The British Parking Association run an appeals system (POPLA), which although it has its faults, is at least mostly independent, mostly open and in its own way mostly fair to the motorist.
The Independent Parking Committee on the other hand run an appeals system (IAS) which is held behind closed doors, can be provably influenced by the IPC and from the results, is biased towards the parking companies.
Nothing illustrated this more than two results for G24 Parking who recently left the BPA for the IPC.
Here is the result from POPLA
The Appellant raises several grounds of appeal but it is only necessary for the purposes of this appeal to deal with one. This is the submission that the parking charge does not reflect a genuine pre-estimate of loss.
Where such a submission is made, there is a burden on the Operator, and not the driver, to provide a genuine pre-estimate of loss which details how they calculated the parking charge amount. It does not need to be particularly detailed or amount to exactly the charge amount because it is simply an estimate. However, one must be provided.
The Operator has not provided any evidence which establishes the charge reflects a genuine pre-estimate of loss. They simply state that their charge amounts to liquidated damages and is in accordance with the recommendations of the BPA. This is not sufficient to discharge their burden and so I cannot find that the charge is justified in this case. Therefore, I find that the charge is unenforceable and the Appellant is not liable to pay it.
Accordingly, I allow the appeal.
Ricky Powell
Assessor
Here is the result from the IAS
The appeal is here, for completeness
Appeal Outcome: Dismissed
The Adjudicators comments are as follows:
The Appellant raises a number of challenges, which I will respond to in turn.
1a This appeal is not concerned with the failures or otherwise of the internal appeal. The Operator is a member of the IPC.
1b In this appeal the Operator does not have to prove anything, the onus is on the Appellant. A breach of the code of practice does not automatically mean that the charge is invalid. The requirements of the code are best practice. Falling short of best practice does not mean the Appellant had insufficient notice. I can read the content of the sign the Appellant claims is unreadable and the significant terms are no different from the other signs at the site.
2 Genuine pre-estimate of loss. Again it is not for the Operator to prove but for the Appellant. Where the claim is for breach the test to decide whether the charge is valid is to consider whether the charge is proportionate, has a tendency to deter, and is commercially justifiable. The intention was clearly to deter drivers from parking beyond a period of time. When one considers the likely cost of managing checking and enforcing the site, in the absence of any evidence to the contrary I find the charge proportionate, and as the Operator’s only income commercially justifiable.
3 The Appellant has provided no evidence this sign was nearest their car.
4 This is not relevant. The Operator contends they are bringing the charge not for overstaying but on the basis the Appellant was not a customer. This is clearly a term and the other terms on the contractual sign make it clear that by breaching this term the Appellant is liable to pay the charge.
5 This is therefore irrelevant since I consider a contract has been formed.
Finally I do not find the contract ambiguous and therefore the doctrine of ‘contra proferentem’ does not apply.
The IAS is not fit for purpose because
- the operator sees the motorist's evidence and makes representations, but the motorist is not allowed to see the operator evidence or make representations
- the adjudicator is anonymous and the selection process for choosing an adjudicator is capable of being abused
- the normal rule of law, where the claimant is required to prove their case is turned on its head
- there is no independent board overseeing the appeals process, as there is with POPLA
- there is no requirement to have an annual report published, as there is with POPLA
In this particular case there are even more worrying elements.
The adjudicator dismissed a statement by the keeper as untrue because the keeper had provided no evidence to back this up. This is clearly absurd.
The sign which was nearest to the car, according to the driverThe Appellant has provided no evidence this sign was nearest their car.
The adjudicator also made up his own 'facts' to suit his arguments.
This is not relevant. The Operator contends they are bringing the charge not for overstaying but on the basis the Appellant was not a customerThis is clearly not true. The NtK clearly states the charge is for overstaying.
I can read the content of the sign the Appellant claims is unreadable and the significant terms are no different from the other signs at the site.
The first sign shows the charge is a contractual charge (you can stay longer than 3 hours. The charge is £50). The second shows the charge is for breach of contact (You can only shop here. If you go elsewhere you are in breach of contract) (Prankster note. Staying longer than 3 hours does not appear to be one of the 5 terms and conditions which attract a parking charge).
This is fundamental to parking contracts and any assessor who does not understand the difference is not fit to work as an assessor.
Furthermore, the assessor is clearly lying when he says 'I can read the content of the sign the Appellant claims is unreadable'.
The Prankster defies anyone to read the sign from the photograph above. An assessor who cannot tell the truth has no place in being an assessor.
The Prankster considers this is ample proof the IPC appeals system is a kangaroo court and not fit for purpose.
How can a parking company which has had its Genuine Pre-Estimate Of Loss calculations consistently ridiculed by POPLA for 2 years suddenly come up with a convincing explanation of its losses to a different appeals system?
How can a charge which it is admitted is the 'Operator’s only income' possible equate to a loss if it is used to run a profit making company?
The Prankster calls on the DVLA to suspend the ATA status of the IPC until they use a system which runs on the same lines as POPLA, and which is seen to be fairly run.
Furthermore, the Prankster calls on the DVLA to require the IPC to name the assessor used for the above case, and to ban them from further assessments.
Meanwhile The Prankster notes that should G24 want to proceed to court if the keeper does not pay up, then keeper liability under the Protection of Freedoms Act 2014 does not apply. Under the act, the reason for issuing the charge must be stated. As G24 have confirmed the charge is for not being a customer to the IAS, they cannot change their tune in court. In any case, staying longer than 3 hours is not one of the terms and conditions which attracts a parking charge.
Happy Parking
The Parking Prankster
I am currently in the process of dealing with G24 Ltd on one of their other sites, including the fact they were claiming to be BPA AOS members while they were not.
ReplyDeleteThey have yet failed to respond to my invoices I sent (I informed them I will be claiming for my time spent on the case) if they don't I will have to do something which G24 threaten, but haven't had the balls to do which is file a N1 Claim
Gladstone Solicitors will no doubt be trying their best to persuade G24 to go to court to enforce their 'claims', or in your case, to defend their charge. G24 should probably take note of the last time Gladstone got involved, which was with ParkShield. Parkshield ended up refunding the motorist's parking charge, most of the court costs, Gladstone's fee, LPC Law's fee, and their own time and energy. G24 should be asking themselves, who is the winner in such situations. Certainly Gladstone's were not out of pocket.
DeleteOh I certainly hope G24 turn up but I doubt they would be, Naturally I would of course prepare my case on the basis that they were.
Deleteahhh that was a fun day in court :D
DeleteRoland Freisler would have been a splendid IAS assessor.
ReplyDeleteStill at some point some statistics will come to light showing their bias (or additional perverse decisions like the one above) and they will be exposed for what they are.
Unlike POPLA the IAS does not publish an annual report. However, IPC members are required to win 60% of IAS appeals or face investigation (see the IPC Code of Practice, Schedule 4)
DeleteAccording to the IPC / IAS website;
ReplyDelete"How do I know the independent adjudicator is actually independent? None of the adjudicators are
employed by the IPC. They are all self-employed barristers or solicitors who are appointed simply to
make a decision on the law. They do not receive any additional payments for finding in favour of the
operator and they cannot be swayed by anyone at the IPC. They are the closest thing to having a
District Judge deal with the matter in the County Court. Barristers and solicitors have a professional
duty to act independently and to uphold the rule of law."
Is it worth a complaint to the SRA?
So, presumably, the significant shift in appeal decisions shortly after the DVLA probationary period expired was down to a change in contract law that occurred at the same time? As independent (but anonymous) barristers and solicitors there wouldn't have been any other reason to explain a seismic shift in the way they were interpreting contract law.
DeleteWhere's that 'sarcasm' smiley?
I thought the IAS was the law.... (Judge Dredd anyone)
DeleteThe IPC is just a bunch of shysters trying to scam as much money out of people as possible. It's a total shambles that the DVLA has been stupid enough to grant those bullies access to Keeper data. THAT is the real scandal here, not the fact that the IPC runs a ridiculous appeals system where assessors think they can do whatever they want. The only problem is, the DVLA doesn't give a rat's ass whether the IPC is a proper undertaking or not - as long as the boxes are ticked the DVLA can blame someone else for the failure to take proper action.
ReplyDeleteHow could this ridiculous appeal statement hold water if challenged in court?
ReplyDeleteAfter all "He who asserts must prove"
The BPA Ltd must be positively ecstatic that a bunch of weasels exist that are so unprincipled as to make the BPA Ltd look good. Well, less crooked by comparison anyway. You know what I mean.
ReplyDeleteOn the 3rd November 2014, Mr Oliver Morley the 'new' CEO of the DVLA gave the following written assurance, "We have introduced and are continuing to develop an intelligence-led, risk-based assurance approach on data customers and we are working closely with the accredited trade associations as part of that" - So the DVLA have introduced this, they are (according to Mr Morley) now being proactive and gathering intelligence so that they can produce a more accurate picture of what is happening with the data they sell to PPCs. It follows therefore that such information must be passed by consumers to the DVLA so that they are kept fully in the picture. Send any alleged wrongdoing via email and marked as a 'Formal Complaint' and lets help Oliver Morley clean up this industry.
ReplyDeleteWe currently have our own run in with the IPC. Having had a successful appeal to a charge issued by Parking Enforcement Ltd they are still threatening court action if we do not pay up through Gladstones and DRP.
ReplyDeleteHaving had the appeal accepted this should have been the end of the matter, but PE Ltd wouldn't listen when we said no payment was due and said we had to deal with Gladstones who without making contact themselves have set DRP onto us. I understand Gladstones ARE the IPC in all but name so cannot understand how they can be at all 'Independent'.
The RK/Driver is now really worried about the possible consequences of not paying despite assurances from me, so we have gone back with a formal complaint to the IPC/Gladstones, Trading Standards, the DVLA and the ICO. Data has been obtained without just cause, passed on without permission to Gladsones and DRP and unlawful threats made without any one organisation checking that such threats were warranted.
The whole system stinks and the IPC are at the very heart of it!
How did this all pan out? Remember the option is perfectly open of you suing them for undue stress and harassment. Not to mention all your time and resources they've wasted!
DeleteThe two directors of the IPC, John Davies and William Hurley have been directors of Gladstones Solicitors (as used by G24 not entirely successfully) since February 2011 and May 2011 respectively. They then set up the IPC as a private limited company in October 2012 presumably as a competitor to the BPA. If you read Gladstones web site (http://www.trafficdefencelawyer.com/land-road-traffic.htm), it states that "Motoring Law / Road Traffic Defence. This is the area that Gladstones Solicitors started life in and the area that the Principal Directors of the Firm, John Davies and Will Hurley, still specialize in."
ReplyDeleteHypothetically (and this is just my imagination at work!), I can imagine JD and WH at a board meeting asking how they can increase their civil parking workload. Two possibilities: 1. Increase the total workload across the sector, 2. Get an early "heads up" when something's heading to court, offer their legal services thereby potentially increasing their market share. Question: how to achieve these two objectives? Answer: Become the appeals process itself! Set up a limited company, grab all the PPCs from the BPA and ensure that all appeals are rejected. (IPC charge the PPC £15 if the motorist loses, £25 if the PPC loses: http://media.wix.com/ugd/bd9e08_3e415c5860734aaab80b7c34543f83ad.pdf).
As long as they don't fall foul of abusing a dominant market position, it looks like a win-win for Messrs Davies and Hurley.
If it is the case that G24 Ltd are no longer members of the BPA, and so no longer Approved Operators, yet their signage would indicate otherwise, does this render the 'contract' void, or does one still need to go through the process of establishing the right to charge (contract between land owner and parking operator) and of establishing whether the charge is an accurate pre-estimate of losses ?
ReplyDeleteThe contract is still valid, so you still need to go through the usual steps
DeleteOK, how about this them the sign says that the parking charge will be reduced by 40% if paid withing 14 days, the actual reduction on offer is from £90 to £50, which is a 4/9 or 44.4% reduction.
Delete