Parking Eye PCN

Coupon-mad

BrendanHale wrote: »

OK, point taken.
All I did was add the numbered list to the head of the submission as suggested, and i have now amended the initial line as you have indicated.

I appreciate the input that you and others have given, if I am successful I realise it will be mainly down to the advice received in this forum.

I am learning all the time,

Many thanks

Brendan

You have to win, as long as the driver was never mentioned in any appeal, because the NTK was sent too late. You can't lose on that point as it's a legal deadline, as long as that date was the date of the PCN and not the 'reminder'.

Re the period of grace, I always write it like this, putting the onus on PE and (where the charge relies on mere minutes, like in your case) I just make up the grace period to be a bit more than the minutes alleged (you don't have to know but it then makes PE prove otherwise!):


10 minutes beyond 3 hours is not a contravention in the contract and is based upon an unfair business practice

The PCN states that the vehicle was in the car park for 3 hours and 10 minutes. The BPA CofP states that there will be a “reasonable period of grace for drivers to exit a car park once a car parking contract has ended”. It is contended that the driver did not park for longer than 'paid for' time at all and the extra minutes are merely the time taken to look for a parking space and then to queue to pay at the machine, and finally the time taken afterwards to leave and wait to rejoin the road.

It is unfair business practice to provide machines allowing for payment for 3 hours with a time stated on the P&D ticket, then to hold a driver to a completely different unstated timing including driving time, with an unstated grace period. Any reasonable person would have an honest belief that the parking time is the time covered by the P&D ticket and the operator has not shown this evidence nor have they stated the amount of tariff paid. As I was not the driver I have no idea what the allegation actually is, because the PCN does not tell me whether the driver is alleged to have not paid at all or merely 'overstayed' a total stay time of a mere 10 minutes.

However - assuming it is the latter because the driver did pay a tariff - I believe that there is a grace period of up to 15 minutes at this site, as agreed with the landowner on the contract and User Manual. Therefore there was no contravention at all and I put the operator to strict proof otherwise, which will require the actual contract with visible information about the grace period at this site. I also believe the contract allows for charges only for overstay of parking time (plus the grace period) not a charge based upon 'total stay' time. Again, the contract is required if the operator is to disprove this appeal point.


You could also go to town on unfair business practice:

Any breach of the CPUTRs 2008 renders the relevant contract term legally unrecoverable from a consumer. Therefore I am not liable because, in the CPUTRs misleading practice is listed as banned, causing contracts to be ‘unenforceable’.

Misleading information such the pay and display machine advertising that the time on the ticket is the time allowed, when in fact there is another secret 'timing' at this site, would constitute a misleading business practice:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/284442/oft1008.pdf

The driver is an ‘average consumer’ as the law mentions and the driver was certainly misled into taking a decision to park and rely upon the P&D ticket in good faith, as anyone would. I contend that this operator has breached the CPUTRs 2008 on the misleading practice points 7.3 and 7.5 above:

7.5 is invoked for failing to honour the commitments made in their Trade Body code by not keeping to the grace period, which I believe is 15 minutes.

7.3 is invoked due to the ‘deceptive presentation’ of the terms. The driver was deceived by the pay and display machine being the only timing upon which any reasonable driver would rely for 'paid for' parking time. PE have not even shown any evidence of the terms shown on the P&D machines nor on the ticket it prints out and I put them to strict proof to show that a driver is warned at the point of payment and/or on the ticket itself, that they will still be liable for further charges if they don't manage to leave within xx minutes and/or that the timing started already from the moment they drove in. This is contrary to the usual expectation when buying a P&D ticket so it must be explicitly stated on the ticket and on the P&D machines if PE are to rely upon a completely different, secret timing.

In addition, the contract law doctrine of ‘contra proferentem’ applies in this case: i.e. where a term is unclear to a consumer, or ambiguous (as here) the interpretation which most favours the consumer MUST apply.

BrendanHale

Thank you, that is most useful and I will incorporate it into my appeal.
Hopefully the better my appeal is, the more useful it will be to those who will inevitably follow!
It will be interesting to see what happens as I am now appealing to the Ombudsman Service...
I will submit this week.

hoohoo

Write to pe again stating that the new code of practice requires a ten minute grace period on exit which you did not exceed.

BrendanHale

Update to this case.....
I submitted my appeal to the Ombudsman Service as the new POPLA service on the 6 Oct 15.
Having had my fill of seasonal films, I decided to check the progress on the POPLA website and it still says "appeal in progress", as it has for many weeks now. The "evidence pack" from Parking Eye arrived at the end of October, so plenty of time has passed for my appeal to be considered.

As my case is one of the first that came under the Ombudsman Service, I know that the outcome is of interest to some, so this is just to say that I'm still waiting for a decision!

Coupon-mad

Did you not send any comments or rebuttal of the evidence? Really important to do so, a real shame and missed opportunity, if you didn't.

Did the evidence show a landowner contract stating the grace period?

windy488

Quick update,

I've just heard that my appeal has been upheld, I'll post the full appeal adjudication in the results thread once home from work

Brendan

Coupon-mad

Good stuff!