



I've written the post to comply with the guidance on this forum in so far as possible as yesterday was the first time I've posted. I am not the keeper of the car, nor the driver. I post here on behalf of the driver who is quite upset about the whole matter. I am trying to help the driver with a defence.

As far as I am aware - please correct me if I'm wrong - the keeper of the car here is the courtesy car company (i.e. the repair shop). The driver is not the keeper here.



Procedurally, all looks correct as far as I can see. A PCN was issued to the owner (the car lease company). When they responded to PE, the PCN was issued to the keeper (the repair shop). When they responded to PE the PCN was issued to the driver using the person details that the repair shop had provided to PE.

The repair shop - along with their invoice for admin - provided the driver with a copy of the PCN in the repair shop's name and a copy of the Courtesy Car Disclaimer form that the driver had signed when picking up the courtesy car.

PE - as part of the POPLA submission - have provided the driver with an audit trail of PCNs issued in different names. The person who picked up the free courtesy car, and signed for it, was the driver of the car at the time of the alleged offence. The PCN that the driver received from PE arrived 36 days after the alleged offence.

Posted by: reg-number Thu, 14 Sep 2017 - 08:28
Post #1315992

@hexaflexagon - thank you for your post

The driver has signed a "Courtesy Car Disclaimer" and "Courtesy Car Indemnity Sheet". The former sets out the terms under which the repair shop provided the courtesy car. The latter relates to the courtesy car's condition (e..g. diagrams of damage at time out/in). I believe that together these form the "hire contract" you refer to.

Regarding specific wording, the most relevant looking parts of the 11 sections on the Courtesy Car Disclaimer state:
"1. You are responsible for ALL parking, speeding, bus lane fines or any other traffic relating offences/incidents, including but not limited to charges issued under the Traffic Management Act 2004 or Regulations made under it."
"2. Please ensure you give the CORRECT registration of our courtesy car when paying any charges, disputing any fines or when transferring our vehicle onto your Congestion/Dart account. Always obtain a receipt as proof"
"3. On any outstanding fines, we will add an admin fee of £25 plus VAT to each fine. The leasing company will also apply an admin fee for the transfer of liability".

The invoice provided to the driver by the repair company does not have a payment due date, nor have they taken the admin fee as a credit card payment (although the driver did provide credit card details at time of pick-up). There was no fee for the "hire" as such.

My untrained eye suggests all is above board as far as the repair shop contract is concerned - hence why we went down the POPLA Appeal route. That said, I'd certainly welcome your thoughts based on the information provided. Please let me know if you need more details.

Presumably, as we are now at the stage of drafting a defence in response to a Claim Form from the County Court, there's nothing to stop us making a different (or extended) defence (if need be) to the one that wasn't upheld by POPLA?

Posted by: nosferatu1001 Thu, 14 Sep 2017 - 08:36
Post #1315995

Youre wrong. The keeper of the car is the person in day to day control of the car. Same as a garage becomes the Keeper of your car when you leave your car with them for repair, you are the keeper of a car you hire.

1) Does not cover speculative invoices issued by private firms. CRA2015 means that it must be interpreted in the way most favourable to the consumer. As they specified "fines", "offences" and "traffic incidents", this does not cover an invoice.

Did PARKING EYE suoply a copy of the hire agreement? Yes or No.

We need to know exactly what was said to PE initially. If the DRIVER was stated, then POFA is irrelevant.

Posted by: ostell Thu, 14 Sep 2017 - 09:25
Post #1316010

Can you confirm that there are 3 entities involved here: A company that owns the car and leases it out, the repair company that has the car as a courtesy car and the customer who has use of the car while their own is being repaired. It was a little bit unclear in what you were saying.

The registered keeper is the entity that has their name registered with the DVLA. The initial PCN would go to the lease company who then give details of the hirer. The PCN is then sent to the hirer together with the items http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enactedparagraph 14 (2) (a) the creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;

The repair shop should then have responded to PE stating that the car was hired out and give details of the hirer. The eventual hirer, the repair shop customer, should then receive their very own copy of a PCN together with the documents outlined above.

If the repair shop got their PCN without the docs then they should just write back to PE saying that they have failed to comply with POFA and therefore there is no claim against them.

Similarly if the customer doesn't have the required docs then they respond in the same way.

Get you friend to come on here themselves so that information is not going through a third party.

Posted by: hexaflexagon Thu, 14 Sep 2017 - 09:28
Post #1316011

Usual up front caveat. I am not a lawyer and this is my understanding so wait for other comments from more learned posters here.

Yes the Courtesy car disclaimer document is the basis of the hire contract.
As always the meaning of words as well as sentence structure is vital. Usually parliamentary legislation takes great trouble to define terms used in legislation, and often common law contracts do the same. This is for the avoidance of doubt. Where a word or phrase is not specifically defined and open to interpretation the Courts look to the ordinary English meaning of the words.

Here in 1 above the word 'fines' follows a list of "parking, speeding, bus lane" and it's my belief that the word fines is meant to qualify each of those words. The point has already been made that the word 'fines' relates to a statutory offence and what we have here is a charge notice, i.e. a civil law alleged contractual offence. Therefore there is no 'Parking fine' here.

The statement that you are liable for any fines is, in isolation, perfectly true but nevertheless the hire company are relying on item 3 which only mentions fines, not charges and there can be no outstanding fine since no fine exists. They don't say explicitly, but are implicitly saying that if you don't pay a fine we will pass the fine on. They could have just as easily have added words that included parking charges in this definition. From their point of view that's unfortunate for them but doesn't alter the basic fact that youj don't have a fine.

Then we come to the attempted catch all of 'All traffic related offences/incidents...' Here again there is no definition of the word 'traffic' in the document so we look to the ordinary English dictionary definition of the word. This is variously described as 'vehicles moving on a public highway', 'the number of vehicles moving along roads', and other slight variations. All containing the idea of movement as opposed to being parked.
In addition the government document overview of Traffic Management Act 2004 says


The word 'traffic' in the phrase 'all traffic related offences / incidents' clearly qualifies and restricts the list of offences and incidents only to those relating to 'traffic', or in other words 'moving vehicles'.

For the reasons above I believe you can reasonably argue that your hire contract does not allow the hirer to recover monies related to parking charges, only fines .

Yes, in your defence to the County Court claim you are not restricted to the arguments you made in the POPLA appeal. You'll probably want to use those as well as others that have come along since but if any of them are irrelevant or subsequently found to be inaccurate then don't use them.

My 2ps worth.

Posted by: reg-number Thu, 14 Sep 2017 - 09:35
Post #1316013

Thank you for clarifying that in this case the driver is the keeper.




Sorry - my fault I'm sure - but I haven't quite understood your point. Surely the repair shop's invoice is just the means by which they are asking for payment for an alleged offence that was committed by a driver of their vehicle who agreed to be responsible for payment in relation to the types of offences listed in 1. I don't see it as "speculative" per se - but that might just be my interpretation of what you mean by "speculative". Obviously the driver hasn't paid it - as per item 8 in the original post - and won't be paying it unless or until the parking offence was proven against the driver and unless or until it was proved that the driver has a legal obligation to pay it.

Are you saying that the repair shop has no right to issue an invoice, irrespective of the signed courtesy car disclaimer? Clearly their timing is way premature - given the PCN is still in dispute - but what is it specifically that would make their request for payment invalid if it is found that the PCN is valid?




My interpretation of your question leads me to give the answer No, but let me clarify as I'm not sure what you mean by supply or to whom. The "hire agreement" - and contract for the courtesy car - was between the driver and the repair shop and was provided to the driver by the repair shop. In their POPLA submission, PE submitted 60+ pages of info, i.e. ANPR photos, car park signage etc as well as all correspondence they'd had with the leasing company and repair shop. This submission included a copy of the Courtesy Car Disclaimer that the driver had signed when picking up the courtesy car from the repair shop. The repair shop had passed this to PE - as part of item 6 of my original post.



The repair shop appealed to PE stating that the courtesy car was on hire to ME. I am the owner of the car being repaired for which a courtesy car was made available. I did not however pick up the courtesy car - the driver who committed the subsequent alleged parking offence picked up the car and signed the Courtesy Car Disclaimer. The driver and I are well known to each other.

The repair shop wrote to PE stating that the courtesy car was collected by a nominated driver on my behalf. This nominated driver is the driver in the alleged parking offence. The repair shop provided my name and that of the driver to PE.

The driver wrote to PE in response to the PCN. They identified themselves as the driver, confirmed it was a courtesy car, confirmed they had paid for parking and asked for a print out of number plate details entered into the parking machine around the time of car park entry.

Posted by: hexaflexagon Thu, 14 Sep 2017 - 09:54
Post #1316017

It matters not whether the PCN is valid or invalid nor whether the driver/keeper is eventually successful in court or not. The hire contract and what is due or not due is a completely separate matter to any court matter.

As has been explained their hire contract only permits them to recover fines not charges [this thread passim].

Posted by: nosferatu1001 Thu, 14 Sep 2017 - 10:24
Post #1316033

THe Keeper of the vehicle - the person hiring it - is NOT NECESSARILY the driver!

Parking Eye were required under POFA, when the Notice to Hirer was given tot he person hiring the vehicle, to supply a copy of the hire agreement alongside the Notice to Hirer. WE do not care whether this was given to POPLA, all that matters is that it was sent to the HIRER at the time, WAY before POPLA. If no copy of the hire agreement was given then the hirer is NOT LIABLE - only the driver. And they dont know the name of the driver unless YOU tell them!

However, as the driver outed themselves, its irrelevant. POFA only deals with hirers and keepers, not drivers.

The PCN from PE is purely a specualtive invoice. THere was no offence, there is no fine, just an invoice. The invoice from the garage relates not to an "offence" as you persist in calling simply an alleged civil infraction of parking rules. Item 1 in their contract to allow them to charge this invoice has not been invoked, therefore they cannot issue such an invoice - or rather have no claim should it reach court, as thats the only place this can be decided by a third party.

Theres a good chance PE would prevail in court. However the garage is unlikely to.

Posted by: reg-number Thu, 14 Sep 2017 - 11:01
Post #1316042

The driver is very stressed and upset by all this, but is determined to see justice. The driver is a bit more than a "friend" to me. To keep within the guidelines of the forum - e.g. please use "driver" and not "I", "she" etc, I deliberately have not been explicit and perhaps in trying to stick to the forum rules that has caused confusion.

I know this case inside out. I have responded to PE and POPLA on her behalf (and with her input, consent and signature), dealt with the courtesy car company and am now dealing with the Claim Form from the Company Court. I have been reading up on case law and I know what has happened in this case intimately. Obviously I was not there when the alleged parking offence was committed but the driver has given me a full account. I have contacted Citizens Advice, pursued legal advice under an insurance policy and through membership of a national car breakdown membership organisation. Trust me - I know the sequence of events and hold all the correspondence. Any perceived lack of clarity/info on my part isn't down to lack of understanding or being a "third party" - and I'm happy to answer additional questions to help you to help me help the driver. I also have more time than the driver to manage the case.




Sorry for any confusion I may have caused. My subsequent responses to other posts may give this information. Sadly, forums are never a true "conference-type discussion" and are more like a sequence of 1:1 phone calls! Anyway, there are arguably multiple entities/roles:
1. The owner of the car being repaired
2. The repair car company
3. The company that owns the car and leased it to the repair car company
4. The person who picked up the courtesy car from the repair car company
5. The person who signed the Courtesy Car Disclaimer form at the repair car company offices
6. The driver who parked the car and committed the alleged offence.
7. The landowner who owns the land on which the vehicle was parked
8. The company that manages the parking on that land with the landowner's approval (Parking Eye).

In this case, I am entity number 1 and the driver is entities 4,5 & 6



The sequence of events is as you state and ties up with my original post and subsequent posts. Everyone probably has the right docs and I can't see anything wrong in the order that things have been done. There may be some debate and a technical argument - see separate post in this thread - as to whether the repair shop had the right to transfer liability to the driver. Equally some debate about T&C.s, parking contract etc.

Posted by: nosferatu1001 Thu, 14 Sep 2017 - 11:12
Post #1316048

The driver is *always* liable. POFA simply allows PE, in this case, to hold the hire company, or hirer or other keeper at the time liable. So you dont quite know the law inside out!

Your sole defence is that parking was paid for, and possibly the machine recorded the reg incorrectly or was typed incorrectly. Therefore this is an unconscionable increase in charge, given the fee was paid for, for a trivial error - one easily prevented if PE used machines that tied reg input to teh ANPR captured cars, as in other car parks. There is no justification here for such a penalty, certainly no commercial justification, and as such the Penalty rule still applies. BEavis actually helps your case here.

Did you get PE to provide you or POPLA willa full, unredacted list of payments made that day? From ALL machines? If you didnt, why not?

Show us your defence as it currently stands.

The garage charging for passing details on is a separate matter.

Posted by: reg-number Thu, 14 Sep 2017 - 11:27
Post #1316055

I am not a legal person, and I can see that there are forum posters here who seem to know the ins and outs of PCNs for which I'm grateful.

I tend to take "fine" in its literal sense or in common usage, e.g. I got a parking fine from the traffic warden.

Clearly there are language subtleties here that I have yet to understand when it comes to forming legal arguments!

In item 1 of the repair car company's courtesy car agreement that I transcribed earlier it makes reference to "parking... fines", "other traffic relating offences" and "charges under the Traffic management Act 2004 or Regulations made under it".

Does this mean charge (as in fees/demands) or charge as is (accusations)? Consequently, I must admit that as a layman I really don't see how the wording of the contract therefore permits them to only recover fines.

Please help if you can - but please bear in mind that I am a first-time poster, not au fait with jargon and that although one person may feel they have explained something that that may not feel like an explanation to the person to whom it has been given.

Many thanks.

Posted by: nosferatu1001 Thu, 14 Sep 2017 - 11:42
Post #1316059

Its not a difficult distinction

A fine is issued by a court or e.g. a traffic warden. It cannot be issued by a private parking company. they can only send invoices.

Charges under the TMA means fines under the TMA. TMA is what decriminalised parking enforcement and put it into the hands of councils.

Its simple. They must be specific when saying what they will charge you for. They HAVE BEEN SPECIFIC - and limited themselves ONLY to real, actual fines. Meaning nothing else is permitted. A speculative invoice (thats all a PE PCN is! We've said it often enough!) is not covered.

Posted by: reg-number Thu, 14 Sep 2017 - 12:22
Post #1316074

Not sure if the "you don't quite know the law inside out" was directed at me? If it was then you're right! - otherwise I wouldn't be seeking advice. I did state earlier that I know the CASE inside out - i.e. I am fully familiar with all the documentation and arguments to date as far as the specific PCN is concerned as I have been dealing wit the matter on the driver's behalf.



Thank you. Our unsuccessful appeal to POPLA pretty much covered what you state even to the point of saying that PE should validate each payment-machine-entered reg number against its ANPR records. The reality is they don't. POPLA's response was the Terms & Conditions clearly state that the exact reg number must be entered correctly and the driver had not done so.

Can you explain further what you mean by "Penalty rule" and "Beavis actually helps my case"? I note other posters such as @hexaflexagon make a point of using "charges" as opposed to "penalties" and "fines" so I'm trying to reconcile the seeming differences in what different people are saying.

There certainly was no actual loss to Parking Eye in this instance. I thought (probably wrongly) that the PE v Beavis case was about the amount of charge and that the Supreme Court ruled that £100 was not excessive, so I'm unsure how I could use Beavis in my argument? But I'm grateful for any wording that could assist.


In their initial response to PE, the driver asked PE for such a list.
In their subsequent response to the driver PE did NOT provide the information, nor did they even acknowledge the request.
The driver wrote to them again making the same request.
PE responded to say the driver had lost their appeal to them. Once again PE failed to provide the info or even acknowledge the request.
Before the appeal was made to POPLA, the driver called POPLA to explain that PE had not provided the evidence requested. POPLA said not to worry, PE had no obligation to do so but that they (POPLA) would ask for this as part of an appeal to them.
The driver submitted the POPLA appeal online, specifically stating that the evidence from payment machines was required but had not still been furnished by PE.
The info was never provided. PE merely furnished a 'white list' - a blank piece of paper that showed they did not get a payment for the reg number in the ANPR.
POPLA rejected the appeal.

For info, there were many points raised in the appeal by the driver in direct response to the operator's evidence (such as images of their car park signs etc). But POPLA's final response dismissed all arguments on signage etc. saying "we have not considered these as the motorist must comment on the operator's case file and not raise new grounds for appeal".

The driver and I have found the whole process unsatisfactory on so many levels, hence the driver's desire to fully contest the claim.


The defence for the POPLA appeal ran to four A4 pages. The key points were that:
- Sufficient parking was paid for.
- PE has suffered no loss
- The burden of proof rests with the operator and PE has failed to provide the payment machine reg details requested despite ample opporutnity
- Parallels with PE v Heggie case
- Ambiguous terms & conditions and Parking contract
- Machine accepted payment so reasonable to assume that payment was associated with the correct vehicle and that the parking contract was fine

You state that we only have one defence so its perhaps pointless me cutting and pasting here the defence made to POPLA. (We have yet to draft a defence for the court submission - but were intending to use/amend the POPLA submission plus whatever else is gleaned through this forum). The defence made to POPLA refers specifically in many places to operator evidence on specific pages of the operator's submission, so there may be limited value in publishing this without the photographic context. Once I gather all views the driver may be happy to share what I have.


Noted

Posted by: reg-number Thu, 14 Sep 2017 - 17:26
Post #1316175

Sorry to revisit this @nosferatu1001, and not wishing to split hairs, but am I the keeper or is the driver the keeper of the courtesy car?!

I ask because it was my car that was being repaired and in lieu of which I got the courtesy car. In fact the repair company has written to me with an invoice for admin charges relating to the PCN (given they transferred liability). And when the repair company contacted PE they wrote: "the (courtesy) vehicle was collected by a nominated driver <driver's name> on behalf of <my name>".
I never signed any hire agreement, but the driver did (by signing the Courtesy car Disclaimer).

Just curious if this has any implications.

Posted by: hexaflexagon Thu, 14 Sep 2017 - 21:47
Post #1316235

It's important to recognise that you have two completely different questions/matters being discussed here.
1. The receipt of an invoice described as a PCN for an alleged parking offence which is now the subject of a County Court Action
2. An Invoice from a car hire company which is wanting to charge you an admin fee for passing your details to the PPC.

You need to keep these separate in your mind.

As far as 1 is concerned POFA defines the keeper as


It seems to me re 2 that it's somewhat academic since the term 'keeper' doesn't enter the equation. Even if it did what matters is who has signed the hire contract and accepted the terms of the contract - one of which is seemingly to reimburse the hire company for administering claims for fines (not charges - see earlier discusssion). Here it's the driver who has signed the hire contract

Posted by: nosferatu1001 Fri, 15 Sep 2017 - 12:44
Post #1316358

You need to look into BEAVIS

Supreme Court case that pe won.

However it required that in order for the £85 to njot be a "penalty" but a charge that the company could levy , very strict conditions had to be met. Otherwise the "penalty rule" - that civil contracts in English law CANNOT penalise either party - would remain engaged. Essentially the amount is a penal charge i.e. Not recoverable UNLESS they can show the conditions apply.

In that case the judges at appeal and Supreme Court both stated that a pay and display car park is fairly simple nad the same conditions s didn't apply as in the free car park in the BEAVIS case which was more complex.

You will of course attack the usual issues of standing, signage in the defence, however the main defence is that parking was paid for, and the relatively minor error of the driver OR the MACHINE recording it correctly does NOT justify such a penalty being applied.

Posted by: reg-number Fri, 15 Sep 2017 - 12:56
Post #1316365

Thank you for your further input @nosferatu1001 inckuding coming back to me on the "penalty rule" argument.

As per the first line in my original post, Beavis is just one of the cases I have looked at. Given the length of the ruling, versus my limited time to date to read it in depth, there is clearly more scope for me to delve into it in more detail and look for relevant arguments, bearing in mind that the circumstances of parking in the driver's case and charging model of the car park are not the same as in Beavis. Thanks again.

Posted by: nosferatu1001 Sat, 16 Sep 2017 - 00:24
Post #1316476

That's the exact point we're making though

The ruling helps you - it confirms that these charges ARE a penalty UNLESS the penalty rule is disengaged. In a p&d carpark there is NO justification fir charging this amount when parking was paid and a trivial error by the machine OR. The individual is made.

Posted by: reg-number Sat, 16 Sep 2017 - 10:20
Post #1316518

Thank you @nosferatu10001 for explaining your take on Beavis. Never having been in this situation I trawled the web prior to being on this forum and had come across this article: http://www.parkingcowboys.co.uk/fighting-beavis-argument/

It states that "Post-Beavis, (Beavis) will be likely used by parking companies as a precedent to support their claim, either in an appeal response, or when making a court claim. As a defendent one would have to show how Beavis does not apply."

Clearly I had taken this at face value as my start point, and there is actually a subtlety in showing how Beavis DOES apply as opposed to how it doesn't!

You previously stated:


Regarding "as in other car parks", do you have any specifics/examples of car parks:
(i) Operated by PE where they tie ANPR to payment details? Do they advise the customer of any discrepancy at the point of the customer entering the reg details into the machine?
(ii) Similarly, for other operators.

Such specific evidence could be useful in supporting a defence - although, that said, I am aware that the BPA Code of Practice doesn't govern payment machines and hence there is no obligation/guidance for parking operators.

Posted by: SchoolRunMum Sat, 16 Sep 2017 - 14:47
Post #1316566

There's nothing useful on the ParkingCowboys website, IMHO.

You are far better on here or MSE, with proper, informed and up to date live support.

Highview have such a system at some Tesco stores now, where you scan your receipt in a machine and put in part of your VRN, and it then displays possible images of matching cars or close matches, showing the time of capture of the image when the cars arrived. You then touch the image that is your car, confirm it, and your stay is then authorised.

ParkingEye have no such system and only tie the machine data to the images for their own purposes of issuing PCNs like confetti, to any victim who might have suffered a typo (or even keypad failure, or glare on the screen and/or keypad, or very worn and faded keypad keys - none of which is the driver's fault).

There is no indication at any of PE's machines that a non-matching VRN has been entered. It's what they WANT people to fall foul of, believe us.

This one is similar to your experience, in that they had neglected to accuse her of the missing VRN in the first place (like your case):

http://parking-prankster.blogspot.co.uk/2016/10/parkingeye-lose-in-court-unsolved.html

Which is your local court and which car park was yours at?

Posted by: reg-number Sat, 16 Sep 2017 - 15:10
Post #1316571

Thank you @SchoolRunMum for your input. Very specific and very useful.

Thanks also for the link to the 'similar' case - I couldn't see a mention in it of whether the defendant, like us, had not kept the ticket or whether the defendant had a ticket with a blank VRN, or indeed with the correct or other VRN.
But a good outcome for the defendant and comeuppance for PE which I'm finding increasingly pleasing.

All we have is a whitelist matching ANPR to payment, but not vice versa, despite several requests of PE (including via POPLA)

So far I am dealing with the County Court Business Centre in Northampton, but will apply to our local court should it get that far.
The PE car park is in Amersham, Bucks.

Of course it's all a time-consuming game for a trivial matter - but as PE will find, I play games to win!

Thanks again.

Posted by: SchoolRunMum Sat, 16 Sep 2017 - 17:13
Post #1316585

The 'whitelist lookup' is wholly unhelpful and disingenuous, because more important is what they don't say. All they have done is deliberately looked up the EXACT VRN, knowing full well but withholding from you, what the issue really is, which could be a single digit error. Which could just as easily be caused by a non-functioning key on their machine, or sun glare on the keys and screen display, or faded keys, etc.

You made 'reasonable endeavours' to comply with the terms, so in all fairness in contract law (and fairness MUST be considered by the courts) you should not be penalised for any small detail outside of your control, especially when the Claimant is withholding that fact from you and withheld it from POPLA, too, with disingenuous information as a smoke screen.

'Reasonable endeavours' is a doctrine supported by case law:

https://bmpa.zendesk.com/hc/en-us/articles/115000857125-Jolley-v-Carmel-Limited-2000-

It automatically gets allocated to your local court, which sounds like it's in bargepole's 'catchment area', and he might know the car park.

Posted by: reg-number Tue, 19 Sep 2017 - 09:31
Post #1317165

Thanks everyone for your views and experience so far.

Obviously we want to cover all relevant bases in the defence and will likely be focusing on the payment details allegedly being 'incorrect', howsoever caused and despite lack of evidence. But I've just noticed some possible anomalies in the PCN wording over time and in the wording in the claim, so I'm just wondering if anyone has any comments or if there are any implications...


In their original PCN to the vehicle owner, it states:
"The signage, which is clearly displayed at the entrance to and throughout the car park, states that this is private land, the car park is managed by ParkingEye Ltd, and parking tariffs apply or a Parking Charge will be incurred, along with other terms and conditions of the car park by which those who park agree to be bound"

"By either not purchasing the appropriate parking time or by remaining in the car park for longer than permitted, in accordance with the terms and conditions set out in the signage, the Parking Charge is now payable to ParkingEye Ltd".


In the PCN (same reference number) that was subsequently transferred to the car repair company the identical wording appears.


However, in the PCN (same reference number) that was subsequently transferred to the driver it states:
"The signage, which is clearly displayed at the entrance to and throughout the car park, states that this is private land, the car park is managed by ParkingEye Ltd, as a permit only / paid parking car park, what parking tariffs apply and the Parking Charge applicable without the appropriate permit or payment of the appropriate tariff when parking, along with other terms and conditions of the car park by which those who park agree to be bound"
"By either not purchasing the appropriate parking time or parking without a valid permit, in accordance with the terms and conditions set out in the signage, the Parking Charge is now payable to Parking Eye Ltd".

The concept of a "permit only / paid car park" has been introduced. The concept of "staying longer than permitted" has been dropped. Not saying if this is good or bad or adds clarity or changes anything or makes any material difference, but it just begs the question.



Then in the PCN Reminder to the driver, while the first paragraph is the same as in the PCN to the driver the second paragraph differs slightly:
"By either not purchasing a valid pay and display ticket or parking without a valid permit, in accordance with the terms and conditions set out in the signage, the Parking Charge is now payable to Parking Eye Ltd".

The concept of a pay and display ticket has been introduced. Note that this isn't a pay and display car park (although the driver did put the ticket on the vehicle's dashboard out of habit).


Finally, Parking Eye state in their Claim to the driver that the driver parked "without purchasing a valid paid parking ticket". They go on to state the usual breach of terms/contract without being specific as to what exactly was breached. (although by a process of elimination and by implication, it is probably fair to assume that the payment reg details were "incorrect").


I appreciate that the wording differences are subtle, but there are differences. I'm left wondering why there are differences, if the differences matter, if the differences are significant and if they can be exploited in a defence?


1. I suppose the first counter argument is that only the driver's PCN is applicable here and so variations to the owner and repair company prior to it are irrelevant. Do you agree? If not, is there a basis on which to challenge the presence of differences over time and/or what they say?


2. Is there any basis on which to raise issues regarding the presence of differences in wording in the PCN and PCN Reminder? and/or what the wording states. again one could fairly logically dismiss the reminder in favour of the PCN but it just begs the question regarding differences.


For example - clearly, the car park is NOT pay and display and has no signage that states it is, yet the PCN Reminder states that either a valid pay and display ticket or valid permit are required. What exactly has the ticket machine issued? - is it a pay and display ticket? (I don't think so as no requirement to display). Is it merely a receipt for payment? Is it a permit? Is it a parking ticket? is it a valid parking ticket? (I note that "valid parking ticket" was the terminology used by PE when they asked the driver to provide evidence of having paid for sufficient parking time).

For info, a payment machine ticket from parking in the same car park prior to the incident has no explicit no wording on it to identify what it is exactly - it just contains a purchase time, date, fee paid, reg number and VAT number.

Then I ask - what does "valid" mean here exactly? I appreciate that a ticket could be valid at issue but then effectively become invalid because of an overstay. Is that a correct interpretation of valid? But could a machine ever issue an invalid ticket? That would seem nonsensical - but if the reg details in the payment machine were mistyped or misprocessed by the system is the ticket issued invalid at time of issue? And is this the point at which the contract is struck?

So if there isn't the concept of pay and display, then in the PCN Reminder a permit is the only option - and doesn't Permit, by definition, grant permission?

Furthermore, if the machine took payment and issued a ticket, then irrespective of any mismatch between reg details in the payment (and on the ticket) and reg details in the VRN then is it reasonable to assume that the "ticket" was valid?

I know this could all sound like semantics to some, but on such things is the outcome of arguments sometimes determined.

Views anyone?

Posted by: nosferatu1001 Tue, 19 Sep 2017 - 10:05
Post #1317168

You could have said that in about half the words, so I didnt just skim.

Yes if they claim it was overstay in one, then no permit in another, then any legal acition the PoC must specify WHAT the transgression aleged was. They can't just leave it open ended, they need to be specific. if the PoC state "no permit", yet the reason given initially was "overstay" then you cast doubt on the accuracy of their claim and thus its validity. The details must be consistent, otherwise it casts doubt - and remember in civil cases its only 51:49 needed, casting doubt rapidly drops down their side of the equation!

Frankly the strongest is, as ever, what was already identified. Reasonable effort to comply, a trvial error OR a machine error is not something worth this amount, therefore this REMAINS a penalty that is not recoverable under UK law.

Posted by: reg-number Sat, 28 Jul 2018 - 04:28
Post #1403136

This rumbles on - court hearing fast approaching.

Since my last post a lot has happened....

In my original post I omitted to say that the driver entered the regnum from the courtesy car key fob while paying at the payment machine and paid. This is stated in the driver's Defence. Her Defence also states that she has access to two other vehicles (and gave their registrations, but this was mentioned purely to explain why she was driving a courtesy car). The regnum of the courtesy car and the other vehicles bear no resemblance to each other.

In the parking operator's paperwork submitted in advance of the Court Hearing - over a year after the parking event/breach of contract - the parking operator provided a list of regnums (redacted) from the payment machine (allegedly). One of these (shown in full) is almost identical to one of the vehicles the driver has access to! Curiously though, there's a zero where there should be an 'O'! Other details on the payment record, e,g, payment date, time, duration, amount paid etc tie up with the ticket she bought (but no longer has).

Driver repeats they used the key fob to enter the reg (it was a courtesy car and she didn't know the reg hence use of key fob). Regnum may have been mistyped but if so would be an almost exact match for the courtesy car regnum.

Has anyone come across this sort of thing before and/or can offer any suggestions on how to tackle this in court?

Posted by: Jlc Sat, 28 Jul 2018 - 07:16
Post #1403139

Have read https://www.theguardian.com/money/2018/jul/25/justpark-app-zero-letter-o-fine-numberplate

A transposed zero and O should not be pursued imho...

Posted by: Macapaca Sat, 28 Jul 2018 - 09:52
Post #1403158

This is less than clear. Is the VRN on the machine log the VRN of the hire vehicle in question, as copied from the key fob (notwithstanding the O or 0 error), or is it from another vehicle that the driver had access to?

Posted by: Redivi Sat, 28 Jul 2018 - 10:21
Post #1403165

Although the IPC has told its members not to enforce O v 0 errors, the BPA has never given any instructions regarding trivial mistypes

As a result, POPLA always regards them as a breach of terms and conditions

If ParkingEye stresses the POPLA decision, make clear that POPLA is only interested in whether the Parking Notice was issued correctly, not whether the payment is actually owed

In my view, the requirement to issue the full registration is an unfair contract term
It has no purpose other than to multiply the possibility of a mistake

The last three letters of the registration have more than 15 000 combinations, more than enough to identify the car in any normal car park
Even retail parks like Bluewater, Meadowhall and Trafford Centre only have 12 - 13 000 spaces

Posted by: reg-number Sat, 28 Jul 2018 - 14:04
Post #1403211

Here's the specifics, but obviously the regnums quoted below are not the actual ones but are provided to aid understanding....


Let's say that one of the cars the driver has access to is J6 BOG. The driver did NOT park this car that day, it was in the garage being repaired. She was driving a courtesy car the garage gave her.
Let's say the VRM of the courtesy car she was driving was LD55 JEN.


PE have provided what they claim is parking machine data for the date in question for J6 B0G, i.e. with a zero between the B and the G.

So, in short, PE are saying that LD55 JEN was captured on camera but that the driver typed in J6 B0G. LD55 JEN appears in the ANPR data, while J6 B0G appears in the payment machine data. Hence the PCN. In other words PE are saying that at the payment machine the driver typed in her own vehicle VRM and got it wrong, despite the driver entering the courtesy car VRM from the keyfob of the courtesy car LD55 JEN.

It's ludicrous! - but nothing astounds me regarding PE.

I hope that clarifies matters. Any help appreciated.

Posted by: Macapaca Sat, 28 Jul 2018 - 16:15
Post #1403234

Blimey. No wonder I didn't understand first time round! In which case, if the driver definitely entered the number on the key fob, how the heck did the VRN of the car being repaired get into the logs? Either PE are manipulating the logs (which wouldn't surprise me) or the driver actually entered that number (albeit incorrectly) of the car in garage by mistake. Either way is is pretty compelling evidence that the driver actually paid!

Posted by: reg-number Sat, 28 Jul 2018 - 17:25
Post #1403255

This indeed is the question *we* have been asking, especially since the driver definitely transcribed from the courtesy car keyfob.

Unfortunately - when a judge is faced with weighing up whether it was 'manipulation' or a typo by the driver (albeit a bizarre possibility logically that a driver transcribing from a key fob would enter a regnum that bears no resemblance to whats on the fob but instead enters their own familiar reg and inputs a 0 instead of an O) then it's still always easier to 'believe' the typo option. (The reality is that no-one wants to contemplate the possibility of fraud when human error offers an easier explanation)

Net result: driver falls foul of the term that she must enter her full correct registration number and hence is liable for the PCN.

It sucks.

We even asked for CCTV to show the driver using the key fob at the payment machine, but none is available. We were told by PE that PE don't use CCTV in any of their car parks - which seems odd given that PE are an ANPR/camera user - and it left us wondering how, in a unmanned car park, PE identify and enforce offences such as parking across marked bays, or on hatched lines, or using a disabled spot without a blue badge.


p.s. The parking machine keypad has a 0 and an O, but these aren't close to each other physically, unlike on a QWERTY keypad if you get my drift?...

Posted by: Jlc Sat, 28 Jul 2018 - 17:27
Post #1403257

They don't.

Some sites do use boots on the ground or the company itself can issue the tickets for such heinous crimes.

Posted by: ostell Sat, 28 Jul 2018 - 18:50
Post #1403276

The ANPR camera is a different beastie. It purely focuses on number plates.

Posted by: reg-number Sun, 29 Jul 2018 - 08:20
Post #1403355

I agree re unfair contract term and intend to raise same in Court. @Redivi - I'd appreciate anything specific you can add to support your view. In our case the signage stated "Motorists must enter their full, correct vehicle registration when using the payment machine"

Posted by: Macapaca Sun, 29 Jul 2018 - 10:12
Post #1403372

Yes but it is not reasonable to penalise the driver for either a faulty keypad (e.g. stinking keys) or a simple error such as a O instead of 0 when the the PPC can easily identify the car by the first part of the VRN.

Posted by: reg-number Sun, 29 Jul 2018 - 15:08
Post #1403429

I agree regarding things outside the drivers control, and typos such as 0 vs O or obvious mistype of a character or digit - but the scenario here is that what was entered bears no resemblance to what PE hold.

Posted by: reg-number Thu, 9 Aug 2018 - 16:17
Post #1406667

Just been in Court and lost to ParkingEye. PE presented fake data and the judge fell for it.

Now they've been 'successful', I can see PE using the same tactics again with other motorists - so I'll remain on the forums to help others as best I can.

We told the truth so although we won't get the 18 months back, at least our conscience is clear. I feel sorry that there are people around (at PE) who think it's ok to tell lies at the expense of others.

Thanks to everyone on here who helped with suggestions and input.

Posted by: Macapaca Thu, 9 Aug 2018 - 16:52
Post #1406676

Sorry to hear that you were not successful on this occasion. So that we all learn from this, what fake data did PE present?

Posted by: reg-number Thu, 9 Aug 2018 - 17:01
Post #1406679

Details are earlier in the thread. In short, payment data presented by PE was dodgy - the regnum entered by the driver from the keyfob wasn't present on PE's list. Instead the regnum of another vehicle the driver owns *was* present but with the 'O' (oh) change to a '0' (zero). A blind man could have seen that the number from the keyfob had been replaced by the other regnum. Such an obvious QWERTY error. But judge bottled it - always easier to say the driver made a typo than to entertain the possibility of fraud by PE.