Please Help with (NOT SO) Smart Parking PCN

jhiker

This is how I worded my appeal when I got a postal PCN for an accidental overstay at Matalan. Got a cancellation by return.

Name
Address
Date

Dear Sirs

Re: PCN No. ....................

I challenge this 'PCN' as keeper of the car, on these main grounds:

a) Your Notice To Keeper fails to comply with the strict requirements of POFA 2012 so there can be no keeper liability.
Consequently you have forfeited any right to hold me, as keeper, liable for any charge.
For example, sections 2(e) and 2(f) have been ignored completely. There are other non-compliances.
b) The sum is disproportionate and does not represent a genuine pre-estimate of loss.
c) It is a ‘ free’ car park without ticketing. Your loss is nil. The sum is extravagant and unconscionable and cannot bejustified.
d) There is no evidence that you have any interest in the land.
e) I believe that the signs were not seen/are ambiguous and the predominant purpose is to deter so there is no contract
to pay this charge, which is a penalty.

Formal challenge:
There will be no admissions as to who was driving and no assumptions can be drawn.
You must either;
1) Cancel the notice
2) Pursue the driver and stop pursuing the keeper.
3) Reject this challenge and provide a POPLA code

Yours faithfully,
Etc..

Extract from POFA 2012 Sched 4, Para 9 follows:
....goes on to quote a couple of relevant clauses....

W00DY

Guys I'm so thankful for the replies on this. I'm sorry for the lack of response, just been so busy last few days. I need to get this sorted for my neighbour asap so hopefully will have a POPLA appeal sorted very soon and really hoping some of you can give it the once over...

Coupon-mad

Great, start with 'no keeper liability' as per all the other Smart POPLA cases where the POFA Schedule 4 paragraph 9 (postal PCNs) is cited.

And 'no landowner authority like the recent ones where 7.3 of the BPA CoP is cited.

And unclear, non-prominent terms on signage.

And as it was about a mere 'partial VRN' issue, you could have a point like this:

The charge is a penalty, breaches the CRA and is not saved by the decision in ParkingEye v Beavis
It appears that a partial registration number may have been recorded, either by inadvertent error of the disabled/elderly driver, or by failure of the operator's own keypad, or failure of the signage to make the full VRN a clear 'obligation' with risk of a penalty. No evidence has been produced either way by this operator as to the cause of the issue and it is not disputed by any party that there was certainly no attempt to avoid payment, which was made in full.

This situation is an 'ordinary' contract involving no overstay and no breach of the legitimate interests of the landowner. This was a simple consumer/trader transaction with a ticket for parking being purchased in good faith and produced by a machine and can be very easily distinguished from the case of ParkingEye Ltd v Beavis.

Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position.

At 47 in the Court of Appeal Judgment in 'ParkingEye Ltd v Beavis' it was held:

''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.” ''

And at the Supreme Court it was held at 14. ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty;’ ''

At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated complex cases (Beavis) from ordinary/standard contracts with a transaction and tariff paid at a machine:
''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''

This is NOT a 'more complex' case by any stretch of the imagination.

At 32, it was held that a trader, in this case a parking company:
''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

Clearly a charge out of all proportion to the tariff - which was paid in any case - is an unfair penalty to the mind of any reasonable man, regardless of whether in the small print, the sign may have said somewhere 'enter the full registration'. A huge charge arising under the excuse of such a minor term is unjustified and unfair, if the remedy is out of all proportion with the 'breach' and the (completely different) Beavis case does NOT apply to this argument.

The Consumer Rights Act 2015 (the CRA, enacted after the Beavis parking event) supports a consumer's position in at least two ways:

- the signage failed to make any obligation and/or risk of penalty prominent, to enter the FULL VRN. The CRA states: ''A trader must ensure that a written term of a consumer contract or a written consumer notice is transparent. To be transparent it must be expressed in plain and intelligible language and be legible...any subject matter terms must not be hidden in any small print otherwise the price and the subject matter terms will be assessed for "fairness". ''

- Under Schedule 2 'Consumer contract terms which may be regarded as unfair' it includes: ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

As this charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which turned on completely different facts and related only to that car park with its own unique complexity of commercial justification.

W00DY

On (DATE), I came home to find a Parking Charge Notice from Smart Parking, dated (DATE).

Background:-
I appealed to Smart Parking who rejected my appeal on (DATE). I am appealing as the registered keeper of this vehicle, with licence plate number (NUMBER BLOCKED OUT).

I dispute that I am liable for the alleged parking charge. I wish to appeal against the charge on the following grounds:-

* No keeper liability
* No driver liability
* No landowner authority
* The charge is a penalty, breaches the CRA and is not saved by the decision in ParkingEye vs Beavis
* Unclear, non-prominent terms on signage


Can I use these...??
• No 'legitimate interest' or 'commercial justification'
• This is (unlike in the Beavis case) an unfair penalty.
• No contract accepted; unlike in the Beavis case.
• The charge exceeds the applicable amount under the BPA CoP

********************

1:- No Keeper Liability

Schedule 4 of the Protection of Freedoms Act, Paragraph 9, states that the Notice to Keeper must state the following:

9(1)''A notice which is to be relied on as a notice to keeper for the purposes of paragraph 9(1)(b) is given in accordance with this paragraph if the following requirements are met.

(2)The notice must—

(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;

(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;

(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;

(d)specify the total amount of those parking charges that are unpaid, as at a time which is- (i) specified in the notice; and (ii) no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper;

(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—(i) to pay the unpaid parking charges; or (ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;

(f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—(i) the amount of the unpaid parking charges specified under paragraph (d)has not been paid in full, and (ii) the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid''

Smart Parking did not properly specify the vehicle, did not identify the relevant land, and did not specify a 'period of parking'. The location is ambiguous: ‘CO-OP MOWBRAY’. Smart Parking failed to inform me of the circumstances under which the requirement to pay charges arose and the other facts that made them payable. Smart Parking also failed to inform me as Keeper, that they do not know the name and address of the driver and to ‘pass the notice to the driver’.

Further, there is an absence of any warning whatsoever, about ‘keeper liability’. Arguably, above all other wording omissions, the specific liability warning in 9(2)(f) is absolutely fundamental for ‘keeper liability’ so I cannot be held liable under the applicable law.


2:- No driver liability

There is no possibility of POPLA finding that ‘driver liability’ can apply to me because I am not appealing ‘on behalf of’ the driver nor as the driver. I am the registered keeper only and the driver has not been identified.

Without keeper liability, Smart Parking have no cause to pursue me or retain my data yet they refused my appeal and still expect me to appeal to POPLA.


3:- No landowner authority

Section 7 of the BPA CoP states that an operator must have the written authorisation of the Landowner, if the parking company does not own the land, which Smart Parking do not.

Paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Smart Parking to strict proof of the contract terms with the actual landowner (not another agent, shop, etc) and I would also point out these mandatory requirements, which a vague ‘witness statement’ will not prove:

7.3 The written authorisation must also set out:

a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) who has the responsibility for putting up and maintaining signs
e) the definition of the services provided by each party to the agreement
I do not believe that Smart Parking have a contract with the site landowner which meets all the requirements above.


4:- The charge is a penalty, breaches the CRA and is not saved by the decision in ParkingEye vs Beavis

It appears that a partial registration number may have been recorded, either by inadvertent error of the disabled/elderly driver, or by failure of the operator's own keypad, or failure of the signage to make the full VRN a clear 'obligation' with risk of a penalty. No evidence has been produced either way by this operator as to the cause of the issue and it is not disputed by any party that there was certainly no attempt to avoid payment, which was made in full.

This situation is an 'ordinary' contract involving no overstay and no breach of the legitimate interests of the landowner. This was a simple consumer/trader transaction with a ticket for parking being purchased in good faith and produced by a machine and can be very easily distinguished from the case of ParkingEye Ltd v Beavis.

Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position.

At 47 in the Court of Appeal Judgment in 'ParkingEye Ltd v Beavis' it was held:

''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.” ''

And at the Supreme Court it was held at 14. ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty;’ ''

At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated complex cases (Beavis) from ordinary/standard contracts with a transaction and tariff paid at a machine:
''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''

This is NOT a 'more complex' case by any stretch of the imagination.

At 32, it was held that a trader, in this case a parking company:
''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

Clearly a charge out of all proportion to the tariff - which was paid in any case - is an unfair penalty to the mind of any reasonable man, regardless of whether in the small print, the sign may have said somewhere 'enter the full registration'. A huge charge arising under the excuse of such a minor term is unjustified and unfair, if the remedy is out of all proportion with the 'breach' and the (completely different) Beavis case does NOT apply to this argument.

The Consumer Rights Act 2015 (the CRA, enacted after the Beavis parking event) supports a consumer's position in at least two ways:

- the signage failed to make any obligation and/or risk of penalty prominent, to enter the FULL VRN. The CRA states: ''A trader must ensure that a written term of a consumer contract or a written consumer notice is transparent. To be transparent it must be expressed in plain and intelligible language and be legible...any subject matter terms must not be hidden in any small print otherwise the price and the subject matter terms will be assessed for "fairness". ''

- Under Schedule 2 'Consumer contract terms which may be regarded as unfair' it includes: ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

As this charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which turned on completely different facts and related only to that car park with its own unique complexity of commercial justification.




Can I use these?????

6:- This is (unlike in the Beavis case) an unfair penalty.

This is (unlike in the Beavis case) an unfair penalty. At the Supreme Court it was held at 107:

''In our opinion the term imposing the £85 charge was not unfair. The term does not exclude any right which the consumer may be said to enjoy under the general law or by statute''

But this charge imposed by Smart Parking does 'exclude the right' the consumer (myself) is legally ‘said to enjoy’ under the applicable law, which is the EA 2010 - specific sections on ‘indirect discrimination’ and the duty to make ‘reasonable adjustments’. Therefore, this charge is unfair.

No contract was accepted; unlike in the Beavis case.

No contract to pay £100 was known about nor accepted.

W00DY

I'm so confused...!! I've spent a couple of hours trying to jumble together an appeal but my brain feels like it's going to explode! Wishing I hadn't taken this on as so much personal stuff going on for me at the moment but our elderly neighbour is relying on me bless him. The discount date with smart parking for £60 instead of £100 was yesterday :-/ So really hoping I can sort this. I'm finding it hard to tailor and personalise it to my neighbour's particular incident.

Coupon-mad

Post #25 has the correct part of the POFA Schedule 4 quoted, which for a postal PCN, is paragraph 9 as your post #25 states.

Your post #26 has an irrelevant version talking about paragraph 8 (windscreen PCN cases) so it is not correct. Also your post #26 is based on an old one, talking about 'not a genuine pre-estimate of loss' = nope, you can't use that! That is NOT a winning appeal for 2016 so delete your post #26 please, to avoid confusion in case other NEWBIES copy the wrong (old) version, and you can submit the version in post #25.

Can I use these...??
[STRIKE]• No 'legitimate interest' or 'commercial justification'
• This is (unlike in the Beavis case) an unfair penalty.
• No contract accepted; unlike in the Beavis case.[/STRIKE]
• The charge exceeds the applicable amount under the BPA CoP

The first 3 are already covered in point #3 of your post #25.

The 4th one you mention above, yes you could add that if Smart have added £10 or £20 to the £100 charge, taking it over the BPA CoP ceiling. I seem to recall they do tell people the charge will increase if not paid, which they CAN'T do at POPLA stage so it is valid to state that any charge over £100 exceeds the BPA rules.

Finally, you have a 5th point in your post #25 'Unclear, non-prominent terms on signage' yet you haven't then shown a point #5 about unclear signage at all, in the main appeal wording. You do need a section about unclear signs not making any obligation transparent, to input the full VRN or pay £100 and also that the P&D machine should not be able to accept a partial VRN if it is so important (and after all, the ANPR system has all the VRNs in the car park stored which could very easily be displayed by the system on that connected machine, for a driver to click on the right one)! So the system is set to catch out unwary or elderly/disabled people - it is a cumbersome keypad with tiny, weather-worn and faded numbers & letters - which is unfair under the Equality Act and Consumer Rights Act.

You could use point #3 from your post #26 to become your appeal point about signage: The signage on site is inadequate or inappropriate and can have made no contract with the driver.

But you would just need to remove stuff from that signage section in #26 that's not appropriate, such as ''The alleged breach took place in make do car park in Flowers Road, Lujton.''!! Your neighbour's issue was in Leics. So cut out/edit the wrong statements.

That should do the job, this is a good job well done and you WILL win this for your neighbour.

Make sure you use the right one and delete post #26. Show us the final version (mainly post #25 with the above suggested changes).

W00DY

Coupon -mad,

(Sorry I don't know your name!) I can't thank you enough for the help and advice you're providing, it honestly really is appreciated!! If you were local I'd happily buy you a bottle of something People like you are such a huge benefit to forums like this and innocent people slapped with unnecessary fines.

Anyways, I have read through your post and will make the amendments later today and hopefully that will be sufficient

On a side note, I found this article online earlier...it's the same car park!

http://m.meltontimes.co.uk/news/business/business-news/woman-wins-appeal-against-smart-parking-ltd-1-7464812

Do you think that could help with the appeal?

Coupon-mad

Wow she appealed really badly in a way that others won't be able to replicate now. The headline reads as if it's unusual to win at POPLA v Smart Parking but if no-one ever said who was driving and appealed as keeper, 100% would win...

People only need to research it like you did!

nigelbb

W00DY wrote: »

On a side note, I found this article online earlier...it's the same car park!

http://m.meltontimes.co.uk/news/business/business-news/woman-wins-appeal-against-smart-parking-ltd-1-7464812

Do you think that could help with the appeal?

The motorist paid first charge of £130 then appealed a second which was upheld at POPLA on the ground that after the charges were extended to 24x7 that Smart had not

sufficiently proven that they have offered a grace period for regular users of the car park to be made aware of the new terms and conditions of the site.’

Read more: http://www.meltontimes.co.uk/news/business/business-news/woman-wins-appeal-against-smart-parking-ltd-1-7464812#ixzz4EkT35UoU

A Smart spokesperson said

“This new signage was in place for a period of over a week for trialling and testing the equipment to ensure that we are providing a compliant and customer focussed service on-site

If I were the motorist I would be issuing a MCOL to get the £130 for the first charge refunded.

nigelbb

There must be a de minimis argument to be put forward in these cases where a wrong registration is keyed in. Some PPCs have pursued charges when an O is input instead of a 0 & vice versa. What about a typo that is a simple transposition of two characters? It would be simple enough to have the automated systems test for this when no match is found on ANPR records. There has been no loss of revenue & while the automated systems can't take account where people have typed in the VRN of their second car most trivial mistakes could be caught e.g. in this case the machine should not allow a ticket to be issued when an incomplete VRN is entered.