Smart Parking appeal refused

ValL

6) The signs do not state what the ANPR system data will be used for.
The BPA CoP contains the following in paragraph 21:
''Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.''
Smart Parking fail to tell drivers that the ANPR data will be compared to any VRNs input into the P&D machine and will then be used to issue 'parking charges' for any case where there is a VRN omission or error. If I had known this vital fact, I would have input the correct VRN. As I did NOT know this, I cannot be deemed bound by the terms.


7) The 'ParkingEye v Beavis' case exposes this charge as unconscionable, with no overriding 'legitimate interest' to save it from offending against the penalty rule.
The Supreme Court made it perfectly clear that the judgment was not a silver bullet which justifies all parking charges. Indeed, cases which are not about a free parking licence but involve a simple financial transaction (e.g. paying a tariff and putting in a VRN) were said at the Court of Appeal stage to be likely to fall foul of Lord Dunedin's four tests for an unenforceable penalty.
Smart Parking should be well aware that the circumstances of the Beavis case were entirely different. In this case, we have an authorised user (genuine shopper) using the car park appropriately where there has been no loss to the owner and no abuse of a parking space, nor any overstay.
While the courts might hold that a large charge might be appropriate in the case of a 'free stay' car park, essentially as a deterrent to overstaying, there is nothing in the case to suggest that a reasonable person would accept that a £90 penalty is a conscionable amount to be charged for the simple problem of a VRN error which was explained and accompanied in good faith at appeal stage, by proof of pay & display.
In this case the vehicle would have been fully entitled to park as it did had the VRN been correctly keyed in (provided that obligation had been clearly brought to the motorist's attention). The justification and 'legitimate interest' that was held to rescue the 'ParkingEye v Beavis' charge is irrelevant and conspicuously absent. The Operator cannot argue that a 'legitimate interest' exists to punish shoppers for accidentally inputting a wrong VRN on a single occasion, yet using the car park for exactly the purpose intended by the retailer and for no more than the paid-for time.
The Beavis case is not comparable and does not supersede any considerations of the specific facts in this case. It is certainly likely that the courts would say it is undoubtedly 'unconscionable' to penalise a shopper who has proved they paid and displayed, at the same level as (for example) a non-shopper trespasser, who parked all day across two bays without paying any tariff.
This charge issued to me as a paying driver is clearly capable of being held by the courts as an unenforceable penalty. This view is supported by the judgment of the Supreme Court, which did not disagree with the earlier judgment from the Court of Appeal in 'Parking Eye v Beavis' which held:
"44. All the previous cases shown to us have concerned contracts of a financial or at least an economic nature, where the transaction between the contracting parties can be assessed in monetary terms, as can the effects of a breach of the contract by one party or the other...
45. The contract in the present case is entirely different. There is no economic transaction between the car park operator and the driver who uses the car park...
47. When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker [...] should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) Bing. 141 at 148:
“But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.”
This judgment makes clear that the Court of Appeal (and by definition, the Supreme Court which agreed) would also consider the charge in this case to offend against the penalty rule which all Judges agreed WAS 'engaged' by a contract attempting to enforce a parking charge. And at the Supreme Court it was held at 14: ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty;’ ''
At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated complex cases (Beavis) from ordinary/standard contracts with a transaction and tariff paid at a machine:
''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''
This is NOT a 'more complex' case by any stretch of the imagination.
The purported contract with the motorist is an ordinary 'financial contract' where the loss that Smart thought had arisen (non-payment of a tariff) is easily calculable. Without intellectual dishonesty, it cannot be argued that there is a commercially or socially justifiable deterrent value in this charge, especially as soon as Smart knew that in fact, I paid and displayed.
Any putative contract needs to be assessed on its own merits as regards what would be deemed 'out of all proportion' to the tariff paid and 'unconscionable' given the circumstances. Consumer law always applies and no contract “falls outside” The Consumer Rights Act 2015; the fundamental question is always whether the terms are fair.
In this case the specific question is whether a reasonable person would, when parking in a place where they had paid the correct tariff for the privilege, also accept a further unknown liability in the case of a VRN error (that they were not informed was vital nor ran the risk of a huge fine). I would suggest that a court would not accept that £90 was a reasonable amount given these specific circumstances.
Although the charge was a similar sum, the Beavis case was 'entirely different' and does not save the charge in this case, from being held to be unconscionable. This is an unenforceable penalty and cannot be upheld as properly given.

ValL

Thanks this seems to have worked although spacers have been removed making it slightly more difficult to read. Any help appreciated.

KeithP

ValL wrote: »

1) Faulty equipment.
This was my first visit to this car park. I thought this was a pay and display car park similar to others in the town. I failed to see the signs/instructions informing me to input my VRN into the payment machine so simply paid the correct fee and pressed the button for a ticket. I now know that no ticket should have been issued without a VRN being input into the payment machine. Had the machine rejected my coin and not produced a ticket the misdemeanour would have been avoided.

I think that could be improved.
For example, "I failed..." - there must be a better way of saying that.

How about something like:

1) Faulty equipment.
This was my first visit to this car park. This looked like a pay and display car park similar to others in the town so I simply paid the correct fee and pressed the button for a ticket. It is now clear that the machine should not have produced a ticket without a VRN being input. Had the machine rejected my coin and not produced a ticket, as any reasonable person would expect, this situation would have been avoided.

The_Deep

Well done, do not worry about this. If they were daft enough to take you to court, a judge is unlikely to make you pay a penny because they are trying to scam you for £100.

in fact, with a little bit of luck he/she might tell them to pay you for wasting your time.

ValL

Thanks Keith much better than mine.

ValL

I have just heard from POPLA that Smart Parking do not wish to contest my appeal. Thanks to everyone on this forum for the advice given.

Coupon-mad

Another one bites the dust!

Ralph-y

well done .....

now ... if I may be so bold ......


this is a copy of a post by Bargepole ....

"Some action at last:

http://services.parliament.uk/bills/2017-19/parkingcodeofpractice.html

This Private Member's Bill has Government and cross-party support, and stands a good chance of making it into statute.

The full text of the clauses will be published nearer the date of the second reading, but my sources tell me it's something we should support.

Now would be a good time to write to your MP urging them to support it."

good luck

Ralph:cool:

UltraRevenge

So.... did you win?

UltraRevenge

Sorry please ignore previous post. Page didn't load prior to posting.