This oddball POPLA ParkingEye assessment needs to be read in conjunction with the following statements in the FAQs section of POPLA's website.
“It is not the role of the assessor to collect evidence or contact witnesses. They will look at the evidence that is provided to them from both parties and make a decision based on this alone”.
“Your appeal will be independently reviewed by one of our professional assessors taking into consideration the relevant law, guidance and standards and the BPA Code of Practice”.
It must also be noted that nowhere in PE's evidence pack did they suggest that they were seeking to hold the hirer (company ABC Ltd) liable on the basis that the driver was an employee or agent of ABC Ltd. As it happens, the driver was not an employee of ABC Ltd.
The key point here is that ParkingEye never sought to argue that the driver was acting as our company's agent at the time of the parking incident. Essentially, the POPLA assessor introduced this argument on ParkingEye's behalf at the very end of the process such that we didn't even have an opportunity to make a counter-argument.
For the record, here are the details of our complaint to POPLA which we marked for the personal attention of John Gallagher, Lead Adjudicator.
Dear Mr. Gallagher,
Complaint: Case Ref. [606xxxxxxx], ParkingEye Limited: Parking Charge Notice xxxxxx/xxxxxx
We write to submit our formal complaint regarding Ombudsman Services Limited’s mismanagement of the above-detailed POPLA assessment concerning a Parking Charge Notice issued by ParkingEye Limited (“ParkingEye”) to our company, [ABC Limited] (“[ABC]”).
We consider that rather than merely containing procedural errors, the process through which your assessor reached [her] decision to disallow our “appeal” was fundamentally procedurally unfair and contrary the basic principles of natural justice.
Despite POPLA’s promise that its assessors will look at the evidence that is provided to them from both parties and make a decision based on this alone, your assessor did not do so. Instead, [she] introduced [her] own subjective and unsubstantiated theory that even though ParkingEye had not complied with Schedule 4 of POFA, this was not relevant because the PCN had been issued to a “company vehicle”. In [her] rationale, [she] stated that “we consider [ABC] responsible as principal rather than as hirer” and “accordingly, we do not consider a failure to follow POFA as relevant to our present reasoning. [ABC] has provided the company vehicle to the driver. We consider the company has, authorised their drivers to do what is necessary to carry out their duties using their company vehicle, which includes entering parking contracts”.
At no stage in the process did ParkingEye seek to claim that the driver had bound [ABC] to a parking contract. Instead ParkingEye sought to rely only upon Schedule 4 of the Protection of Freedoms Act 2012 to claim unpaid parking charges from [ABC] as the vehicle’s hirer. Our initial “appeal” to POPLA and our subsequent submission of comments regarding ParkingEye’s evidence was therefore focused upon demonstrating ParkingEye’s non-compliance with POFA.
Given POPLA’s promise that its professional assessors will act independently and impartially, it is unacceptable that POPLA should have sought to introduce its own legal arguments in favour of ParkingEye when ParkingEye did not itself put these forward at any stage of the process. Notwithstanding such a failure by POPLA to maintain its independence and impartiality, it would clearly be ludicrous for “appellants” to have to try to second-guess other arguments that POPLA may itself introduce in favour of the operator at the very end of the process.
Given this clear procedural unfairness, we require that POPLA reassesses this case looking only at the evidence that had been provided from both parties.
We also require your clarification in respect of your assessor’s statements that we consider the company has authorised their drivers to do what is necessary to carry out their duties using their company vehicle, which includes entering parking contracts and we do not consider a failure to follow POFA as relevant to our present reasoning - i.e. please confirm if this reasoning is a) isolated only to this particular assessor or b) now being applied across the whole of POPLA?
We very much hope that this is a case of the former which may be resolved by POPLA providing remedial retraining to the assessor involved. However, if this reasoning is a new POPLA-wide policy, it must be withdrawn immediately – otherwise POPLA will no longer have any credible claim to be an independent and impartial “appeals” service.
POPLA should understand that there can be no presumption in Law that the driver of a company vehicle must necessarily be an employee of the company acting on company business at the time that a “parking contract” is formed. This was once again confirmed in the recent case of Excel Parking Services Ltd vs Clever Car Finance Ltd (Ref. D6DP7R03.12/12/17) heard at Skipton County Court. In summing up, the judge said the case rested on whether the driver had been given either express or implied authority from the Defendant to enter into a contract on its behalf at the material time. It was incumbent on the Claimant to prove or convince her of such on the balance of probabilities, which it had failed to do.
In this particular POPLA case, ParkingEye made no attempt to prove or even argue that the driver was acting in the capacity of an employee or agent of [ABC Limited] at the time of the “parking incident”. In the absence of any evidence to demonstrate that on the balance of probabilities a contract had been formed between the two companies, your assessor had no right to favour ParkingEye by presuming that there had been.
Even if ParkingEye had made such a claim, we could have responded through the course of the “appeals” process to demonstrate that the driver of the vehicle was not an employee of [ABC Limited] and that he / she was not carrying out duties for or on behalf of [ABC Limited] at the material time and as such, there could have been no contract between ParkingEye and [ABC Limited].
Given the seriousness of this matter, we require that you give it your urgent attention. Thank you for your cooperation and we look forward to receiving your confirmation by return that this case shall be reassessed, this time in proper consideration of the relevant laws and based only upon the evidence that has been provided from both parties.
Yours sincerely,
etc.
Here is POPLA's reply - from one of their complaints handlers rather than from John Gallagher himself.
Dear Dennis,
Your complaint about POPLA
Thank you for your email dated 18 December 2017, which was passed to me by the POPLA team as I am responsible for responding to complaints.
I note from your correspondence that you are unhappy with the decision reached by the assessor in your appeal against Parking Eye.
Following some recent guidance from our Sector Expert, Craig Ineson, we have adopted a different approach to how we assess an appeal where the vehicle is a company vehicle and the company itself is appealing against the Parking Charge Notice (PCN). In the Notice to Keeper, I can see that the operator invited you to identify the driver. Instead, the company itself continued to appeal against the PCN on behalf of the driver.
The only reasonable conclusion was that the driver was an employee of the company undertaking duties in accordance with his or her employer’s wishes. As an agent of the company, the driver had the authority to enter into contracts on its behalf. As such, our assessor has assessed the company’s liability for the PCN as if it were the driver of the vehicle.
As a result, your comments regarding the Notice to Keeper not meeting the requirements of the Protection of Freedoms Act 2012 (PoFA 2012) are irrelevant, as PoFA 2012 would only apply when the driver is unknown.
Ultimately, I have reviewed the assessor’s decision and I am satisfied that the outcome reached is correct. As POPLA is a one-stage process, there is no opportunity for you to appeal the decision.
As our involvement in your appeal has now concluded you may wish to pursue matters further. For independent legal advice, please contact Citizens Advice at: www.citizensadvice.org.uk or call 0345 404 05 06 (English) or 0345 404 0505 (Welsh).
In closing, I am sorry that you feel your experience of using our service has not been positive. However, we have reached the end of our process and my response now concludes our complaints procedure.
I trust you will appreciate that there will be no further review of your appeal and it will not be appropriate for us to respond to any further correspondence on this matter.
Kind regards,
Emily C
POPLA Complaints
According to Craig Ineson's Linkedin profile, although he has been with Ombudsman Services since November 2014 (initially as an investigations officer and then a senior investigations officer), he was only appointed as a "Sector Expert" in September 2017.
Given PE's propensity to litigate, and your option to resist, is this a point that could go all the way to the Supreme Court or is there already precedent from a higher court?
Please, please, please keep this thread up to date. This is a real popcorn moment!
A relevant case on Pranky
https://parking-prankster.blogspot.co.uk/2017/12/company-not-liable-for-drivers-personal.html
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