Grace period

Good morning everyone,

Thank you all once again for your advice. Here are the main points that I will be including in my response to POPLA.
I still need to tidy it up (on a PC rather than my iPad) but please can I have your comments and suggestions before I submit it? My 7 day deadline is on Thursday.

POPLA appeal
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Response to submitted evidence

Timeline of events
14:32 ANPR records vehicle entering car parking area (evidenced)
14:33 to 14:40 Driver looks for parking space, parks vehicle, locates sign and reads payment instructions
14:41 Driver telephones 0330 xxxxxxx to pay for 2 hour tariff (evidenced)
14:44 Ticket is processed (evidenced)
14:45 Payment process completed and telephone call ended (evidenced)
16:42 ANPR records vehicle leaving site (evidenced)

As you can see, payment for 2 hours parking was accepted at 14:44 and the vehicle actually departed the car park within 1 hr 58 mins of this payment. In a car park with both ANPR and a separate method to record the actual parking time, then the latter must be the overriding method for the parking start time, provided it was purchased at the earliest opportunity, which in this case it was.

ParkingEye is a member of the BPA whose code of practice requires the parking operator to allow a grace period of not less that 10 minutes for drivers entering and exiting the car park.

I therefore contend that the contravention did not occur and there was no breach of contract.

Under the principle of contra proferentem an ambiguous contractual term must be read in a manner most favourable to the motorist . In this situation the word "stay" is ambiguous as the operator is relying on this beginning at a time which was not brought to the notice of the driver and is clearly open to a different interpretation .

As ParkingEye do not have proprietary interest in the land then I demand that they produce an unredacted copy of the contract with the landowner that authorises them to offer contracts for parking in their name, issue Parking Charge Notices and take legal action in their name for breach of contract.

The contract entered into between the driver and ParkingEye is a simple financial consumer contract. An offer of parking for a set sum was made and in return payment was made. This makes plain that the sum of £100 being demanded is nothing other than a penalty clause designed to profit from inadvertent errors or minor underpayment, and is consequently unenforceable. As this is a simple financial contract any claim for liquidated damages for breach of contract must represent a genuine pre-estimate of loss. If ParkingEye believe that inadequate payment was made (which their PCN fails to make clear and which I deny ) their demand should be for any unpaid tariff as that would be their only loss. The vehicle was parked for an authorised stay that was fully paid for. £100 is quite clearly not a genuine pre estimate of their loss and is clearly extravagant and unconscionable compared to the supposed unpaid tariff. If ParkingEye believe their charge is a genuine pre-estimate of their loss I demand they produce a detailed and itemised breakdown of this.

I would refer the POPLA adjudicator to the persuasive remarks of Sir Timothy Lloyd in the judgment handed down by the Court of Appeal in the case of ParkingEye v Barry Beavis. In that situation the penalty charge was justified on the basis that it was necessary to deter motorists staying longer than allowed to facilitate the turnover of free parking places. It was determined that the contract was not a financial one in that there was no economic transaction between ParkingEye and the motorist.

This is in stark contrast to the present case where there was an economic transaction between ParkingEye and the motorist, and no restriction on the time of stay was made provided payment was made.

This car park is no different to any other commercial enterprise. There can be no argument of commercial justification allowing what would otherwise be a clear penalty, simply because a small payment was purportedly not made when the vehicle would otherwise have been welcome to park as it did.

A contractual term which imposes the requirement to pay a disproportionately large sum for failing to pay a far smaller one is the very essence of an unlawful penalty. Analysis of paragraphs 43-51 from the judgment clearly demonstrates that the Court of Appeal would have considered the charge in this case as an unenforceable penalty. This case can be clearly distinguished from that of ParkingEye v Beavis the judgment in which is irrelevant in this situation.

Any reliance on the Supreme Court judgment in the case of Parking Eye v Beavis should also be disregarded as the judgment simply reaffirms that the decision in that case was based on the use of that particular car park which was free and the charge justified to ensure motorists left within 2 hours for the good of all other drivers and the facility . As previously mentioned in this situation there is no such justification.

The charge is quite clearly an unfair contractual term under UTCCR 1999 and is consequently unenforceable.
a. The charge of £100 is clearly grossly disproportionate to any purported loss which would only be a small parking tariff if no payment had been made at all, which evidence shows was not the case
b. The contract causes an imbalance in the rights and obligations of the parties to the detriment of the motorist.

ParkingEye has failed to satisfy the requirements of Schedule 4 of the Protection of Freedoms Act

a.The unpaid parking charge that should have been requested ( paragraph 9(1) of the Act ) is that which was unpaid on the day before the Notice to Keeper was issued. This can only be the purportedly unpaid parking tariff and not £100 which had not been requested and which there was no facility to pay on the day before the Notice to Keeper was issued. Consequently £100 cannot be considered unpaid for the purposes of the Act. It clearly demonstrates that ParkingEye has failed to satisfy the requirements of the Act and cannot rely on it. At no time was the registered keeper asked to pay the purportedly unpaid tariff.

b. ParkingEye have failed to notify me why the parking charge is due as is required by the Act. Their generic template PCN indicates that the vehicle supposedly stayed longer than was authorised or was not authorised at all. Which is it? The Act demands that the reason for the charge is made clear and again ParkingEye have failed to comply with the requirements of the Act and consequently cannot rely on its provisions.

Parking Eye are required to provide evidence that their ANPR systems are fully calibrated in accordance with the criteria laid down with the ICO and BPA code of practice and that the system is also calibrated with any payment options available on location.

As a third party payment system is operational at this location, any landowner contract and supplementary site specific user manual, must also provide evidence that this company has a contract with the landowner permitting the following:
a) payments by this system
b) ParkingEye have a contractual agreement with the pay by phone company granting this consent for use at this location.
c) No DPA rights have been contravened as a consequence of using such a system
d) Full planning consent is in force for the ANPR use and signage at the location.

The driver on the date in question made payment using a third party pay by phone provider and therefore it is deemed that ParkingEye do not have any right to recover any charges as revenue from the tariffs typically go directly to the landowner and payment was made to a separate trading entity.

These valid points aside; I conclude by returning to the initial argument for which there is clear supporting evidence from both parties for allowing the appeal:

P53 of ParkingEye evidence shows that start time of ticket purchased through pay by phone was 14:44:41, end time 16:44:41, and that exit from the car park was 16:42:33. So departure was within the time paid for.
The driver has provided evidence to show that the outgoing phone call was started at 14:41 and lasted 4 mins.
This leaves a time of 9 minutes in which the driver looked for a suitable parking place, (which incidentally is not easy as the bays are not all clearly defined), located the nearest sign to read the instructions to pay by phone and then made the phone call.
This was all within a reasonable grace period.