PCN help

Jolie1

2nd part!




3)Breach of the BPA Code of Practice on ANPR.


It is submitted that this charge was not properly given because it breaches the BPA Code of Practice regarding ANPR which requires checks to be made to ensure that a charge is ‘appropriate’ before issuing a PCN. The payment made for all day, would in fact, be very easy to identify if the operator had carried out the necessary checks required in the BPA CoP, so I suggest these checks were not made and that the operator has contravened the requirements of professional diligence; a duty of consumer-facing service providers. I put this operator to strict proof that these checks were made (showing full records from that day including the VRN list of payments around the time in question) and to explain why a charge was issued when they would indisputably have identified the matching all day payment. The operator would have been in no doubt that the car parking was paid for, had they made the required checks. And the situation is fully within this operator’s control. As cameras are used to record number plates entering and leaving then they should be connected to the ticket


machines. As a number-plate begins to be typed, a truly ‘connected’ system would find the ANPR image and simply require the driver to confirm that this is their vehicle, and the system would show the time of arrival (all details known to the system already). To charge under these circumstances with a faulty machine, was not ‘appropriate’ or fair and contravenes the ANPR requirements of the BPA CoP. Further, the signs fail to inform a driver what the ANPR data will be used for. When paying in good faith having typed in the VRN, I had no idea that secret camera data would later be used against me to bind me to a charge I knew nothing about and did not agree to. I thought the cameras were there for security, due to the lack of any other information (a black icon showing a camera communicates nothing). Failure to tell a driver how the data will be used is an ICO breach AND a ‘misleading omission’ of a material fact prohibited by consumer law, bringing me to my next point:





4) Breach of Consumer Rights Act 2015


The charge is a penalty, breaches the Consumer Rights Act 2015 and is prohibited/unfair under the CPUTRs. It is not saved by ParkingEye v Beavis. On the day in question, there were issues with one or more of the parking machines. I parked and upon trying to pay the charge, I had problems with the machine keypad not accepting the VRN. It eventually accepted it, despite the machine malfunctioning more than once and contend that I typed it in correctly.


The system was complicated because drivers are expected to recall what time they arrived. Such systems have been criticised as unfair and not consumer-friendly. In fact, as I was unsure as to how many hours I wished to stay, I paid for the whole day. If a keypad fault when this machine was certainly malfunctioning caused the system not to record the VRN correctly, then that is a matter within Premier Parking’s control, not the driver’s fault, as was found in Claim No C0FC15W4, ParkingEye v Ms G. before Judge Middleton at Bodmin County Court on 26/10/16: link8


In this case, there was a machine failure as in the above similar court case from last week. I clearly recall using the 2 one pound coins in my unused ash tray, placed there by my mother, for all day parking, (note that this is the correct amount) but the machine gave no ticket (not sure if it should?) and did not reject the money.


Payment was definitely made as the signs require and the lack of ticket remains a mystery like that exposed by the Judge in the recent Bodmin case linked above. A contract was not created by that.





The machine was not working properly, the failure of the machine to generate a ticket caused the system to fail to record the VRN against that £2, similar to the Bodmin case that this operator lost. No evidence has been produced either way by this operator as to the cause of the issue nor any consistently-stated facts that made £100 charge payable. 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, 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 person. A huge charge arising under the excuse of an unexplained event such as a keypad or system error 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.

Coupon-mad

How did you pay the fee? Coins, or phone?

And is this a Harbour or Port area, possibly covered by byelaws?

Which site? Some are well-known for faulty keyboards.

I am hoping maybe you didn't say in the first appeal who was driving, just that you were an occupant of the car who paid the £2. OR, did you appeal online and choose 'driver' on a dropdown menu?

Don't rush that POPLA appeal, i think you can add more relevant things.

Jolie1

I paid with 2 one pound coins, which I mentioned in part 4, so I have no record of payment.


The site was near the town centre Arpley Rd, Warrington WA1 1PR.


I was so cross to receive the notice as I had paid for the day. I wrote to tell them to check their cameras, and machine as they had made a mistake. I mentioned that my mother had placed the coins in the unused ashtray to pay the parking. I used the online reply and can't recall the dropdown menu!! I should have kept a copy of the reply!!
With what I have got so far, what do you think the chances are of getting it cancelled??
Thanks

Coupon-mad

Most POPLA appeals here win, but ot all. You have the company name wrong at the start, they are not 'Premier Parking' (amazes me how many people do that, and those who write 'Private Eye' instead of PaRKingEye).

I mentioned that my mother had placed the coins in the unused ashtray to pay the parking

Ashtray, not in a machine slot? How does that work, how is that secure or connected to the VRN in any way? Surely she MUST have had to input the VRN and put coins in a slot in a machine.

Jolie1

Thanks-re name change.


Under heading 4, I've changed the word 'in' to 'from':-


In this case, there was a machine failure as in the above similar court case from last week. I clearly recall using the 2 one pound coins from my unused ash tray, placed there by my mother, for all day parking, (note that this is the correct amount) but the machine gave no ticket (not sure if it should?) and did not reject the money.


Is there anything else to add?
Thanks

Jolie1

I have been to the car park and noticed that it is run by CCP and not Premier Parking Ltd which is on the PCN. How this work?? Should I conclude that Premier has no interest?
Advice appreciated.
Thanks

Coupon-mad

Maybe it's just changed recently, if so, that doesn't help.

000145

I have just received a PCN from the Arpley Road car park from Premier Park. I remember entering my VRN into the machine. This had to be done before the machine would accept payment. I paid for one hour and only staked 29 min as evidenced by the AVRN photos.

I would be interested to know how others have got on with PCN on this car park.

Quentin

You first need to read up in the newbies FAQ thread.

Everyone is politely asked to do so before starting a new thread

If you just want to know if anyone else has used Arpley road then use the search facility.

Edit your post to remove details of who was driving

fisherjim

000145 wrote: »

I have just received a PCN from the Arpley Road car park from Premier Park. I remember entering my VRN into the machine. This had to be done before the machine would accept payment. I paid for one hour and only staked 29 min as evidenced by the AVRN photos.

I would be interested to know how others have got on with PCN on this car park.

You have hi-jacked someone else's thread, this makes it confusing and help is tailored to individuals.

You need to start by reading the newbies start here thread at the top of the forum, then start your own thread for more assistance, thanks.