P4parking POPLA - admitted liability

mnkut

Fruitcake wrote: »

You have already been told that you cannot use point 4 as the driver has been identified.

I suggest you replace it with, not the landowner.

Show us the draft appeal before you send it.

apologies, removed!
will share draft shortly.

Any suggestions on how I should include the point on 'Excess Charge' terminology used Coupon-Mad made?

Fruitcake

mnkut wrote: »

apologies, removed!
will share draft shortly.

Any suggestions on how I should include the point on 'Excess Charge' terminology used Coupon-Mad made?

I suggest you look up the latest version of the BPA CoP with regard to charges, and wording allowed/not allowed, then explain how the wording on the sign breaches the CoP.
You should also mention how the charge is not prominent and is in tiny font unlike the signs in the Beavis case. You will need to refer to the Beavis case to show that your case is dissimilar.

Examples of appeal points can be found in the most recent successful appeals in the POPLA Decisions thread, and there are now several template appeal points in the NEWBIES thread.

mnkut

Fruitcake wrote: »

I suggest you look up the latest version of the BPA CoP with regard to charges, and wording allowed/not allowed, then explain how the wording on the sign breaches the CoP.
You should also mention how the charge is not prominent and is in tiny font unlike the signs in the Beavis case. You will need to refer to the Beavis case to show that your case is dissimilar.

Examples of appeal points can be found in the most recent successful appeals in the POPLA Decisions thread, and there are now several template appeal points in the NEWBIES thread.

Great, thanks for the guidance.
I have done as you have suggested!

Draft posted below

mnkut

Draft POPLA Appeal
The bulk of my arguements are made within points 1 & 2 related to signage, where I have used Coupon-Mad's template and made points specific to this case.

EDIT! additional arguement added.

Appreciate all comments and guidance, thanks all!

Dear POPLA adjudicator,

I am writing to appeal against a parking charge (XXX) levied by P4Parking on XXX for the vehicle: XX.
I submit the grounds for my appeal below:
1. Not prominent signage and incorrect wording usage from all car park spaces
2. The signage was not readable in the dark, therefore no valid contract was formed
3. No standing or authority to pursue charges nor form contracts with drivers
4. The charge is unconscionable


1) 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:




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:



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.



The signage actually misstates the charge sum as £65 rather than £60 as stated on the windscreen ticket. That itself should render the signage and alleged contract formed invalid.

Contrastingly to the Beavis case the charge is stated in the smallest font right at the bottom of the sign. Referencing it as an 'Excess charge', which is a Council term under byelaws (like the word 'penalty') therefore should not be used as it misleads consumers, giving the impression of authority P4Parking do not have, contrary to the BPA CoP. The multiple relevant terms within BPA CoP that P4Parking is in breach of is outlined below:

20.5c You should not use wording on your plastic PCN envelopes which implies that you are acting under statutory authority. For example phrases such as ‘It is an offence to remove …..’, should be avoided.

21.3 The Code does not cover on-street or off-street car parking control and enforcement led by local authorities and regulated by, for example:
• the Road Traffic Regulation Act 1984
• the Road Traffic Act 1991
• the Traffic Management Act 2004.
These are covered by detailed statutory control and regulation and can include:
• immobilisation
• removal of vehicles
• issuing penalty charge notices and excess charge notices.

14.2 You must not use terms which imply that parking is being managed, controlled and enforced under statutory authority. This includes using terms such as ‘fine’, ‘penalty’ or ‘penalty charge notice’.

Below, the signs are sporadically placed, indeed obscured and hidden in some areas (see below).



They are unremarkable, not immediately obvious as parking terms 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 parking and leaving the car.

Signage has also been placed in areas which are obstructed by parked vehicles and shrubs. Which appears like signage that's more aimed for catching drivers out than enabling adhered to parking practices. Evidence below:



Furthermore the tiny numbering signage to signify permit holders parking bays, could have been obscured by anything including a few leaves, vehicles own tyre, another vehicle etc. There is no other signage in the immediate surrounding area to identify such bays as permit holder only bays.

Nor is there any wording on the signage above that states how permit holder bays are identifiable to car park users.




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.

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.


2) The signage was not readable in the dark therefore no valid contract was formed

The signage available were both insufficiently lit (or not at all in some instances) and shrouded in darkness thus impossible to read around 20:34 during October (sunset was at: 17:48 on 24/10/2016) when the alleged contravention was observed. It is the obligation of P4Parking to provide signage that communicates the full contractual terms & conditions in a manner that is visible both during hours of light and darkness, particularly given that the car park operates 24 hours a day.

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; this would include the signs being lit. For example some private parking firms place their signage on lamp posts or fit lamps above their signs, in order to provide suitable lighting that makes their terms legible.

However in P4Parking's case they have placed signs on walls and under balconies (see evidence below) which could even create shadows during when the sun is setting or facing a differing direction.


I would provide photo evidence below to illustrate an example of P4Parking's signage, however it would be a pitch black photo.

Instead I implore P4Parking to note a source of lighting i.e. lamps in the dark on any of the signage photo evidence taken at multiple locations around the car park, that makes any of the signage legible. I believe this demonstrates potentially a deliberate attempt on P4Parking's behalf to not place their signage in vicinity of lighting or adequately provide lighting themselves.

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. The only charges the driver knew about were the small sums mentioned on the pay and display machine. 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.

Any photos supplied by P4Parking to POPLA will no doubt show the signs in daylight (unreflective of when the alleged contravention occurred during hours of no sunlight) or with the misleading aid of flash light. As such, I require P4Parking to show contemporaneous photo evidence of these signs in the dark without the aid of flash photography as proof for adequately clear signage.


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

As P4Parking Ltd. does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. This has to date not been produced by the operator nor within their rejection statement, therefore I have no proof that such a document is even in existence.

The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or 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 such as P4Parking 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 by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

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

I therefore put P4Parking to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between P4Parking Ltd and the landowner. This is required so that POPLA and myself can check that it allows this operator to make contracts with drivers themselves and provides them with full authority to pursue charges, including a right to pursue them in court in their own name.

4) This charge is unconscionable and offends against the penalty rule which was 'plainly engaged' in the case of ParkingEye Ltd v Beavis

The operator makes much of the Beavis case, yet they are well aware that the circumstances of the Beavis case were entirely different. Essentially, that case was about the abuse of a free, time-limited public car park where signage could be used to create a secondary contract arising from a relevant obligation and where there was a 'legitimate interest' flowing from the landowner, in charging more than could normally be pursued for trespass.

In this case, we have an authorised user using the car park appropriately and there has been no loss nor detriment caused to the owner. While the courts might hold that a large charge might be appropriate in the case of a public car park, essentially as a deterrent, there is nothing in the case to suggest that a reasonable person would accept that this 'fine' is a conscionable amount to be charged under these circumstances.

At the Supreme Court in Beavis, 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… ''

This is NOT a 'more complex' case by any stretch of the imagination. At 32 in the Beavis decision, 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.''

Therefore, any putative contract needs to be assessed on its own merits. Consumer law always applies and no contract “falls outside” The Consumer Rights Act 2015; the fundamental question is always whether the terms are fair:

http://www.legislation.gov.uk/ukpga/2015/15/schedule/2/enacted

- Schedule 2: 'Consumer contract terms which may be regarded as unfair':
’’A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations…’’
''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.''

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 does NOT supersede other defences. It turned on completely different facts and related only to that car park with its own unique complexity of commercial justification. This case is not comparable.

In this case the specific question is whether a reasonable person would agree to a term where parking in a place that they enjoy rights of way and easements and pay a significant rent for the privilege of peaceful enjoyment would also accept a further unknown/not agreed liability. I would suggest that a court would not accept this is reasonable and indeed my next appeal point shows that a Senior Circuit Judge in a 2016 appeal case supports my view.

I gratefully request that my appeal is allowed.

Umkomaas

Where's the Jopson case argument? And there are other residential judgments to argue too - as blogged over the past couple of months by the Parking Prankster.

The point you make about unlit signage applies primarily when the motorist parked at night and a ticket was issued for that time span. Is your case the same, i.e. a night-time ticket?

Did you use the appeal templates from post #3 of the NEWBIES sticky, which are pre-written, carefully word crafted and have won appeals?

mnkut

Umkomaas wrote: »

Where's the Jopson case argument? And there are other residential judgments to argue too - as blogged over the past couple of months by the Parking Prankster.

The point you make about unlit signage applies primarily when the motorist parked at night and a ticket was issued for that time span. Is your case the same, i.e. a night-time ticket?

Did you use the appeal templates from post #3 of the NEWBIES sticky, which are pre-written, carefully word crafted and have won appeals?

hello! thank you for your reply.

1) residential arguments is not included because the driver nor keeper are owners of any bays within the car park. the driver was visiting friends and cannot get access their friend's tenancy agreements.
Not sure what else I could include re Jopson's with the above limitations?

As I understand Jopson's case it was found that the parking company could not override the tenant's right to temporarily stop near the building entrance for loading/unloading. I couldn't see how I could make this strictly applicable in this case?

I thought to add in Pace v Mr N [2016] C6GF14F0 - found that the parking company could not override the tenant's right to park by requiring a permit to park. However the driver was not a tenant of the property/land.

2) yes the ticket was issued around 8:30pm in hours of darkness

3) yes I used the appeals template and added in further details to make it case specific, especially as this case had seriously woeful signage I thought it would make sense to break down this argument a little further.

Umkomaas

The Jopson case and how you use it was highlighted by Coupon-mad in post #5.

There are a number of PP blogs covering the fact that a tenants existing rights cannot be over ridden by a third party contractor. You must argue that these rights extend to permitted visitors of the tenant.

The argument that the signage was not illuminated needs to be supplemented by describing the time of night the parking and ticketing took place. Do you have photos of the signage taken in the dark at around the same time as the parking, to show its unreadability? If not, can you get some (obviously with flash disabled).

mnkut

Umkomaas wrote: »

The Jopson case and how you use it was highlighted by Coupon-mad in post #5.

There are a number of PP blogs covering the fact that a tenants existing rights cannot be over ridden by a third party contractor. You must argue that these rights extend to permitted visitors of the tenant.

The argument that the signage was not illuminated needs to be supplemented by describing the time of night the parking and ticketing took place. Do you have photos of the signage taken in the dark at around the same time as the parking, to show its unreadability? If not, can you get some (obviously with flash disabled).

1) Ok I will review this point. any guidance on how I must argue the extension of these rights to permitted visitors of a tenant?
So far I've only seen what to do if you are the owner.

2) I have developed the description to include the sunset time on the day ticket was issued (about 3 hours after sunset). I can get photos but it's literally pitch black without flash usage. I can film this instead?
I've also noted for the adjudicator to see there are no light sources i.e. lamps around any of the signage photos provided that are taken during daylight. Will this not suffice?

Thanks for your help

mnkut

this is my final POPLA edit, deadline is tomorrow.
feeling nervous as I think I may not have enough arguments. but I do think the winning point will be signage as it's just outrageous.
So maybe I should develop that point even further?

I've added in Jopson, although I cannot get access to the tenant's tenancy agreement/lease terms to knowledgeably argue whether easements for visitors apply.

All points I've developed have been marked in bold for your quick review.

I submit the grounds for my appeal below:
1. Not prominent signage and incorrect wording usage from all car park spaces
2. The signage was not readable in the dark, therefore no valid contract was formed
3. No standing or authority to pursue charges nor form contracts with drivers
4. The charge is unconscionable
5. Charge is incompatible with terms under lease


1) 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:




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:



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.



Firstly the signage actually misstates the charge sum as £65 rather than £60 as stated on the windscreen ticket. That itself should render the signage and alleged contract formed invalid.

Contrastingly to the Beavis case the charge is stated in the smallest font right at the bottom of the sign. Referencing it as an 'Excess charge', which is a Council term under byelaws (like the word 'penalty') therefore should not be used as it misleads consumers, giving the impression of authority P4Parking do not have, contrary to the BPA CoP. The multiple relevant terms within BPA CoP that P4Parking is in breach of is outlined below:

20.5c You should not use wording on your plastic PCN envelopes which implies that you are acting under statutory authority. For example phrases such as ‘It is an offence to remove …..’, should be avoided.

21.3 The Code does not cover on-street or off-street car parking control and enforcement led by local authorities and regulated by, for example:
• the Road Traffic Regulation Act 1984
• the Road Traffic Act 1991
• the Traffic Management Act 2004.
These are covered by detailed statutory control and regulation and can include:
• immobilisation
• removal of vehicles
• issuing penalty charge notices and excess charge notices.

14.2 You must not use terms which imply that parking is being managed, controlled and enforced under statutory authority. This includes using terms such as ‘fine’, ‘penalty’ or ‘penalty charge notice’.

Below, the signs are sporadically placed, indeed obscured and hidden in some areas (see below).



They are unremarkable, not immediately obvious as parking terms 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 parking and leaving the car.

Signage has also been placed in areas which are obstructed by parked vehicles and shrubs. Which appears like signage that's more aimed for catching drivers out than enabling adhered to parking practices. Evidence below:



Furthermore the tiny numbering signage to signify permit holders parking bays, could have been obscured by anything including a few leaves, vehicles own tyre, another vehicle etc. There is no other signage in the immediate surrounding area to identify such bays as permit holder only bays.

Nor is there any wording on the signage above that states how permit holder bays are identifiable to car park users.




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.

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.


2) The signage was not readable in the dark therefore no valid contract was formed

The signage available were both insufficiently lit (or not at all in some instances) and shrouded in darkness thus impossible to read around 20:34 during October (sunset was at: 17:48 on 24/10/2016) when the alleged contravention was observed. It is the obligation of P4Parking to provide signage that communicates the full contractual terms & conditions in a manner that is visible both during hours of light and darkness, particularly given that the car park operates 24 hours a day.

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; this would include the signs being lit. For example some private parking firms place their signage on lamp posts or fit lamps above their signs, in order to provide suitable lighting that makes their terms legible.

However in P4Parking's case they have placed signs on walls and under balconies (see evidence below) which could even create shadows during when the sun is setting or facing a differing direction.


I would provide photo evidence below to illustrate an example of P4Parking's signage, however it would be a pitch black photo.

Instead I implore P4Parking to note a source of lighting i.e. lamps in the dark on any of the signage photo evidence taken at multiple locations around the car park, that makes any of the signage legible. I believe this demonstrates potentially a deliberate attempt on P4Parking's behalf to not place their signage in vicinity of lighting or adequately provide lighting themselves.

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. The only charges the driver knew about were the small sums mentioned on the pay and display machine. 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.

Any photos supplied by P4Parking to POPLA will no doubt show the signs in daylight (unreflective of when the alleged contravention occurred during hours of no sunlight) or with the misleading aid of flash light. As such, I require P4Parking to show contemporaneous photo evidence of these signs in the dark without the aid of flash photography as proof for adequately clear signage.


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

As P4Parking Ltd. does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. This has to date not been produced by the operator nor within their rejection statement, therefore I have no proof that such a document is even in existence.

The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or 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 such as P4Parking 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 by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

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

I therefore put P4Parking to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between P4Parking Ltd and the landowner. This is required so that POPLA and myself can check that it allows this operator to make contracts with drivers themselves and provides them with full authority to pursue charges, including a right to pursue them in court in their own name.

4) This charge is unconscionable and offends against the penalty rule which was 'plainly engaged' in the case of ParkingEye Ltd v Beavis

The operator makes much of the Beavis case, yet they are well aware that the circumstances of the Beavis case were entirely different. Essentially, that case was about the abuse of a free, time-limited public car park where signage could be used to create a secondary contract arising from a relevant obligation and where there was a 'legitimate interest' flowing from the landowner, in charging more than could normally be pursued for trespass.

In this case, we have an authorised user using the car park appropriately and there has been no loss nor detriment caused to the owner. While the courts might hold that a large charge might be appropriate in the case of a public car park, essentially as a deterrent, there is nothing in the case to suggest that a reasonable person would accept that this 'fine' is a conscionable amount to be charged under these circumstances.

At the Supreme Court in Beavis, 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… ''

This is NOT a 'more complex' case by any stretch of the imagination. At 32 in the Beavis decision, 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.''

Therefore, any putative contract needs to be assessed on its own merits. Consumer law always applies and no contract “falls outside” The Consumer Rights Act 2015; the fundamental question is always whether the terms are fair:

http://www.legislation.gov.uk/ukpga/2015/15/schedule/2/enacted

- Schedule 2: 'Consumer contract terms which may be regarded as unfair':
’’A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations…’’
''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.''

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 does NOT supersede other defences. It turned on completely different facts and related only to that car park with its own unique complexity of commercial justification. This case is not comparable.

In this case the specific question is whether a reasonable person would agree to a term where parking in a place that they enjoy rights of way and easements and pay a significant rent for the privilege of peaceful enjoyment would also accept a further unknown/not agreed liability. I would suggest that a court would not accept this is reasonable and indeed my next appeal point shows that a Senior Circuit Judge in a 2016 appeal case supports my view.

5) This charge is incompatible with the rights under the lease - as decided by the Appeal case of 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016, which also held that the Beavis case does not apply to this sort of car park.

In Beavis it was held that the purpose of a parking charge must not be to penalise drivers. Justification must depend on some other 'legitimate interest in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question'. The true test was held to be 'whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest [...] in the enforcement of the primary obligation'.

There can be no legitimate interest in punishing authorised loading/unloading, under the excuse of a 'parking' scheme where ostensibly - and as far as the landowner is concerned - the parking firm is contracted for the benefit of the leaseholders/landholders/tenants. It is unconscionable, contrary to the requirement of good faith and 'out of all proportion to any legitimate interest' to issue a parking penalty for permitted unloading/loading by a driver who has legitimate business and rights to do so.

These rights supersede any signs, which are of no consequence except to deter rogue unwanted drivers from leaving their vehicles when they have no business on site. This is true of any residential or business car park where tenants/leaseholders (who may be individuals or businesses) enjoy legal 'rights of way' which extend to drivers permitted to load/unload. A third party cannot unilaterally alter the terms of a tenancy agreement or a lease, nor disregard easements and rights of way that prevail in such car parks (residential or industrial).

This question was tested recently in an Appeal case in June 2016 (transcript attached as evidence for POPLA*). Please note this is an Appeal case, decided by a Senior Circuit Judge and as such, its findings on the definition of 'parking as opposed to loading' and the findings on leaseholder/permitted visitor/loading/delivering rights of way superseding parking signs, are persuasive on the lower courts.

Beavis did not deal with any of these matters - nor was it relevant to a 'permit' car park - but the following case and transcript I have provided, is relevant and the Judge even states that Beavis DOES NOT APPLY to this type of car park:

Appeal case at Oxford County Court, 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016:

Sitting in Oxford County Court, Judge Charles Harris QC, found that Home Guard Services had acted unreasonably when issuing a penalty charge notice to Miss Jopson, a resident of a block of flats who parked in front of the communal entrance to unload furniture, rather than use her own parking space. After an initial appeal to the Independent Parking Committee was rejected, Home Guard Services sued Miss Jopson in the small claims court and won. Miss Jopson successfully appealed the case, her solicitors arguing that the charge was incompatible with the terms of the existing lease which also extended to certain rights for permitted visitors when loading/unloading. The Judge found that Laura Jopson and her fellow tenants (as well as people making deliveries or those dropping off children or disabled passengers) enjoy a right of way to the block’s entrance and that Home Guard Services’ regulations disregarded these rights. Home Guard Services were required to pay £2,000 towards the defendant's costs.

I also rely upon the Croydon Court decision in Pace Recovery and Storage v Mr N C6GF14F0 16/09/2016 (transcript attached as evidence for POPLA**).

District Judge Coonan dismissed the claim and refused leave to appeal, stating: ''I have to deal with this on the evidence that is before me now. I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that. It has got to be the other contracting party, Affinity Sutton, which amends the terms of the tenancy agreement to restrict the right to park on a place in circumstances in which a permit is displayed but that is not in this tenancy agreement and you as a third party cannot unilaterally alter the terms of the tenancy agreement.''

Coupon-mad

Yes, go with that, I think that's the best you can make it when a driver has been identified. Pretty strong - with the transcripts being uploaded as well as this PDF appeal, all under 'OTHER - and might cause P4Parking to give up.

Let us know if they contest as you will have a brief few days to comment on their evidence.

Oh, I did notice one word 'implore' which I would change to 'require'. No-one should be begging a PPC to do anything! Requiring them to do it is better.