Parking Eye - Snowden Mountain Railway

Redx

pappa_golf wrote: »

they are now going to re-POPLa all the old cases , however it is not going to be the POPLa you expected , the cases are going to be heard by the well known scamming Co called wright hastle http://parking-prankster.blogspot.co.uk/2016/02/british-parking-association-appoint.html

other posters on here and other sites are telling the BPA that they want their files returning , and no (bent) POPLa imput

no its not , sorry

its the Ombudsman Service starting to get a handle on all the early popla cases pre-beavis (before november 2015) that were put on hold whilst they decided what the Beavis court case meant going forward

nothing to do with WH looking at the old London Council cases

pappa_golf

yes , sorry ombudsman services took over on 1st October and state they handle all cases since 21 August 2015

4consumerrights

@LLJ - I would suggest you contact Salmosalaris by pm and let him assist you off forum - and I can vouch for him as a trusted member of both this forum and Pepipoo.

I can also confirm that this is the new POPLA sending these messages out currently and the unmentionable appeals company indicated in my signature are also receiving such communications

salmosalaris

The Operator has no legitimate interest in enforcing their charge , the charge is disproportionate ,extravagant , unconscionable, a penalty and an unenforceable Unfair contract term and this case can easily be distinguished from Parking Eye v Beavis


The purported contract entered into by the motorist is a simple consumer financial contract. An offer of parking is made in return for payment of a small tariff. The Operator is seeking to impose a charge for breach of contract. The loss suffered for allegedly failing to make this payment is easily calculable as that unpaid tariff. Anything in excess is clearly a penalty and Unfair contract term .

a. The Operator may seek to rely on the case of Parking Eye v Beavis as legitimising the charge in this case. The appellant will make the following observations. The Supreme Court adjudged that the charge in Parking Eye v Beavis, although engaging the penalty rule also disengaged it (despite the fact Parking Eye made no loss ), because they had a legitimate interest in enforcing that charge and that the charge was not disproportionate to that interest. The legitimate interest was described in the Supreme Court judgment as :

“97
a. The need to provide parking spaces for their commercial tenants’ prospective customers; -

b. The desirability of that parking being free so as to attract customers;- i

c. The need to ensure a reasonable turnover of that parking so as to increase the potential number of such customers; - i

d. The related need to prevent ‘misuse’ of the parking for purposes unconnected with the tenants’ business, for example by commuters going to work or shoppers going to off-park premises; and
I
e. The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.”-


In this case the vehicle would have been fully entitled to park as it did had payment been made ( if the requirement to pay had been brought to the attention of the motorist). The above justifications are irrelevant in this situation and conspicuously absent.The penalty rule is clearly engaged in this case , but unlike in Parking Eye v Beavis it is not disengaged. The only interest the Operator has in enforcing the charge is ensuring payment is made. That is not a legitimate interest. The car park is no different to any commercial enterprise .The Claimant cannot argue that a legitimate interest is simply ensuring that payment is made , i.e. simply ensuring the terms of the contract are not breached. If that was the situation any contractual term requiring payment for breach would never need a supporting legitimate interest . In addition the charge demanded for breach is clearly disproportionate to the unpaid parking tariff of a few pounds. This extravagant and unconscionable charge is clearly a penalty following the judgment of the Supreme Court. The reference to "overstaying" in the Supreme Court judgment relates to vehicles staying beyond a time that they were welcome to . A deterrent charge was necessary and justified to protect the interests listed above . This is not the case here, in this situation no such deterrence is required and the protection of such interests is irrelevant because the vehicle would have been welcome to park as it did on payment of a small tariff. The charge is not necessary to provide an income stream for the operator who already charges handsomely for the provision of parking . Additonally the charge does not increase the availability of spaces for the benefit of the retailers or other motorists, it simply seeks to punish inadvertent underpayment by the motorist who was otherwise fully welcome to park as they did.

This position is reinforced in the earlier judgment from the Court of Appeal in Parking Eye v Beavis . The judgment states :

"43. It is clear that the purpose of the £85 parking charge is to deter those who use the car
park from overstaying beyond the free permitted two hours. So, Mr Hossain
submitted, the case is clear and the parking charge provision is unenforceable.
44. All the previous cases shown to us have concerned contracts of a financial or at least
an economic nature, where the transaction between the contracting parties can be
assessed in monetary terms, as can the effects of a breach of the contract by one party
or the other. Sometimes such measurement is difficult because of inherent
uncertainties, and in those an agreed liquidated damages provision may be upheld for
those reasons. But, however difficult it may be to measure, it is clear that there are
economic and commercial effects on the parties.
45. The contract in the present case is entirely different. There is no economic transaction
between the car park operator and the driver who uses the car park, if he or she stays
no longer than two hours; there is no more than (for that time) a gratuitous licence to
use the land. The operator affords the driver a free facility. That facility is, of course,
of economic value to the driver, as well as of convenience, in assisting the driver to
visit the shops in the shopping centre which the car park serves. It is thus useful to
Judgment Approved by the court for handing down. ParkingEye -v- Beavis
the driver, being close to the shops, and free. It is also useful to the shopkeepers, in
encouraging visitors, and in particular in encouraging a turnover of visitors because of
the two hour limit. A car owner cannot simply come to the car park and park there all
day. To do that would be to clog up the facility and to prevent those arriving later
from using the park for its intended purpose.
46. The terms of use of the car park need, therefore, to provide a disincentive to drivers
which will make them tend to comply with the two hour limit. That is afforded by the
parking charge of £85. It would not be afforded by a system of imposing a rate per
hour according to the time overstayed, unless that rate were also substantial, and well
above what might be regarded as a market rate for the elapsed time, even if the market
rate were in some way adjusted to take account of the benefit to the driver of the first
two hours being free.
47. It seems to me that the principles underlying the doctrine of penalty ought not to
strike down a provision of this kind, in relation to a contract such as we are concerned
with, merely on the basis that the contractual provision is a disincentive, or deterrent,
against overstaying. When the court is considering an ordinary financial or
commercial contract, then it is understandable that the law, which lays down its own
rules as to the compensation due from a contract breaker to the innocent party, should
prohibit terms which require the payment of compensation going far beyond that
which the law allows in the absence of any contract provision governing this outcome.
The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829)
6 Bing. 141 at 148:
“But that a very large sum should become immediately payable, in consequence
of the non-payment of a very small sum, and that the former should not be
considered a penalty, appears to be a contradiction in terms, the case being
precisely that in which courts of equity have always relieved, and against which
courts of law have, in modern times, endeavoured to relieve, by directing juries to
assess the real damages sustained by the breach of the agreement.”



This judgment makes clear that the Court of Appeal would also have considered the charge in this case a clear penalty. The purported contract with the motorist is a simple consumer financial contract where the loss is easily calculable unlike in Parking Eye v Beavis. There is a clear financial interaction between the Operator and motorist .There is no commercially or socially justifiable deterrent value in the charge as the vehicle would have been fully entitled to park in return for payment of a small parking tariff ( had the requirement to do so clearly been advertised) and the contractual term is clearly the attempt to impose payment of a large sum in consequence of the non payment of a very small sum. Any real loss can only be the small parking tariff and it is only that to which the landowner , not the Operator, may be entitled. The demanded charge is , without intellectual dishonesty, a clearly unenforceable penalty , an amount that is extravagant and unconscionable and disproportionate when compared to the allegedly unpaid tariff. .

b. With reference to The Consumer Rights Act 2015 Schedule 2 part 1 para 6 ( or UTCCR 1999 SCHEDULE 2 . 1 (e)) the charge is clearly an unenforceable contract term as the Operator is seeking to impose a charge in compensation that is vastly disproportionate to allegedly unpaid parking tariff .

LJJ

Thank you salmosalaris

salmosalaris

Let's see what they come up with , your guess is as good as mine .

salmosalaris

And let's see if Snowdon post Cargius can still prove an Achilles Heel post Beavis

catfunt

LJJ wrote: »

so on the 28th Jan 2016 I had this email from POPLA

The Supreme Court of the United Kingdom has now heard the case of ParkingEye Limited -v- Beavis and has recently published its decision.
We have conducted our initial assessment of your appeal and our assessor has determined that your appeal relates to the issues recently considered by the Supreme Court.
As such, we will adjourn your case until we have reviewed the Supreme Court’s decision.
Please note that no enforcement action can proceed once a case is registered at POPLA, so the parking operator should not attempt to pursue payment while a case is adjourned.
Yours Sincerely,
Anthony Davidson
POPLA Team

today I received this email

The Supreme Court has now issued its decision in relation to ParkingEye-Vs-Beavis.
We have now considered our position and will allow both sides to provide any further comments or evidence regarding the Supreme Court’s decision.
We asked parking operators for their responses first, so we were able to share them with appellants.

The parking operator provided the following:

"In respect of the enforceability of the Parking Charge, ParkingEye relies upon the Supreme Court decision in the matter of ParkingEye v. Beavis [2015] UKSC 67.

At paragraphs 94-98, Lord Neuberger and Lord Sumption conclude that, "[…] the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars. […] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services, without which those services would not be available. These two objectives appear to us to be perfectly reasonable…."

They then conclude within paragraph 99 that, "while the penalty rule is plainly engaged, the £85 charge is not a penalty. The reason is that although ParkingEye was not liable to suffer loss as a result of overstaying motorists, it had a legitimate interest in charging them which extended beyond the recovery of any loss."

Overall, the Supreme Court found that, whilst the penalty rule was engaged, the Parking Charge sought was not a penalty. This is because ParkingEye had "a legitimate interest" in charging overstaying motorists, which extended beyond the recovery of any loss."

Please provide your comments or additional within seven days as responses after this point will not be considered. If the portal does not allow you to submit your comments then we will accept these via email to:info@popla.co.uk.
Kind Regards,
Amy Smith
POPLA team


Can anyone help me with a response (my brain is starting to hurt now)
The Beavis stuff was not my only grounds for appeal - I appealed on the following points and rebutted the evidence PE sent.
1. No standing or authority to pursue charges nor form contracts with drivers
2. No keeper liability under POFA
3. Not a genuine pre-estimate of loss
4. Unfair Terms

To be honest I just haven't got a clue what any of them are talking about !!!

So.. does this mean that Points 1 and 2 have failed at POPLA and they are now looking only at the GPEOL??
Or because GPEOL is included, the case was held back for that reason and they havn't assessed Points 1. and 2. at all??

Coupon-mad

No, it means New POPLA panicked about the Beavis case and shelved a load of appeals to think about later. Every other appeal point still stands. We know that because some cases like this have had evidence packs already with omissions which ultimately will win the case anyway (so they never needed to be stayed).

Or because GPEOL is included, the case was held back for that reason and they havn't assessed Points 1. and 2. at all??

Yep. They panicked. Needed more time, were behind on POPLA decisions anyway so this gave POPLA some breathing space.

LJJ

So here is the decision - gutted!!! Thanks to everyone who helped with the appeal anyway

Decision Unsuccessful

Assessor Name Anthony Davidson

Assessor summary of operator case No parking ticket was purchased.

Assessor summary of your case
She wishes to appeal against the invoice, issued as a Parking Charge Notice (PCN) on he following grounds. 1. No standing or authority to pursue charges nor form contracts with drivers 2. No keeper liability under POFA. 3. Not a genuine pre-estimate of loss 4. Unfair Terms


Assessor supporting rational for decision


The terms and conditions of the car park state “Parking Tariffs apply, Note: These tariffs include 20 minutes free stay”. Additionally, failure to comply with the terms and conditions of the site will result in a parking charge of £100. The operator has issued the appellant a Parking Charge (PCN) as no parking ticket purchased. The site operates Automatic Number Plate Recognition (ANPR). The operator has provided photographic evidence of the appellant entering the car park at 11:07:15 and exiting the car park at 16:14:50. A total duration of 5 hours, 7 minutes and 35 seconds. The operator has provided photographic evidence of the layout plan of the signage at the site in question along with signs that provide the appellant with the required terms and conditions of the car park. The operator has confirmed there are signs at the entrance of the car park that clearly state the terms and conditions. There are an additional 20 signs situated around the car park that advise of the terms and conditions. The operator has provided a copy of a printed audit trail of the registration plate AV10MBF which was not on the list on this specific day. It clearly demonstrates the appellant did not purchase a pay and display ticket. Section 7 of the British Parking Association (BPA) Code of practice requires operators to own the land or to have written authority from the landowner to operate on the land. I am satisfied that the operator has provided a satisfactory response and had provided evidence in response to this ground of appeal, it has demonstrated that it has the required authority to operate on the land in question The appellant states in their appeal that the operator has no keep liability under the Protection of Freedoms Act (PoFA 2012) After reviewing the evidence provided by the operator. I am satisfied that the operator has complied with Section 8 of PoFA 2012. The appellant says the amount of £100 demanded by Parking Eye is not a genuine pre-estimate of loss The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices. Section 18 of the British Parking Association (BPA) Code of Practice, explains that signs “must be conspicuous and legible and written in intelligible language, so that they are easy to see, read and understand”. I consider the photographic evidence to show that the operator met the minimum standards set by the BPA. I consider the signage sufficient for the appellant to have read and understood the terms and conditions of parking. Having considered the decision of the Supreme Court decision, I conclude that the parking charge in this instance is allowable. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear, the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court By leaving the vehicle parked, the appellant has indicated acceptance of the terms and conditions. When doing so, the appellant equally accepted that the operator would issue a PCN for failing to comply with any of the conditions. As such, I must conclude that the appellant has failed to adhere to the terms and conditions of the site. Accordingly, I must refuse the appeal.