Grace Period.

Guys_Dad

I wonder if you could fill in some of the history on this?

It is you who Parking Eye are seeking to get their charges from. If they had been notified that your wife was driving, as you believe from your posts, why are they not pursuing her?

1. Did you appeal to Parking Eye within their appeal window?
2, If you did, did you nominate your wife as driver? (Both of these questions relate to the 4-6 weeks after you received the NtK).
3. If you did not, then when did you contact Parking Eye?

You see, under POFA 2012, the liability falls on the Registered Keeper if they do not notify the parking company who the driver was within the specified time. I think this is what may have happened in your case, but please tell if I am wrong.

If you drove the car in, then I believe that you are the one who "contracted" with the PPC. In any event, if they were not informed by you within the timeframe governed by POFA, then your inactivity has passed the liability on to you as the RK.

Your arrangements with a 3rd party (your wife) is incidental to this and if it wasn't your wife but an independent 3rd party who failed to get the car out of the car park within the time, then you would have a separate action against your contract with them to recover the penalty charges but that would not, in my view, impinge on your contract with PE.

Had your wife been the driver - as your 1st post said - and had the PPC been made aware of this within 14/28 days from the NtK, then that would have been a different kettle of fish and the protected characteristics would have carried some weight. But as it is, you, personally, have no protected characteristics and if this is the first that the PPC is made aware of this (when you get court papers in), then it smacks of a made up story. (I am not saying that this is the case, but circumstantial evidence could be construed as such.)

In addition, as I wrote in my first contribution, claiming that you couldn't drive the car because you had gone to the pub and were over the limit (within 90 minutes) isn't going to help your case in court.

So, please be careful exactly what you choose to offer as evidence and if you could let us know the answer to the numbered questions, then we can try to help/ Please don't think I am against you on this, just putting forward the sort of arguments that you will probably face.

Your strongest appeal point is the Grace period and the fact that the BPA CoP suggests 10 minutes after and obviously you need time to find a space etc. Your actual parking time was probably within the 2 hours.

Whatever happens, please let us know the outcome as this is, from my recollection, the first MSE case that has reached court where there was an in-driver and out-driver involved.

Lincs_Owl

Hello Guys Dad,

It is me, the husband(RK) who has received all the letters. I have asked Parking Eye to send them to her, as the driver, but they do not enter into correspondence.
1. I did not appeal to PE within the 28 days they gave for appeals from their letter of 2nd July 2015. Incidentally, I've no record of having received that but they sent a reminder on 11th July 2015 which I did receive. I ignored their letters. Didn't know the law had been altered in 2012 when PPC's were banned from wheel clamping.
2. Doesn't apply.
3. On 29 Oct 2015 I posted my defence to the County Court Business Centre. On 30th October the court acknowledged receipt and stated 'a copy is being served on the claimant'. That is when they would have known I was not the driver. My wife is fully insured to drive my car and is a named driver. I've checked my 'defence' and I didn't state I drove in. I just stated that I left her shopping while I went for a drink. I probably did drive in but I didn't put that in the defence. Just said that when I came back my wife was suffering from asthma and didn't want to drive. Could have just said she was on her own but I thought we were supposed to tell the truth. She drives the family car as much as I do.

Regarding the grace period- we were well inside the two grace periods allowed at 13.2 and 13.4 in the BPA Code of practice.

But the Code refers to the 'parking period'. The sign actually states ' 2 hours max stay' not 'Two hours free parking'. How does that affect the grace period? Would PE argue the 2 hours max stay encompasses the grace periods?

I did send a follow-up letter to PE on 24 Nov 2015 in an attempt to narrow the issues and get them to settle out of court as directed by the Practice Direction. I did state in that letter that I drove in, then left her. Long-ish letter which they never replied to. They maybe never even read it. Didn't think it mattered. Not 100% sure who drove in. Just knew who drove out.

Why would I make it up? She does the shopping not me. Nothing I want in Home Bargains. She drives my car. She's had a licence since about 1970. We are pensioners so have the one family car. What's wrong with having a drink?- I was on holiday in the Lakes. :-)

What's the chances they might come back to me with a £50 offer to settle up? I've spent hours reading codes of practices, practice directions etc. Wish I'd appealed to POPLA but too late now. POPLA will hear late appeals in exceptional circumstances, but PE won't reply to my request for a code. They are making no attempt to settle out of court- surely that counts against them?

Lincs_Owl

Just sent an email to The British Parking Assn for clarity.

As follows.......

Reference the British Parking Assn Code of Practice...


If a motorist parked for 2 hrs 5 mins where a notice in a car park states 'Two hours max Stay', then that would be logically acceptable under the grace period, and not a violation of the notice? Please confirm whether that is the case.

If not, can you kindly explain why not? Thank you.


From your code... Notice that the word 'stay' appears and seems to indicate 'park'.

13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action. 13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is. 13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.

Coupon-mad

The sign actually states ' 2 hours max stay' not 'Two hours free parking'.

Yes some signs say that but others often say the opposite, in the same car park.

You would do well if you are local to take pictures of signs that say '2 hours free parking' because there may well be different signs/a banner/an entrance sign which does not use the word 'stay'. Any real differences specifically talking about 'parking' on one sign but 'stay' on another, will make the 2 hours ambiguous, in which case the interpretation which most favours the consumer must lawfully apply (i.e. it's 2 hours free parking, plus the BPA grace periods either side).

And the contract with the landowner often clarifies it's 2 hours free 'parking' and the grace period is stated in such a contract as well. So you can contend that PE have not shown evidence of the authorisation from the landowner which you believe allows two hours free parking, not 'stay' (plus grace periods) in your full defence as long as you can conceivably work it into one of the bullet points you made in your initial defence.

And the PCN (the one you don't recall getting, it's not in the reminder) would have had the usual wording which states: 'terms and conditions of the car park by which those who park in the car park agree to be bound.'

A driver - the one who parked (you) - can only agree to terms once the car has been parked. You can't read those signs until you park and the BPA CoP doesn't expect you to. As you know, a grace period has to be allowed for you to read the signs and decide whether to stay or leave, as you've seen from the CoP. That grace period is undefined but has to include sufficient time to drive in and round to find a parking space, then park, then get out of the car, then read any nearby sign. Several minutes surely, at the start, before any contract could possibly have been considered to have been accepted.

Then at the end, at least ten minutes grace period must be allowed on top (now 11 minutes but the CoP has not yet been updated and it's not going to be retrospective as far back as July). You must make it clear to the Judge that your stay was well within the times allowed and is not like the Beavis case, where he was not.

Grace periods could be the thing that wins this for you as long as you line your ducks up in a row very clearly showing the Judge the sections in the BPA CoP which mean this charge should never have arisen. You weren't parked over the time allowed, there is no evidence you were, there were valid EA reasons for a slight delay but even so, the total stay was within allowances and PE must complay with the CoP, it's not voluntary.

Plus any other issues which differentiate your case from Beavis. Frustration of contract, maybe, as it was outside of your control that there was a slight delay in your wife being well enough to drive out.

The Equality Act 2010, would have been an option of the driver who parked was your wife...but it's been established that you think you were the one who parked, so be honest of course.

Lincs_Owl

Thanks Coupon-mad. The car park concerned in Whitehaven is over 100 miles from where I live unfortunately.

I'll email Home Bargains for clarity. If they say it's 2 hours free parking, that could be useful in court.

Lincs_Owl

I just rang Home Bargains, Whitehaven and spoke to the manageress. She told me that it's 2 hours free parking for customers. But she refused to put it in writing or email me. Referred me to Parking Eye. Disappointing but expected. Will have a crack at their head office. Maybe 'stay' is some sort of loophole that PE use to avoid the period of grace being used against them.

Coupon-mad

No it's not. You need to see this clearly and argue it very clearly because no Judge will know, unless you have it in your evidence. The grace periods apply exactly as I explained them and as has already been said earlier in this thread.

Northlakes

I will try to get some photos for you when I'm passing through Whitehaven tomorrow.

Coupon-mad

I am sure there will be more than one sign type and some might well not show the 'charge' at all and hopefully there will be one saying '2 hrs free parking' to contradict others.

Lincs_Owl

Many thanks again, especially to 'Northlakes'. And to 'Coupon mad' for the comprehensive reply above. I'll print that out.