Euro Car Parks POPLA appeal Final Draft - Please provide comments

Maadi2010

Hi everyone,

My vehicle was issued with a windscreen PCN on 15 August 2016 by Euro Car Parks. As registered keeper I submitted an appeal on 11 September 2016 (Day 27 as advised in newbie forum). A appeal rejection letter was received on 29 September 2016 advising appeal was rejected. This does not appear to be a notice to keeper so not sure if this should be treated as one.

I have read threads and threads about a POPLA appeal and would appreciate admins and experts alike to review and advise if it sufficient to challenge the PCN. Also grateful if you can advise if a section on genuine pre estimate of loss should be included, as am slightly confused as more recent threads sometimes say include it and some say do not. If I should some standard text would be gratefully received.

To summarise I sent the standard BPA letter to Euro Car Parks. In their response they have provided two photos of the vehicle 1 minute apart, with the front photo not containing the registration. They have also failed to address any points in my original BPA appeal letter.

My POPLA appeal is as follows:

I am the registered keeper and I wish to appeal a recent parking charge from Euro Car Parks. The charge is levied despite the driver not being identified.

POPLA is reminded that a registered keeper having been made aware of a ‘notice to driver’ CAN appeal at that stage and the fact that I chose to, cannot lawfully be taken to be an appeal from ‘the driver’. In fact, the driver has never been identified as not notice to keeper has been issued by the Operator.

I submit the points below to show that I am not liable for the parking charge:

1) There was no Notice to Keeper (NTK) received
2) No standing or authority to pursue charges nor form contracts with drivers
3) The Operator has failed to provide evidence of the alleged contravention and adequate evidence of said contravention taking place
4) The charge of £100 plus £1.50 for card payment exceeds the appropriate amount specified in law
5) The minimum grace period was not allowed by the Operator
6) Lack of signage - unclear signage – no contract with driver - no adequate notice of the charge, maximum stay nor grace period.
7) The charge is not supported by the ParkingEye vs Beavis decision

1) No Notice to Keeper = no keeper liability possible. Driver not identified = no driver liability possible.

By failing to serve a 'Notice to Keeper' Euro Car Parks have not fulfilled the second condition for keeper liability and subsequently not complied with the fundamental requirements set out in POFA 2012. As a result, Euro Car Parks have no lawful authority to pursue any unpaid parking charges from the registered keeper. I cannot be held/assumed liable under any applicable law.

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:
''Right to claim unpaid parking charges from keeper of vehicle: 4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if (a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4: 6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’

A NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which the notice to driver was given. As Euro Car Parks have evidently failed to serve a ‘notice to keeper’ they have consequently failed to meet the second condition for keeper liability.

Furthermore, no assumptions can be made by POPLA nor parking operators, that 'driver liability' is possible in this situation just because I appealed as registered keeper, as is my right, following a 'notice to driver'. Henry Gleenslade, the previous Lead Adjudicator stated that it is the keeper’s right not to name the driver, and of course still not be lawfully held liable, under Schedule 4.

“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver.”

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle as they have not met the critical conditions within Schedule 4 of the Protection of Freedoms Act (POFA) 2012. As the registered keeper, I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a registered keeper without a valid NTK. Thus in this situation, Euro Car Parks have neither complied with, nor met the keeper liability requirements and thus there is no keeper liability.

Furthermore the paramount importance of compliance with POFA 2012 was confirmed by Mr Greenslade, the POPLA Lead Adjudicator in his 2015 POPLA Report: ''If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

2) No standing or authority to pursue charges nor form contracts with drivers

I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name.

The Operator has supplied no evidence to prove that it had authority to pursue charges on this land. The Operator has no proprietary interest in the land and had no standing to make contracts with drivers in their own right, nor to pursue charges for breach in its own name.

POPLA may reasonably conclude that the Operator has no such right.

In addition, Section 7.3 of the CoP states:

“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 question Euro Car Parks Limited’s authority from the landowner, to enforce parking charges regarding alleged breaches at this car park.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Euro Car Parks Limited to strict proof of the contract terms with the actual landowner (not a lessee or agent who has no more title than the operator). I question Euro Car Parks Limited’s legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in neither 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 on behalf of a principal. No evidence has been supplied lawfully showing that Euro Car Parks Limited is entitled to pursue these charges in their own right in the courts which is a strict requirement within the BPA CoP. I suggest that Euro Car Parks Limited are certainly not empowered by the landowner to sue customers and visitors in a free of charge enormous car park and that issuing 'PCNs' by post is no evidence of any right to actually pursue charges in court.

I therefore put Euro Car Parks to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between the operator and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights which have been properly assigned to Euro Car Parks.

I require Euro Car Parks Limited to provide a full copy of the contemporaneous, signed & dated contract with the landowner showing evidence to meet 7.3 of the CoP. In order to comply, 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.

3) The Operator has failed to provide evidence of the alleged contravention and adequate evidence of said contravention taking place

The BPA Code of Practice point 20.5a stipulates that:

"When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorized way. The photographs must refer to and confirm the incident which you claim was unauthorized. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."

The Operator has submitted inadequate evidence to support it’s request for payment for an alleged contravention. The operator alleges it issued a PCN because the vehicle did not display a valid Pay and Display Ticket in the windscreen. To support this the Operator has provided a photo of the vehicle’s windscreen with a PCN attached. I would like to point out in this photo the vehicle is not identifiable as the Operator has not taken the photo to include the vehicle registration therefore it cannot be stated this vehicle did not have a valid pay and display as the vehicle cannot be identified from this photo. I would also like POPLA to consider that the photo includes other areas of the car park and no where is any signage seen to show the Operator’s contract or costs associated with this car park.

The Operator has stated in the appeal letter that the PCN was issued on 15 August 2016 at 07:44. The Operator has failed to specify what length of time this vehicle parked at this car park and provide any evidence to support this. The two photos provided by the Operator show the front of the vehicle (minus the vehicle registration) at 07:45:13 and a photo of the rear of the vehicle at 07:45:31.

As Keeper I cannot discount that during this sub 1 minute difference in photos, the driver had left the vehicle to purchase a valid pay and display ticket. I as keeper cannot also discount the Euro Car Park Warden is neither reliable nor accurate as the first photo provided could be of a similar vehicle and not the said vehicle, as without the vehicle registration in the first photo of the front of the vehicle it is impossible to identify the vehicle.

4) The charge of £100 plus £1.50 for card payment exceeds the appropriate amount specified in law

Euro Car Parks' PCN informs me that any card payment costs an extra £1.50. Arbitrary extra charges are banned under the POFA 2012, the Consumer Contracts (Information, Cancellation & Additional Payments) Regs 2013 and the Consumer Rights (Payment Surcharges) Regulations 2012.

POFA 2012 states:
Right to claim unpaid parking charges from keeper of vehicle:4 (5) ''The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper...(less any payments towards the unpaid parking charges which are received after the time so specified).''

The CC(ICAP) 2013 Regs state:
Additional payments under a contract
(40).—(1) ''Under a contract between a trader and a consumer, no payment is payable in addition to the remuneration agreed for the trader’s main obligation unless, before the consumer became bound by the contract, the trader obtained the consumer’s express consent.''

There was no 'express consent'.

The Consumer Rights (Payment Surcharges) Regs prohibit excessive charges:

(4).A trader must not charge consumers, in respect of the use of a given means of payment, fees that exceed the cost borne by the trader for the use of that means.

£1.50 is not a true cost for accepting a payment by credit or debit card. The cost is much lower and differs based upon the amount paid (£60 or £100 should attract different card payment charges) and differs for debit cards compared to credit cards:

''Banks charge various fees depending on factors like the degree to which you may be subject to credit card fraud and the overall value of card transactions. Expect different charges for debit and credit cards. You will pay a monthly fee to rent the payment terminal. You will also pay a charge for each transaction - this will be anything from a few pence to 6% of each transaction.''

5) The minimum Grace Period was not allowed by the Operator

British Parking Association Code of Practice 13.1 – 13.4 states:
13 Grace periods
13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without
having their vehicle issued with a parking charge notice.
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still
allow them a grace period to read your signs and leave before you take enforcement action.
13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.
13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end
of the parking period should be a minimum of 10 minutes.

Also, 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." (18.5).

In this case, Euro Car Parks have not recorded the time(s) when the car entered or left the car park, neither have they provided sufficient evidence of how long the car was parked for. At the time the driver was unable to consider the terms of the contract, which were difficult to read at the time due to the extremely small print of the sign and decline the offer. The mention of a minimum of 10 minutes is exactly this, a minimum. The time needed to complete all these actions are dependent on a number of wildly varying factors, including traffic, lighting conditions, driver’s eyesight and driving ability and mental faculties. For this reason, a minimum amount is specified, but the maximum time allowed for these tasks to be completed are not.

Further to this, the signage makes no indication of how long a driver may be on the site before a parking penalty will be charged. This leaves the driver uncertain to the terms of the contract, which means that there was no full acceptance of the contract to be breached.

According to the British Parking Association Ltd (“BPA”) Code of Practice, a period of 10 minutes is not adequate. The Code of Practice stipulates the following:

Paragraph 13.2: you should allow the driver a reasonable “grace period” in which to decide if they are going to stay or go.

Paragraph 13.4: you should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the grace period at the end of the parking period should be a minimum of 10 minutes.

Although Paragraph 13.2 does not specify what constitutes a “reasonable grace period” for a motorist to decide whether to stay or go, this grace period begins when the vehicle enters the car park entrance and must cover:

a) the time to drive into the car park and locate a parking space
b) the time to manoeuvre the vehicle into the parking space (once a space has been located)
c) the time for a driver to locate and walk to the nearest car park sign to the parking space
d) the time taken to read and understand all of the conditions contained on the car park sign; this includes having to read all of the “small print” on the sign.

The BPA Code of Practice considers it reasonable to apply a grace period of a minimum of 10 minutes for a motorist to leave the car park at the end of the parking contract (i.e. for the motorist to get into their vehicle, manoeuvre out of the parking space and drive out of the car park).

Given that more processes are involved in the period before the parking contract is formed (e.g. finding a parking space, locating a car park sign and then reading and understanding the terms on the sign), it is reasonable to conclude that the grace period before the establishment of the parking contact must be more than the minimum of the 10 minutes specified by the BPA Code of Practice as the grace period after the parking contract has ended.

Thus the overall grace period required under the BPA Code of Practice must be more than 20 minutes.

Given that the vehicle was alleged to be in the car park for just a few minutes, the Operator should not have issued this Parking Charge Notice. I remind POPLA the Operator has failed to provide documentary evidence to demonstrate the vehicle in deed was in the car park for any length of time, simply submitting two photographs timed less than one minute apart.

6) Lack of signage - unclear signage – no contract with driver - no adequate notice of the charge, maximum stay nor grace period.

The entrance signage was not suitably placed to be read from a distance for a driver in an approaching car whilst manoeuvring into the car park and many of the words are in a small font and are not legible or intelligible.

The BPA Code of Practice states that- “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 their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm. “

There were no conspicuous signs throughout the site, and the signage at the pay machines contains texts so small as to be unintelligible, furthermore I put Euro car Parks to strict proof otherwise, As well as a site map they must show photographs of the signs as the driver would seem them on entering the car park bearing in mind that they may be completely unfamiliar with the area, the approach to the car, the entrance to the car park, or the layout of the car park. A Notice is not imported into the contract unless brought home so prominently that the party ‘must’ have known of it and agreed terms. If the driver did not notice any signs; there was no consideration/acceptance and no contract agreed between the parties. Furthermore as stated (point #5) a suitable grace period must be allowed for the driver to find a suitable parking space, find the signs containing the parking terms, (should they be easily located), decide whether to accept these terms and leave the car park in a safe manner.

Furthermore the driver has not been identified and I have no obligation to assist an operator in this regard, even if I was certain which of several drivers could have used the car that day. As liability for this charge depends entirely upon this operator fulfilling all requirements of Schedule 4, it is mandatory that the driver(s) are unambiguously and clearly informed of terms and the parking charge itself:

(3) ''For the purposes of sub-paragraph (2) “adequate notice” means notice given by — (b)...the display of one or more notices which—

(i) specify the sum as the charge for unauthorised parking; and

(ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.''

In fact, their signs are not visible from a car seat before parking and the words are completely unreadable and incapable of forming a contract before the act of parking (it is trite law that afterwards - after parking in this case - is too late).

The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver.

The £100 sum on the yellow sign shown in the Euro Car Park’s letter is completely unreadable. The £100 is in such a small font that it seems to be at least half the size of the font used for the tariffs. Any reasonable driver looking at that sign, either inside or outside of their car, would conclude that the highest possible charge is £6.50. No driver could be held to have read about the £100, on the balance of probabilities.

The sign is also incapable of creating any 'relevant obligation' or 'relevant contract' being the basic requirements leading to the possibility of 'keeper liability' under Schedule 4 of the POFA.

In the Beavis case, the Supreme Court Judge concluded that signs must be in 'large lettering and prominent' and very clear as to the terms by which a driver will later be bound. No comparable legitimate interest nor clear prominent signage terms – the case is a simple economic transaction (re a quantified tariff) which can be differentiated from the 'entirely different' complex contract in ParkingEye-v-Beavis

I have made my detailed submission to show how the applicable law (POFA), the BPA Code of Practice and case law (Beavis) undoubtedly supports my appeal, which I submit should now be determined in my favour.


7) The charge is not supported by the ParkingEye vs Beavis decision

In addition to the above points, my appeal is supported, not undone, by the ParkingEye-v-Beavis decision.

The reference in the Beavis case, to the need for clear, unambiguous terms and the parking charge and restrictions being copiously displayed and in 'large lettering' assists my position. Each case must turn on its own facts and much depends upon how an operator presents its own case because every car park and every charge and documents and dates and facts and interests, are different. In this instance, as has been established above, the signage in the car park is less than clear to someone upon entering the area, antithetical to the terms laid out by the Beavis case.

Similarly, the car park in question in the Beavis case was free. Distinctively, the car park that relates to this PCN from Euro Car Parks is Pay & Display. Hence, the parameters of each case differ significantly. The terms ruled in the ParkingEye-v-Beavis case cannot therefore be applied against the registered keeper in this instance.

Umkomaas

My vehicle was issued with a windscreen PCN on 15 August 2016 by Euro Car Parks. As registered keeper I submitted an appeal on 11 August 2016 (Day 27 as advised in newbie forum). A appeal rejection letter was received on 29 September 2016 advising appeal was rejected. This does not appear to be a notice to keeper so not sure if this should be treated as one.

Your dates are askew here - the date of the parking incident is showing as after the date of your initial appeal. If the parking incident date was 15/8, then the 56 days to serve a compliant NtK have not yet expired and you will need to delay your POPLA appeal (subject to their deadline) until after the 56th day.

Of late, Coupon-mad has been developing some near-template POPLA appeal points, all of which I've bookmarked. So for ease I will copy the list of links BUT you must go through each template and very carefully check it makes sense in the context of your PCN.

Signage

http://forums.moneysavingexpert.com/showpost.php?p=71285691&postcount=2341

Driver Liability

The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

http://forums.moneysavingexpert.com/showpost.php?p=71287626&postcount=2342

Landowner Authority

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

http://forums.moneysavingexpert.com/showpost.php?p=71287628&postcount=2343

No Keeper Liability (windscreen ticket, no follow on NtK)

Example for cases where the PPC issued only a windscreen PCN but did not follow it with a NTK:

http://forums.moneysavingexpert.com/showpost.php?p=71287643&postcount=2345

In the context of Beavis, here is a very good dismantling of the case in the context of a P&D car park. Important you get in the point about the earlier Appeal Court judgment which was not over-ruled by the later Supreme Court judgment.

http://forums.moneysavingexpert.com/showpost.php?p=71071381&postcount=15

GPEOL - virtually dead in the water following Beavis, there's no point in including this in your POPLA appeal as in the past it seems once an assessor spots GPEOL, they reach for the computer shortcut to a standard text block which essentially dismisses it on the back if Beavis and sees your appeal rejected. Leave it alone.

Maadi2010

Hi Umkomaas,

Sorry for my error. That date should read 11 September 2016 and I have corrected. Thank you so much for the links. I will return to my draft and update with information under those links from Coupon-mad.

A huge thanks to Coupon-mad also as the defence I have made so far is 99.9% based on comments and help you provided to others on here.

Maadi2010

Hi Umkomaas and other users,

I am reviewing the text in the link where the person mentions the Appeal Court judgement not late over-ruled by the Supreme Court. I am unsure which parts to retain and how to apply to my specific case. Would anyone be able to help. I have copied the section below exactly as presented in the thread:

6) 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.

Would be very grateful editing this for my needs.

Thanks everyone.

Umkomaas

If you remove the paragraphs/sentences (top and bottom of this appeal section) relating to keying in of the VRM and the bits about disabled/elderly driver, then it looks to me to be sufficiently generic to cover most P&D scenarios.

But, you know your case far better than I do, so if after making the above suggested alterations you feel that somehow your case still doesn't fit with it, come back and explain why you believe this to be the case. We can take another look then, once you've pinpointed the specific issue.

UnconsciouS

In a case I recently advised on, it was clear that Euro Car had calibrated and placed sign in the car park to create mistakes.

Q: Why are their huge amount of small print placed on signs which are so high that a person seated in a car couldn't possible read them?

A: To cause the driver to park the car BEFORE he becomes aware of the terms and conditions of the 'contract'. This is dishonest trading. How can the law support any contract where a person does not know the terms until after the contract has started?

It was not only the case that the driver had not known the terms, but that if she had, she was already too late to do anything about it - she was already parked. No time was stated in the terms and conditions for reviewing the terms of the 'contract', therefore the car park was not charging a parking fee, but an entrance fee.

Any car entering and reviewing the contract had already been bound by it's terms (in the mind of Euro Car Parks). This was entrapment. The car park was a venus fly trap. Euro Car Parks cancelled the charge but if the driver had gone to court I'm sure she would have been entitled to compensation for the harassment and costs. IANAL

Umkomaas

^^ Good points ^^

Coupon-mad

therefore the car park was not charging a parking fee, but an entrance fee.

I like that wording!

Works for ParkingEye honey trap sites too and if you do not know you are being charged an entrance fee, then you have not agreed to it.

UnconsciouS

Yes. Also, the 'entrance' fee should have been displayed at the entrance - there was no signage at the entrance at all. A camera had already taken the registration number before any signage became visible. This means that Euro Car Parks were collecting data from people who they had no contract with. A breach of data protection law?

In fact, upon investigation, I found that every car entering this private land, according to the rules, could have been charged the maximum amount. The rules said, "you must park within the marked bays". As there were no marked bays - every car present was guilty?

Finally, if you broke the ECP rules, they claimed that a "£70 Parking Charge Notice" could be issued. No it couldn't. The notice is an invoice - not a fine. You cannot issue an invoice for an amount that was not originally listed as a charge and agreed in advance - prior to service commencing. £70 is simply a charge for parking if you do not pay for parking in advance. As such, it should be listed as a charge among the other charges.

Euro Car Parks intimidate customers by mimicking "an authority". Their stance is to appear to be issuing a fine 'as if' they held such a power but without explicitly saying so. They use the techniques of the state to scare people into paying a 'slight of hand', contract retrospectively.

Also, research revealed that numerous people had been sent 'parking demands' by ECP because the council (who seem to own the land) had not passed to ECP the details of those with parking permits. Euro Car Parks still bullied those drivers even though they had known about the mistakes.

Harassment warnings to council officers who were 'accessories' and 'complicit' had to be suggested before Euro Car Parks gave up - but even so, many drivers are thought to have paid up due to the stress.

I suggest leaflets should be distributed in ECP car parks to drivers, to get them to share their stories of poor treatment and , to co-ordinate their response to these devious traders.

I am hearing stories from many areas but Kent County Council in particular seem to be 'turning a blind eye' to cheating by ECP operating on their behalf.