to pay or not to pay

salmosalaris

Replace your gpeol argument with this

The Operator has no legitimate interest in enforcing their charge, the charge is
disproportionate, a penalty and an unenforceable Unfair Contract Term, and this
case can easily be distinguished from ParkingEye v Beavis.

1. The Operator may seek to rely on the case of ParkingEye v Beavis as legitimising the charge in this case. The appellant will make the following observations as to why the material case can be easily distinguished from it. The Supreme Court adjudged that the charge in ParkingEye v Beavis could not be considered a penalty, despite the fact that ParkingEye 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 describedin 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;-
c. The need to ensure a reasonable turnover of that parking so as to increase the potential
number of such customers;-
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 o -park premises; and
e. The desirability of running that parking scheme at no cost, or ideally some profit, to them-selves.”

In that case the penalty rule had been engaged by the charge but was then disengaged for the above reasons.
In this case the appellant would submit that the penalty rule has similarly been engaged but in contrast it is not disengaged,the Operator has made no loss and the charge is a penalty . The vehicle was fully entitled to park as it did . The Operator has been given evidence that the vehicle was parked in its own allocated bay. The only alleged error is that temporarily on the material date a permit was not displayed ( not that there is any obligation to ). Had this been done it would have prevented a parking charge notice being issued.

The Operator has no legitimate interest in enforcing this charge, Their only interest is to seek to profit from an inadvertent error . Their charge remains an unenforceable penalty as none of the legitimate interests pursued in Parking Eye v Beavis are present in this case. To quote the passage referred to in the Supreme Court judgment.

“The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement
of the primary obligation.”

The Supreme Court made clear that their judgment related only to that particular car park and how it operated. In this situation it is impossible, without intellectual dishonesty, to believe that they would determine that this inadvertent error would justify such a disproportionate, extravagant and unconscionable charge when the vehicle was parked in its own allocated bay where it has every entitlement to. Careful analysis of the Supreme Court judgment is not ,as the Operator may believe, a judicial green light legitimising all parking charges.It is indeed quite the reverse , and the onus is on the Claimant to demonstrate that they have a legitimate interest in enforcing their charge and that the charge is proportionate to that interest. In this case they do not and it is not.


2. In this case the imposition of a £100 charge for temporarily forgetting to display an unnecessary permit is quite obviously causing an imbalance of the parties’ rights to the detriment of the appellant contrary to the requirements of good faith. Had the Driver not overlooked displaying the permit then no such charge would have been issued.
It is difficult to imagine a more obvious Unfair Contract Term when all manner of reasons could cause such a momentary oversight. No reasonable person would agree to this charge and the charge is not achieving any objective whatsoever other than punishing an inadvertent error.

Umkomaas

sach1636 wrote: »

thanks, yes parking is associated with specific property.

To me it seems like PE is trying to make money over this matter. Goal should be to avoid unauthorised parked cars rather than penalising those with permit. Agree there was delay from my end to put parking permit on time but should these excessive chages justify costs associated with few minutes delay?

ParkingEye and residential parking? Seems a very odd combo. Are you sure this is PE @OP? Was this a windscreen ticket?

dazster

BUT what does the leasehold say? This is crucial. We don't often come across PE in residential parking, hopefully they've got themselves into something they don't properly understand.

Coupon-mad

I am also surprised if this is ParkingEye? At a residential car park?

And did you admit who parked the car in the first appeal, if you did then you can't use 'no keeper liability' or the POFA at all.

sach1636

Spot on. Just cross checked my receipt and it is issued by 'parking ticketing limited'.

sach1636

Fruitcake wrote: »

Please answer the other questions about your lease. These are VERY important.

I did not receive landlord agreement from PTL (Parking Ticketing Ltd). About my lease, the car parking is allocated to my apartment so I did not go in to details of leasehold.
From PTL point of view their argument would be how would they know if the car parked is of resident? - ans - my flat is stones throw from parking so they could have enquired before applying ticket. So suspicion that motivation remains to make money.

Guys_Dad

Just read here for some relevant info. https://forums.moneysavingexpert.com/discussion/5410804

Coupon-mad

sach1636 wrote: »

Spot on. Just cross checked my receipt and it is issued by 'parking ticketing limited'.

BPA member, small company, easy to beat at POPLA but best if (I hope) the driver has not been given away already. Have you appealed in a way that talked about who parked/who went to get the permit? We hope not.

If so, you can't even use the POFA 2012, nothing about the NTK or no keeper liability.

sach1636

Coupon-mad wrote: »

BPA member, small company, easy to beat at POPLA but best if (I hope) the driver has not been given away already. Have you appealed in a way that talked about who parked/who went to get the permit? We hope not.

If so, you can't even use the POFA 2012, nothing about the NTK or no keeper liability.

Doh, I did mention following in my original appeal.

Few mins before time of ticket, I had arrived from outside. I went to home to look for permit and it appears during this time ticket was applied to vehicle.

The_Slithy_Tove

sach1636 wrote: »

So suspicion that motivation remains to make money.

Of course it does! You must be very naive to think they have anyone's interests in mind other than their own, or that they care about parking management. Every single time a parking company is brought in to oversee residents' parking, once the supposed problem of the general public using it as a free car park is solved, these low life have to target the residents and their visitors in order to keep going. It always ends in grief and antagonism.

This is all why, if the terms of your lease are right, you can go on the offensive and tell them to get lost in no uncertain terms. They are trying to operate a money making business ON YOUR LAND! Would you accept it if a burger van parked in your space and started plying their trade? This is no different.