PCN for parking in a parent and child space

sticklebrick14

Hi all,

My wife parked (in a car registered to me) in a parent and child space at Brighton Marina's free car park which was relatively empty at the time (I'm still to get a good answer as to why she didn't just park five bays over in the standard parking). On her return she had received a windscreen PCN from Vinci for parking in the space without a child.

I read the newbie threads traced through the flow charts and waited to see if they would send through the PCN to me as the registered keeper which they have now done.

So I sent off the standard template letter obtained from this site and asked that if they were going to proceed with the claim I would need the POPLA code etc. etc.

If they had of just sent me the appeal code I would't have troubled you all but they've written to me (see reply below) and in a nutshell said my arguments are rubbish and asked me if I want to appeal on different grounds.

Does anyone have a view on how I should proceed with this one?

Many thanks in advance

Reply from PaymyPCN on behalf of Vinci
Good afternoon,

Thank you for your email, the contents of which have been noted.

A) Please be advised that It is a well-established principle of law that liquidated damages must be a genuine pre-estimate at the time when the contract was entered into of the loss that a party is likely to suffer because of a breach of contract. Otherwise, it will be considered a penalty and not be enforced.

Traditionally, the critical factor in determining the enforceability of liquidated damages clauses has been whether, at the time the contract was entered into, the level of liquidated damages reflected the parties' genuine pre-estimate of losses likely to be suffered in the event of a breach of contract. If so, the clause would be enforceable. If not, the damages would be viewed as penal and the clause would be unenforceable.
It has been successfully argued that the running costs where costs would still need to be paid whether or not the motorist contravened any parking provisions cannot be part of a claim where a genuine pre-estimate of loss is sought. An example of this can be seen in the County Court case of VCS v Ibbotson where the District Judge explained the difference between the costs of running the operation of the parking business as against the actual cost incurred because of the breach by the motorist.

A strict application of this traditional approach could lead to commercially justifiable clauses being rendered unenforceable as penalties. Actual losses may depend on numerous inter-related factors, which may change over time. In these circumstances, both parties are likely to benefit from the pre-allocation of risk. The Office of Fair Trading („OFT‟)‟s view was that what can be charged to the consumer for trespass/breach of contract will depend on the circumstances and with whom the consumer contracts. To claim direct losses for trespass or breach of contract, the company or landowner must prove what the actual losses that were caused by that individual‟s breach were. However, if the claim is for liquidated damages, the OFT‟s view is that the liquidated damages that can be recovered are a genuine pre estimate of loss. This is not the same as having to prove, in every case, the actual loss caused by the actual breach.

The OFT expressed the view that when claiming liquidated damages, it must meet the requirement of being a genuine pre-estimate of loss. If back office functions are claimed, these must be directly caused by the breaches of contract. The OFT‟s view was that if you have an office anyway and have to pay rent, rates, insurance, etc., this cannot be attributed to the breach and claimed as costs, as these are the costs of running a parking management company. To be recoverable, all costs, whether in contract or tort, must be caused by the breach.

However, the approach taken by Judge Lowe QC in the case of Mayhook v NCP when deciding upon the issue of whether or not the parking charge was a penalty as opposed to a genuine pre-estimate of loss was to decide that the parking charge was a genuine pre-estimate of loss. In this case it was found that the loss of revenue, staff costs, purchase and maintenance of equipment and tools to issue them; costs relating to the performance management of any agents to ensure that the relationship with customers were not being harmed (indeed the parking company's reputation was of importance) and finally the enforcement costs in dealing with persistent offenders was sufficient to justify a claim for a genuine pre-estimate of loss.
The judge found that it was commercially in the interest of both the motorist and the parking company to avoid protracted evidential issues in proving the particular loss in relation to small claims. As the terms and conditions were used in all NCP car parks it was found that there should be a simple way for the consumer to know what the likely liquidated sum of damages would be if they were found in breach of the conditions for failing to pay the tariff fixed by the parking company.
As long as the remedy can be shown to be commercially justifiable and is not intended to be a deterrent, it is likely to be enforceable rather than a penalty, even if there is a discrepancy between the amount payable and the amount of likely loss.
The Judge appears to have followed the principles in the case of Azimut-Benetti SpA v Darrell Marcus Healey, where the court upheld a liquidated damages clause despite the fact that the level of damages it provided for was clearly not a genuine pre-estimate of the claimant's losses.

It is not sufficient to merely state that the parties agree that the sum payable reflects a genuine pre-estimate of loss and not a penalty - the words used in relation to the purpose of the clause will be relevant but not conclusive.
This decision is important in that the judge appeared to attach a great deal of significance to the fact that the clause was "commercially justifiable". The Judge reviewed the authorities and in particular, relied on a dictum in Cine Bes Filmcilik VE Yapimcilik v United International Pictures that a particular clause “might be commercially justifiable provided that its dominant purpose was not to deter the other party from breach”. This was also the approach used by the Judge in the NCP case.
The Judge took the view that the evidence clearly showed that the purpose of the clause was not a deterrent and that it was commercially justified as providing a balance between the parties. On that basis, there was no need for the Court to form a view as to the maximum loss, which the parties would have expected to flow.

Nevertheless, although it is still preferable for the sum to be calculated as a genuine pre-estimate of loss for a particular breach, there is no reason why liquidated damages cannot be shown as a charge provided that it is commercially justifiable.
The cost of parking enforcement within this Car Park is high and includes, but is not limited to the costs and charges that are mentioned below;

[loads of costs including wages, stationary and uniforms!]

As a result of the above narrative we therefore believe that this clearly demonstrates that the PCN amount fairly represents a Genuine Pre-Estimate of our loss.
In any event, in the recent case of Parking Eye V Beavis & Wardley, the judge confirmed that the charges were commercially justified in the parking situation and our clients are satisfied they are in this instance.

We note your comments in relation to our not being the landowner, and would advise you that our Client Vinci Park are authorized to operate and enforce parking control management at the material site, by way of an operating contract between themselves and the landowner. As the Operators agent we are entitled to pursue outstanding Parking Charge Notice’s (“PCN”)’s which are issued at the site .

You are entitled to have sight of the material operating contract at this stage, as there is a clear privity of contract, in that the terms of the agreement between the landowner and the Operator have no bearing on the contract between the motorist and the parking company.

C) It should be noted that when parking on private land, a motorist has a duty to ensure that they make themselves aware of any parking restrictions before leaving their vehicle on private land. Vinci Park are members of the British Parking Association (“BPA”) Approved Operator Scheme (“AOS”) and therefore abide by the Code of Practice. As such all contractual warning signage has been vetted and approved as adequate.

I hope I have answered your point raised. Please confirm if you would like us to use your email as the basis of you appeal. If not please submit your appeal by 18.07.14 so you are within the reduced payment period.

Kind regards

AR

ezerscrooge

Usual crap to try to bully and scare you into paying.

You'll need to get back in touch and tell them that you have nothing further to add and to issue a POPLA code without delay. Remind then that the BPA has instructed operators that the motorist/keeper should not need to ask for one.

Also put a complaint in to the BPA about them not providing you with a POPLA code.

steve.c@britishparking.co.uk

You will win your POPLA appeal with help from here - don't worry a jot about the garbage they have spouted.

sticklebrick14

Thanks ezerscrooge. I'll fire off an email and start preparing my appeal. On what grounds that will be - I haven't the foggiest!

Iceweasel

sticklebrick14 wrote: »

Thanks ezerscrooge. I'll fire off an email and start preparing my appeal. On what grounds that will be - I haven't the foggiest!

I think you'll find it's going to be about the 'charge' being disproportionate to the 'crime'.

Check up on GPEOL - Genuine Pre-Estimate of Loss.

'Parent & Child Only' spaces have as much legitimacy as spaces for 'People with Blue Eyes Only'.

Imagine trying to charge someone with brown eyes who had the cheek to park there .

Dee140157

Look at post 3 of Newbie thread "How to win at POPLA". Lots of examples of appeals there. Use all the main appeals. no GPEOL, signage etc.