Sunday, 27 December 2015

British Parking Association deny proper appeals process for 4,000 stayed cases despite ISPA concerns

[Edit. Some incorrect references to the Consumer Ombudsman were corrected to Ombudsman Services]

Shortly before the Court of Appeal heard the ParkingEye v Beavis case, ParkingEye wrote to POPLA asking that all cases which depended on the charge not being a genuine pre-estimate of loss be stayed pending the judgment.

Henry Michael Greenslade, the Lead Adjudicator of POPLA, agreed, and a number of cases were stayed. The Court of Appeal judgment came out and it was almost immediately appealed further to the Supreme Court. In line with normal practice for statutory parking appeals the stay remained until this new judgment was available. Mr Greenslade wrote to all stayed cases explaining that they would by held over until at least November 2015.

POPLA then changed hands from London Councils to the Ombudsman Services and at the time of the changeover there were around 4,000 stayed cases. As the British Parking Association had omitted these from the tender, Ombudsman Services politely refused to take these on.

The Prankster has previously analysed the invoices London Councils sent to the BPA, showing that the average cost per appeal was initially around £140. After the service had been running for a while, this fell to around £117. Analysis is further complicated by the fact that London Councils now want to charge the BPA an extra £200,000, which the BPA are disputing.

The BPA now had to find a a way of getting the stayed cases adjudicated, and decided to tender out to yet another party. On the previous analysis the cost of getting these cases properly adjudicated will be around £120 per case; the BPA would be better off paying the parking companies £100 and pocketing £20.

A slightly farcical set of emails were sent out in the last days of the old POPLA. These were intended to convey the message that the stayed cases would be held at some time in the future, but the wrong email was sent out. This was hurriedly corrected and a fresh batch of emails sent out.

The letter is clearly designed to give the impression that an assessor has looked at the case, and decided that the only matter outstanding is the issue of the level of charges. However The Prankster can confirm this is not true. The Prankster has been made aware that in a large number of cases the operator has not yet filed an evidence pack. This is particularly true of ParkingEye cases.

The assessor cannot therefore possibly have made an assessment on issues such as whether keeper liability applies, whether signage is sufficient in quantity or wording, or whether the operator has authority to issue tickets.

These are all areas which have been raised in the stayed appeals, and points with which companies such as ParkingEye have lost appeals both with the old POPLA and the new POPLA. The Prankster would therefore normally expect that either the British Parking Association would allow all such appeals on the grounds that the operator has declined to defend the case.

The British Parking Association contract with POPLA, signed on  23 December 2013, explicitly states that all operator evidence packs must be filed within 28 days.

It would seem therefore that the operator has already been timed out and should not have the right to submit an evidence pack. After all, if the operator is claiming a charge for an overstay of 30 minutes on the part of a motorist, then an 'overstay' of 7 months on the part of an operator is a far greater transgression. However, as the British Parking Association is a trade association for operators they might well be lenient on this point and allow the operators to submit an exceedingly late evidence pack. The POPLA contract then allows the motorist to send a rebuttal, which should be communicated to the operator.

However, this appears not to be the tack that the BPA are taking. According to letters between the BPA and the POPLA scrutiny board ISPA, the BPA have gone for the nuclear option and have decided to save money by not having the outstanding cases fully adjudicated on all points. They have decided to tender to get the cases decided purely on the issue of charges.

ISPA are firmly against this. Here is their first letter to the BPA. The letters are also hosted on the ISPA home page.

 Here is Patrick Troy's response from the BPA.

And here is the ISPA's response.

The Prankster believes that Patrick Troy does not understand the significance of the Beavis case and how the law works. Although he states the decision 'was comprehensively in favour of the operator' this is of course purely based on the facts of that case. Other parking cases have different facts, and applying the guidance of Beavis will come to a quite different conclusion. For instance, there are a large number of car parks which are farmed shamelessly for penalty charges by the operators with no apparent car park management taking place. In such cases the lessons of Beavis would appear to be that the charge would be held to be a penalty in that case. In other cases, where the charge is for trespass and not breach of contract, the Beavis result comes down firmly in favour of the motorist.

The POPLA Lead Assessor made it clear that whatever the Supreme Court verdict, the claimant must make their case and it would be the operator's responsibility to state how Beavis applied, if indeed it did.

The Supreme Court also made it clear that the judgment was based on the use of the particular car park, and the clear wording of the notices, when they tweeted following the judgment.

Indeed, even HHJ Moloney made this clear in his initial judgment.

It is of course also a possibility that had ParkingEye been entirely truthful with the Supreme Court, had not produced false information and overly redacted evidence and had produced the true facts on which the court wrongly inferred then the judgment may have gone the other way.

Therefore making a judgment on 4,000 stayed POPLA cases EVEN JUST ON THE ISSUE OF THE LEVEL OF CHARGE would not appear to be valid if the operator is not allowed to make their case on why Beavis applied, and the motorist allowed to make representations on why it does not.

Prankster Notes

So, to summarise

  • There are 4,000 stayed cases which would cost around £400,000 to assess properly
  • The BPA are trying to save money by not getting the cases properly assessed
  • The BPA are trying to pretend that the stayed cases have been assessed on all grounds except for GPEOL
  • They are fully aware this is not true as they have been robustly informed of this by many motorists and organisations, including The Prankster
  • It is impossible for the cases to have been assessed because in many cases the operator has not even filed any evidence
  • In at least one case, the case is being heard on grounds not connected with GPEOL at all because the case is being reheard due to the operator not following correct procedure
  • Even the Beavis case relied on evidence including signage maps, signage copies, and the operator contract with the landowner
  • The ISPA is prepared to call the BPA's bluff and get a sample set of cases independently assessed
  • The Prankster can give the ISPA a large number of POPLA codes which should form part of this assessment
  • The BPA are relying on an alleged undocumented conversation between Patrick Troy and the Lead Assessor of POPLA of which they have no written proof, and which is in direct contrast to the claims of conversations ISPA have had with the Lead Assessor
  • Patrick Troy has a long history of telling lies and distorting the truth. For instance, he previously misled the Government regarding the number of court cases parking companies brought per year in order to justify getting POFA 2012 schedule 4 passed
  • There is no written proof that any assessments have taken place at all
  • The Supreme Court, HHJ Moloney, ISPA, Motoring Organisations and The Prankster all believe each case must be heard on the facts. Only the BPA is in disagreement with this. 

The Prankster suggests that the next step should be to get a number of cases completely assessed, based only on the evidence currently filed by both parties. The Prankster can supply a large number of POPLA cases suitable for this assessment. If any of these cases can be decided for the motorist on non-GPEOL grounds, then all 4,000 cases should be fully assessed...or perhaps the BPA should just cut its losses by negotiating a fee to pay to the parking companies for each outstanding case.

Happy Parking

The Parking Prankster

1 comment:

  1. Given the lack of decided "new" popla decisions coming through one wonders if they have the ability to help in any case.

    The only "publc" decision that i'm aware of is although there are countless appeals which were lodged which are passed the evidence and reply stage by some time. Smells fishy to me.