Printfriendly

Friday, 30 October 2015

Consumer Ombudsman can deal with parking cases

British Parking Association members are now putting the following text in their appeal rejection letters.
You have now reached the end of our internal appeals procedure. 
[Operator specific text  with instructions on how to appeal to POPLA]
By law we are also required to inform you that Ombudsman Services (www.ombudsman-services.org/) provides an alternative dispute resolution service that would be competent to deal with your appeal.  However, we have not chosen to participate in their alternative dispute resolution service.  As such should you wish to appeal then you must do so to POPLA, as explained above.’
So why are BPA members telling motorists about a service they are not participating in? What is that service? And what should motorists do?

The reason for the notice is due to the recent legislation - The Alternative Dispute Resolution for Consumer Disputes(Amendment) Regulations 2015 which came into force 9th July 2015 (and not forgetting the Amendments)

Regulation 19.2 states:
(2) Where a trader has exhausted its internal complaint handling procedure when considering a complaint from a consumer relating to a sales contract or a service contract, the trader must inform the consumer, on a durable medium—
(a) that the trader cannot settle the complaint with the consumer;(b) of the name and website address of an ADR entity or EU listed body that would becompetent to deal with the complaint; and(c) whether the trader is obliged, or prepared, to submit to an alternative disputeresolution procedure operated by an ADR entity or EU listed body. 
Thus, we have the new message appearing on appeals refusals.

The ADR Entity referred to is the Consumer Ombudsman which is run by Ombudsman Services. This are available at this website: http://www.consumer-ombudsman.org/

Ombudsman Services also run the non-ADR Entity appeals service POPLA. However the two services are run on very different lines, as will be apparent shortly.

The Consumer Ombudsman has been certified by the Chartered Trading Standards Institute (CTSi) as an ADR entity. The Consumer Ombudsman might be able to help with any consumer dispute not already covered by other mandatory ADR provision (for example complaints about financial services will be better dealt with by the Financial Ombudsman Service).

The Consumer Ombudsman is an ADR provider rather than an appeals service. It could accept a complaint about a parking operator but it does not deal with complaints in the same way as POPLA considers appeals. If a complaint included that a PCN was issued incorrectly, this would be part of the consideration. But The Consumer Ombudsman might also consider poor administration and wider issues. The outcome would not simply be that the appeal had been won or lost, The Consumer Ombudsman might prescribe a tailored remedy for the circumstances (eg apologise, explain, financial award, other practical action).

The complaint would need to be referred to the parking operator (as with any trader) in the first instance. The legislation currently requires that if a trader cannot resolve a consumer complaint and the matter reaches deadlock, the trader must confirm the availability of a certified ADR entity and tell the consumer whether they will engage. There is no requirement for them to engage but more and more are doing so.

With the legislation being new, some traders are not referring consumers to a certified ADR entity. The Consumer Ombudsman still tries to help these consumers. If a consumer contacts The Consumer Ombudsman having already complained to the trader, they contact the trader to see if it wishes to engage with the process. In some cases they will, as they want to resolve the complaint. But if the trader does not wish to engage, they cannot look at the complaint. This is a restriction of the legislation.

If a motorist (consumer) contacted The Consumer Ombudsman, having already complained to the parking operator, they might contact the parking operator to see if it was willing to engage. They would not do this if the operator had already told the consumer they were not willing to engage as there would be no merit - so it is unlikely they would take this approach for a BPA approved operator issuing a PCN for a parking incident in England or Wales, unless the operator previously indicated they were willing to engage.

If a motorist in Scotland or Northern Ireland has complained about a PCN (or has another private parking complaint), and they cannot resolve the complaint with the parking operator, The Consumer Ombudsman may be able to help. However, this is reliant on the parking operator engaging with the process.

Pre-action protocol

The pre-action protocol encourages parties to make every effort to resolve issues before proceeding to court. The current protocol is here.

Some of the ADR related entries are as follows:

8. Litigation should be a last resort. As part of a relevant pre-action protocol or this Practice Direction, the parties should consider whether negotiation or some other form of ADR might enable them to settle their dispute without commencing proceedings.
9. Parties should continue to consider the possibility of reaching a settlement at all times, including after proceedings have been started. Part 36 offers may be made before proceedings are issued.
14. The court may decide that there has been a failure of compliance when a party has—
(a) not provided sufficient information to enable the objectives in paragraph 3 to be met;
(b) not acted within a time limit set out in a relevant protocol, or within a reasonable period; or
(c) unreasonably refused to use a form of ADR, or failed to respond at all to an invitation to do so.
15. Where there has been non-compliance with a pre-action protocol or this Practice Direction, the court may order that
(a) the parties are relieved of the obligation to comply or further comply with the pre-action protocol or this Practice Direction;
(b) the proceedings are stayed while particular steps are taken to comply with the pre-action protocol or this Practice Direction;
(c) sanctions are to be applied.

It is therefore important to consider using ADR at all times. Parking compaines try to restrict ADR to 21/28 days, but it is clear this is not supported either by the courts or by the new ADR legislation (which restricts it to one year)

BPA Members

POPLA should be used as a first appeals process. POPLA is binding on the operator but not on the motorist. However, POPLA does not always make the correct decisions. For instance, a long while back POPLA ruled against The Prankster on a double dipping case, where the Prankster's vehicle visited a car park twice but the operator recorded one long stay. POPLA's ruling was despite The Prankster providing a witness statement from a third party stating that his car was not in the car park at the times the operator stated. POPLA ruled against The Prankster on the grounds that although the witness stated the car was not in the car park, the witness did not state exactly were the car was. The Prankster thought this was ridiculous and as no contravention had occurred, decided not to pay anyway. There may also have been some confusion regarding squirrels.

Another reason for disagreeing with the POPLA verdict may be that the motorist has done more research and realises that they did not include all relevant points in their appeal.

If the motorist decides to continue to contest the charge they should therefore write to the operator on the following lines.

Dear Operator,

I disagree with the POPLA verdict for the following reasons [reasons]. The debt is therefore denied and debt collection activities would not be appropriate on your behalf.

If you wish to settle this via court action then the pre-action protocol suggests we make every effort to settle the matter via ADR first. POPLA is not an approved ADR entity, but the Consumer Ombudsman is. Please therefore indicate your willingness to settle. Practice directions state that the court may apply sanctions if you unreasonably refuse to use a form of ADR, or fail to respond at all to an invitation to do so.

If the operator refuses to allow you to use POPLA in the first place, then you can amend the first part of the letter.

IPC Members

The IPC offer the IAS, which is in The Prankster's opinion a kangaroo court with secretive assessors who do not understand consumer law or parking law, resulting in bizarre judgments in favour of the operator.

The IAS operates in two modes, normal mode, which is free to the motorist and non-binding, and screw-the-motorist mode, which costs a non-refundable £15, and is binding on the motorist.

The motorist may decide to use the normal mode, on the grounds that the result will be so bizarre that the operator would dare not use it in court. However, on no circumstances should anyone consider using the screw-the-motorist mode; this is in essence throwing money down the drain, if the verdicts The Prankster has seen has anything to go by.

This does leave the motorist in a dilemma; refusing to use ADR might be seen in a bad light by the courts. The motorist should therefore not refuse to use ADR, but politely point the operator to a fairer service.

Dear Operator,

You have suggested we use the non-standard appeals service offered by the IAS. This service does not meet the statutory requirements for an ADR Entity. These requirements are listed in Schedule 3 of The Alternative Dispute Resolution for Consumer Disputes Regulations 2015 and the requirements not met are as follows:

5c (c) its ADR officials, the method of their appointment and the duration of their appointment;
7(c) ensures that the parties may, within a reasonable period of time, comment on the information and documents provided under paragraph (b);
13. The body may only refuse to deal with a domestic dispute or a cross-border dispute which it is competent to deal with on one of the following grounds—(a)-(f)
4. The body has in place the following procedure in the event that an ADR official declares or is discovered to have a conflict of interest in relation to a domestic dispute or cross-border dispute—  
3(a) ensures that an ADR official possesses a general understanding of the law and the necessary knowledge and skills relating to the out-of-court or judicial resolution of consumer disputes, to be able to carry out his or her functions competently;

5c fails because the names of the assessors are kept secret.

7c fails because the operator is allowed to introduce new evidence which the motorist is not allowed to comment on 

13 fails because the service refuses to deal with disputes from vehicle keepers in Scotland. This is not one of the categories for which refusal is allowed

4 fails because there is a fundamental conflict of interest. The service is masterminded by Will Hurley and John Davies. These two people are also directors of Gladstones Solicitors who file large numbers of claims on behalf of operators. They therefore have a financial interest in motorists failing appeals so they can then lure operators into filing a court claim.

3(a) fails because the assessors do not understand parking related law or consumer law. I quote a recent decision which illustrates this, where the assessor decides that the requirements of the Protection of Freedoms Act 2012 do not have to be met for keeper liability to apply:

Non-compliance with POFA 2012. From the same case[1], Moore-Bick LJ said that the provisions in the POFA strongly supported the conclusion that Parliament considered it to be in the public interest that parking charges of this kind should be recoverable.
[1] ParkingEye v Beavis 

Obviously an appeals service where the assessors decide that the statutes do not apply, and misquote case law in this way, is not fit for purpose. It is of course ironic that the assessor is saying that the very existence of POFA 2012 is proof that the actual requirements of POFA 2012 can be ignored. No wonder the assessors do not wish their names to be known.

The DVLA and the CTSI are well aware of the shortcomings of the IAS appeals service, which is currently being investigated by both of them. The legislation does give an ADR Entity six months to improve its processes and meet the legislation.

I therefore believe that the IAS is not a fit body to use until both the DVLA and CTSI have finished their investigations, and the body has changed its processes to meet the legislation. I would be prepared to wait until this point in time if you agree.

Failing that, I propose that instead of the IAS, we use an ADR Entity which does currently meet all the regulatory requirements right now. One such body is the Consumer Ombudsman available at this website http://www.consumer-ombudsman.org/

I propose we use this body. Please note that practice directions state the court may impose sanctions if you unreasonably refuse to use a form of ADR, or fail to respond at all to an invitation to do so.

Yours,

Motorist

To protect yourself, repeat your offer to use ADR in every letter to the operator.

Happy Parking

The Parking Prankster



7 comments:

  1. Whilst not an ADR entity under the new Regulations, I would posit that POPLA still constitutes a 'form of ADR' under the practice directions. The PD pre-dates the existence of the Regulations and it is clear that POPLA is a method of alternative dispute resolution.

    Whether or not refusing to use one form of ADR in favour of another would be deemed unreasonable is another question.

    ReplyDelete
    Replies
    1. But is it not equally reasonable to say that Parliament has since decided to formalise what counts as ADR, and that bodies complying to statutory forms would carry greater weight with the court system?

      If not, what is the purpose in putting ADR entities on a formal footing, if not to serve as a recognisably even-handed dispute resolution method?

      More than one judge has refused to accept POPLA resolutions as something which should inform his/her decisions, because the body held no statutory authority.

      Against that, more than one judge has thrown a case back to be assessed by POPLA because the motorist was unreasonably refused access to a non-litigation based dispute resolution forum.

      I suspect that where subsequent statute dictates form, the judges would be more likely to accept a regulation compliant ADR entity over a non-formal industry sponsored body (casting no aspersions on POPLA here - but it is not a recognised ADR entity).

      Delete
    2. The Court will make their decisions based on the law. They won't follow a decision made by an ADR entity just because it has obtained that status under the new Regulations.

      Delete
    3. Indeed not - but the question was whether or not a party has been unreasonable in refusing to use a given ADR body.

      In this case, PPC proposes resolution via service X.

      Motorist replies that service X is not a recognised ADR entity, but service Y is - and can handle disputes of this nature - and that he/she would be prepared to use service Y.

      PPC replies that they will not use service Y, only service X.

      Motorist then says "You're being unreasonable and I think the court will back me on this".

      My view is that, prior to there being any sort of statutory recognition of what an ADR entity actually is, is that the court would need to make an ad hoc decision about whether the PPC was unreasonable or not.

      But post regulations, the decision becomes a lot easier to reach for the courts.

      Again, I would say, if the point of the regulations was not to make court deliberations more straightforward and consistent, why have them at all?

      Delete
    4. More likely that the Court would deem the motorist unreasonable for not using the form of ADR that was made available to them.

      The PPC is bound by the AOS to use one form of ADR, not the other. Who is going to look more unreasonable in the eyes of a judge for refusing a form of ADR because it wasn't an ADR Entity under the regulations?

      Difficult to say.

      Delete
    5. But the motorist would be using the non certified ADR (POPLA/IAS). Where he or she does not believe the issues have been properly examined, he or she will then offer the certified ADR entity to the operator as a means to resolve the dispute without going to court, bearing in mind that a court hearing should be a last resort.

      If the operator chooses not to use the certified ADR entity, which in the words of the operator "would be competent to deal with your appeal", then the operator has no interest in resolving the dispute. It is common knowledge that operators issue multiple threats followed by court papers simply to wear people down and make them pay, often when they have done nothing wrong.

      Delete
  2. If the motorist refuses to accept an adverse decision after using the ADR, one might argue that they are not really engaging with the ADR process in the interest of resolving the dispute, merely in the interest of getting their own way - I see little difference in them refusing to observe the non-binding nature of the ADR decision and the operator refusing to take part in a further non-mandatory ADR process.

    ReplyDelete