POPLA stage - Britannia Parking PCN

Hi Coupon-mad, right I’ve found a page where there was a summary of the Beavis v ParkingEye findings and have now read over the main points so that I could understand the arguments.

I got the following points from it if I understood it correctly:

1. The difference between the Beavis and my case is that mine was a pay and display car park so parking was paid for rather than free for a limited period.
2. In the Beavis case the charge was justifiable as it was their only income whereas in a paid car park, only the hourly charge is being lost by overstaying, anything above that is clearly a penalty.
3. In the Beavis case the level of charge was ruled not ‘extravagant and unconscionable’ and so could not be treated as a penalty.
4. And your point about the charge on the signage in the Beavis case being displayed in large and prominent letters and being legible whereas in my case I might be able to argue that the signage was not that clear.

Before I think about how to incorporate the above points into my appeal I’ll answer your question about the signage at the Army & Navy car park. There was a sign on entry to the car park and there was one by the P&D machine. I don’t remember seeing any others but it was quite a dark car park. I will post a photo of the sign that I found from another motorist who is fighting a similar problem at the same car park. You are correct that the charge of £85 is in smaller size text than the rest of the sign. I wouldn’t say that the £85 was ‘in your face’ – what do you think? Photo to follow if I can work out how to insert the photo....

Okay everyone, I have done further research and amended my appeal letter taking into account all the comments and suggestions made so far. I have also added more info highlighting the differences between the Beavis v ParkingEye case and mine and added a paragraph on the Aziz test. Please let me know what you think of the following and whether it is okay to submit to POPLA. Many thanks.


Dear POPLA Assessor,

POPLA VERIFICATION CODE: XXXXX

I received from Britannia Parking a Final Demand on 18th December 2015 regarding an unpaid parking charge of £85. This was the first correspondence received from Britannia.

I am disputing this demand on the following grounds:

No Authority

Britannia 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, Britannia Parking have not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, issue Parking Charge Notices and take legal action in their name for breach of contract since they do not own nor have any interest or assignment of title of the land in question.

British Parking Association – breach of the Code of Practice (CoP): Grace Period

As a member of the BPA, Britannia Parking would be subject to their Code of Practice which states in Section 13:

13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.

13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.

13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.

13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.

Britannia Parking are claiming that the 2 hour ticket purchased for my vehicle expired at 21:40 and that as my vehicle was recorded leaving the car park at 22:02 then this works out to a 22 minute overstay. Firstly, no evidence was included to support their claim of the ticket expiry time, and secondly BPA’s CoP states that grace period at the end of the parking period should be a minimum of 10 minutes. This implies that it may take longer than 10 minutes to exit the car park but this does not amount to an overstay on the period of time on the ticket purchased.

Therefore, I believe that Britannia Parking are in breach of the BPA Code of Practice and are therefore unjustified in issuing the PCN.

British Parking Association – breach of the Code of Practice: Unclear Signs

Paragraph 18.3 of the CoP states that “signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”.

The signage is ambiguous and unclear because the entire sign is about 'PARKING TARIFFS' (not 'total stay') and the sign creates no obligations except that charges apply to Blue Badge Holders and to:

- Enter your full vehicle registration correctly

- Purchase a valid ticket or permit

- Make correct payment

- Avoid parking in non-parking restricted area or access way

As the Pay & Display machine is the 'point of sale' and the Pay & Display ticket is the receipt upon which an ordinary consumer would rely for the parking time, there was no contravention of the sign.

It is wholly deceptive and unfair on drivers to impose a different time limit from cameras, than the time limit set on the Pay and Display ticket. Deceptive information which causes a consumer to take a different decision than they would have done, which then causes them detriment, is unlawful under the 'misleading actions' section (7.3) of the Consumer Protection from Unfair Trading Regulations.

In addition, having two timings running makes you conclude that Pay & Display machines are incompatible with ANPR camera systems and the entire scenario is obviously unfair under the Unfair Terms in Consumer Contractions Regulations.

British Parking Association’s breach of the Code of Practice: referred to debt collectors during the POPLA window

British Parking Association Code of Practice states in the Operator Procedures section:

22.12 If you reject an appeal you must:

• give the motorist a reasonable amount of time to pay the charge before restarting the collection process. We recommend that you allow at least 35 days from the date you rejected the challenge.

Britannia Parking’s rejection letter is dated 18th January 2016. According to the CoP Britannia should have allowed at least a 35 day period to pass before restarting the collection process. However, a letter received from Debt Recovery Limited demanding payment is dated 28th January 2016 – only 10 days from date of the rejection letter. This clearly breaches the rules of the Code of Practice that Britannia are to adhere to.

No Breach of Contract

Britannia Parking are claiming that their records show the notice was correctly issued as my vehicle was parked “in breach of the Terms and Conditions of the Car Park”. They do not explain which terms exactly were breached other than to say there was an overstay of 22 minutes which they base on the time their ANPR system recorded my vehicle leaving the car park.

The signs do not state that the parking contract begins and ends based on the time you enter and leave the car park. As there is a Pay and Display system in operation, the motorist would rightly interpret that the start of the contract begins from the time you buy your ticket.

According to Paragraph 13.2 of the British Parking Association’s CoP a reasonable ‘grace period’ is to be allowed in which the driver can decide if they are going to stay or leave. They should also be allowed a grace period to read the signs and leave before taking enforcement action.

According to Paragraph 13.4 of the CoP a reasonable grace period should also be allowed for a vehicle to leave the private car park after the parking contract has ended before enforcement action is taken, a minimum of 10 minutes.

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 ending at a time which was not brought to the notice of the driver and is clearly open to a different interpretation.

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

The ANPR system is unreliable and inaccurate

Britannia Parking’s evidence shows no parking time, merely photos of a car driving in and out. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all and has not been shown to be synchronized to the pay and display machine clock nor even to relate to the same parking event.

Britannia Parking is obliged to ensure their ANPR equipment is maintained as described in the BPA Code of Practice that states under paragraph 21.3, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I question the entire reliability of the system and require Britannia Parking to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss in the case of Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from Parking Eye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.


No genuine pre-estimate of loss (GPEOL)

The charge is not a genuine pre estimate of loss but an unenforceable penalty as Beavis v ParkingEye can easily be distinguished from this case.

If a contract was formed between the driver and Operator it would be a simple financial consumer contract. An offer of parking for a set sum was made in return for a small payment. This makes plain that the sum 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 The Operator believes that inadequate payment was made (which their PCN fails to make clear) their demand should be for any unpaid tariff as that would be their only loss.

A payment of £1.50 was made for a stay of 2 hours. If, as Britannia Parking claims, there was an overstay of 22 minutes then, in accordance with their signage, a stay of up to 4 hours would have cost £3.90. Therefore, the recoverable sum of the alleged ‘outstanding’ parking charge would equal to £3.90 at the most.

The charge of £85 is clearly extravagant and unconscionable compared to the supposed unpaid tariff. If The Operator believes their charge is a genuine pre-estimate of their loss I demand they produce a detailed and itemised breakdown of how this has been calculated.

The Operator cannot reasonably claim a broad percentage of their entire business running costs, as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. I suggest there was never any advance meeting held with the client, nor was any due regard paid to establishing any 'genuine pre-estimate of loss' prior to setting the parking charges at this site. I put this operator to strict proof to the contrary and to explain how the calculation happens to be the same whether the alleged overstay is 22 minutes or 22 hours.

The Operator alleges 'breach of terms’ and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This must amount in its entirety, only to a genuine pre-estimate of loss, not some subsequently penned 'commercial justification' statement they have devised afterwards, since this would not be a pre-estimate.

In this case, even if the Operator contends there was a small outstanding Pay & Display sum they certainly cannot claim an inflated amount. A GPEOL calculation must be a sum which might reasonably flow directly as a result of a parking event.

An Operator cannot include 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment. Appeals staff are already paid to do their admin job which includes handling appeals among other tasks, so there is no question that there is any 'loss' caused by these staff who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage.

Judge Charles Harris QC in 'A Retailer v Ms B' (where the Claimant tried to claim a 'loss' from a consumer for 'staff and/or management time investigating') stated:

"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation.

[15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do...

[16] So the claim in respect of staff time cannot, in my judgment, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home...

[17] It follows that the claims must be dismissed’’

http://www.farrarsbuilding.co.uk/cms/uploads/A-Retailer-v-B-K_001.pdf

In the case of private parking charges in general - including this Operator - the administrative staff and Managers who handle challenges and POPLA appeals are not 'significantly diverted from their usual activities', nor do appeals cause any 'significant disruption to its business', nor was there any significant loss of revenue generation. So none of the 'staff time' can be properly included in a GPEOL calculation. If POPLA do accept a small amount of staff time in a GPEOL sum then this could only be 1% of the typical time taken for POPLA appeals, because only 1% of cases follow the POPLA route. No higher figure can have been in the reasonable contemplation of the Operator at the time of the parking event because the chances of POPLA are even less than 'debt collector stage' both being far too remote to be likely.

Beavis V ParkingEye not relevant in this case

The letter received from Debt Recovery Plus Ltd on behalf of their Client, Britannia Parking, refers to a landmark court decision made on 4th November 2015 “in favour of a parking operator who took a motorist to court for non payment of a parking charge”. They provide a link of where more information can be found. The case referred to is that of Beavis v ParkingEye.

However, there are sufficient differences between this incident and the case referred to above and so that case cannot be taken as a precedent.

In Beavis v ParkingEye the car park was a free car park with a limited time and ParkingEye were paying the landowner for the use of the site. In this case the time is not limited and paid for and as far as I know, the operator does not pay the landowner.

In the Beavis v ParkingEye case it was the charge as displayed on the signs in that car park that convinced the Supreme Court Judges that a contract was formed to pay £85. For example:

Lord Neuberger: "The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it.’’ "the terms, like all standard contracts, were presented to motorists on a take it or leave it basis ....."

In this case, the requirement to pay £85 (see sign below) is not clear and prominent as the Supreme Court commented on in Beavis v ParkingEye. Such an onerous obligation should be the most prominent part of the sign, as is stated in Lord Denning's Red Hand Rule.

NOTE: I WILL INSERT A PHOTO HERE OF THE SIGN IN MY PDF LETTER - AS SHOWN IN MY PREVIOUS POST

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 Beavis v Parking Eye. 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 was not changed by the later judgment in the Supreme Court.

This is in stark contrast to the present case where there is an economic transaction between the Operator and the motorist, and no restriction on the time of stay was made provided payment of the tariff 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 Beavis v ParkingEye v the judgment in which is irrelevant in this situation.

Any reliance on the Supreme Court judgment in the case of Beavis v ParkingEye 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 and Parking Eye as that was their only income. As previously mentioned in this situation there is no such justification as the car was welcome to park as it did in return for a small payment to the Operator who is already making income from the site.

Unreasonable and unfair terms – no contract agreed to pay £85. Fails the ‘Aziz test’.

I also wish to reference the Aziz test (as my case is different to that of Beavis v ParkingEye) in order to assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.”

And as for whether average consumers 'would have agreed' to pay £85 had there been negotiations in advance, the answer here is obviously no. One could have parked for 24 hours in this car park for £7.50. There would have been no justification or negotiation that could have possibly have persuaded an average consumer to pay £85 to this parking firm. Their charge relies upon unseen terms, not clear contracts, and should not be upheld.

Therefore, it is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point.

Yours faithfully,

Thanks for getting back to me Coupon-Mad - and thanks to everyone who contributed, and to other posters on the site where I found all the info I needed to put my appeal together - very much appreciated.

I will post the outcome.

Have a lovely evening everybody.

So, I've just seen an email sent to me from POPLA, sent this evening at just after 6pm. They say they have received Britannia Parking Group's case file and that if I haven't received my copy then I am to contact Britannia directly, and that I have seven days from today to provide my comments on this file.

I haven't received a copy of the file. I will give Britannia a call tomorrow.

Just wondering if there is any advice you can give at this stage. What happens if I don't receive the case file from Britannia within the 7 day window?