Free Traffic Legal Advice

Yes, after reading on here for a while I have realised that I have messed up by not going here first.

Please find the PCN I got from the car rental here: https://imgur.com/a/hG67jLQ

I believe the car rental had already told Smart that I am the driver, since they gave them my name and (old) address (I have since moved from the address, so never received the physical mail). But, to top it off, I have also identified myself as a driver in my appeal letter. The appeal was rejected without counter-evidence. Please find the appeal and response files here: https://file.io/YzAlxq6GSnJt.

So I don't think I can play this unidentified driver card.

Do you think it is still possible to appeal? My appeal was mainly due to lack of signage (no signage on entry, no signage where parked, and not clearly distinguished from a nearby Starbucks parking lot), so I was hoping to go on that. They rejected it, of course, without providing evidence.

One thing I have noticed is that SmartParking is a new thing at most OK Diner locations (many complaints online), and I am worried that they may have installed signs _after_ they issued the PCN to me. Unfortunately, I do not have any more recent photos since I don't live nearby, and in fact have moved abroad since. Can POPLA request Smart provides evidence at the time of the offense? What is the downside if I appeal and lose and would I owe anything else besides this fine?

Here are also some complaints of other people getting the charges (some were customers and some aren't) at different locations, where a portion of them also specify lack of signage.

• https://www.liverpoolecho.co.uk/news/uk-world-news/family-four-fork-out-265-29623956
• https://www.tripadvisor.com/ShowUserReviews-g551994-d3268137-r958520493-OK_Diner-Northop_Hall_Flintshire_North_Wales_Wales.html
• https://www.dailypost.co.uk/news/north-wales-news/ok-diner-issue-full-response-29626628
• https://en.parkopedia.co.uk/parking/carpark/ok_diner/hr6/kimbolton/
• They have since posted https://www.facebook.com/okdineroswestry/posts/pfbid0KyujuL95neLGxv2uyoZ9htypEQqdL4b63SYGVi3Aw5ABFvfTSamr8Vgfo62ERo6Cl on their FB too, which suggests that they might be fixing their signage now too.

And thanks for the tip about Smart contract issues!

Have you received the Norice to Hirer (NtH) in your own name yet? As noted above, the Hire company did not name you as the driver because they cannot know you were driving. All they will have done is nominate you as the Hirer.

You shot yourself in the foot by identifying yourself, the Hirer, as the driver. As Smary will not have complied with all the requirements of PoFA, they would not have been able to hold you liable as then hirer. Too late for that now.

You are liable as the driver and will have to appeal to POPLA on points of law and the BPA Code of Practice (CoP). Do not think about mitigation, they will not consider it.

Check your hire agreement for the wording about your responsibility for “fines” and “penalties” etc. what you received is neither a “fine” nor a “penalty” and no “offence” of any sort has occurred. What you have received (or will receive once it is in your name) is a speculative invoice from an unregulated private parking company for an alleged breach of contract between the driver and Smart Parking.

If your agreement does not mention charges/invoices from private companies, then you should dispute the £40 admin charge through your card provider and make sure that it is charged back to your account.

Your appeal will have to be on signage and  fact that Smart Parking probably do not have a valid contract with the landowner to issue PCNs at the location.

If the Hire company gave Smart an old address of yours, your very first action must be to tell the Smart DPO to rectify your data with your current address for service and for them to erase your old address. Without doing that, you are likely to receive a CCJ by default.

What is it exactly that we are looking for?

Essentially, anything that shows they did not have a valid agreement between them and the owner of the land to issue parking charges and pursue legal action in their own name. As I said, it used to be the case* that whenever anyone appealed to POPLA and as part of that appeal put Smart to proof that they did indeed have a contract in place, Smart withdrew the charge, meaning the case doesn't go to assessment, and the parking charge is cancelled. I don't know why they did this, but one can only assume it is because there is a widespread issue with their contracts, which they are keen to avoid coming to light.

Here's an example of the Landowner Authority point being made over on the MSE forum: https://forums.moneysavingexpert.com/discussion/comment/71287628#Comment_71287628

*the reason I say "used to" is because I haven't seen a Smart case go to POPLA for a while, as we can usually get them cancelled on the first go.