Author Topic: Premier Park PCN - Not Paid (but can prove they did pay) - Exeter Road Car Park, Braunton (Read 4480 times)

DWMB2 · « **Reply #30 on:** July 18, 2024, 01:25:48 pm »

As above, really. Bear in mind that if this were to go 'all the way' and court was on the cards, it would be your friend who would be required to attend. Whether they are up for the fight is their call to make, not yours.

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1) Is there a way to pay £20 and still contest this?

No - if payment is made, the matter is essentially closed.

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2) What are the chances of winning at POPLA?

Hard to predict. Challenging this will involve a certain element of rolling the dice. There are a few possible reasons as to why only a partial VRM was registered, but the most likely ones that spring to mind are:

Repeated system error - machine only recording first 4 characters for every/several user(s)
One-off system error - machine was working normally, but messed up as a one-off for your friend
User error - despite believing they had, your friend didn't enter their full VRM

If going to POPLA, your friend could challenge the operator to produce a copy of the payment logs for that day. If explanation #1 is right, the logs will show this, and would strongly suggest a system issue, as it would be less likely that every/several users made identical inputting errors in a short period of time. If #2 is right, this might be more tricky, as the logs wouldn't provide much/any evidence of system failure, so it would essentially be your friend's word against Premier Park's, as far as POPLA goes.

As b789 notes, their original allegation was not that an error was made, but that the whole period of parking was not paid for, when it actually was, although they could clarify their position by the time they made a court claim if going that far. I'm not aware of any cases where defendants have rejected the £20 'major keying error' offer to refer you to for reading, others may be.

slapdash · « **Reply #31 on:** July 19, 2024, 07:19:44 am »

Small keypads are notoriously bad devices due to the way they work.

Many problems with damp and debris can occur which can result in keys being missed. In any event they don't fail gracefully generally.

I don't doubt that the correct number of keys were pressed. (In any event what sensible adult would knowingly enter a partial, they may miskey of course).

The problem is that the operator will assert "it's all ok because only this one was wrong". That does become difficult to rebut.

Did the machine have a screen and what did it show, how was the transaction confirmed.

Many UIs on these sorts of payment devices are extremely poor and error prone, often registrations are not shown and there is "no way back" either.

However, should the victim want to go all they way, and they win it will cost them time, travel oats, day off for court.

Grant Urismo · « **Reply #32 on:** July 20, 2024, 10:31:51 pm »

Thanks, everyone. We're still working out what to do but I think my friend will put up a fight!

Quote from: b789 on July 18, 2024, 12:58:29 pm

It all depends on how aggrieved your friend feels about being scammed. If your friend is sure they entered the full VRM and wants to fight this, then they should. If they feel that paying £20 to the scammers is worth not having to contest and fight it, then so be it.

The NtK does not mention anything about an incorrect VRM. It simply states that the whole period of parking was not paid for. There is evidence to show that it was.

It may or may not be upheld at POPLA. However, should it ever proceed all the way to a county court claim, It is highly likely that a judge would see that the defendant can show that they did pay for the whole period.

I've dug into the legislation (being a dilligent sort) and it seems to me that because the fee was paid in full, there's no legal mechanism for transferring liability for a keying issue from the diver to the keeper. Schedule 4 of the Protection of Freedoms Act 2012 starts:

SCHEDULE 4
Recovery of unpaid parking charges
Introductory
1(1)This Schedule applies where—
(a)the driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land; and
(b)those charges have not been paid in full.

So because 1(1)(b) is not satisfied the rest of Schedule 4 does not apply. Surely the keeper cannot therefore be held liable? Or is there another piece of legislation that would apply?

Quote from: b789 on July 18, 2024, 12:58:29 pm

What do the signs with the terms say? Can we see some pictures of them?

Unfortunately this happened while the driver was on holiday, going back hundreds of miles to take photos isn't realistic.

Quote from: b789 on July 18, 2024, 12:58:29 pm

...There is also CRA 2015 issues with this too.

If you could tell us what those issues are, it would be greatly appreciated!

DWMB2 · « **Reply #33 on:** July 20, 2024, 10:47:38 pm »

The alleged 'parking charge' is the £100 (or £20 if they're offering that) ParkingEye are demanding, not the tariff due on the day.

One of your arguments is instead that because the tariff was paid in full, the parking charges demanded are not due at all. If the driver owes nothing, then there's nothing to transfer using PoFA anyway as per 1(a).

(That's not to say that you don't raise other PoFA issues in your POPLA appeal of course as additional reasons nothing is owed)

H C Andersen · « **Reply #34 on:** July 21, 2024, 04:20:18 pm »

What appeal did the keeper submit?

PP's response is clear that they inferred that the keeper was the driver. If this cat is out of the bag then PoFA is redundant. Also, they claim that the driver admitted to entering the 'incorrect vehicle registration'

On this occasion, as you have admitted you paid for the incorrect vehicle registration, we were unable to allocate your payment.

Grant Urismo · « **Reply #35 on:** July 23, 2024, 10:47:03 am »

Quote from: H C Andersen on July 21, 2024, 04:20:18 pm

What appeal did the keeper submit?

PP's response is clear that they inferred that the keeper was the driver. If this cat is out of the bag then PoFA is redundant. Also, they claim that the driver admitted to entering the 'incorrect vehicle registration'

On this occasion, as you have admitted you paid for the incorrect vehicle registration, we were unable to allocate your payment.

The appeal was very carefully worded to keep the distinction between keeper and driver intact, and there was no admission of the driver entering the incorrect vehicle registration. Their reply seems to us to be either deliberately misinterpreting the appeal, or a low-effort last ditch cut and paste trying to get £20 out of the keeper.

Here's what was sent, as per earlier in the thread:

=================

I am appealing Parking Charge Notice number xxxxxxx, issued for "Whole Period Of Parking Not Paid for”, because the driver paid the parking charge in full, and retained the ticket that irrefutably proves this.

I attach a scan of the ticket, which proves that you accepted a payment of £1.50 and issued a ticket that allowed parking until 11:33 on the day in question. As your own evidence shows the driver left the car park well before this at 10:56, it is clear that no further payment is due.

I note that despite the driver entering the full VRM into your machine, the ticket you issued only shows it's first four characters, which may be why you have not correctly allocated the payment you accepted.

I look forward to receiving confirmation that you have cancelled this Parking Charge Notice.

You have requested that I supply the following information:

My Name is xxxxxxxxxx
My Address is xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
The Vehicle Registration Number is EX18xxx
The Parking Charge Reference is xxxxxxxx
I confirm that am the registered keeper of the vehicle, however I am under no legal obligation to identify the driver and will not be doing so.

=================

I find their phrase "we were unable to allocate your payment." interesting. Firstly it's in the past tense so I assume they have now allocated it. I know that for council PCNs they only get one go at getting the right contravention code, is this the case for private ones, or can they flip from "whole period of parking not paid" to 'keying error'?

Secondly, why would they be "unable" to allocate it from the first 4 characters? Did they make a reasonable effort to do so? It strikes me that allocating in this case ought to be trivial, especially given that the car park only has 30 spaces. If they have so many problems in that allocation isn't trivial then surely that implies a faulty keypad?

b789 · « **Reply #36 on:** July 23, 2024, 11:04:54 am »

To be honest, it is getting wearisome going through the futile motions of time wasting appeals. The best way to get this seen off is to tell them to stop faffing about and either cancel or go straight to a county court claim. They should not pass your details to any third party DRA otherwise they become liable for harassment under the Protection from Harassment Act 1997 and a breach of GDPR under the Data Protection Act 2018.

If they are sure they have a case, they will issue a claim and it can be very easily defended. If they are unsure of their legal position, they can decide to drop the matter.

Either way, the only true arbiter of whether you owe a debt will be a judge. Knowing how poorly these claims are pleaded, it is almost certain that it would never get to a hearing and would likely be struck out.

There is a minuscule risk that it could go all the way to a hearing and you cold lose the claim. In the very worst case scenario, it would cost ~£200 in total with no risk of a CCJ on your credit record. With that in mind, you have to make the decision whether you are prepared to fight this all the way. We are here to help and advise with many years of experience in dealing with these matters.

Grant Urismo · « **Reply #37 on:** July 23, 2024, 05:58:19 pm »

Quote from: b789 on July 23, 2024, 11:04:54 am

To be honest, it is getting wearisome going through the futile motions of time wasting appeals. The best way to get this seen off is to tell them to stop faffing about and either cancel or go straight to a county court claim.

I'm inclined to agree, but I believe courts are very keen on parties exhausting dispute resolution processes before 'going legal', so I don't know how to 'go straight to a county court claim' without putting my friend at a disadvantage, and to be honest I think POPLA would have to be a complete kangaroo court not to accept any of the angles on this one.

Quote from: b789 on July 23, 2024, 11:04:54 am

They should not pass your details to any third party DRA otherwise they become liable for harassment under the Protection from Harassment Act 1997 and a breach of GDPR under the Data Protection Act 2018.

I'm sorry but I don't know what a "third party DRA" is, and it seems Google doesn't either.

Do you have any examples of claims under the Protection from Harassment Act 1997 and/or GDPR bing made successfully against private parking companies? The only way I can think of to do this would be to catch them in a data breach, I might float an idea on how to do this in the flame pit.

DWMB2 · « **Reply #38 on:** July 23, 2024, 06:25:43 pm »

Have you got a POPLA code? If so, don't engage with Premier any further and draft up a POPLA appeal.

Grant Urismo · « **Reply #39 on:** July 23, 2024, 06:37:00 pm »

Quote from: DWMB2 on July 23, 2024, 06:25:43 pm

Have you got a POPLA code? If so, don't engage with Premier any further and draft up a POPLA appeal.

Yes. I'm trying to understand more about how all this works in order to draft the best possible POPLA appeal.

b789 · « **Reply #40 on:** July 23, 2024, 06:39:22 pm »

DRA = Debt Recovery Agent or debt collector.

Going through the appeals process is worthwhile in some instances with POPLA. However, not engaging in the appeals process will have no bearing on any claim. Going straight to the claim process means that they should not pass your data to a third party DRA and they would simply send the keeper a Letter of Claim (LoC) as required by the PAP and you can respond or not to the LoC. Either way, they are going to issue a claim and again, it makes no difference to the court process.

There are several cases where the defendant has successfully counterclaimed against PPCs for GDPR data breaches and there are a few for distress and anxiety cause by harassment over on the MSE forum. It is not normally advised to counterclaim as it is often more complex and requires more effort and cost. However, there is nothing to stop you threatening it.

Not specific to PPC but relevant for GDPR breaches:

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Article 12 of the UK GDPR legally requires data controllers to store and process personal data accurately: clearly, any data controller issuing an invoice to you because it has wrongly recorded that you parked in breach of the alleged contract between you and the landowner (or, as in this case, an agent of the landowner) is processing your personal data unlawfully.

The precedents for claiming damages and compensation for such unlawful processing are the decisions of the Court of Appeal in Zeta Jones & Douglas v Hello! Magazine [2003] EWHC 786 and Halliday v Creation Consumer Finance Ltd (CCF) [2013] EWCA Civ 333, both being binding on all County Courts in England and Wales. In the latter claim, Mr Halliday was awarded compensation of £750 at what the Court regarded was the lowest level of award, and although this was a claim under Section 13 of the Data Protection Act 1998, similar provisions - amended to take account of a decision by the EU Grand Chamber that the 1998 Act did not properly implement EU law into UK domestic legislation - replaced the old Section 13 provisions with Article 12 of the UK GDPR and Section 168 of the Data Protection Act 2018.

In short, you ought to give 21 days notice (the pre-action protocol only really requires 14 days but hey, you can be charitable!) to the data controller of your intention to seek (say) £100 nominal damages and compensation under Article 12 of the UK GDPR and Section 168 of the Data Protection Act 2018 for their unlawful processing of your personal data: you could say that you will not file your claim with the County Court if they confirm in writing that all references to this alleged debt have been deleted within (say) 14 days. Clearly mark your letter as a "Letter before County Court proceedings".

Anyone who is fairly confident can claim as a litigant-in-person in Part 27 proceedings in the County Court (commonly but wrongly described as "the Small Claims Court"). Each party is responsible for their own legal costs whether they win or lose and the claim for £100 can be issued online for a fee of £35 at moneyclaimonline.gov.uk which also gives useful advice if you want to have a look at what is involved. Your claim will automatically be listed as being for a total of £135, i.e. the successful party gets their Court fees back.

After long discussion over the weekend and today with a long serving district judge about this and the MSE forum and the roboclaimers, I was told to tell anyone who would listen:

What the defendants should strive to achieve, is to make life:
As easy as possible for the Judge
And as difficult as possible for the claimant

The result of which is a new "short" defence (single side of A4) and a draft order that the allocation judge can use, that is almost certainly going to lead to a discontinuation or a failure to fully comply with the order.

In the case your planned POPLA appeal, I predict that it will be unsuccessful because the operator issued the PCN correctly. I hope I'm proved wrong.

Grant Urismo · « **Reply #41 on:** July 25, 2024, 12:09:07 pm »

Quote from: b789 on July 23, 2024, 06:39:22 pm

DRA = Debt Recovery Agent or debt collector.

Thanks, I'm definitely starting to get more of a feel for things now.

Quote from: b789 on July 23, 2024, 06:39:22 pm

Going through the appeals process is worthwhile in some instances with POPLA. However, not engaging in the appeals process will have no bearing on any claim.

Well it does have a bearing if you win at POPLA.

POPLA publish some interesting appeal statistics on their members. According to the most recent report from 2021 they received 2558 appeals against the operator in this case (Premier Park), of which 705 were not contested by the operator, 168 were successful and 1435 were refused. So about 1/3 of cases are won at POPLA against this operator.

I think there's a good chance that I can write a strong enough appeal for the operator to fold, because I think I can identify half a dozen points where they are not complying with the BPA code. The POPLA stats show they fold 27.5% of the time and lose another 6% of the time. I'll post the proposed appeal here once I've written it.

DWMB2 · « **Reply #42 on:** July 25, 2024, 12:16:37 pm »

In my personal view, it's usually worth a crack at POPLA. Even if simply to show you're well informed.

b789 · « **Reply #43 on:** July 25, 2024, 12:21:44 pm »

Quote from: Grant Urismo on July 25, 2024, 12:09:07 pm

Well it does have a bearing if you win at POPLA.

Obviously. However, an unsuccessful appeal has no bearing on any future action.

By all means, go ahead and appeal to POPLA. It's your time and energy and, as you point out, you may be successful. Please keep us unformed.

H C Andersen · « **Reply #44 on:** July 25, 2024, 07:15:11 pm »

The creditor is a member of BPA's Approved Operator scheme.

IMO, Page 45, Appendix E of their Code of Practice (flowchart for Recovery of Unpaid Parking Charges) gives referring to 'Debt Recovery Process' a legitimacy and it is not for the keeper to demand of the creditor that this stage is omitted. I also believe that courts - which are already under strain - would not take kindly to a defendant who, being so sure of their case, shunned adjudication and mediation(which is another pre-court phase open to parties) simply to burden the courts, even less if they believed that this was simply a tactic adopted by a defendant who was not certain of their case but was using 'take me to court' as a tactic to bluff the creditor into dropping their claim.

https://www.britishparking.co.uk/write/Documents/AOS/NEW%20Redesigned%20Documents/Version91.2.2024Highlight.pdf

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Author Topic: Premier Park PCN - Not Paid (but can prove they did pay) - Exeter Road Car Park, Braunton (Read 4480 times)

DWMB2

Re: Premier Park PCN - Not Paid (but can prove they did pay) - Exeter Road Car Park, Braunton

slapdash

Re: Premier Park PCN - Not Paid (but can prove they did pay) - Exeter Road Car Park, Braunton

Grant Urismo

Re: Premier Park PCN - Not Paid (but can prove they did pay) - Exeter Road Car Park, Braunton

DWMB2

Re: Premier Park PCN - Not Paid (but can prove they did pay) - Exeter Road Car Park, Braunton

H C Andersen

Re: Premier Park PCN - Not Paid (but can prove they did pay) - Exeter Road Car Park, Braunton

Grant Urismo

Re: Premier Park PCN - Not Paid (but can prove they did pay) - Exeter Road Car Park, Braunton

b789

Re: Premier Park PCN - Not Paid (but can prove they did pay) - Exeter Road Car Park, Braunton

Grant Urismo

Re: Premier Park PCN - Not Paid (but can prove they did pay) - Exeter Road Car Park, Braunton

DWMB2

Re: Premier Park PCN - Not Paid (but can prove they did pay) - Exeter Road Car Park, Braunton

Grant Urismo

Re: Premier Park PCN - Not Paid (but can prove they did pay) - Exeter Road Car Park, Braunton

b789

Re: Premier Park PCN - Not Paid (but can prove they did pay) - Exeter Road Car Park, Braunton

Grant Urismo

Re: Premier Park PCN - Not Paid (but can prove they did pay) - Exeter Road Car Park, Braunton

DWMB2

Re: Premier Park PCN - Not Paid (but can prove they did pay) - Exeter Road Car Park, Braunton

b789

Re: Premier Park PCN - Not Paid (but can prove they did pay) - Exeter Road Car Park, Braunton

H C Andersen

Re: Premier Park PCN - Not Paid (but can prove they did pay) - Exeter Road Car Park, Braunton