The pepipoo case concerns a parking charge from Excel Parking, and as any fule kno, Excel Parking do not rely on keeper liability but pursue the keeper on the basis that they were the driver. Here is a typical Notice to Keeper from Excel (from stock data on the BMPA website, not the actual one in question). It is missing at least the statutory requirements specified in 9(2)(e) and 9(2)(f) of the Protection of Freedoms Act 2012, schedule 4.
In this case, the keeper was not the driver, and therefore directed Wright Hassall to drop the charge.
Wright Hassall replied as follows
You have confirmed that you were not the driver at the time of the contravention. However, Paragraph 9(2)(b) of schedule 4 of the Protection of Freedoms Act 2012, states for parking events in England & Wales that the operator must inform the registered keeper that the driver of the motor vehicle is required to pay the parking charge in full. It also notes that, as the operator does not know the driver’s name or current postal address, the registered keeper, if they were not the driver at the time, should inform the operator of the name and current postal address of the driver and pass the notice to them.
The Act also warns that if, after 29 days, the parking charge has not been paid in full and the operator does not know both the name and current address of the driver, they have the right to recover any unpaid part of the parking charge from the registered keeper. This warning is given under Paragraph 9(2)(f) of Schedule 4 of the Protection of Freedoms Act 2012 and is subject to the operator complying with the applicable conditions under Schedule 4 of that Act.
Further if you have previously confirmed the details of the driver and they have not made payment or denied responsibility, Schedule 4 of the Protection of Freedoms Act 2012 states liability remains with the registered keeper.In The Prankster's opinion, it would be difficult to find somebody with a poorer understanding of parking related law than the Independent Appeals Service, but Wright Hassall seem to have scraped that barrel.
To dissect their incompetence, Wright Hassall have started out by misquoting 9(2)(b), which states nothing of the sort. They refer to registered keeper, while the Act refers to keeper. The two are not necessarily the same, as the Act makes clear in 2(1). They then misquote 9(2)(e), somehow turning an obligation of the operator into an obligation of the keeper. Along the way, they once again mangle keeper into registered keeper, and state that a current postal address of the driver is required. This is wrong - the Act defines the requirements to also allow 'an address at which the driver can conveniently be contacted'. Next, 9(2)(f) is similarly reversed, magically changing from a operator obligation into driver obligation.
The choice of paragraphs is exceptionally ironic, as Excel Parking miss out both 9(2)(e) and (f) in their notices.
In short, Wright Hassall totally fail to acknowledge that Excel's notice to keeper is not compliant with keeper liability.
Finally, Wright Hassall dive into the realms of fantasy, stating the keeper remains liable if the driver has not made payment or denied responsibility. Nowhere in the Act is this stated; the keeper can provide the name and address of the driver any time up until the beginning of proceedings. Once they have done this, their liability ends, regardless of whether the driver pays.
Presumably Wright Hassall meant to say the keeper is liable if the driver denies responsibility, rather than has not denied responsibility, but regardless, they are wrong. Whether or not the driver denies responsibility**, the keeper has fulfilled their obligations and are no longer liable.
The Prankster is frankly, flabbergasted.
The Prankster is still flabbergasted. These are the people that the British Parking Association have selected to represent brand-POPLA, and they fail the basics of parking law. The Prankster considers that knowledge of the Protection of Freedoms Act 2012, schedule 4 is a mandatory requirement for that role.
However, Wright Hassall's incompetence does not end there. They state their letter before claim complies with annex A and B of the pre-action protocol without realising these ceased to exist almost a year ago, in April 2015. A solicitor firm filing claims who do not keep themselves current with the pre-action protocol hardly inspire confidence.
Next, they misapply Fairlie v Fenton
Any person who makes a contract in his own name without disclosing the existence of a principal, or who, through disclosing the fact that he is acting as an agent on behalf of a principal, renders himself personally liable on the contract, is entitled to enforce it against the other contracting party. It therefore follows that a lawful contract between the car park operator and the motorist will be enforceable by the car park operator as a party to that contract. This is supported by case law of Fairlie v Fenton (1870 LR 5 Exch 169).
The Prankster agrees with Fairlie v Fenton, but the crucial part is 'renders himself personally liable'. Essentially this means the operator can sue the motorist if the motorist can sue the operator. In practice, this rarely is the case. The benefit to the motorist is the provision of a parking space, but if that goes wrong, the operator is quick to absolve themselves of responsibility. If the parking surface has a pothole and a vehicle suffers damage, or if the car park surface is covered in ice and the driver slips getting out of the car, then typically it will be the landowner the motorist sues, not the operator of a pair of cameras.
Additionally, if the motorist is driving a hire car and wrongly gets issued a ticket, they often find themselves the recipient of a £50 administration charge from the hire company even though the parking charge is cancelled. In such circumstances the parking operator is quick to deny of responsibility stating it is not their fault and they are acting as agents of the landowner.
Clearly then, in the majority of cases Fairlie v Fenton acts to the benefit of the motorist, not the detriment.
Along the way, Wright Hassall also misquote the IAS appeal procedures, stating that if a motorist appeals within 21 days they must pay a fee of £15 and the result is binding on them. This is not correct, and those conditions only apply to appeals made after 21 days.
They also make this blanket statement:
the car parks under management by ZZPS’s Clients have clear terms and conditions for parkingAs the car park in question is the Peel Centre, one of the worst signed car parks in the country and one which forms a sizable part of The Prankster's mailbag, nothing could be further from the truth.
Here is a map showing just how bad signage coverage is in part of the Peel Centre. Only the bays in green have a reasonable chance of noticing signage. Bays in red have almost no chance. Of particular concern is the dearth of signage by disabled bays. The Prankster considers Excels disrespect for disabled drivers in this car park as wicked.
So there you have it. The British Parking Association have appointed parking company debt collectors to deal with motorist appeals, who clearly are incompetent and not qualified to do the job.
The Parking Prankster
**If the nominated driver denies they were the driver, this is a different matter. The Parking company could in theory pursue the keeper, who would then need to prove on the balance of probabilities they correctly named the driver. The Prankster has seen this situation a few times, mainly between ex-husband and wife.