Valid customer didn't buy (free) ticket due to not noticing change in car park rules

sadmatalancustomer

The quick version - Long term customer of Matalan Cricklewood, they changed the rules, didn't update their website or make any efforts to notify cardholders. Therefore parked, not in the habit of re-reading the car park notice every time I park, but did everything right (including spending over £100 in store which I still have the receipt for) apart from not buying a ticket that would have been refunded.

I've read the forums, but not seen a case like this to refer to, hence the post. Obviously I will be complaining to the Matalan CEO as well, as this forum shows precedent they've cancelled tickets before, and I believe they should have made efforts to notify cardholders and should not have incorrect information on their website (says 1.5 hours free as previously, others say you have to pay and get refunded) I'll instruct them to exercise their ability as the landowner to cancel the PCN issued by Smart Parking who were contracted by them,

What is this whole thing about not giving the name of the driver on the day about? What advantage does it give me?

My appeal hinges on two points:

(1) the landowner having misleading/out of date information on their website (got a copy) and not making any effort to notify customers and it would be unreasonable to expect me to read the t's&c's every visit as a long term customer, and there are no notices in the car park highlighting this change.

(2) the charge of £85 is disproportionate to the losses of the landowner, which I calculate to be £0 as I did everything correct apart from obtain a ticket.

Any advice gratefully received, I feel strongly about this but don't want to flog a dead horse. Letter attached below, based on MSE template (omitted top and bottom here for brevity):

There was insufficient signage
The car park in question has no clear signage to explain that the relevant parking restrictions had changed and no effort has been made to notify previous long term customer that the conditions had changed, thereby misleading them as it would be unreasonable to expect a long term customer of a car park to read the notices on every visit. This means no contract can be formed with the landowner and all tickets are issued illegally. Please see attached evidence, I have gathered as proof.
a) the landowners website (google matalan cricklewood parking, first hit) clearly states 1.5 free hours of parking and there is no refund required at Crikclewood unlike other car parks which contradicts your notice
b) No efforts made by the landowner (Matalan) to notify customers of the new contract, despite being a Matalan cardholder so the landowner knows, and regularly communicates with me at my address, no signage in the car park notifying new conditions (see attached) and no announcements in store.

The charge is disproportionate and not commercially justifiable
The amount you have charged is not based upon any commercially justifiable loss to your company or the landowner.
According to the Unfair Consumer Contract Regulations, parking charges on private land must not exceed the cost to the landowner during the period the motorist is parked there. In my case, the £85 charge you are asking for far exceeds the cost to the landowner of £0 as the car was parked within a bay, within the maximum time period, and (significantly) more than £5 was spent in the shop (please see attached receipt), so meeting all the conditions apart from obtaining a ticket and therefore causing no losses to the landowner.
In order to resolve the dispute I attach copies of the driver's receipt as a genuine customer of Matalan.
As this appeal has been lodged within the 14 day discount period, I would ask that the charge is not increased past £50 pending this appeal.

Herzlos

Who is the parking operator? The BPA Code Of Practise requires additional signage on any material change in terms that might affect previous users, for something like 4 weeks, so you can start there.

You've still got all the usual points as you've noted; there's no way you'd have chosen to pay £85 instead of a ticket and refund, so it's not reasonable.

First point of call is to demand Matalan cancel it. Don't acknowledge the PPC until you've recieved a notification in the post.

sadmatalancustomer

Smart Parking. Sorry should have said there was nothing on the windscreen, just got a ANPR letter in the post, which the first 14 days expire this week coming, so not sure if Matalan will reply by then. Can Matalan not cancel it once I've appealed? Thanks for the code of practice point, but sadly I think (from someone's private twitter) the change was made end of June and this was September, so outside the 4 week window. 4 weeks seems far to short to me, who goes to Matalan more than once a month?!

sadmatalancustomer

For future readers: from the BPA code of conduct:

18.11 Where there is any change in the terms and conditions that
materially affects the motorist then you should make these
clear on your signage. Where such changes impose liability
where none previously existed then you should consider a
grace period to allow regular visitors to the site to adjust and
familiarise themselves with the changes.

Any advice on if it would be best not to bring in 18.11 gratefully received.

mjm3346

One of these "new" standards in parking they were on about a year ago?

Matalan sets new standards in parking service quality with Pay & Walk from Smart Parking

http://www.smartparking.com/keep-up-to-date/press-releases/matalan-sets-new-standards-in-parking-service-quality-with-pay-walk-from-smart-parking

sadmatalancustomer

Is it also worth bringing in the Beavis case? The judge said £85 was reasonable as he out outstayed the maximum time period, hence an indirect loss. I would argue in this case there was no indirect loss (apart from admin fees), therefore the a cost of £85 is not justified, or certainly has no legal precedent? Any thoughts appreciated.

I would also assume this would be at the bottom of their pile of cases to bring to court as is far less clear cut that people overstaying etc. Do they have a time limit to summon me to court?

Herzlos

sadmatalancustomer wrote: »

Smart Parking. Sorry should have said there was nothing on the windscreen, just got a ANPR letter in the post, which the first 14 days expire this week coming, so not sure if Matalan will reply by then.

How long after the parking incident did the letter arrive?

What do you mean by 14 days expiring? The early window for the reduced fee? Ignore that (but not the appeal window), you won't be paying anyway. Matalan can get it cancelled at any time, though you might need to lean on them.

Can Matalan not cancel it once I've appealed?

Matalan can get it cancelled at any time, though you might need to lean on them.

Thanks for the code of practice point, but sadly I think (from someone's private twitter) the change was made end of June and this was September, so outside the 4 week window. 4 weeks seems far to short to me, who goes to Matalan more than once a month?!

Sorry, I'm not sure where I got the 4 weeks from, the CoP just says "Grace Period". Since it's the kind of shop people don't visit that often, you could certainly say that at least 3 months would be reasonable to avoid irregular users being caught out.

You can still fall back onto the signage - if it was sufficient you would have noticed the terms changing because you'd be unable to miss them.The fact you didn't notice the terms highlights how they aren't obvious enough to form a contract.

Umkomaas

sadmatalancustomer wrote: »

Is it also worth bringing in the Beavis case? The judge said £85 was reasonable as he out outstayed the maximum time period, hence an indirect loss. I would argue in this case there was no indirect loss (apart from admin fees), therefore the a cost of £85 is not justified, or certainly has no legal precedent? Any thoughts appreciated.

I would also assume this would be at the bottom of their pile of cases to bring to court as is far less clear cut that people overstaying etc. Do they have a time limit to summon me to court?

You're overthinking this at such an early stage. Beavis is uncertain territory as the case is with the Suoreme Court and no final judgment has been delivered - Oct/Nov.

Just use the initial appeal template in the NEWBIES sticky - as is - don't try to embellish it, it won't help your cause ... other than to say just add a final paragraph enclosing a copy of the shopping receipt for the day. Await probable rejection (although Smart do have some history of quitting at the initial appeal stage), get your POPLA code, then get POPLA to kill this off for you.

In the meantime press hard on Matalan - copy of receipt again to them, then use the explanation about regular customer (do you have previous receipts or bank/cc statements to prove regular patronage?) not spotting that things have changed.

Smart Parking don't do court (currently), but that's no guarantee of future behaviour. They have 6 years to pursue a (purported) civil debt, that's why it's important to kill this off soonest.

sadmatalancustomer

Thanks all - eventually after a lot of emails Matalan gave in and cancelled the charge, despite protesting many times they couldn't. In the last email, I pointed out they had removed the evidence from their website which might be been required in a future court case so that their legal department needed to be aware and it should have been recorded properly, maybe that was the straw the broke the camels back, who knows...