The British Parking Association run an appeals system (POPLA), which although it has its faults, is at least mostly independent, mostly open and in its own way mostly fair to the motorist.
The Independent Parking Committee on the other hand run an appeals system (IAS) which is held behind closed doors, can be provably influenced by the IPC and from the results, is biased towards the parking companies.
Nothing illustrated this more than two results for G24 Parking who recently left the BPA for the IPC.
Here is the result from POPLA
The Appellant raises several grounds of appeal but it is only necessary for the purposes of this appeal to deal with one. This is the submission that the parking charge does not reflect a genuine pre-estimate of loss.
Where such a submission is made, there is a burden on the Operator, and not the driver, to provide a genuine pre-estimate of loss which details how they calculated the parking charge amount. It does not need to be particularly detailed or amount to exactly the charge amount because it is simply an estimate. However, one must be provided.
The Operator has not provided any evidence which establishes the charge reflects a genuine pre-estimate of loss. They simply state that their charge amounts to liquidated damages and is in accordance with the recommendations of the BPA. This is not sufficient to discharge their burden and so I cannot find that the charge is justified in this case. Therefore, I find that the charge is unenforceable and the Appellant is not liable to pay it.
Accordingly, I allow the appeal.
Ricky Powell
Assessor
Here is the result from the IAS
The appeal is here, for completeness
Appeal Outcome: Dismissed
The Adjudicators comments are as follows:
The Appellant raises a number of challenges, which I will respond to in turn.
1a This appeal is not concerned with the failures or otherwise of the internal appeal. The Operator is a member of the IPC.
1b In this appeal the Operator does not have to prove anything, the onus is on the Appellant. A breach of the code of practice does not automatically mean that the charge is invalid. The requirements of the code are best practice. Falling short of best practice does not mean the Appellant had insufficient notice. I can read the content of the sign the Appellant claims is unreadable and the significant terms are no different from the other signs at the site.
2 Genuine pre-estimate of loss. Again it is not for the Operator to prove but for the Appellant. Where the claim is for breach the test to decide whether the charge is valid is to consider whether the charge is proportionate, has a tendency to deter, and is commercially justifiable. The intention was clearly to deter drivers from parking beyond a period of time. When one considers the likely cost of managing checking and enforcing the site, in the absence of any evidence to the contrary I find the charge proportionate, and as the Operator’s only income commercially justifiable.
3 The Appellant has provided no evidence this sign was nearest their car.
4 This is not relevant. The Operator contends they are bringing the charge not for overstaying but on the basis the Appellant was not a customer. This is clearly a term and the other terms on the contractual sign make it clear that by breaching this term the Appellant is liable to pay the charge.
5 This is therefore irrelevant since I consider a contract has been formed.
Finally I do not find the contract ambiguous and therefore the doctrine of ‘contra proferentem’ does not apply.
The IAS is not fit for purpose because
- the operator sees the motorist's evidence and makes representations, but the motorist is not allowed to see the operator evidence or make representations
- the adjudicator is anonymous and the selection process for choosing an adjudicator is capable of being abused
- the normal rule of law, where the claimant is required to prove their case is turned on its head
- there is no independent board overseeing the appeals process, as there is with POPLA
- there is no requirement to have an annual report published, as there is with POPLA
In this particular case there are even more worrying elements.
The adjudicator dismissed a statement by the keeper as untrue because the keeper had provided no evidence to back this up. This is clearly absurd.
The sign which was nearest to the car, according to the driverThe Appellant has provided no evidence this sign was nearest their car.
The adjudicator also made up his own 'facts' to suit his arguments.
This is not relevant. The Operator contends they are bringing the charge not for overstaying but on the basis the Appellant was not a customerThis is clearly not true. The NtK clearly states the charge is for overstaying.
I can read the content of the sign the Appellant claims is unreadable and the significant terms are no different from the other signs at the site.
The first sign shows the charge is a contractual charge (you can stay longer than 3 hours. The charge is £50). The second shows the charge is for breach of contact (You can only shop here. If you go elsewhere you are in breach of contract) (Prankster note. Staying longer than 3 hours does not appear to be one of the 5 terms and conditions which attract a parking charge).
This is fundamental to parking contracts and any assessor who does not understand the difference is not fit to work as an assessor.
Furthermore, the assessor is clearly lying when he says 'I can read the content of the sign the Appellant claims is unreadable'.
The Prankster defies anyone to read the sign from the photograph above. An assessor who cannot tell the truth has no place in being an assessor.
The Prankster considers this is ample proof the IPC appeals system is a kangaroo court and not fit for purpose.
How can a parking company which has had its Genuine Pre-Estimate Of Loss calculations consistently ridiculed by POPLA for 2 years suddenly come up with a convincing explanation of its losses to a different appeals system?
How can a charge which it is admitted is the 'Operator’s only income' possible equate to a loss if it is used to run a profit making company?
The Prankster calls on the DVLA to suspend the ATA status of the IPC until they use a system which runs on the same lines as POPLA, and which is seen to be fairly run.
Furthermore, the Prankster calls on the DVLA to require the IPC to name the assessor used for the above case, and to ban them from further assessments.
Meanwhile The Prankster notes that should G24 want to proceed to court if the keeper does not pay up, then keeper liability under the Protection of Freedoms Act 2014 does not apply. Under the act, the reason for issuing the charge must be stated. As G24 have confirmed the charge is for not being a customer to the IAS, they cannot change their tune in court. In any case, staying longer than 3 hours is not one of the terms and conditions which attracts a parking charge.
Happy Parking
The Parking Prankster