Popla Appeal -

Matthews82

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

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

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



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.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. 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.

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.

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


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


''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:


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

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

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

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

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

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

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


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

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

6) The signs fail to warn drivers of what the ANPR data will be used for, breaching the BPA CoP and the CRA and the CPUTRs.

Paragraph 21.1 of the British Parking Association Code of Practice advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The Code of Practice requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for.

These signs do not comply with these requirements because these car park signage failed notify the driver what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law.

Specifically missing (or otherwise illegible, buried in small print) is the vital information that the driver's arrival time would be calculated from a point in time on the road outside/at the boundary of the car park. It is not at all clear that the cameras are not for security but are there in order to calculate 'total stay' for the purpose of generating parking charges for profit of the operator.

In fact, any reasonable driver would believe that they are authorised to park and rely upon the time from when the car was stationary in one of the bays and that the contract begins between the parties then. The time before that is not parking time but a mere 'invitation to treat'; a period that only starts to be deemed a contract after the signs have been read and the driver decides to stay.

This is the normal, accepted meaning of a 'parking restriction', which would never include the time outside on the road, nor when driving slowly round pedestrians with surfboards nor the time at the end, queuing to exit.

In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms. This is confirmed within the Consumer Rights Act 2015 including: Paragraph 68: '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'.

and Paragraph 69: 'Contract terms that may have different meanings: (1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.'

I contend that the words 'maximum free stay' is vague and misleading. Omitting the word ‘Parking’ from the signage lures drivers into thinking that they can park on the site for 2hours. Nowhere on the signs does it state that the 2 hour free stay begins the second the car enters the site. This said, the driver could never guess that there ‘Stay’ is somehow back-timed to include a secret timing when the clock started (unbeknown to drivers) from their arrival in moving traffic from the road. Are drivers here meant to be psychic and look at their watch as they drive off the road? If they are then this must be transparently stated at that point, at the entrance.

Furthermore, the word ‘stay’ must be interpreted as ‘stationary’ and therefore you cannot ‘stay’ if you are moving. As I refer back to the point 1 I made above driving in and around the looking for a space and driving out through a busy car park is not ‘staying’.

Withholding material information from a consumer regarding the 'time when the clock starts ticking' and the commercial (not security) purpose of the ANPR cameras would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs) because the operator 'fails to identify its commercial intent':

http://www.legislation.gov.uk/uksi/2008/1277/contents/made

Misleading omissions: 6.—(1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—
(a) the commercial practice omits material information,

(b) the commercial practice hides material information,

(c ) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or

(d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,

and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.''

7) Unlawful Penalty Charge

As 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 is free for a maximum of two hours. The £70 charge is punitive and not any representation of any loss incurred.

8) Reference to ParkingEye vs Beavis

The Operator has attempted to relate their case to that of ParkingEye v Beavis, and to therefore justify their charge.
ParkingEye state: “It is well established that a valid contract can be made by offer, in the form of terms and conditions set out on the notice, and acceptance, in the form of one’s car in the space provided… and that parking constitutes acceptance.”
As the driver was unaware that time of the free stay began the second they entered the car park (due to inadequate signage) they spent approximately 15 minutes driving around waiting for an available space. This said the acceptance of the valid contract only began once the car was stationary in one of ParkingEye’s spaces.
I therefore ask ParkingEye again to provide concrete evidence to prove that the car was parked in one of their spaces for the entirety of the 2 hours and 20 mins which they claim it was.
The Supreme Court made it perfectly clear that the judgment in the ParkingEye v Beavis and Wardly case 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
I believe that this charge is unrecoverable from myself as keeper, due to all or any of the above appeal points.

Thank you for your time.

Molts

Wow - it's clear that a great deal of time and effort has gone into the appeal and is exactly the sort of appeal that sends these parasites running with their tails between their legs.

Wait for an experienced members expert opinion (1k posts+) before sending if you have the time but I would expect a "the scammer does not wish to contest this appeal" result in fairly quick fashion.

:T:T:T

Coupon-mad

That's more like it. But remove point #7 which is old and rubbish (always was!). Never talk about 'no loss' in a private parking appeal.

I always embed signage photos into my word document to make the appeal look appealing, like a long essay with some photos to break it up near the end. then save it as a PDF with the POPLA code in the header. Submit it under 'other' as one PDF (don't try to upload all the signs separately, not only is that fiddly but I think the 'pretty pictures breaking up the long essay' appeal, all in one document, is best - it works for me and the people I help).

The sign at the entrance offers '2 hours free parking' so you need to state that in your point #8 (now to be #7 to replace the deleted one. I would also reconsider the heading of this new point #7 because it's more about the fact that the driver had no idea about the ANPR recording them on arrival). Put your pictures in this last point, saying that:

- the driver had no idea that they were being timed in moving traffic by secret cameras.

- no signs told a driver how the ANPR data would be used (ICO and BPA CoP breach) nor that the timing started at the moment of driving in. Vital information so a 'misleading omission' in consumer contract law - renders the charge unrecoverable.

- indeed the entrance sign says '2 hours free parking' which is clearly offered by St Modwen and 'Wythenshawe' the landowners/agents (show entrance picture). This constitutes the offer that a driver is relying upon as they drive round looking for a place to start their free 2 hours PARKING.

- ParkingEye can't change that contract offered at the entrance by the landowner.

- Even if PE's signs say '2 hours stay' then that can't supersede the previous contract and would be at best, ambiguous (the first - larger, clearer - sign saying '2 hrs parking' and the smaller ParkingEye one saying '2 hrs stay' (show pictures).

- the contract law doctrine of 'contra proferentem' applies, in that where terms are ambiguous, the interpretation which most favours a consumer MUST prevail. As such, the driver was entitled to drive round NOT bound by any contract from PE, as they had been offered 2 hours parking and their acceptance of that overriding landowner offer started when they PARKED after 15 minutes in the busy location.

- The signs the driver passed when driving then parking, did not have £70 on them! Neither the entrance signs nor the 'P' blue & white ones have £70 on them. Only the darker yellow/black ones do (show picture) and they are at the back of the car park and were not seen/no contract to pay £70 was ever agreed, unlike in the Beavis case where it was found that Mr Beavis was 'bound to' have seen the terms and parking charge.

Oh and I didn't see a Grace Periods appeal point. You just need to quote the BPA CoP sections on the two grace periods (before and after the allowed 2 hours) and state - as part of point #1 which I would change to be 'No Grace Periods - breach of BPA CoP' that the operator did not comply with the BPA CoP on mandatory Grace periods which are (quote the CoP).

Matthews82

Thank you very much Coupon-Mad for all your help in this matter it is greatly appreciated.

I have made the amendments which you have suggested and am ready to send it over to PoPla.. Once i have i will upload a copy (personal details omitted of course) of the PDF so that others can view it for pointers for their own cases.

Kindest Regards,

Matthews82