The Appellant raises two main grounds of appeal, the lack of notice due to the absence of visible signs at night time and that the charge is not commercially justifiable.
Both the Appellant and Operator provide evidence of the site at night time, the photographs of the Appellant show that the signs are difficult to read, and those of the Operator contradict this and present the signs as visible and prominent. In this appeal the onus is on the Appellant to prove their claims are more likely than not. As the evidence from both parties supports their argument I cannot be satisfied by either party, and therefore, as the onus is on the Appellant, I cannot allow the appeal on this basis.
Commercial justifiability of the charge is only relevant where the claim is for breach of contract. In this case, in my view, the claim is not for breach. The contractual terms confirm that any driver parking without displaying a ticket agrees to pay the charge. It is, in effect, the price the Appellant has agreed to pay for not having a ticket. Once the driver has entered an agreement with the Operator to pay the charge, the Operator does not have to subsequently show that the charge is commercially justifiable.
Even if the claim is for breach the recent Court of appeal case of Beavis v Parking Eye made it clear that such charges are legal if they are commercially justifiable. As the amount here is similar to that allowed by the Court of Appeal, this ground of appeal is dismissed.
Finally, any complaints regarding the Operator or the independence of this appeal fall outside of the scope of this appeal and should be raised as complaints should the Appellant so wish.
The operator evidence of the site at night time contained signs illuminated by torches and headlights. Only an incompetent assessor would have failed to realise this, leading to the obvious conclusion that the assessor is either incompetent or institutionally biased against motorists.
The Prankster has not seen the actual signage at this site, but has seen plenty of other Excel signage and therefore considers it likely the charge is for breach of contract. POPLA, judges, and even Excel themselves have previously ruled the same in large numbers of documented cases and therefore the Unfair Terms in Consumer Contract Regulations 1999, regulation 7 comes into play - if there is any ambiguity it must be resolved in favour of the consumer. As a multitude of legally qualified persons have rules Excel's signage implies charges are for breach of contract, then any competent assessor would rule similarly.
The assessor also show their bias and incompetence by quoting ParkingEye v Beavis without justification. The proper appeals service, POPLA, has this to say.
However is not clear that the Court of Appeal decision actually gave the clarity that has been widely reported, particularly in situations where some payment is required to park. It is arguable that the decision does not apply in such circumstances and it is possible this could be the course followed in the County Court in future cases.
It is becoming more and more obvious that the IPC appeals service is not fit for purpose and should be suspended by the DVLA as soon as possible.
No doubt the IAS barista makes a lovely cup of coffee but they are a disgrace to the legal profession and have no business working in an appeals service. If Will Hurley and John Davies have any morals they will suspend the barista and report them to the Solicitors Regulatory Authority.
Parliamentary Briefing
It is worth referring to the recent briefing paper, published this month. Although the document is flawed and contains many inaccuracies, The Prankster notes the following:
Where this marks a change from previous practice is that formerly a
landowner only had recourse to the courts if they made a charge for
parking on their land but did not enforce it with clamping. The changes
outlined in the 2012 Act allow landowners to recover parking charges
and drivers and vehicle owners to challenge fines without having to go
to court, a process which can be time consuming and costly.
As the IAS decisions are irrational and either incompetent or institutionally biased, this can only lead to more court cases, not less. Nothing makes this more clear than the statement in the assessment:
In this appeal the onus is on the Appellant to prove their claims are more likely than not
As this is the exact opposite of the legal system in this courtly, where the claimant is required to prove their case, not the defendant, then no IAS judgment is worth the paper it is written on.
Happy Parking
The Parking Prankster
Who writes this stuff?
ReplyDelete<<2. Private land and car parks 2.1 Legal position since 1 October 2012
Section 56 and Schedule 4 to the Protection of Freedoms Act 2012 represented a significant change to the law on parking on private land. It enables private landowners to recover parking charges from the keepers of vehicles parked on their land where they have in effect entered a contract regarding the conditions upon which they have come onto that land to park.34 What this means is that where one owns a car park on private land, maintained by a member of an Accredited Trade Association (ATA), and abiding by the requirements of that Association (i.e. erecting the proper signs, applying maximum charging rules, having a proper complaints and appeals procedure), once can recover parking charges from the owner (‘keeper’) of an illegally parked vehicle, if the driver does not pay.35
Where this marks a change from previous practice is that formerly a landowner only had recourse to the courts if they made a charge for parking on their land but did not enforce it with clamping. The changes outlined in the 2012 Act allow landowners to recover parking charges and drivers and vehicle owners to challenge fines without having to go to court, a process which can be time consuming and costly.
As mentioned in section 1.3, above, in March 2015 CLG issued a consultation on further changes to the rules on parking on private land. It sought views on whether there are problems with how parking on private land is regulated and/or the behaviour of private parking companies and what steps the Government should take to rectify these problems. In particular it was thinking of things like:
• Practices which could be in breach of consumer protection laws, such as companies setting excessive parking charges, or levying excessive penalties for overstaying which are dressed up as official “parking fines”.
• Practices that undermine the principle underlying the formation of a contract, including unclear or missing signage, or a lack of transparency on charges and/or fines.
• Failure to treat drivers fairly when they have incurred a penalty, including the failure to provide information, consider appeals fairly and the aggressive use of bailiffs.36
The consultation closed in May 2015, at time of writing the outcome has yet to be published.>>
'Illegally parked', 'Fines', 'Penalties'. Looks a right amateur job by a wannabe high flying civil servant youth! No wonder the struggle is uphill !
Obvious incompetence of the IPC aside, on appeal does the burden of proof not lie with the appellant rather than the respondent?
ReplyDeleteIn a court, yes. But this isn't in a court. It's in IPCLand, where everything is reversed. Of course, if it wasn't reversed, the parking companies wouldn't make anywhere near as much money, but I think that's just a coincidence.
DeleteMy point is that in that case it wouldn't be reversed? If the burden of proof on appeal lies with the appellant in an appellate court, then the position is not 'reversed' where the burden of proof is with the appellant as it is at the IPC.
DeleteIn a properly independent appeals service such as POPLA, the onus is on the Operator to prove their case. They are, after all, claiming that the motorist owes them money.
DeleteSo if, for example, the Appellant states that the Operator has not demonstrated that they have the necessary authority from the landowner, under POPLA the Operator needs to provide a copy of the contract as evidence that they do have authority. But the IAS adjudicators will say something like 'the onus is on the Appellant to prove that the Operator has no authority', thus setting the Appellant the impossible task of proving a negative.
In one case I helped with, involving residential permits, all of the letters from the Operator were sent to the Appellant at his residential address, and were contained in the Operator's evidence pack. Yet the IAS legal hotshot managed to come up with this priceless gem: "... the Appellant has not provided evidence that they are a resident at the location, therefore there is no evidential basis to allow the appeal on this ground"
Classic
DeleteI think it is not helpful that the process is called an 'appeal' when it is the PPC who are alleging a debt is owed and therefore they have the onus to prove it. From the goernment point of view, they have stated they want the appeals system to take the place of the court. This will clearly not be of any use unless the appeals system is modeled on the court system. Otherwise you get the IAS which is a meaningless verdict not worth the electicity the email was sent with.
DeletePrecisely: it's not in any meaningful sense an "appeal". By any reasonable interpretation it's a "court/independent tribunal of first instance" trial for both parties.
DeleteIt's perverse and abhorrent to assume and assert that the facts are proven against the driver/keeper unless they refute them. Particularly at the IPC when accusations against the driver/keeper are hidden from them, but their defence is shown to the plaintiff.
Kafka would have been proud.
Usually, when one appeals to a higher court, there is an onus on the appellant to show that the lower court fell into error, whether by fault of process or omission of evidence, for instance.
DeleteBut that terminology depends on there having been an initial verdict handed down by an independent adjudication. In the PPC world, the first verdict is handled by the PPC itself. By definition this cannot be an independent verdict.
Thus the 'appeal' would be better termed an attempt at dispute resolution via POPLA/IAS. It is the first point in the process where the PPCs evidence is weighed by someone without (apparent) connection to the PPC. Since the PPC is the one making the claim of monies due, the burden of proof must clearly lie with the PPC, not the motorist.
Thus the perverse junk law rhetoric of the IPC/IAS can be discarded. It fails on just about every test of independence, equity and transparency which would be needed, even for a minimally adequate dispute resolution service.
Indeed and that confusion is furthered by POPLA's description of appeals that go in the motorists favour as having been 'allowed', and those that go in the company's favour as 'refused'. It gives the impression that it is serving an appellate function, rather than a first instance independent arbitration.
DeleteIt would make more sense if the allowed/refused categorisation were reversed. Where the courts are concerned we don't speak of successful claimant's as having their claim 'refused', though we might describe unsuccessful appellant's as having their appeal refused.
Surely the Parking Company is the claimant, and in a court the burden of proof of the cause of action lies with the claimant. No?
ReplyDeleteRegarding the charge being contractual. Have HMRC been informed?
ReplyDelete@PP Do you have access to the photos? It would be interesting to compare them.
ReplyDeleteThe IAS threaten legal proceedings if any evidence is reproduced.
DeleteOn what grounds?
DeleteI would be very tempted to take them up on that offer if I had anything I could show.
DeleteThat way a proper court would give a ruling that might just smack them firmly in the nuts.
All that aside, I wonder how long this charade will be allowed to continue before their house of cards collapses.
I can only imagine that it's over their copyright. Lots of valuable artistic interpretation in shining a torch on an unlit sign.
DeleteThe DVLA were conned into allowing the IPC to be an ATA, what are the DVLA doing about this, nothing I bet.
ReplyDeleteThe DVLA were conned into allowing the IPC to be an ATA, what are the DVLA doing about this, nothing I bet.
ReplyDelete