Smart Parking Fine - Wrong Registration

shazam14

Hi first post here.

Recently parked my wifes car in Matalan carpark which is managed by smart parking and like an idiot put my cars registration into the machine. Got the fine in the post and my wife immediately sent them the ticket (with my reg) as proof I 'paid'.

Not great as they now know who the driver is and of course re-issued a fine to me. I appealed saying you've suffered no loss of income etc and of course they were not interested.

When I appealed I also requested a copy of the contract between them and Matalan which they refused to produce, saying it was ''commercially sensitive' under the Freedom of Information Act 2000.

My question is if I were to appeal to Popla asking for the contract to prove they are allowed to fine me would they refuse to send it to Popla? If they refuse to produce the contract I'm assuming Popla would uphold the appeal?

This is my first time appealing a parking fine so I'm very new to this and the only information I have is various things I've read online which tbh is quite confusing.

I'm also going to speak to the manager of the store as I've heard they can sometimes cancel fines but i'm not holding my breath.

Any other advice very much appreciated!

shazam14

The only thing I could find from searching this website is a paragraph from another Popla appeal to the same company:

4) Lack of standing/authority from landowner
Smart Parking has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA code of practise 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 a lessee or agent). Smart Parking have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Smart Parking are entitled to pursue these charges in their own right.

I require Smart Parking to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

The only problem with this is that the thread is from 2014 and I have read elsewhere on this site that you shouldn't copy and paste appeals that were sent before Feb 2016 to Popla.

Just to clarify the letter I received from Smart parking says

''The BPA Code of Practise contains the following: 7 written authorisation of the landowner 7.1 if you do not own the land on which you are carrying out parking management, you must have written authorisation of the land owner. We can clarify that we do hold a contract with the landowner and authorisation is given to carry out all aspects of the management and enforcement of the site.
We note your request to provide a copy of the contract between Smart Parking Ltd and the car park owner, however, the information involved is commercially sensitive and is therefore exempt under the Freedom of Information Act 2000

Fruitcake

It is not a fine. It is a speculative invoice.

Have you complained to the manager/CEO of Matalan? If not, why not?

Forget asking to see the contract. There is no reason why they should produce it unless it goes to court. You aren't at that stage by a long way.

It's unfortunate that you have given away a valuable appeal point, but there are loads of others such as, not the landowner, no standing to bring charges, and inadequate signage to name but a few.

Please read the POPLA Decisions sticky thread for successful recent examples, and also the Sticky thread for NEWBIES that gives lots of information about appeals.

yotmon

shazam14 wrote: »

I'm also going to speak to the manager of the store as I've heard they can sometimes cancel fines but i'm not holding my breath.

Any other advice very much appreciated!

'To err is human'. But when parking companies are dependent on 'errors' as their main income, they will never accept mitigating circumstances as an appeal point.

A more positive attitude is needed to get your point across to the Matalan manager. Take the paid ticket and proof of your vehicle's registrations to back up your claim. Make sure that other customers can hear your concerns. As said on here many times, be polite but forceful. They have the authority to cancel seeing as the parking company is only acting as their agent, so don't take 'no' for an answer !

Coupon-mad

Have you got a POPLA Code?

If so then a quick search of this board for 'Smart POPLA' would find more recent examples of appeals, plus read and use the templates I posted in 'POPLA Decisions' two weeks ago. Have a look and use them.

Half_way

As above, however if set up correctly then the ticket machine should have rejected the wrong reg being put into it, however that wouldn't make as much money.
Complain to the store manager/landowner and follow the advice above.

shazam14

thanks for advice chaps. unfortunately my wife decided to ring the manager of matalan and then lied and said she was a regular customer, not realising that you need a matalan card to shop there which stores all transactions. The manager simply sad produce a receipt and Matalan 'would pay the fine'. Sounds like bullsh*t so I'm going to have to go down there myself and try again.

shazam14

After much searching I have put together this letter which I will send to Popla. I say put together i basicly copied and pasted a letter from a guy called Not Scammed and made a few changes. Looks pretty solid but any suggestions welcome!


I am the registered keeper of the vehicle related to the parking charge notice (reference above).
I contend that I am not liable for the parking charge on the grounds listed below and request that they are all considered.

1) No evidence to show that the APNR system is reliable.
2) Failure to provide the contract to evidence that Parking Eye has any Standing or Authority to pursue charges or form contracts (Locus Standii)
3) The signage was non-compliant with the BPA CoP
4) The ANPR system is unreliable and neither synchronised nor accurate
5) Unlawful Penalty Charge
6) Reference to ParkingEye vs Beavis.

1)No evidence to show that the APNR system is reliable.

This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
Smart Parking has not provided any evidence to show that their system is reliable, accurate or maintained. I request that you uphold my appeal based on this.

2) Failure to provide the contract to evidence that Smart Parking has any Standing or Authority to pursue charges or form contracts (Locus Standii)

Smart Parking has not produced any evidence to show that they have any legal right to issue charges on behalf of the landowner
For clarity, the BPA Code clearly states that
“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”

Smart Parking has not provided the adjudicator any evidence to show that they have authority to issue charges in line with the BPA Code. The Operators evidence fails to show any of the BPA requirements then the omissions must be interpreted in the way which favours the consumer. I request that you uphold my appeal on this point.


In addition, I refer to POPLA case reference 1771073004 where the assessor ruled that a witness statement was not valid. This witness statement, based on the template provided by the POPLA Lead Adjudicator, concerned evidence which could have been produced but was not. This is exactly analogous to the current case if the operator produces a witness statement regarding contract documents between he operator and the landowner; the alleged contract is a document which the operator could produce (if it exists) but chooses not to. I request therefore that the “new” POPLA is consistent with the “old” POPLA scheme in its processes and also rules any witness statement produced by the operator invalid.

3) The signage was non-compliant with the BPA CoP

The signage is, I believe, non-compliant. The signs are badly placed, full of overall small size and the barely legible size of the small print, the signs in this car park are very hard to read and understand.

Any photos supplied by Smart Parking to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera & flash and the angle may well not show how high the signs are. As such, I require Smart Parking to state the height of each sign in their response and to show contemporaneous photo evidence of these signs in the dark without the aid of flash photography. Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

I contend that the signs and any core parking terms Smart Parking are relying upon were too small for any driver to see, read or understand. I request that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs on this land (wording, position, clarity and frequency) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v MartinCutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]

4)The ANPR system is unreliable and neither synchronised nor accurate

This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

In addition to showing their maintenance records, I require the Operator in this case to show evidence to rebut this point: I suggest that in the case of the vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. I contend that this ANPR "evidence" from this Operator in this car park is unreliable I put this Operator to strict proof to the contrary.

I also claim that the signs at the car park do not clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner. Unless the Operator can show documentary evidence otherwise, then this BPA CoP breach would also point to a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary.

The charge is founded entirely on two photos of the vehicle entering/leaving the car park at specific times. I put Smart Parking to strict proof that their ANPR system is not fundamentally flawed because of known issues such as missing checks and maintenance of the timer/cameras and the possibility of two visits being recorded as one. The Operator's proof must show checks relating to the vehicle, not vague statements about any maintenance checks carried out at other times.

The 'two visits recorded as one' problem is very common and is even mentioned on the BPA website as a known issue: (link removed as im not allowed to post urls being a new member). The BPA says: ''As with all new technology, there are issues associated with its use:
Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.''

Since I am merely the registered keeper, I have no evidence to discount the above possibilities. Smart Parking show no parking photographs so they cannot say for certain that the car was not involved in non-parking related activity - e.g. queuing or filling up with petrol or water, nor can they show the car did not leave the site and return.

In addition, the BPA CoP contains the following in paragraph 21:
''You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.''
Smart Parking fail to operate the system in a 'reasonable, consistent and transparent manner', . I request that you uphold my appeal based on this



7) Unlawful Penalty Charge

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OB Services v Thurlow(review, February 2011), ParkingEye v Smith (Manchester County Court December2011) and UKCPS v Murphy (April 2012) .

The operator could state the letter as an invoice or request for monies, but chooses to use the wording “PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.

The carpark in question costs £1 per hour, and a ticket was purchased covering the entire duration of time spent by the keepers vehicle, despite displaying an incorrect registration number. The £85 charge is punitive and not any representation of any loss incurred.


8) Reference to ParkingEye vs Beavis

The Operator has not attempted to relate their case to that of ParkingEye v Beavis, and to therefore justify their charge. It is their responsibility to make their case. As they have not, there is therefore nothing for me to rebut. I content it is not the assessor’s job to make the case on behalf of the operator.
The Supreme Court made it perfectly clear that the judgment was not a silver bullet which justifies all parking charges. On Nov 4th they tweeted that the judgment was taking in account use of this particular car park & clear wording of the notices.

Guys_Dad

Forgive me, but why is "A ticket was bought, sent as proof and it was clear that the driver had simply keyed in the wrong registration number. The operator is required to have procedures for checking such minor infringements and I require POPLA is provided with a copy of how such situations are dealt with by the operator" not included as point 1?

Coupon-mad

Wow this would have been so much easier for your WIFE to appeal as keeper, she'd have won hands down (due to the POFA not being complied with). Naming you was a silly mistake which may mean this POPLA appeal doesn't win now - not that you have to pay it even if you lose, just ignore them!

When tweaking this, I've had to put you as 'driver' which we never do. But try this:

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


I am the driver and I contend that I am not liable for the parking charge on the grounds listed below. If this operator remains silent on any appeal point then it is deemed accepted.


1) Breach of the BPA Code of Practice Principles

Under section 21 of the CoP, AOS members are only allowed to use ANPR if they:

(a) Use it to enforce parking in a reasonable, consistent and transparent manner.

(b) Have clear signs which tell drivers that the operator is using this technology and what the data captured by ANPR cameras will be used for.

21 Automatic number plate recognition (ANPR) General principles
21.1 ''You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.''

The facts are that a ticket was bought, sent as proof and it was clear early on, that the driver had paid in good faith but had simply keyed in the wrong registration number. This is not mitigation, this is a fact that I submit cannot give rise to a PCN because it is not 'transparent' in the terms on signs/the P&D machine, that a correct VRN is an 'obligation' which runs such a risk and will be compared to the ANPR data for the purpose of imposing a charge.

The fact is, a BPA AOS operator is required to have transparent, fair and professional procedures including manual checks to identify such minor infringements. I require that the operator provides POPLA with a copy of their policy and proof that those checks were made in this instance. Further, I require proof that ''wrong VRN' is in fact incorporated into the contract from the landowner as a penalty-generating 'contravention' since I find it highly unlikely that the retailer/landowner allows this unfair fining of paying customers.

If it is not in the contract it is not a contravention that can give rise to a penalty.

In their rejection letter, Smart have failed to explain what manual checks were made or why they consider that enforcement is appropriate, nor whether the contract even allows a charge for 'wrong VRN'. Nor do they show in what terms it is made clear to the payee standing at the machine, that when making payment they have an obligation to input a correct vehicle VRN and run the risk of a punitive so-called 'parking charge' (unfairly set as a fixed sum at the same level as a non-payer) for that action alone.

This is an inappropriate parking charge which should have been cancelled on appeal. I remind Smart that operation and enforcement is not just about issuing PCNs and collecting money from hapless victims, regardless of any legitimate interest, reasonableness or appropriateness. In fact the BPA CoP mentions in the Introduction 'minimum standards' (suggesting they are set low) as well as the importance of 'acting in a professional, reasonable and diligent way' in issuing 'appropriate' parking charges:

2.6 By creating the Code the parking industry has set out the minimum standards by which you will be judged by anyone coming into professional contact with you. Members of the public should be able to expect that you will keep to the law, and act in a professional, reasonable and diligent way.

2.9 The Code and its appendices cover the operation of parking on private, unregulated land. This includes:
• designing and using signs
• using ANPR and associated systems
• appropriate parking charges.

And in the ANPR section:

21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action.

To any right-minded person's viewing, refusing an appeal from a genuine shopper who did pay and display is neither 'professional and reasonable' nor 'diligent'. Their own ANPR records show that there was no vehicle on site with the VRN I accidentally keyed in and as evidence, I was able to produce the ticket as proof that I paid but made an inadvertent error with the VRN, thereby showing that THIS ticket did relate to THIS vehicle and no other in the car park.

I submit that it was clear that it was not 'appropriate to take action' so the PCN should have been cancelled. I submit that to pursue a genuine shopper who paid & displayed is contrary to the wishes of the retailers/landowners and this PCN is unauthorised. As such, the parking charge cannot be considered 'properly given' at the point of inappropriately refusing my appeal.



2) 'Genuine customer' cancellation criteria unevidenced and not explained to drivers.

This parking operator offered parking to shoppers of the retailer, Matalan. It is not disputed that I was a genuine shopper at Matalan, which offers me certain rights and expectations which supersede any unfair 'parking charge'. I understand now, from my research of other cases, that this operator supplies a Site Manual (or similar policy document with their phone number) to all retailers which allows for 'genuine customers' to have their charges cancelled if the customer complains and show receipts.

It is noted that the terms on the signage fail to advise customers of their secret cancellation right, so visitors have no way of knowing these terms. This evidence is vital because the operator rejected our appeal, yet I have reason to believe the charge should have been cancelled.

Smart have made my position impossible at appeal stage by not telling me of my right to complain to the landowner/retailer to get the charge cancelled. To answer this, Smart must show that this information was made clear to shoppers on prominent signs inside and outside the store. And they must show their Site Manual/policy for retailers which sets out the criteria under which the parking enforcement operates from the retailers' informational point of view and the right to cancellation and any exemptions form a vital part of the landowner contract.

I contend that the occupants of the car did qualify for the PCN to be cancelled and if the operator disagrees I require sight of the full 'discretionary criteria' cancellation clause from the Site Manual/store parking policy which forms a vital part of their contract with the landowner and agreement with the retailers. This will need to be a true copy and show the circumstances under which the operator will cancel a charge for a genuine customer.



3) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner to evidence the definition of the services provided. This includes a list of grace periods, charges and all restrictions authorised where a parking charge can arise, as I do not believe they are authorised by the landowner to charge a paying customer for a mere VRN error.

The contract and any 'retailer agreement/Manual' setting out details including restrictions, charges and exemptions - such as any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge.

It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided and any cancellation rights offered to genuine shoppers.

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

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.



4) The signs in this car park are not prominent, clear or legible from all parking spaces and although the parking fees/tariffs are in large lettering, there is insufficient notice of the sum of the punitive 'parking charge' itself

There was no contract beyond an agreement to pay a tariff, which I did. There was no agreement whatsoever on the penalty 'parking charge'. It is submitted that I did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion to the parking tariffs 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, the signs are sporadically placed, far too high and some are obscured by foliage and/or high-sided delivery lorries. The 'parking charge' is not listed in the same large font as the fees/tariffs at the machine so the risk of paying a huge amount more later on for a minor 'transgression' is not drawn to drivers' attention.

They are unremarkable and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. 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 paying/displaying and leaving the car.

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 which is hidden in small print (and does not feature at all on some of the signs). 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, nor could learn about the 'parking charge' when reading about the tariffs.

Evidence shows that the terms appear to be displayed inadequately, in letters no more than about half an inch, to one 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 an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in 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 to be able to read the terms.

One wonders why the tariffs are in larger font than the 'parking charge' except as entrapment, which fails Lord Denning's Red Hand Rule for onerous terms which are required in contract law, to be: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms and parking charge itself 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 next to the P&D machine, or even as a warning message on the P&D machine itself which flashes up and warns of the huge implications of a wrong VRN, before using the keypad.

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 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 they were obscured/not adjacent to the car and could not have been seen and read by the driver 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. Including photos of the P&D machine screen and tariff signs, to evidence whether the 'parking charge' meets Lord Denning's 'red hand rule'.



5) The signs do not state what the ANPR system data will be used for.

The BPA CoP contains the following in paragraph 21:

''Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.''

Smart Parking fail to tell drivers that the ANPR data will be compared to any VRNs input into the P&D machine and will then be used to issue 'parking charges' for any case where there is a VRN omission or error. If I had known this vital fact, I would have thought twice before inputting the VRN in error. As I did NOT know this, I cannot be deemed bound by the terms.



6) The 'ParkingEye v Beavis' case exposes this charge as unconscionable, with no overriding 'legitimate interest' to save it from offending against the penalty rule.

The Supreme Court made it perfectly clear that the judgment was not a silver bullet which justifies all parking charges. Indeed, cases which are not about a free parking licence but involve a simple financial transaction (e.g. paying a tariff and putting in a VRN) were said at the Court of Appeal stage to be likely to fall foul of Lord Dunedin's four tests for an unenforceable penalty.

Smart Parking should be well aware that the circumstances of the Beavis case were entirely different. In this case, we have an authorised user (genuine shopper) using the car park appropriately where there has been no loss to the owner and no abuse of a parking space, nor any overstay.

While the courts might hold that a large charge might be appropriate in the case of a 'free stay' car park, essentially as a deterrent to overstaying, there is nothing in the case to suggest that a reasonable person would accept that a £85 penalty is a conscionable amount to be charged for the simple problem of a VRN error which was explained and accompanied in good faith at appeal stage, by proof of pay & display.

In this case the vehicle would have been fully entitled to park as it did had the VRN been correctly keyed in (provided that obligation had been clearly brought to the motorist's attention). The justification and 'legitimate interest' that was held to rescue the 'ParkingEye v Beavis' charge is irrelevant and conspicuously absent. The Operator cannot argue that a 'legitimate interest' exists to punish shoppers for accidentally inputting a wrong VRN on a single occasion, yet using the car park for exactly the purpose intended by the retailer and for no more than the paid-for time.

The Beavis case is not comparable and does not supersede any considerations of the specific facts in this case. It is certainly likely that the courts would say it is undoubtedly 'unconscionable' to penalise a shopper who has proved they paid and displayed, at the same level as (for example) a non-shopper trespasser, who parked all day across two bays without paying any tariff.

This charge issued to me as a paying driver is clearly capable of being held by the courts as an unenforceable penalty. This view is supported by the judgment of the Supreme Court, which did not disagree with the earlier judgment from the Court of Appeal in 'Parking Eye v Beavis' which held:

"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 by one party or the other...

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...

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) 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.”

This judgment makes clear that the Court of Appeal (and by definition, the Supreme Court which agreed) would also consider the charge in this case to offend against the penalty rule which all Judges agreed WAS 'engaged' by a contract attempting to enforce a parking charge. 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.

The purported contract with the motorist is an ordinary 'financial contract' where the loss that Smart thought had arisen (non-payment of a tariff) is easily calculable. Without intellectual dishonesty, it cannot be argued that there is a commercially or socially justifiable deterrent value in this charge, especially as soon as Smart knew that in fact, I paid and displayed.

Any putative contract needs to be assessed on its own merits as regards what would be deemed 'out of all proportion' to the tariff paid and 'unconscionable' given the circumstances. Consumer law always applies and no contract “falls outside” The Consumer Rights Act 2015; the fundamental question is always whether the terms are fair.

In this case the specific question is whether a reasonable person would, when parking in a place where they had paid the correct tariff for the privilege, also accept a further unknown liability in the case of a VRN error (that they were not informed was vital nor ran the risk of a huge fine). I would suggest that a court would not accept that £85 was a reasonable amount given these specific circumstances.

Although the charge was the same sum, the Beavis case was 'entirely different' and does not save the charge in this case, from being held to be unconscionable. This is an unenforceable penalty and cannot be upheld as properly given.

shazam14

Yes they must have rubbed their grubby hands with glee once they saw my registration number on the receipt attached to the appeal. I thought about replying to the second letter denying all knowledge of the incident as you cannot see my face on the ANPR photo, but once you start lying you go down a tricky path IMO. As you said if the appeal fails I'm still not going to pay it!

Thanks a lot for your reply, excellent points about the ANPR transparency and genuine customer cancellation.

I'll let you know how I get on and (hopefully) post the decision in the successful appeals thread!