ParkingEye charge - Pokemon hunting

Coupon-mad

mamamia11 wrote: »

I have found a picture of the sign at Town Quay:
http://www.townquay.com/admin/content/files/parking/Town%20Quay%20Parking%20Eye%202016%20prices.pdf

and this is a screen shot of the sign in situ:


My thoughts are (a) that there is far too much information on the sign for a motorist to take in on entering the site, (b) the lettering on the terms and conditions in particular is far too small, (c) this was the ONLY example of this particular detailed sign on the site, (d) the only mention of 'private property' is in small letters right at the bottom, and (e) the statement 'No parking in red zone bays (Mon to Fri 6am to 7pm) would seem to suggest that it's OK to park there outside those hours.

Any comments gratefully received.

Were you in the red zone? If so, then I'd say that sign helps you because it absolutely prohibits parking there so it cannot possibly be argued to have offered a contract or 'licence' to park (unlike in the Beavis case). ANd you can't be held liable for not paying & displaying or putting in a wrong VRN becasue P&D only applies in blue bays.

And as you say the sign is wordy, crowded with too much detail, placed high on a pole and there are not many signs for the huge car park, to be sure a driver using every bay area would be 'bound to' have seen the terms.

SO I would grab the template unclear signs point I put up in 'POPLA Decisions' at the weekend, and plonk it into your appeal and add/edit it to include your points:

(a) that there is far too much information on the sign for a motorist to take in on entering the site, (b) the lettering on the terms and conditions in particular is far too small, (c) this was the ONLY example of this particular detailed sign on the site, (d) the only mention of 'private property' is in small letters right at the bottom, and (e) the statement 'No parking in red zone bays (Mon to Fri 6am to 7pm) would seem to suggest that it's OK to park there outside those hours.

mamamia11

Umkomaas wrote: »

20th August? That's only 4 days after 16th August (at least where I come from!).

Did you mean 20th September?

Oops! 20th September it is!

mamamia11

Coupon-mad wrote: »

Were you in the red zone? If so, then I'd say that sign helps you because it absolutely prohibits parking there so it cannot possibly be argued to have offered a contract or 'licence' to park (unlike in the Beavis case). ANd you can't be held liable for not paying & displaying or putting in a wrong VRN becasue P&D only applies in blue bays.

And as you say the sign is wordy, crowded with too much detail, placed high on a pole and there are not many signs for the huge car park, to be sure a driver using every bay area would be 'bound to' have seen the terms.

SO I would grab the template unclear signs point I put up in 'POPLA Decisions' at the weekend, and plonk it into your appeal and add/edit it to include your points:

I wasn't parked in any zone - I just drove round and round the car park and then left. If I had parked in the red zone I would have seen one of these signs:
http://www.townquay.com/admin/content/files/parking/Town%20Quay%20Parking%20Eye%202012%20prices.pdf

Umkomaas

Circling isn't parking - and ParkingEye have had this shoved down their throats in court.

http://www.dailymail.co.uk/news/article-2594413/Man-wins-court-battle-against-parking-firm-tried-fine-100-CIRCLING-car-park-without-stopping.html

mamamia11

Coupon-mad wrote: »

And as you say the sign is wordy, crowded with too much detail, placed high on a pole and there are not many signs for the huge car park, to be sure a driver using every bay area would be 'bound to' have seen the terms.

SO I would grab the template unclear signs point I put up in 'POPLA Decisions' at the weekend, and plonk it into your appeal and add/edit it to include your points:

I have added two more points, (a) unclear signage and (b) driver did not park:

5 The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

http://imgur.com/a/AkMCN

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here is the sign in question:
http://i65.tinypic.com/200agqb.png

Please note, this was the ONLY ‘comprehensive’ sign displayed in the whole site, and this was NOT at the entrance to the car park but some way in, at a pay machine in the Red zone (permit parking) area. A driver would have no reason to see this sign when driving through to the Blue zone (public parking) in the main car park, and in this instance the driver did not see the sign. Also, the wording on this sign is crowded and cluttered with a lack of white space as a background, with far too much information for a motorist to take in while driving past, and much of the wording so small it is virtually illegible. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

Of course, this picture was taken in full daylight, and would be very different at around midnight, the time of the alleged incident.

All other signs are smaller and relate specifically to the different parking areas. They do not given detailed parking terms, nor do they state the parking charge, clearly or otherwise.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge. Some areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

The letters seem to be no larger than .40 font size going by this guide:

http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

...and the same chart is reproduced here:

http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show any entrance signs and how they would appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

6 Driving round a car park is not parking

On the occasion of the alleged incident, the driver did not ever park the car, but drove round the main car park a number of times (while the passenger searched for Pokemons), and then exited the car park. I would draw the Assessor’s attention to case 3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014) in which the judge ruled that the time the defendant spent driving round the car park in did not classify as 'parking', stating that “As I have already indicated there can be no dispute this is a paying car park. It cannot be said that the signs are unclear in that regard, but would somebody circling the car park know that they were liable to pay by being in the car park for […] longer than [X] minutes? Well I have no evidence to suggest they would know that.” And “The difficulty for the Claimant here is they cannot prove whether this car was parked or not and I have got to consider the matter on the balance of probabilities. On that balance of probabilities […] I am satisfied the Defendant was not parked and I am not satisfied that it was clear to the Defendants that by […] entering or remaining within the area covered by Parking Eye Ltd they were liable for a charge, that the signage does not make that clear in my view unless one gets out of the car, walks up to it, by which point it seems to me one would be parked.”

The ANPR evidence only showed the time of entry and exit to the car park, and not the true time parked or any evidence that the car was parked at all. The signage only required payment for times parked, and therefore there was no contravention of the terms and conditions.

So, for this appeal, I put this operator to strict proof of where the car was parked.

Would you be kind enough to check through these, in particular the bold passages where I have added or changed material? And do tell me if you think 6) is a waste of time. Also, are they in the right order?

Thank you again

mamamia11

mamamia11 wrote: »

On a separate matter, I am concerned that I have not yet received a ParkingEye decision and POPLA code for the second alleged offence. Both appeals were submitted online on 16th August. Should I be contacting them at this stage, or resending the missing appeal? I believe they have 35 days to respond, which would be by Tues 20th September.

I do apologise for re-posting this, but I am bit worried about it and don't know what to do.

Coupon-mad

mamamia11 wrote: »

I wasn't parked in any zone - I just drove round and round the car park and then left. If I had parked in the red zone I would have seen one of these signs:
http://www.townquay.com/admin/content/files/parking/Town%20Quay%20Parking%20Eye%202012%20prices.pdf

I am not sure that's a recent copy of the signage? I am surprised to read 'failure to comply with this' which is too vague and ambiguous and is how Ms Lemon and Ms Harris won their case v PE:

http://nebula.wsimg.com/4be9744029488d97a4de50455867bb8d?AccessKeyId=4CB8F2392A09CF228A46&disposition=0&alloworigin=1

Then there is this case 'driving around looking for a space is not parking' (the case mentioned by Umkomaas):

http://nebula.wsimg.com/c289944f81b4afb375a97d05d5a80df6?AccessKeyId=4CB8F2392A09CF228A46&disposition=0&alloworigin=1

...and the signs (if they are no different) only talk about PARKING time, not 'staying onsite from the second you drive past the ANPR camera, whether you park or not'!

I do apologise for re-posting this, but I am bit worried about it and don't know what to do.

Wait the 35 days for the second one then email PE to chase it up after 20th.

info@parkingeye.co.uk

HTH - show us what your entire POPLA appeal looks like now please, all shown in one post.

Edna_Basher

Coupon-mad wrote: »

I am not sure that's a recent copy of the signage? I am surprised to read 'failure to comply with this' which is too vague and ambiguous and is how Ms Lemon and Ms Harris won their case v PE.

C-M's right - this must be a very old picture.

Pictures in PE's evidence pack for Town Quay show the main Terms & Conditions sign ("Type 4a" in the pack) as stating "failure to comply with the terms & conditions will result in a Parking Charge of £100".

mamamia11

mamamia11 wrote: »

On a separate matter, I am concerned that I have not yet received a ParkingEye decision and POPLA code for the second alleged offence. Both appeals were submitted online on 16th August. Should I be contacting them at this stage, or resending the missing appeal? I believe they have 35 days to respond, which would be by Tues 20th September.

I am over the moon! Just received an email from ParkingEye telling me that they have cancelled this one! No reason given.

The other one is identical apart from the date of the incident - one day later, so the PCN is presumed to have been received no earlier than 16 days after the incident. So I do not understand why they have not cancelled them both.

Do I continue with my POPLA appeal on the outstanding PCN? Do I contact ParkingEye and ask them again to cancel the charge?

Umkomaas

Well done on the first one, but never take your eye off the PE ball. PE is a massive enterprise dealing with PCNs on an industrial scale - 1.2 million tickets a year. It could well be that a completely different individual is dealing with your other case.

But you must proceed on the basis that it might be refused, so continue to work on your POPLA appeal, but hope to have more positive news next week.