Tower Road, Newquay

salmosalaris

Guys_Dad wrote: »

I would remove the Beavis quotes as well. They may be accurate but still got a victory for PE and in any case the Supreme Court are considering their views.

You do not wish to appear a barrack room lawyer.

And it is still too long. Just look at the last couple of pages of the POPLAR DECISIONS sticky to see what is winning.

I'd leave the Beavis quotes in . PE are still submitting that the case is relevant on paid sites but in the 2015 POPLA report Mr Greenslade has stated that the case did not provide clarity on paid sites . I would argue that the obiter remarks in the CoA judgment favour your position rather than that of PE.
Of course all that could change when the Supreme Court judgment is available

Parkrage

Thankyou Salmosaris. Good to see you here :-). So, just to clarify, in your opinion, I should leave in all the eboldened text that you suggested for Tommy1080?

salmosalaris

Your contract for parking is a straightforward consumer contract , that is why I included that text from the CoA judgment .
So a breach of that contract must reoresent a gpeol , or the parking fee that PE suggest is unpaid .
What may transpire though is once a contract has expired , ie the time you have oaid for elapses you essentially become a trespaaser , so if the SC find that the charge is justified on the basis of damages for trespass you'll struggle .

Plus on this car pRk I think PE claim to be the leaseholder and have produced witness statements from themselves as such . Demand a copy of the lease demonstrating they have proprietary interest if they are making such a claim

salmosalaris

If you provide a witness statement from someone else that the driver paid , unless PE can provide evidence that they didn't ( difficult ) you will win on the balance of probabilities. PE will cancel before POPLA IMO .

salmosalaris

Your name
Your address
Popla reference xxxxxxxxxxxx
Date xx/xx/xx


I wish POPLA to consider my appeal against PCN xxxxxxxxx on the following points.

1. I am the registered keeper of vehicle xxxxxxxx .There was no breach of contract . I can confirm that the driver fully paid for the period of parking in accordance with the signage. This can be confirmed by a supporting independent witness statement . ( see attached ). I can only assume that either the machinery is faulty or possibly an incorrect VRN was entered but in either case there is no loss caused to Parking Eye at all let at alone one that can justify a claim for £100-00. I demand Parking Eye produce evidence that payment was not made .

2. It is believed that Parking Eye claim to be the leaseholder of this car park. I demand that they produce a copy of the lease that would demonstrate that they have a proprietary interest in the land and therefore the legal right to bring such a claim.

3. If they do not have proprietary interest in the land 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.

4. The contract entered into between the driver and Parking Eye 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 prevent drivers from underpaying or to profit from inadvertent errors 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 Parking Eye believe 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 . The vehicle 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 rhe supposed unpaid tariff . If Parking Eye believe their charge is a genuine pre estimate of their loss I demand they produce a detailed and itemised breakdown of how this was calculated with specific reference to how incorrectly entering a VRN or their failing to record a payment would incur any loss at all. Even if payment was not made, which is denied, their only loss would be the parking tariff .
I would refer the POPLA adjudicator to the obiter but persuasive remarks of Sir Timothy Lloyd in the judgment handed down by the Court of Appeal in the case of Parking Eye 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 allow for 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 Parking Eye and the motorist. This is in stark contrast to the present case where there is an economic transaction between Parking Eye 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 or a VRN incorrectly inputted into a machine when the vehicle would otherwise have been welcome to park as it did .A contractual term whose sole motive is to deter non payment 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 Parking Eye v Beavis the judgment in which is irrelevant in this situation.


5. 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 is denied.
b. The contract causes an imbalance in the rights and obligations of the party’s to the detriment of the motorist.

6.. Parking Eye 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 Parking Eye 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. Parking Eye have spectacularly 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 Parking Eye have failed to comply with the requirements of the Act and consequently cannot rely on its peivisions



The appeal should be allowed and the Parking Charge Notice cancelled

salmosalaris

Ive just fully read your thread , don't send anything yet
send me a pm , could do with a look at your pcn
Look at the sign and compare to how you say you paid
I reckon youve received the PCN because PE believe they are due £10 for all day parking . Again a typically misleading sign . One could rightly conclude under Contra Proferentem that £10 is the fee to park for the entitlrety of the hours stated not for a single stay of over 3 hours . Typically misleading and confusing signage

Parkrage

"I reckon youve received the PCN because PE believe they are due £10 for all day parking" .

Hmm, I reckomn you're right Salmosalaris.

I recall looking at the sign at the time and wond'ring how much extra to pay. I considered that 4 hours was not "all day".

PM on its way :-)

Parkrage

:-/ How do I attach an image to a PM? (it says to 'insert the URL of your image, http://...)

Umkomaas

Parkrage wrote: »

:-/ How do I attach an image to a PM? (it says to 'insert the URL of your image, http://...)

First off, host it on PhotoBucket or Tinypic, you'll then have a URL to link to your PM.

Parkrage

I think I sent it to you 3 times, Salmosalaris. I couldn't understand why it was not appearing in my 'Sent' folder, then realised I had to click a box for this to happen.:o