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Indigo's new notices
Father Dougal Ma...
post Tue, 11 Sep 2018 - 10:07
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Just posting an observation.

We all know about the confusion on bye-laws at railway parking.

Indigo, at my station, refer to bye-laws being applicable, and so don't offer POPLA appeals. BUT they have added a big sign at the entrance now stating "Private land". So which is it, cant be both....

And now they add new notices saying clamping in operation. Really, on "private land".

Extraordinary. surely this is a gross abuse of the code of conduct....
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post Tue, 11 Sep 2018 - 10:07
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Slapdash
post Tue, 11 Sep 2018 - 10:15
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The fact that bylaws apply surely does not in any way stop it being private land.

Obviously it does affect how enforcement may be undertaken but that is a different thing.

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Gary Bloke
post Tue, 11 Sep 2018 - 17:36
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Indigo always do their best to hide the way in which their car parks are being managed. They put signs up which talk about the byelaws 14.1 to 14.3 and they list the byelaw instructions which must be followed. But the same signs also talk about acceptance of terms and conditions, which are typically listed on the lower half of the sign. The windscreen tickets also state that the driver has entered into a contract by parking etc etc.

When you ask Indigo the simple question "is the car park managed via contract law or via byelaws" - they refuse to give you a straight answer! Instead you get a load of waffle about Indigo being a member of the BPA blah blah.

The fact is that most of Indigo's car parks are managed via byelaws, which are part of the criminal law. They threaten you with things called "penalties" - which are only allowed to be called "penalties" because the criminal law allows for punishment (whereas civil contract law only allows fines which represent damages for breach of contract, ie compensation not punishment). Even more confusing, the Indigo £100 "penalty" is nothing of the sort, it's just an offer to avoid prosecution which no-one is obliged to accept. The real penalty could only be imposed on the driver by a Magistrate's Court.

Don't worry about clamping. There are extremely good arguments suggesting that clamping at station car parks has been illegal since 1st October 2012, which is when the Protection of Freedoms Act came into force.
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Redivi
post Tue, 11 Sep 2018 - 17:52
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If Indigo issues a Penalty Notice at a railway station, it's been issued under the Byelaws

Where they usually mess up is issuing them for "Failure to display" a permit, which isn't a byelaw offence

The only contract that I've ever seen between Indigo and the Rail Company didn't allow it to take anyone to court
The contract was also with a different Indigo company from the one that issued the Notice

Checking company registration numbers and VAT numbers on the windscreen notices suggests that this identity confusion is very common

Railway Byelaw 14(4)(ii) allows vehicles to be clamped
Wouldn't like to argue that this doesn't provide the legal authority to clamp as required by POFA 54(1)(a)
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cabbyman
post Tue, 11 Sep 2018 - 17:53
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I think PoFA sched 4 para 3 excludes all land subject to byelaws, irrespective of how signage may attempt to impose contractual terms:

3(1)In this Schedule “relevant land” means any land (including land above or below ground level) other than—
(a)a highway maintainable at the public expense (within the meaning of section 329(1) of the Highways Act 1980);
(b)a parking place which is provided or controlled by a traffic authority;
©any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.
(2)In sub-paragraph (1)(b)—
“parking place” has the meaning given by section 32(4)(b) of the Road Traffic Regulation Act 1984;
“traffic authority” means each of the following—
(a)the Secretary of State;
(b)the Welsh Ministers;
©Transport for London;
(d)the Common Council of the City of London;
(e)the council of a county, county borough, London borough or district;
(f)a parish or community council;
(g)the Council of the Isles of Scilly.
(3)For the purposes of sub-paragraph (1)© the parking of a vehicle on land is “subject to statutory control” if any statutory provision imposes a liability (whether criminal or civil, and whether in the form of a fee or charge or a penalty of any kind) in respect of the parking on that land of vehicles generally or of vehicles of a description that includes the vehicle in question.
(4)In sub-paragraph (3) “statutory provision” means any provision (apart from this Schedule) contained in—
(a)any Act (including a local or private Act), whenever passed; or
(b)any subordinate legislation, whenever made,and for this purpose “subordinate legislation” means an Order in Council or any order, regulations, byelaws or other legislative instrument.




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Gary Bloke
post Tue, 11 Sep 2018 - 18:46
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Schedule 4 of the POFA is about giving PPC's the right to pursue the Registered Keeper if they don't know who the driver is. Railway stations are not "relevant land" as it has been defined in the Act, so this means Schedule 4 of POFA does not apply here, ie there is no keeper liability.

Lack of Keeper liability at rail station car parks applies irrespective of whether the PPC chooses to manage the car park via contract law or via byelaws. Where byelaws apply, the PPC can still choose to enforce parking regulations using contract law if they wish. Or they can choose to enforce using the byelaws. They must choose one or other and they must make it clear to the motorist which they are using. They cannot chop and change.

If managed via contract law, then any parking charge represents damages for breach of the parking contract. As such, it must represent a Genuine Pre-Estimate of Loss (GPEOL), because punitive charges (ie "penalties") are not allowed under contract law. Note that the "ParkingEye versus Beavis" ruling does not apply here, because train station car parks do not typically serve shops - so there is no commercial justification for parking charges in excess of a GPEOL. (At private car parks which serve shops, the Beavis ruling will still apply). Under contract law for most private land either the driver or the keeper could be liable, but due to the first paragraph above, at train station car parks only the driver could be liable for breach of contract.

If managed via byelaws, then there is no parking contract in force. The first paragraph above means that only the driver could be liable to pay a penalty. That penalty can only be imposed by a Magistrate's Court. The byelaws mention that the "owner" of the vehicle (who may not be the driver) found to be in breach of byelaws may have to pay a penalty. The wording of the byelaws means that the owner could only be found guilty after the driver had already been convicted of breaching the byelaws. There is no law making it illegal to be the owner of a vehicle which was parked in breach of byelaws by someone else. So in practice a non-driving owner would never have any penalty imposed on them. Only the driver could ever be found guilty. Again, no keeper liability.

Fines imposed by Magistrates go to the Government. So Indigo and the TOC's have no incentive to prosecute anyone. The £100 Indigo "penalty" is in fact a bluff - it is an offer to avoid prosecution, which they never do anyway. So nobody is under any legal obligation of pay the Indigo £100 charge. It is entirely optional.

Re clamping: The byelaws depend on the Transport Act 2000 as their enabling legislation. This says nothing about allowing clamping. Railway byelaws were written in 2005 and they do mention clamping. This is because, at that time, clamping was allowed as part of the common law - they did not have to have express permission to clamp in the TA2000. Since POFA came into force, the ability to clamp using the common law has gone away and all clamping must have specific lawful authority. Because the TA 2000 has never been updated to mention clamping, the byelaws cannot now rely upon it to provide any lawful authority to clamp. Ergo, clamping appears to be illegal at station car parks.

Re BPA Code of Practice: The COP assumes that all car parks are managed under contract law. It makes no provision for car parks managed using byelaws. This is a huge gap which, as far as I know, the BPA has still not addressed. So cannot really expect the BPA CoP to make any sense in situations when management is via byelaws.

This post has been edited by Gary Bloke: Tue, 11 Sep 2018 - 18:59
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cabbyman
post Tue, 11 Sep 2018 - 19:22
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So, the £100 'penalty' is not, in fact, bluff but blackmail?

Thanks for the detailed analysis. I need to sit and pull the various aspects of it to bits to get a detailed grasp of it. I think I have the basics OK but need to deepen my understanding.


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Redivi
post Tue, 11 Sep 2018 - 19:46
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Interesting points about the Transport Act 2000

I recall another member making a similar point about enabling legislation but couldn't remember what it was

I agree that ParkingEye v Beavis doesn't apply
The Appeal Court along the way said that the penalty rule could never be disengaged for pay car parks and the Supreme Court didn't dispute the point
ParkingEye would have lost the case in the County Court if they hadn't, at the last minute, produced a document granting them an interest as the land-owner
This is another point that was lost along the way

An interesting case that every court found a different reason to decide ParkingEye was entitled to the payment
One could almost believe that they had been persuaded of Carmageddon if they ruled differently

The trouble is that the parking companies dispute that pay car parks are excluded and most judges will agree with them

So, the £100 'penalty' is not, in fact, bluff but blackmail?

Yes and the later letters from ZZPS and QDR will say that it's an offer to avoid prosecution
For some reason they won't give a straight when asked to confirm that the motorist is entitled to decline the offer
They also won't explain why they're adding debt recovery charges to an offer that has, according to their own letters, never been accepted

This post has been edited by Redivi: Tue, 11 Sep 2018 - 19:51
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Gary Bloke
post Tue, 11 Sep 2018 - 20:01
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It's not blackmail, they are offering you a contract. You pay them £100 and in return they promise not to prosecute you for alleged breach of the byelaws. No-one is obliged to accept an offered contract, so no-one has any legal obligation to pay the £100. You are perfectly entitled to decline their offer and go to the Magistrate's Court instead. In reality, Indigo and many of the TOC's don't bother with prosecutions because they get no financial benefit from doing this. So the whole thing is a big bluff.

The £100 charge could be classed as a bribe under the terms of the Bribery Act 2010. Soliciting a bribe in order to alter the course of a criminal prosecution is illegal. So it could be argued that they are breaking the law in soliciting this payment and you would be breaking the law by paying it. But none of this has ever been tested in a real court of law, so until then it's just conjecture.
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cabbyman
post Tue, 11 Sep 2018 - 20:07
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That's the word I was looking for: Bribe!


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Redivi
post Tue, 11 Sep 2018 - 20:52
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A motorist who pays such a bribe has no recourse if Indigo decides to prosecute him anyway

But none of this has ever been tested in a real court of law, so until then it's just conjecture.

Prosecution requires the consent of the DPP or the Director of the Serious Fraud Office

In the meanwhile, the tactic of spinning matters out past six months works well
Has POPLA started dealing with these cases again because it was very useful for parking them (excuse pun) for a few weeks ?

This post has been edited by Redivi: Tue, 11 Sep 2018 - 21:03
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southpaw82
post Tue, 11 Sep 2018 - 21:10
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QUOTE (Gary Bloke @ Tue, 11 Sep 2018 - 21:01) *
It's not blackmail, they are offering you a contract


Are you sure?
QUOTE (Redivi @ Tue, 11 Sep 2018 - 21:52) *
A motorist who pays such a bribe has no recourse if Indigo decides to prosecute him anyway

Abuse of process.


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Gary Bloke
post Tue, 11 Sep 2018 - 22:54
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Yes I am sure. The Notice to Owner letter from Indigo / ZZPS states:
"The notice affixed to the car...was an offer to allow you an opportunity to avoid a criminal prosecution."

If you paid the £100 charge and they prosecuted you anyway, then (a) the case would be thrown out, and (b) you could sue them for breach of contract (failure to keep the promise not to prosecute).
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Churchmouse
post Tue, 11 Sep 2018 - 23:21
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QUOTE (Gary Bloke @ Tue, 11 Sep 2018 - 19:46) *
Schedule 4 of the POFA is about giving PPC's the right to pursue the Registered Keeper if they don't know who the driver is. Railway stations are not "relevant land" as it has been defined in the Act, so this means Schedule 4 of POFA does not apply here, ie there is no keeper liability.

Lack of Keeper liability at rail station car parks applies irrespective of whether the PPC chooses to manage the car park via contract law or via byelaws. Where byelaws apply, the PPC can still choose to enforce parking regulations using contract law if they wish. Or they can choose to enforce using the byelaws. They must choose one or other and they must make it clear to the motorist which they are using. They cannot chop and change.

If managed via contract law, then any parking charge represents damages for breach of the parking contract. As such, it must represent a Genuine Pre-Estimate of Loss (GPEOL), because punitive charges (ie "penalties") are not allowed under contract law. Note that the "ParkingEye versus Beavis" ruling does not apply here, because train station car parks do not typically serve shops - so there is no commercial justification for parking charges in excess of a GPEOL. (At private car parks which serve shops, the Beavis ruling will still apply). Under contract law for most private land either the driver or the keeper could be liable, but due to the first paragraph above, at train station car parks only the driver could be liable for breach of contract.
This is a good overview of the train station car park situation, but I am not comfortable with the "managed via contract law" or "managed via byelaws" dichotomy, nor do I agree that, as a result of Beavis, the GPEOL requirement has necessarily only been lifted from free car parks serving retail establishments.

How a train station car park is managed is a matter for the relevant Train Operating Company (TOC) and the PPC (if any) to decide--within the realm of the applicable laws and regulations. I don't see any reason why the TOC and the PPC cannot decide to manage the car park using whatever enforcement mechanism is available to them, in whole or in part. If they can articulate a way to employ both, why not? The main obstacle to using contract law appears to me to be that--as you have mentioned--POFA applies only to "relevant land", but this simply raises an enforcement issue; they can use contract law if they like, and if the TOC wishes to really sock it to someone (a serial transgressor, perhaps), they can attempt to prosecute that person in Magistrates' court.

Although I agree that the Beavis Supreme Court case is not as broad as the PPCs assume (and would like), it is not so narrow as to have no applicability in any location that does "not typically serve shops". The two purposes of a train station car park are arguably similar to those of a free car park serving shops--to ensure that customers who need to park in that location in order to patronise the relevant business(es) can do so, i.e., to implement a "traffic space maximisation scheme", to use the Beavis court's language, and "to provide an income stream to enable [the PPC] to meet the costs of operating the scheme and make a profit from its services, without which those services would not be available". The Beavis court said, "these two objectives appear to us to be perfectly reasonable in themselves. Subject to the penalty rule and the Regulations, the imposition of a charge to deter overstayers is a reasonable mode of achieving them." It is true that a Pay and Display car park is not a free car park (as was the case in Beavis), but the same principles which the Beavis court had said justified the parking charge in a free car park could very well be seen by a judge as also justifying parking charges in a Pay and Display public car park--even one serving a TOC's business. (I think residential parking charges are much harder to fit under the Beavis umbrella, however.)

About the PCN charge itself, the Beavis court said that it was "not a penalty" where the PPC had a "legitimate interest in charging [contract-breaching motorists] which extended beyond the recovery of any loss", "because it sells its services as the managers of such schemes and meets the costs of doing so from charges for breach of the terms... As we have pointed out, deterrence is not penal if there is a legitimate interest in influencing the conduct of the contracting party which is not satisfied by the mere right to recover damages for breach of contract". (However, the PPC could not "charge a sum which would be out of all proportion to its interest", but an "£85 charge was neither extravagant nor unconscionable having regard to the level of charges imposed by local authorities for overstaying in car parks on public land.") Again, the PPC managing a train station car park also has a "legitimate interest" in deterring motorists from overstaying or "parking in breach" of the other car park regulations, and the PCN amounts charged do not seem extravagant or unconscionable in comparison with other PCN amounts, so I can very well see a court taking the view that Beavis is indeed applicable to this kind of public car park. Unfortunately, I cannot predict what any judge might actually do, but I do not agree that it is settled law that Beavis absolutely does not apply to a train station (or other) pay and display public car park.

--Churchmouse
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Gary Bloke
post Tue, 11 Sep 2018 - 23:57
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The DVLA does not allow parking operators to use a mixture of contract law and Byelaws at the same time. Parking operators must choose one or other form of parking management and stick to it. This is demonstrated in the emails released in response to Freedom of Information Request 302420. On pages 15 and 16, the DVLA writes to the Legal Counsel at NCP as follows: “We note the position you are in with railway car parking but we would restate that if you are operating the railway car parks under Byelaw 14 then that must be clear on the signage, communications and tickets and if you are operating the car parks under contract then that needs to be clear on signage, communications and tickets. We will not release data for those sites where it is not clear to the users which you are using or where you may decide after the event which you will use (byelaw prosecution or contractual breach)”.

Regarding the Beavis ruling, I am not saying it definitely would not apply at train station car parks which are managed using contract law. What I'm saying is that the ruling was specific to the situation of Mr Beavis, and that same ruling does not necessarily apply to the very different situation at train station car parks.
For example:
- Mr Beavis overstayed a free parking period, while at station car parks there is always a single charge for staying the whole day (no free periods)
- ParkingEye were making all their money from fines, while PPC's like Indigo are paid to provide parking management services irrespective of whether they issue any tickets (so they have an assured revenue stream unlike PE)
- In the Beavis case there was a commercial justification to promote a turnover of customers in the car parks so that local shops would not be starved of custom. The station car parks managed by Indigo serve London commuters who arrive early in the morning and leave in the evening. The customer turnover argument does not really apply because relatively few people arrive to use the station car parks after the morning rush.
- The Indigo £100 charge can be seen as extravagant and unconscionable, because it is significantly greater than the £50 to £70 charge applied in nearby local authority car parks for similar offences.

This post has been edited by Gary Bloke: Wed, 12 Sep 2018 - 00:01
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Slapdash
post Wed, 12 Sep 2018 - 07:54
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Surely the DVL do not (and cannot) stipulate how enforcement is undertaken.

They merely stipulate that it must be done in a certain way in order for them to release keeper data.
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Redivi
post Wed, 12 Sep 2018 - 08:33
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IIRC the DVLA does stipulate but excuses the PPC when it ignores the stipulation

Indigo's KADOE (Keeper on Date of Event) contract with the DVLA allows it to electronically access the database to recover parking charges
Access to details for the purpose of enforcing Byelaws requires a paper application
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Slapdash
post Wed, 12 Sep 2018 - 08:51
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If keeper details are obtained - to enforce the contact - and the keeper then refuses the "bribe" leading to a bylaws prosecution are those details in any way admissible. Or even relevant since the prosecution is to be against the driver.

If the keeper has outed the driver as part of their defence to a contractual allegation is that admissible or is it covered by any form of privilige.

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southpaw82
post Wed, 12 Sep 2018 - 10:46
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QUOTE (Gary Bloke @ Tue, 11 Sep 2018 - 23:54) *
Yes I am sure. The Notice to Owner letter from Indigo / ZZPS states:
"The notice affixed to the car...was an offer to allow you an opportunity to avoid a criminal prosecution."


You probably shouldn’t be sure. It’s certainly arguable that there was no intention on the part of Indigo to enter into contractual relations, as they’d argue they were enforcing a penalty rather than receiving consideration. Equally, such a contract would be at serious risk of being void for illegality on grounds of public policy - the policy in question being that prosecutions should not be suppressed by private treaty.

The assertion that indigo are entering into a contract, or by extension that that contract would be binding, is tenuous at best.


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Gary Bloke
post Wed, 12 Sep 2018 - 11:26
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I don't think Indigo uses paper applications to DVLA for any of it's data requests. Previous research by Dramaqueen suggests that they always use the electronic method, governed by the KADOE contract.

That in itself raises questions, because the KADOE contract states that the data must be used for purposes of pursuing parking charges, which are specified as being damages for breach of a parking contract of for trespass. Nowhere in the KADOE contract does it say that it's okay to use the data to offer the motorist a contract to avoid a criminal prosecution. This has been queried with DVLA but as usual they did nothing about it.

Indigo has no right to enforce any penalty under criminal law. Penalties for breach of byelaws can only be enforced by a Magistrate's Court. As evidence of this, see the response to FOI 013227 from Jeaur Rahman at Dept for Transport, dated 18 Feb 2016:
"Having carried out a thorough re-examination of our paper and electronic records I can confirm that the Secretary of State has not confirmed or made any such laws and that no other person or body other than the Court is able to impose a penalty for breach of the Byelaws [including Byelaw 14 (1-3)] made under Section 219 of the Transport Act 2000 (as amended) and made operational on 7 July 2005."

That is why Indigo's only option is to invent a different, home-grown charge which they call a "penalty", but which is in fact merely an offer to avoid a prosecution.

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