Is POPLA fit for purpose?

Normally it is the Prankster asking this question. However, today it is the turn of the parking companies to show their high esteem at the process the BPA Ltd has put in place for them.

The whole discussion can be found at this address on linkedin.

Selectively edited parts follow.

Kevin McManus, Director, AS Parking

I accept that motorists have the right to complain / request us to consider their explanation; what I do not accept is that correspondence of this nature should be treated as a formal appeal and be processed through the POPLA.

 However for some reason, only known to the BPA and POPLA, we are required to provide a POPLA code when a request to cancel is rejected; irrespective of the grounds under which the motorist wishes to appeal.

POPLA publicise a list of acceptable grounds under which they may consider an appeal; yet they still process ‘appeals’ that are not on this list (vexatious appeals). Yes they will reject the ‘appeal’, but we have to pay for the privilege.

The Prankster points out that POPLA have repeatedly refused to put fuller reasons for appealing on their web site, despite many requests by motorists. As The Prankster noted in a previous post, the Lead Assessor of POPLA stated in a meeting with the BPA Ltd that any grounds can be used to appeal to POPLA. However, the Lead Assessor has chosen not to inform the general public of this, presumably in a hope that not too many people will realise the stated grounds for appeal are not all inclusive. The Prankster has helped many people get their tickets cancelled at POPLA who previously thought they had no valid grounds for appeal at all.

Barrie Douglass, Director, Premier Parking Solutions Limited

I could only add comments about the numerous admin failures by POPLA and the inconstant adjudication's we have been on the wrong end of, which include contradicting earlier adjudications.

This is perhaps something motorists would actually agree with. Consistency of adjudications is very important. One way forward would be to publish all adjudications in the same way that PATAS do. Then inconsistencies would be highlighted and also motorists would be more aware of the reasons for which it is sensible to appeal and the reasons for which it is not.

Kevin McManus, Director, AS Parking

The system is a complete joke, even the people who post on the various forums encourage people to appeal to POPLA just for the sake of it. They have no intention of making payment if the appeal is not allowed; they just appeal as they know it will cost the operator £27 + VAT if they do.

Obviously Mr McManus has not been following the same forums as The Prankster. The moneysavingexpert forum encourages people to appeal to POPLA to get the charge cancelled; since May last year they have been spectacularly successful in this regard. The £27 is just a bonus. If the parking company are silly enough not to cancel an unenforceable ticket on receipt of an appeal, they can hardly complain if the motorist takes them to POPLA.

It wouldn't be so bad if the decision was binding on the motorist as well as the operator (as it is with LA's), but even when the decision goes in the favour of the operator we are still in the same position with regard to collecting payment as we were before; so what purpose has this process served?

The decision can never be binding on the motorist for several fundamental reasons. Firstly, at the point of appeal to POPLA the claimant is not identified. Thus if a case goes to court, the landowner may choose to make the claim instead of the parking company. Many court claims have failed because the parking company bought the claim instead of the landowner. It would not be fair on the parking companies if POPLA upheld all appeals because they were in the name of the parking company. Similarly it would not be fair on the motorist if they were not given the chance at court to get the right of the claimant to bring the case examined.

Secondly, companies such as ParkingEye and Excel Parking regularly abuse the POPLA system by practices such as submitting forged documents, incorrectly redacting documents, making untrue statements and using witness statements where the contents are not within the knowledge or expertise of the witness. Obviously not all parking companies use disreputable practices like this, but the lack of enforcement by POPLA means everyone is tarred with the same brush. The court process allows the defendant a chance to expose these practices and bring the parking company to heel. This is not possible at POPLA where the process is purely written and no chance to cross-examine is possible.

Thirdly, the POPLA system has no appeal process. As previously mentioned, several decisions are inconsistent and it is notable that new assessors often make decisions which go against the previous results.

Some have said that a successful decision with POPLA would add more weight to our case in court, firstly I have heard of courts disagreeing with POPLA decisions and secondly if the notice was issued correctly / lawfully we would be successful in court anyway.

This is of course a very interesting point. As many parking cases have failed in court it is obvious that many notices are not, in fact, lawfully issued. The Prankster will return to this later.

In its current form it is simply a time/money wasting exercise put in place to appease the
government; rather than an effective platform to settle disputes

Be careful of what you wish for. Your wish may come true. 

Simon Morgan, Chariman Buchanan Computing Ltd

It would be good it the rules could be changed to allow the operator to add the £27+VAT to the outstanding charge after an unsuccessful POPLA appeal, or a least give the adjudicator the power to add that charge for appeals wholly without merit or legal basis.

Perhaps a tit-for-tat compromise could be sought. The operator could offer an initial 40% discount when the charge is first issued. If the motorist's appeal is not upheld, the operator could increase the initial charge by removing the discount. Similarly, it costs the motorist time and effort to appeal to the operator then POPLA. If the appeal is upheld, then the operator could be required to reimburse the motorist by a nominal amount, say £27.

Steve Clarke, Head of Operations, BPA Ltd

Kevin
In reply to your query about whether you can add the POPLA fee to your Court cases, as far as I am concerned this would be permissible as it is a legitimate cost in resolving the dispute you have with the motorist.

This is interesting because it is in direct contraction of an email from Patrick Troy of the BPA Ltd to the government when he promised that POPLA would be free to the motorist. Obviously if the motorist has to pay for POPLA at any stage, it cannot be 'free'.

What you cannot do though is add the per appeal fee to your Parking Charge Notice amount calculations - only 1.1% of tickets issued go to POPLA and as such could not form part of a Genuine Pre-estimate of Loss

This is good advice. POPLA appeals will be upheld if the operator tries to sneak in POPLA costs...unless the assessor is new and has not yet come to grips with the system.

Stuart Harrison, Commercial Director UK Parking Control 

I think that POPLA have got a number of things wrong, although I do not believe that this makes them unfit for purpose. I think they need to be stronger with vexatious appeals and focus on the key issues pertinent to the parking event, not a spurious claim that there is no contract or that the amount charged does not amount to a genuine pre-estimate of loss.

It is encouraging that Stuart has such a complete grasp of the subject.*

No doubt he is not aware of the many court cases ParkingEye have lost when they said they had a contract but it turned out they did not in the judge's opinion.

No doubt he is also not aware that it is not possible to run a company only from monies received from pre-estimate of loss. Perhaps the musings of Deputy District Judge Buckley may prove instructive.

"At the moment as it seems to me we have the rather bizarre situation where the present claimants make no money apparently from those who comply with the terms of the contract and make their profit from those who are in breach of their contract. Well that cannot be right. It is nonsense, it seems to me."

The key problem is that a lot of this information is commercially sensitive and no operator wants this information in the hands of competitors and spread across the blogs for armchair lawyers to trawl through and mistakenly pick apart

The other key problem, which he forgot to mention, is that when the armchair lawyers pick the contracts apart they are found to contain more holes than a string vest. For POPLA's purpose, it should be possible to redact enough of the contract so that commercially sensitive details are not made available. However, the parking companies can no longer be trusted to do this correctly. Companies like VCS have already been caught out trying to hide the fact they pay up to 35% commission to landowners, and that they are no accounting for this in their pre-estimate of loss calculations. ParkingEye have failed to admit they pay 15% commission on sites like Corporation Street, Preston.

For all the criticism, I have had a number of meetings with POPLA and have found that they are understanding of the problems we are facing and prepared to listen and offer advice where they can. It is important that they are independent and are seen as independent and so I appreciate that there are points that they can not comment on.

The Prankster thinks that POPLA can hardly be seen to be independent if they allow meetings with operators and offer advice, but do not offer the same to motorist organisations.

Robert Kehinde, Legal Advisor UK Parking Control Ltd

Some parties put in intentionally light appeals to operators and exceptionally “hard” appeals to POPLA. It has to be recognised by POPLA where parties who have blatantly and fragrantly had no respect for the restrictions on site are trying to simply do anything they can to absolve themselves of liability. POPLA should be taking these factors into account when making decisions

POPLA don't do mitigation. Surely Mr Kehinde knows this by now? If the operator's charge is not legal then it is not a mitigating circumstance for the operator to state that they hoped the motorist would not realise this.

It surely cannot be the case that no matter what a motorist says, the operator must establish to the contrary with evidence.

Mr Kehinde is surely aware that it is the responsibility of the claimant to make their case. This is not a huge burden on the operators. They only need to create a signage plan with photographs, redact a contract, and produce a pre-estimate of loss document once for each of the car parks they manage. This document can then be used with each appeal for the car park in question.

If POPLA requires something to be included in the POPLA evidence or anything related to it, this should be made abundantly clear to us.

POPLA has made it clear from the start that all evidence relied on must be submitted. If Mr Kehinde is still getting it wrong 16 months down the line, perhaps he should reconsider his position as legal advisor.

Andre Smith. Manager, Norwich Traffic Control Ltd

I have been spending an extended period now expressing that it is simply not worth replying to a POPLA appeal.

It seems many operators have now taken Mr Smith's advice and are no longer bothering with sending in an evidence pack.

Kevin McManus, Director, AS Parking

If the motorist feels that strongly, let them defend their case in court.

Excellent advice from a company that according to the last FoI the Prankster saw has never taken a motorist to court.

The Prankster notes that the two most litigious companies are Civil Enforcement Limited and ParkingEye. CEL until recently regularly flunked out a few days before any hearing with a robust defence. When they did turn up, they lost, and lost again at appeal. ParkingEye have issued tens of thousands of court claims but have never won a single case where a lay representative turned up to present a substantial defence. The only cases they have won are where expensive advocates have been pitted against motorists with a poor grasp of the issues.

Andre Smith. Manager, Norwich Traffic Control Ltd

The issue which partially detracts, in my view, from the value of your opinions in this very specific field is that this is directly affecting someone's income.

The Prankster notes that many of the motorists who do pay up are the vulnerable members of society; the elderly; the ill; the less able. If Mr Smith is happy parasitically feeding off these people he should not complain when the tables are turned.

When ParkingEye brag that they won a court case against an elderly man who could not turn up to the court hearing because he was on oxygen something has to be wrong.

What would be a better system is anonymous inter company adjudication. If someone appeals our ticket it goes into the pot and is suitably redacted. Then it goes to another operator to review.

The Prankster thinks this is an excellent idea and only needs one small amendment. If someone appeals a ticket it goes into a pot and is suitable redacted. Then it goes to another motorist to review.

Stuart Harrison, Commercial Director UK Parking Control 

People are talking about profit on here, as bad decisions at POPLA cost the operator loss of earnings, an important point to remember is that profit and management are not mutually exclusive. By focusing on profit, we are not ignoring management. However as a private company we couldn't focus on management and give no regard to profit.

A very interesting comment. UK Parking Control issue charges for breach of contract. It is therefore impossible for them to make a profit. If Mr Harrison does not understand this, he is perhaps in the wrong industry. Perhaps the DVLA should take note and suspend UK Parking Control until they lower their charges to be a true pre-estimate of loss.

Inconsistent decisions, and loopholes, undermine the intention of an independent appeals system which is what we were all looking for. These decisions are promoted on newspapers, blogs and websites and encourage people to park in breach of the terms and conditions of parking on the understanding that they can get out of the charge on a technicality. This is bad for the Operator and Landowner as it impacts how the site is managed. This is the impetus behind this post, as this effects our ability to manage sites effectively.

Another interesting comment. The law is the law. There are no such things in law as technicalities and loopholes. If Mr Harrison and his company cannot abide by the law, 16 months after the introduction of POPLA, perhaps they are in the wrong business.

Grahame Rose, Development director, CP Plus

Of course the elephant in the room regarding enforcement is deterrent; without an effective deterrent many motorists will ignore the rules and this goes for on-street as well as off-street. The only reason people generally avoid parking on a yellow line is the likelihood that they will receive a PCN coupled with the PCN amount being enough to deter them. Imagine if a PCN for parking on a yellow line was say £5 - I think you would see many, many more drivers prepared to park and risk it.

Off-street PCN's cannot be based upon a deterrent but my contention is that a large proportion of a parking company's costs are directly attributable to enforcement and in the case of some companies, which only deal with enforcement, all of their costs. 

A great example of how the parking company directors do not understand what can and cannot be a part of a pre-estimate of loss calculation. Even in a company which only deals with enforcement not every cost is allowable, and of course the company would not be able to make a profit solely from charges for pre-estimate of loss.

Happy Parking

The Parking Prankster

*Irony.