UKPC parking fine - Curzon Street, Birmingham

kelsall_13

Hi All

Recently had my appeal rejected by UKPC for a parking fine at Curzone Parking on Curzon Street in Birmingham.

A fine was issued based upon my car getting locked in their car park on the saturday night. After numerous phone call attempts during the saturday evening and sunday morning to no avail I then just decided to pick up my car on the monday morning as soon as the parking opened again.

When I collected my car on the monday morning I was greeted by the standard UKPC parking fine of £100 reduced to £60 for early payment.

Naturally I submitted an appeal using the newbie guide shown on this website requesting information etc as to how they came to the sum stated on the ticket. Following this my appeal was rejected and no further information was sent to me.

Now for the catch, the signs around the car parking clearly states that the fine is £90 for one but, alongside this, £100 is a completely unreasonable amount when the car park was closed for the entire time they were holding my car ransom behind a large set of gates with no one manning the help desk.

My question is, before I submit a POPLA appeal, do I legally have to pay this fine seeing as they've breached their own terms and conditions clearly stated on the car park T+C signs? And also, as they right up refused to send me any information, am i obliged to do anything?

Thanks for all your help. Apologies if anything isn't clear!

Redx

its not a fine, its a speculative invoice

you only have to pay it if a judge says so, in court

just appeal it to popla as per post #3 of the NEWBIES sticky thread

Coupon-mad

before I submit a POPLA appeal, do I legally have to pay this fine

No, it's not a fine as Redx rightly says.

But we win at POPLA. If you lose v UKPC using a forum-assisted POPLA appeal, you'd be the first on here to lose v them. Read post #3 of the NEWBIES thread and also search 'UKPC POPLA' to read recent examples to crib from.

You will see a pattern of appeal points, cobble together a draft like those and show us, we'll help!

Remember, because you appealed after the windscreen PCN but as 'keeper', UKPC are likely to have taken their eye off the keeper liability NTK ball. So if you have had no NTK in the post then you want to have as your first appeal point: 'no keeper liability' due to that omission (which is why we tell you to appeal around day 26).

If you did as we suggest, then you are on your way to getting this past day 56 already by the time you've deliberately timed your POPLA appeal too. A keeper wins if no NTK was served and you say so to POPLA in the appeal. It's not about what happened on the day which will win this except if POPLA choose your very sound point:

the signs around the car parking clearly states that the fine is £90

...but the PCN is for £100. I've seen one like that too, laughed my head off when I spotted the signs said £90! Slam dunk win for you and I'm sure we will all eat our hats if you lose.

Show us your draft POPLA appeal.

kelsall_13

Hi Everyone

Apologies with the reply, had an absolutely manic week with my Masters project and as such haven't had chance to give thought to this until now!

So my Appeal is as follows;

1) Lack of a grace period...

The time the car park opened was 7.00am on monday 11th January. Ticket issued at 7:13am did not allow me sufficient time to collect the car.

Under the BPA Approved Operator Scheme Code of Practice Version 6, Oct 2015, states that if drivers "…decide not to park but choose to leave the car park, you must provide them with reasonable grace period to leave, as they will not be bound by your parking contract." (28.3).
And that when using Automatic Number Plate Recognition (ANPR), "…your system must allow drivers who have not paid the fee to leave a site within a reasonable period that allows for the conditions and environment of that parking site. This grace period should be long enough to allow motorists to leave without having their vehicle registration mark processed for a parking charge." (30.2)

Following this, signage within the site is also placed at high level. During this time of day the parking was not clearly lit and as such ineligible to any one using the site.

2) Incorrect fee in comparison to signage on site...

On the ticket issued the fee is in the sum of £100 reduced to £60 in the grace period of issue. Upon returning to the site at a later date I observed that the terms and conditions state a fee of £90 reduced to £60 in grace.

Firstly, the parking ticket is now in breach of UKPC terms and conditions making the charge null and void.

Following this, 60% of £90 comes to the sum of £54 again breaching parking policy where fee's must be reduced to 60% charge if paid within the 14 day grace period.

3) Disproportionate charging...

The amount requested by UKPC is completely disproportionate to the overall cost of parking on site. The amount for 1 full day being £4 in comparison to the £100 charge reduced to £60. Upon requesting information on how this fee was calculated UKPC were not forthcoming with the request.

4) No Authority

As UKPC do not have proprietary interest in the land then I demand that they produce an unredacted copy of the contract with the landowner that authorises them to offer contracts for parking in their name, issue Parking Charge Notices and take legal action in their name for breach of contract.

Due to breaches in UKPC's own terms and conditions I therefore feel the fee provided is now void.

- Should I add/change anything? I think they've absolutely screwed themselves on point 2 anyway so I dont know whether the rest is going to even be cosidered!

Also, on POPLA's website, should I select the ''incorrect parking charge'' bracket in my appeal type? I feel that if i select that they'd only reduce the fee to £90.00 which in essence is still higher than the £60.00? or is it just a case of ''the fee is wrong therefore the ticket is void''

Thanks for all your help guys!!

Redx

I think it needs a lot more work by comparing it to recent popla appeals and also the links in post #3 of the NEWBIES sticky thread

ie:

no landowner contract
poor signage
pofa2012 failures
NTK errors
anpr or camera photos not valid or suspect
Grace periods (clause #13)
not a gpeol (but different to the Beavis case)

as for the popla website, when you have an approved appeal, convert it to a pdf and upload it under OTHER on their site , in other words you are not going through their "loaded" q & a but appealing as other and attaching your pdf

Fruitcake

As above, there should be several more appeal points in there. Inadequate signage being one.
You mention that the difference in charge is a breach of UKPC's terms but it is also a breach of the BPA CoP so you need to mention that.

Guys_Dad

Make sure you have photographic proof of the £90/£100 discrepancy. It is the major point of appeal and should win on its own and £90 is their t&c, not £100.

kelsall_13

1) Lack of a grace period...

Under the BPA Approved Operator Scheme Code of Practice Version 6, Oct 2015, states that if drivers "…decide not to park but choose to leave the car park, you must provide them with reasonable grace period to leave, as they will not be bound by your parking contract." (28.3).
And that when using Automatic Number Plate Recognition (ANPR), "…your system must allow drivers who have not paid the fee to leave a site within a reasonable period that allows for the conditions and environment of that parking site. This grace period should be long enough to allow motorists to leave without having their vehicle registration mark processed for a parking charge." (30.2)

The time the car park opened was 7.00am on monday 11th January. Ticket issued at 7:13am did not allow sufficient time to move the car.

2) Poor Lighting/ Inadequate signage

As previously mentioned on site the signage is poorly lighted and written in a print which becomes ineligible at low light, therefore non-compliant with part 18 of the BPA Code of Practice.

The BPA Code of Practice states: 18.1 A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are. (Please note that due to UKPC high positioning of the signage they were hard to see in low light.) 18.3 Specific parking terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving.”

A contract was not made clear during my parking and movement throughout the site as discovering that a £90 fee, or £100 according to the issued ticket, would have ensured that the vehicle left the area before such fee could occur.

3) Incorrect fee in comparison to signage on site...

On the ticket issued the fee is in the sum of £100 reduced to £60 in the grace period of issue. Upon visiting the site it is observed that the terms and conditions state a fee of £90 reduced to £60 in grace. The parking ticket is now in breach of both the BPA Code of practice and also UKPC terms and conditions making the charge null and void. See attached photo as evidence.

Following this, 60% of £90 comes to the sum of £54 again breaching parking policy where fee's must be reduced to 60% charge if paid within the 14 day grace period.

BPA Code of conduct states ''19.7 - If prompt payment is made (defined as 14 days from the issue of the parking charge notice) you must offer a reduced payment to reflect your reduced costs in collecting the charge. This reduction in cost should be by at least 40% of the full charge.''

4) Disproportionate charging...

The amount requested by UKPC is completely disproportionate to the overall cost of parking on site. The amount for 1 full day being £4 in comparison to the £100 charge reduced to £60. Upon requesting information on how this fee was calculated UKPC were not forthcoming with the request.

5) No Authority / Landowner Contract

As UKPC do not have proprietary interest in the land then I demand that they produce an unredacted copy of the contract with the landowner that authorises them to offer contracts for parking in their name, issue Parking Charge Notices and take legal action in their name for breach of contract.

6) The registered Keeper is not liable

UKPC has failed to satisfy the requirements of Schedule 4 of the Protection of Freedoms Act I cannot be liable for the charge.

The unpaid parking charge that should have been requested ( paragraph 9(1) of the Act ) is that which was unpaid on the day before the Notice to Keeper was issued. This can only be the purportedly unpaid parking tariff and not £100 which had not been requested and which there was no facility to pay on the day before the Notice to Keeper was issued, the Sunday on which the site was closed for business. Consequently £100 cannot be considered unpaid for the purposes of the Act. It clearly demonstrates that UKPC has failed to satisfy the requirements of the Act and cannot rely on it. At no time was the registered keeper asked to pay the purportedly unpaid tariff.

Due to breaches in both the BPA Code of Practice and UKPC's own terms and conditions I therefore feel the fee provided is now null and void.

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Re-worded and added extra in!

I wasn't sure what you meant with the;

-pofa2012 failures
-not a gpeol (but different to the Beavis case)
-anpr or camera photos not valid or suspect

Reading through the noob guide got me a little lost with regards to these points.

Do you not think that the appeal would hold ground in its current state?

Thanks again for all your help guys, these bandits need to re-evaluate their existence...

EDIT: Forgot to mention, I have a photo of the sign saying £90 and the ticket photocopied with £100 printed

Coupon-mad

Try this (below). My DS1 did his Masters thesis last year so I feel for you, a manic time!

You do need to learn the difference between 'illegible' and ineligible' though...

And even worse you had the words 'my parking' in there!! :eek:

I have crossed out the bit about ANPR because you say the car was issued with a windscreen PCN.

I also assume you have never been sent a Notice to Keeper if you appealed as advised in the NEWBIES thread, around day 25 after the windscreen PCN?




I am the registered keeper and this is my appeal to a PCN which was issued to the vehicle just minutes after the car park opened:

1) No Notice to Keeper - no keeper liability possible under the POFA 2012

The keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with, where the appellant is the registered keeper, as in this case. One of these requirements is the issue of a NTK compliant with certain provisions. This operator failed to serve any NTK at all. As there has been no admission as to who may have parked the car and no evidence of this person has been produced by the operator, it has been held by POPLA multiple times in 2015 that a parking charge with no NTK cannot be enforced against the registered keeper.

Further, schedule 4 is dependent upon 'adequate notice' of the parking charge being communicated to the driver in advance. That would require clear and prominent signs throughout the site, carrying wording that is transparent, legible in low light and has the sum of '£100' in large letters. That was not the case, see my next point where UKPC have failed completely by having the wrong sum on the signs.


2) Poor Lighting/ Inadequate signage

[STRIKE]As previously mentioned on site[/STRIKE] The signage is poorly lighted and written in a print which becomes [STRIKE]ineligible[/STRIKE] illegible at low light, therefore non-compliant with part 18 of the BPA Code of Practice.

The BPA Code of Practice states:

18.1 ''A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass.

In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.''

Please note that due to UKPC high positioning of the [STRIKE]signage[/STRIKE] signs and the very pale colour and small lettering, they were hard to see in low light.

BPA CoP 18.3 ''Specific parking terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving.”

A contract was not made clear to pay £100, not least because the signage picture shown on UKPC's website for this 'charge' shows the wording is very small but mentions only a £90 parking charge. Even if the driver had seen the terms (which is denied), a sign stating '£90 parking charge' cannot be used to create a contract to pay £100 and UKPC cannot put right this error.

The parking ticket is now in breach of both the BPA Code of practice and also UKPC terms and conditions making the charge null and void.

See attached photo as evidence.

No offer existed based on £100 charge and no consideration flowed between the parties - and no agreement to pay £100 was possible from signs that do not state that figure anywhere - therefore the elements of a contract did not exist. [STRIKE]during my parking and movement throughout the site as discovering that a £90 fee, or £100 according to the issued ticket, would have ensured that the vehicle left the area before such fee could occur.[/STRIKE]


3) Lack of a grace period...

[STRIKE]Under[/STRIKE]The BPA Approved Operator Scheme Code of Practice Version 6, Oct 2015, states that if drivers "…decide not to park but choose to leave the car park, you must provide them with reasonable grace period to leave, as they will not be bound by your parking contract." (28.3).
[STRIKE]And that when using Automatic Number Plate Recognition (ANPR), "…your system must allow drivers who have not paid the fee to leave a site within a reasonable period that allows for the conditions and environment of that parking site. This grace period should be long enough to allow motorists to leave without having their vehicle registration mark processed for a parking charge.[/STRIKE]" (30.2)

The time the car park opened was 7.00am on monday 11th January. Ticket issued at 7:13am did not allow sufficient time to move the car. No contract was accepted by the driver.


4) [STRIKE]Disproportionate charging...[/STRIKE] ParkingEye v Beavis is not applicable to provide a rationale for a 'standard economic contract' like this one. This is a disproportionate and unconscionable penalty, not based upon the alleged quantifiable loss nor commercially justified.

The amount requested by UKPC is completely disproportionate to the overall cost of parking on site. The amount for 1 full day being £4 in comparison to the £100 charge reduced to £60. Upon requesting information on how this fee was calculated UKPC were not forthcoming with the request so they have made no attempt to justify the escalation from £4 to £100, which not even their signage supports.

UKPC seem to be under the misapprehension that POPLA Assessors might believe the BPA line that the Supreme Court judgment was a green light legitimising all frivolous parking charges. Yet there is no comparison between this case and that one; the only similarity is both operators (UKPC and ParkingEye) described the sum as a 'parking charge'.

There the similarities end. The Beavis case was entirely different and has no blanket application here, except in favour of my case as appellant to support the view that - in the absence of any other commercial justification similar to the Beavis case - this sort of consumer contract must still be proportionate to the tariff/loss. UKPC have shown no commercial justification nor 'legitimate interest' in charging £100 where the signs only refer to £90 and the tariff was just a few pounds.

The ParkingEye v Beavis decision related to those specific facts and unusual 'free parking licence' & 'complex' contractual arrangement flowing from specific landowner interests and reliant upon that 'prominent and clear' Riverside Retail Park signage only. The Supreme Court Judges tweeted on the day of the decision, to clarify that decision turned on those facts, that free car park in that case only.

Each case must still turn on its own facts.

The Beavis decision is not a silver bullet and it cannot be twisted to strike out the majority of private parking ticket appeals and certainly not those which are regarding a Pay and Display site where the alleged loss (tariff) begins as a very easy to identify, tangible sum.

In a standard economic dispute over a financial transaction between a consumer and a trader, like this one, the loss is easily calculable.

By stark contrast, the contract offered to Mr Beavis in the Chelmsford car park in the Beavis case was described by the Judges as a 'complex' contract which Moore-Bick LJ at the Court of Appeal remarked was 'entirely different' from this sort of financial contract flowing from alleged non-payment of a quantifiable sum to UKPC.

As regards the Beavis case, it was made plain that the 'penalty rule' is certainly 'engaged' in parking ticket cases and the facts of each case will determine if the penalty rule has been disengaged. The penalty rule could have been abolished in the Beavis case but abolition of that 'useful tool' was very deliberately NOT the case.

In complex contracts (in that case, a free car park with a licence to park but no monetary sum paid per hour) the trader must demonstrate a 'legitimate interest' in enforcing a disproportionately high charge, to avoid such a charge in each individual case from being an unenforceable penalty. UKPC have failed to demonstrate any other wider commercial or socio-economic justification for this exorbitant escalation clause and POPLA cannot make their case for them, therefore the charge remains unenforceable under the penalty rule.

But this case can easily be distinguished from Parking Eye v Beavis because this case is not a 'complex' contractual arrangement at all. So the same leap cannot be made to disengage the penalty rule by arguing 'legitimate interest'. If that was the case, then every alleged underpayment of a quantifiable sum between any trader and consumer could be escalated x 100. If you underpay your paper bill by £1 - the amount due remains at £1, same as in this case - it cannot escalate to £100 and this is because the Beavis case rationale does not apply to 'standard' financial contracts. The Court of Appeal and Supreme Court Judges made that very clear.

In Beavis, a major difference which made it more complex than standard contracts, was that there was no small sum owed and so, to reach their decision, the Judges had to consider other interests. None of the reasons that gave Parking Eye a legitimate interest which disengaged the 'penalty rule' in their case against Mr Beavis are present in this material case, in which the penalty rule remains firmly engaged and where there is a quantified tariff in play.

The appellant respectfully submits that the assessor carefully reads the Supreme Court judgment and the preceding Court of Appeal judgment from the same case.

The Judges set apart the Beavis contract from this type of 'simple financial contract'. This is one the Judges had seen many times before, where there is a quantified small sum at stake in the first instance as a result of a primary obligation.

This sort of contract was not under discussion in the Beavis case.

The penalty rule is clearly engaged in this case of a standard contract with a quantified tariff, but unlike in Parking Eye v Beavis it is not disengaged by UKPC merely pointing to the Beavis case as if it has blanket relevance (otherwise your local paper shop could point to the Beavis case regarding that £1 underpaid paper bill, as could any trader over any small sum owed). Clearly the 'tweet' from the Supreme Court on the day that their decision was handed down, made it clear that was not the intention of the judgment which turned on its own facts regarding a complex set of circumstances, relevant to a complex contract of its kind only.

At the Court of Appeal stage, when addressing the issue of pre-estimate of loss versus commercial justification, Lord Justice Moore-Bick agreed with HHJ Moloney QC’s findings, and opined at paragraph 27 that: “The application in a case of this kind of a rule based on a simple comparison between the amount of the payment and the direct loss [...] is inappropriate.”

In agreement with Moore-Bick LJ, and distinguishing the contract formed between ParkingEye and the motorist from a commercial contract, Sir Timothy Lloyd stated at paragraph 47 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,...”.

The Judges were only discussing ''a contract such as we are concerned with'' which was a far more complex one than ''all the previous cases shown to us {which} have concerned contracts of a financial or at least an economic nature.''

Here, this is one of those cases Courts have seen many times before, a simple contract of a 'financial/economic nature' and the only interest UKPC has in enforcing their £100 charge instead of any 'outstanding tariff' for 13 minutes - which falls within any reaonable grace period anyway - is profit alone.

This position is reinforced in the earlier findings in the Beavis case from the Court of Appeal, where the judgment states:

"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...

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...''

47. ...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...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.”

The Consumer Rights Act 2015 shows this case law still holds because it includes the fact that a consumer cannot lawfully be expected to pay a disproportionate sum in compensation for a small sum owed. This is the fundamental legislation relating to standard contracts between traders and consumers and it is undoubtedly applicable to this case.

The ParkingEye v Beavis judgment makes clear that the Court of Appeal would have considered the disproportionate charge in this case (but not the more complex Beavis case or cases 'of its kind') a clear penalty. They found the contract in Beavis 'entirely different' from simple, commercial 'monetary transaction' cases such as they had seen before.

'ENTIRELY DIFFERENT'. So without displaying intellectual dishonesty or copy/pasting skewed 'guidance' from the BPA or another parking industry interested party, I suggest that it would be impossible to apply ParkingEye v Beavis to this standard economic contract. As UKPC have shown no other compelling reason or rationale for escalating a small sum parking tariff to £100, they fall foul of the penalty rule...just as ParkingEye would have, if they had taken a 'standard contract' case to Supreme Court level.


5) No Authority / Landowner Contract

As UKPC do not have proprietary interest in the land then I demand that they produce an unredacted copy of the contract with the landowner that authorises them to offer contracts for parking in their name, issue Parking Charge Notices and take legal action in their name for breach of contract.


[STRIKE]6) The registered Keeper is not liable

UKPC has failed to satisfy the requirements of Schedule 4 of the Protection of Freedoms Act I cannot be liable for the charge.

The unpaid parking charge that should have been requested ( paragraph 9(1) of the Act ) is that which was unpaid on the day before the Notice to Keeper was issued. This can only be the purportedly unpaid parking tariff and not £100 which had not been requested and which there was no facility to pay on the day before the Notice to Keeper was issued, the Sunday on which the site was closed for business. Consequently £100 cannot be considered unpaid for the purposes of the Act. It clearly demonstrates that UKPC has failed to satisfy the requirements of the Act and cannot rely on it. At no time was the registered keeper asked to pay the purportedly unpaid tariff.

Due to breaches in both the BPA Code of Practice and UKPC's own terms and conditions I therefore feel the fee provided is now null and void.
[/STRIKE]

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kelsall_13

Wow, C-M thanks for the help!

Yeah my thesis starts on wednesday, definitely not looking forward to the next 6 months...

so to reiterate and revise what you've said;

I am the registered keeper and this is my appeal to a PCN which was issued to the vehicle just minutes after the car park opened:

1) No Notice to Keeper - no keeper liability possible under the POFA 2012

The keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with, where the appellant is the registered keeper, as in this case. One of these requirements is the issue of a NTK compliant with certain provisions. This operator failed to serve any NTK at all. As there has been no admission as to who may have parked the car and no evidence of this person has been produced by the operator, it has been held by POPLA multiple times in 2015 that a parking charge with no NTK cannot be enforced against the registered keeper.

Further, schedule 4 is dependent upon 'adequate notice' of the parking charge being communicated to the driver in advance. That would require clear and prominent signs throughout the site, carrying wording that is transparent, legible in low light and has the sum of '£100' in large letters. That was not the case, see my next point where UKPC have failed completely by having the wrong sum on the signs.

2) Poor Lighting/ Inadequate signage

The signage is poorly lighted and written in a print which becomes illegible at low light, therefore non-compliant with part 18 of the BPA Code of Practice.

The BPA Code of Practice states:

18.1 ''A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass.

In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.''

Please note that due to UKPC high positioning of the signs and the very pale colour and small lettering, they were hard to see in low light.

BPA CoP 18.3 ''Specific parking terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving.”

A contract was not made clear to pay £100, not least because the signage picture shown on UKPC's website for this 'charge' shows the wording is very small but mentions only a £90 parking charge. Even if the driver had seen the terms (which is denied), a sign stating '£90 parking charge' cannot be used to create a contract to pay £100 and UKPC cannot put right this error.

The parking ticket is now in breach of both the BPA Code of practice and also UKPC terms and conditions making the charge null and void.

See attached photo as evidence.

No offer existed based on £100 charge and no consideration flowed between the parties - and no agreement to pay £100 was possible from signs that do not state that figure anywhere - therefore the elements of a contract did not exist.

3) Lack of a grace period...

The BPA Approved Operator Scheme Code of Practice Version 6, Oct 2015, states that if drivers "…decide not to park but choose to leave the car park, you must provide them with reasonable grace period to leave, as they will not be bound by your parking contract." (28.3).

The time the car park opened was 7.00am on monday 11th January. Ticket issued at 7:13am did not allow sufficient time to move the car. No contract was accepted by the driver.

4) ParkingEye v Beavis is not applicable to provide a rationale for a 'standard economic contract' like this one. This is a disproportionate and unconscionable penalty, not based upon the alleged quantifiable loss nor commercially justified.

The amount requested by UKPC is completely disproportionate to the overall cost of parking on site. The amount for 1 full day being £4 in comparison to the £100 charge reduced to £60. Upon requesting information on how this fee was calculated UKPC were not forthcoming with the request so they have made no attempt to justify the escalation from £4 to £100, which not even their signage supports.

UKPC seem to be under the misapprehension that POPLA Assessors might believe the BPA line that the Supreme Court judgment was a green light legitimising all frivolous parking charges. Yet there is no comparison between this case and that one; the only similarity is both operators (UKPC and ParkingEye) described the sum as a 'parking charge'.

There the similarities end. The Beavis case was entirely different and has no blanket application here, except in favour of my case as appellant to support the view that - in the absence of any other commercial justification similar to the Beavis case - this sort of consumer contract must still be proportionate to the tariff/loss. UKPC have shown no commercial justification nor 'legitimate interest' in charging £100 where the signs only refer to £90 and the tariff was just a few pounds.

The ParkingEye v Beavis decision related to those specific facts and unusual 'free parking licence' & 'complex' contractual arrangement flowing from specific landowner interests and reliant upon that 'prominent and clear' Riverside Retail Park signage only. The Supreme Court Judges tweeted on the day of the decision, to clarify that decision turned on those facts, that free car park in that case only.

Each case must still turn on its own facts.

The Beavis decision is not a silver bullet and it cannot be twisted to strike out the majority of private parking ticket appeals and certainly not those which are regarding a Pay and Display site where the alleged loss (tariff) begins as a very easy to identify, tangible sum.

In a standard economic dispute over a financial transaction between a consumer and a trader, like this one, the loss is easily calculable.

By stark contrast, the contract offered to Mr Beavis in the Chelmsford car park in the Beavis case was described by the Judges as a 'complex' contract which Moore-Bick LJ at the Court of Appeal remarked was 'entirely different' from this sort of financial contract flowing from alleged non-payment of a quantifiable sum to UKPC.

As regards the Beavis case, it was made plain that the 'penalty rule' is certainly 'engaged' in parking ticket cases and the facts of each case will determine if the penalty rule has been disengaged. The penalty rule could have been abolished in the Beavis case but abolition of that 'useful tool' was very deliberately NOT the case.

In complex contracts (in that case, a free car park with a licence to park but no monetary sum paid per hour) the trader must demonstrate a 'legitimate interest' in enforcing a disproportionately high charge, to avoid such a charge in each individual case from being an unenforceable penalty. UKPC have failed to demonstrate any other wider commercial or socio-economic justification for this exorbitant escalation clause and POPLA cannot make their case for them, therefore the charge remains unenforceable under the penalty rule.

But this case can easily be distinguished from Parking Eye v Beavis because this case is not a 'complex' contractual arrangement at all. So the same leap cannot be made to disengage the penalty rule by arguing 'legitimate interest'. If that was the case, then every alleged underpayment of a quantifiable sum between any trader and consumer could be escalated x 100. If you underpay your paper bill by £1 - the amount due remains at £1, same as in this case - it cannot escalate to £100 and this is because the Beavis case rationale does not apply to 'standard' financial contracts. The Court of Appeal and Supreme Court Judges made that very clear.

In Beavis, a major difference which made it more complex than standard contracts, was that there was no small sum owed and so, to reach their decision, the Judges had to consider other interests. None of the reasons that gave Parking Eye a legitimate interest which disengaged the 'penalty rule' in their case against Mr Beavis are present in this material case, in which the penalty rule remains firmly engaged and where there is a quantified tariff in play.

The appellant respectfully submits that the assessor carefully reads the Supreme Court judgment and the preceding Court of Appeal judgment from the same case.

The Judges set apart the Beavis contract from this type of 'simple financial contract'. This is one the Judges had seen many times before, where there is a quantified small sum at stake in the first instance as a result of a primary obligation.

This sort of contract was not under discussion in the Beavis case.

The penalty rule is clearly engaged in this case of a standard contract with a quantified tariff, but unlike in Parking Eye v Beavis it is not disengaged by UKPC merely pointing to the Beavis case as if it has blanket relevance (otherwise your local paper shop could point to the Beavis case regarding that £1 underpaid paper bill, as could any trader over any small sum owed). Clearly the 'tweet' from the Supreme Court on the day that their decision was handed down, made it clear that was not the intention of the judgment which turned on its own facts regarding a complex set of circumstances, relevant to a complex contract of its kind only.

At the Court of Appeal stage, when addressing the issue of pre-estimate of loss versus commercial justification, Lord Justice Moore-Bick agreed with HHJ Moloney QC’s findings, and opined at paragraph 27 that: “The application in a case of this kind of a rule based on a simple comparison between the amount of the payment and the direct loss [...] is inappropriate.”

In agreement with Moore-Bick LJ, and distinguishing the contract formed between ParkingEye and the motorist from a commercial contract, Sir Timothy Lloyd stated at paragraph 47 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,...”.

The Judges were only discussing ''a contract such as we are concerned with'' which was a far more complex one than ''all the previous cases shown to us {which} have concerned contracts of a financial or at least an economic nature.''

Here, this is one of those cases Courts have seen many times before, a simple contract of a 'financial/economic nature' and the only interest UKPC has in enforcing their £100 charge instead of any 'outstanding tariff' for 13 minutes - which falls within any reaonable grace period anyway - is profit alone.

This position is reinforced in the earlier findings in the Beavis case from the Court of Appeal, where the judgment states:

"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...

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...''

47. ...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...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.”

The Consumer Rights Act 2015 shows this case law still holds because it includes the fact that a consumer cannot lawfully be expected to pay a disproportionate sum in compensation for a small sum owed. This is the fundamental legislation relating to standard contracts between traders and consumers and it is undoubtedly applicable to this case.

The ParkingEye v Beavis judgment makes clear that the Court of Appeal would have considered the disproportionate charge in this case (but not the more complex Beavis case or cases 'of its kind') a clear penalty. They found the contract in Beavis 'entirely different' from simple, commercial 'monetary transaction' cases such as they had seen before.

'ENTIRELY DIFFERENT'. So without displaying intellectual dishonesty or copy/pasting skewed 'guidance' from the BPA or another parking industry interested party, I suggest that it would be impossible to apply ParkingEye v Beavis to this standard economic contract. As UKPC have shown no other compelling reason or rationale for escalating a small sum parking tariff to £100, they fall foul of the penalty rule...just as ParkingEye would have, if they had taken a 'standard contract' case to Supreme Court level.

5) No Authority / Landowner Contract

As UKPC do not have proprietary interest in the land then I demand that they produce an unredacted copy of the contract with the landowner that authorises them to offer contracts for parking in their name, issue Parking Charge Notices and take legal action in their name for breach of contract.

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That takes all of the edits/amendments into count C-M.

Yeah the car was a windscreen notice and, as of yet, no keeper notice has been issued. Today is the 24th day since being issued with the ticket so I imagine that I don't have to worry about anything arriving in the post, being a Sunday!

Third time mentioning but Thanks again for everyone's help. I'll await your confirmation whilst drafting the PDF appeal to submit!

The_Deep

Things you should know about UKPC.

[FONT=Times New Roman, serif]UKPC are former clampers who have been involved in quite a number of sordid scams, for example[/FONT]

[FONT=Times New Roman, serif]Hull Trading Standards took them to court on 15 counts of fraud. UKPC won all but one, but only because they had a better lawyer, a Q.C. If I recall correctly[/FONT]

[FONT=Times New Roman, serif]http://forums.pepipoo.com/index.php?showtopic=63597[/FONT]

[FONT=Times New Roman, serif]They were bested by a Winchester barrister[/FONT]

[FONT=Times New Roman, serif]http://www.consumeractiongroup.co.uk/forum/showthread.php?377246-UKPC-liable-for-trespass-**SUCCESS**[/FONT]

[FONT=Times New Roman, serif]They were involved in a large scale scam which resulted in a DVLA suspension[/FONT]

[FONT=Times New Roman, serif]http://www.telegraph.co.uk/news/uknews/crime/11858473/Parking-firm-UKPC-admits-faking-tickets-to-fine-drivers.html[/FONT]

[FONT=Times New Roman, serif]Then they had another go, this one is still being investigated[/FONT]

[FONT=Times New Roman, serif]https://forums.moneysavingexpert.com/discussion/5390608[/FONT]

[FONT=Times New Roman, serif]And then of course there was Tracey Kiss[/FONT]

[FONT=Times New Roman, serif]http://www.tracykiss.com/product-reviews/my-ukpc-parking-charge/[/FONT]