MET Parking Services have supplied evidence to POPLA via a Case File

[Masi]

Hi,

I Know there are many existing threads in regards to winning at POPLA however I am in need of urgent help.

I have made the below POPLA appeal in regards to a parking Ticket from MET Parking Services:

Alleged infringement I am the Registered Keeper of the vehicle related to the parking charge notice number MP………….. I have researched the matter, taken advice and would like to point out the following points as my appeal against said charge: Punitive charges and unfair terms No contractual authority to levy charges Unclear, inadequate and non-compliant signage No clear map of the site boundary – no contract with driver formed .

Punitive charges and unfair terms The charges are unfair terms (and therefore not binding) pursuant to the UnfairTerms in Consumer Contracts Regulations (1999). In particular, Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer" and 5(2) states: "Aterm shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the outcome”. I believe that the presented charge is disproportionate to the loss incurred, contravening the Unfair Contract Terms Act 1997.

No contractual authority to levy charges MET Parking do not own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, MET Parking have not provided any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question, I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. I would request that POPLA please check whether MET Parking has provided a full copy of the actual contemporaneous, signed & dated contract with the landowner/occupier (not just a signed slip of paper saying it exists or someone has witnessed it) and check that it specifically enables this Operator to pursue parking charges in their own name and through the court system and whether that contract is compliant with the requirements set out in the BPA Code of Practice

Unclear, inadequate and non-compliant signage Due to their high position, overall small size and the barely legible size of the small print, the signs in this car park are very hard to read, understand and no notices at all are positioned near the entrance to the shop. I request that POPLA check the Operator’s evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs on this land, in terms of wording, position and clarity, do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2])

No clear map of the site boundary – no contract with driver formed It seems that MET are alleging the driver went off-site but have supplied no evidence of this, nor explained what constitutes ‘off-site’ and what their ‘site survey’ involved. And it has not been established whether they checked if, perhaps, a passenger was on site all along, and how this observation was made, by whom and how it was recorded as evidence. I put MET to strict proof of this ‘site survey’ and photographic evidence of neither a driver nor passenger of this car being on site; such evidence to include photographs of the contravention and a site map and a picture of the signage that would have communicated to the driver the defined boundary of the site they are alleged to have left. If no such sign nor evidence exists then I contend that the driver could not have known where the car park site boundary began and ended and in the absence of evidence I deny that there was any contravention. I say there was no contract formed with the driver to pay a charge in ‘exchange’ for going off site; there was no consideration, offer nor acceptance and no site boundary defined.


The problem i have is that i have recieved a case file from MET parking Services who in this instance have supplied evidence for the above to POPLA.

if anyone has been in a similar circumstance i would be greatful for some tips many thanks in advance.

[ostell]

Re: MET Parking Services have supplied evidence to POPLA via a Case File

So you refute anything untrue in the evidence that MET supplied to POPLA. Send in the additional document.

PS for go off site you need to add that if you had been observed walking off site then MET failed to mitigate any alleged loss by failing to stop the person.

[mystery1]

Re: MET Parking Services have supplied evidence to POPLA via a Case File

Most people get wobbly when they see the evidence. It's usually shite.

Post it up

M1

[Masi]

Re: MET Parking Services have supplied evidence to POPLA via a Case File

@mystery1: Thank you for your reply, below i have copied the main body of the case file sent to myself from MET Parking Services. I hope there may be a way to have this resolved.


In his POPLA appeal ****** stated:
1. There is no clear map of the site boundary and we have not explained what is meant by going off site. The signage is unclear and non – compliant with the British Parking Association’s Code of practice. The signs are not clearly worded and are positioned too high. They do not state that site surveys may be carried out or how the surveys may be conducted.
We note ****** comments, however, the site boundary is clearly defined. There is only one entrance to this car park and there are signs prominently displayed around the perimeter of the car park. When the site survey was
conducted there was neither a passenger nor a driver of the vehicle in the restaurant or the car park, therefore the driver was not on the premises . Please see below for a copy of the site map demonstrating that the site boundary for this car park is clearly defined.
The terms and conditions of parking are clearly stated on the signs that are prominently displayed at the entrance to and around the car park. These include that the car park is for the use of McDonald's customers whilst on the premises only. The signs also clearly state that surveys may be carried out, however we are not required to state on the signs how the surveys may be conducted. We do not accept that our signs are worded or positioned in such a way as to make them unclear to motorists. All the signage in this car park exceeds the requirements of the British Parking Association of which we are a member.
The signs are set at a height where they are not obstructed by other road vehicles and in common with the standards set for deployment of road traffic signs they are also set at a height which will protect pedestrians from injury through the signs being placed too low, typically 2.3m.

[Masi]

Re: MET Parking Services have supplied evidence to POPLA via a Case File

Motorists should therefore be able to see them on approaching the car park and on parking their car and walking to the restaurant. They are set low enough that the motorist can read each of the terms clearly while standing in front of the sign.
Please see below for a copy of the site map, showing the approximate locations of the signs, a photograph of ***** vehicle in relation to a sign and a close up of the sign.


Site map

• MET Parking Services Ltd do not own or have any interest in the land, therefore we cannot enter into a contract with motorists visiting this car park. ***** requires an un-redacted copy of the contract with the land owner. The contract must show that it includes the necessary authority required by the BPA, specifically allow MET to pursue these charges in their own name as creditor in the courts.

MET Parking Services Ltd are contracted by McDonald’s to ensure adherence to the terms and conditions of the car park. Our interest in the land arises from our obligation to perform our contractual duties by ensuring provision can be made for motorists to park and facilitate motorists to use the client’s premises.
The Judges who ruled on the ParkingEye v Beavis case considered this point and held that ParkingEye had contracted with the motorist as a principal and not as agent and the contract had been formed by way of the signage displayed at the site and the motorist parking his car on the site.
We do not feel we have to provide a copy of an un-redacted contract between ourselves and our client as it contains information which is commercially sensitive and not relevant in this instance. We have however provided the letter of authority from McDonald’s that specifies all the relevant points. Please note this is a rolling contract and is not cancelled unless one of the parties do so in writing.




- - - Updated - - -

• There has been no consideration or acceptance to form a contract.

MET Parking Services’ parking charges are issued on the basis of a contract with the motorist, set out via the signage at the site. The signage sets out the terms and conditions under which a motorist is authorised to park and that a parking charge will be payable if the conditions are not met. We ensure signage is ample, clear and visible in line with the BPA Code of Practice to ensure the motorist is bound by them when they enter and remain at a client site, so that all users are obliged to follow these rules. This is a matter of contract law. In ParkingEye v Kevin Shelley (2013), Circuit Judge Dodd stated that a contract can be formed by conduct not just in writing and that the contract, as set out on the signage, is clear and certain enough, and that the terms were clear and easy to understand. This same position was taken by the district judge in MET Parking Services v Patrick Cox (2012) and is further supported by the case of Vine v London Borough of Waltham Forest (2000) where Lord Justice Waller found that “Normally the presence of notices which are posted where they are bound to be seen, for example the entrance to a private car park, which are of a type which the driver would be bound to have read, will lead to a finding that the car driver had knowledge of and appreciated the warning.
Furthermore it should be noted that Section 7.1 of the Department of Transport’s guidance on Section 56 and Schedule 4 of The Protection of Freedoms Act 2012 states that a “car park on private land will normally have signs setting out the terms and conditions upon which parking is offered” and further states that “Drivers can then decide whether or not to accept those terms and conditions. In most cases a driver who parks in a car park with clear signage setting out the terms and conditions will be deemed to have accepted the terms and conditions and therefore entered into a contract to park”.
The site plan and photographs included in Section E clearly demonstrate that the terms and conditions are clearly set out on signs prominently displayed around the car park and therefore we maintain that an enforceable contract was entered into.

• The driver was on the site at the time the parking charge notice was issued. He requests evidence that a site survey has been conducted.

We note ***** has made an unsubstantiated statement, providing no corroborative evidence that the driver was on the premises or that they had purchased a meal. Against this please note below we have provided evidence substantiated by third party review from our client that the driver was not on the premises when the charge notice was issued.
Before the charge notice was issued the parking attendant carried out a survey recording all cars parked in the car park and then walking around the restaurant which includes any outside seating areas checking to see if the driver or passenger of the vehicle was in the restaurant. This survey includes checking the toilets and the people queuing up to purchase food as well as people sitting at the tables and is conducted both by our parking attendant and a member of McDonald’s staff. Please see below for a copy of the survey and photographs of the toilets in the restaurant demonstrating that the site survey was conducted.

Page Break

[Masi]

Re: MET Parking Services have supplied evidence to POPLA via a Case File

• The charge is punitive and unfair.

The terms and conditions of parking are clearly stated on the 9 signs that are prominently displayed at the entrance to and around the car park. These include that the car park is for the use of McDonald’s customers whilst on the premises only.
These signs further state that by parking in the car park the motorist is entering into a contractual agreement and agrees to comply with the terms and conditions of use. They also state that the motorist accepts liability to pay a parking charge of £100 if they fail to comply with these terms.
It remains the driver’s responsibility to check the signage where they park and adhere to any terms and conditions of parking stated on the signage. There is ample and clear signage and it would be unreasonable for the motorist to now try and amend terms of the contract that they have entered into willingly, subsequent to the parking event. They had the opportunity to park elsewhere or comply with the terms when they parked if they felt that these terms were unreasonable.
This has been supported by the outcome Court of Appeal and the Supreme Court in ParkingEye and Barry Beavis (2015), where it was found that a parking charge need not represent a genuine pre-estimate of loss and this appeal and the Supreme Court.


6. The driver did not exceed the maximum permitted stay in the car park and the vehicle was not improperly parked.


The parking charge notice was issued as the driver of the vehicle was not on the premises at the time of a survey. It is therefore irrelevant to the issuing of the parking charge notice how the vehicle was parked or how long it spent in the car park.


The terms and conditions of use of the car park as clearly stated on the signs prominently displayed at the entrance to and around the car park include that this car park is for the use of McDonald’s customers whilst on the premises only. Before a charge notice is issued the parking attendant carries out a survey of all areas of the restaurant including the food queue and the toilets. This survey is conducted in conjunction with a members of McDonald’s staff who confirm that there is no-one on the premises to take accountability of the vehicle left in the car park and then authorise the parking attendant to issue the charge notice. At the time the charge notice was issued to ***** vehicle there was no-one on the premises to take accountability for his vehicle, this was verified by the McDonald’s staff member. We note this contradicts the ***** statement but he has provided no evidence to support his statement and our survey has been independently verified by our client prior to issuing the charge notice. In light of the above we believe the charge notice was issued correctly and the appeal should be refused.


I have not included: pictures of the contract between the 2 parties, pictures of the survey the conducted and pictures of the toilet area of Mcdonalds at the time of the alledged offence.

[mystery1]

Re: MET Parking Services have supplied evidence to POPLA via a Case File

The letter of authority, in the past, has failed them. The new popla don't seem to be ruling on anything at present so it remains to be seen how the cards will fall on the issue but i see no reason it should change.

How do the dates on the letter compare to the parking date ?

M1

[Masi]

Re: MET Parking Services have supplied evidence to POPLA via a Case File

Thanks again for your reply [MENTION=5354]mystery1[/MENTION].

The dates on the letter they sent me in regards to the PCN all are up to date. They have attached copies of the original letters in their appeal case file and I have checked that they do match up.

The letter of authority, Met Parking services contract, is dated in 2013 however they state that this is a rolling contract.

The site map they used in the case file does not appear on the signage around the premises.

Would it be best to appeal on the grounds of their authority over anything else?

[mystery1]

Re: MET Parking Services have supplied evidence to POPLA via a Case File

The appeal is done it's only a response that's might be required. It doesn't sound like anything is really required although perhaps something to do with the letter depending what it actually says.

M1