Smart PCN Fistral Beach wrong vrn entered

stayhappy

My husband has received a Smart Parking charge notice from when we parked at Fistral Beach.
We had a valid ticket so I appealed naively thinking that it would be cancelled. They said they look individually and take a common sense approach. Clearly not the case.
Apparently I have entered an o and not a zero in the ticket machine so they say he still needs to pay.
I am now at the Popla stage and have realised I need to do more than just explain my error. I have read loads but I am still not sure if I have a defence or what that would be.
I am not certain if I have admitted he was driving in the first appeal. The signage looks quite clear when I have googled it. An o and zero look the same on the car but I don't know if that helps. Do I need to write a lengthy appeal. Some pointers would be really helpful thank you.

beamerguy

stayhappy wrote: »

My husband has received a Smart Parking charge notice from when we parked at Fistral Beach.
We had a valid ticket so I appealed naively thinking that it would be cancelled. They said they look individually and take a common sense approach. Clearly not the case.
Apparently I have entered an o and not a zero in the ticket machine so they say he still needs to pay.
I am now at the Popla stage and have realised I need to do more than just explain my error. I have read loads but I am still not sure if I have a defence or what that would be.
I am not certain if I have admitted he was driving in the first appeal. The signage looks quite clear when I have googled it. An o and zero look the same on the car but I don't know if that helps. Do I need to write a lengthy appeal. Some pointers would be really helpful thank you.

I hope you still have the ticket ? Or proof that you paid

Smart parking has lied to you, they are a parking cowboy
who never have a common sense approach:eek:

Read up on the antics of this disgusting company
http://parking-prankster.blogspot.co.uk/search?q=smart

In particular ... same as yours
Lowther Street Carlisle car park - Smart Parking

POPLA is the answer to defeat these down and outs

Umkomaas

Read the NEWBIES FAQ sticky, post #3 which not only tells you how to win at POPLA, but gives you a number of ready to use template appeal paragraphs to start off your appeal draft. Also do a forum search on ‘Smart Fistral’ where you will find many cases from this summer. See if there’s a POPLA appeal to learn from. Let us see it for critique before sending it to POPLA. Do not miss your POPLA deadline.

The signage looks quite clear when I have googled it.

Presumably you checked all of its contents and layout against the BPA Code of Practice requirements? How does it compare to the ParkingEye - Beavis case signage commented on by the Supreme Court? Then you might be able to state its ‘clear’. But don’t forget, it’s not your job to make their case for them - it is theirs to make!

I am now at the Popla stage and have realised I need to do more than just explain my error.

You will not be ‘explaining’ any ‘error’ to POPLA, because going by other similar cases, it will blow up in your face. Work through all the other potential appeal points to help you win this.

stayhappy

Yes we have still got the ticket.
I will keep reading but I am still not sure what appeal points actually apply to my case.
With regards to signage it is in big writing and mentions correct registration but that was all I checked.

beamerguy

stayhappy wrote: »

Yes we have still got the ticket.
I will keep reading but I am still not sure what appeal points actually apply to my case.
With regards to signage it is in big writing and mentions correct registration but that was all I checked.

"Apparently I have entered an o and not a zero in the ticket machine so they say he still needs to pay."

But did you enter incorrectly ???

Can Smart prove this especially when it seems their IT
system confuses numbers/letters ??

You need to ask Smart for proof which their rejection
letter does not offer.

Don't be put off that they may say, "it has gone past the
appeal stage" ..... demand they provide proof to
substantiate their claim.

Doubtful they will reply but that's not a problem as
you can state in your POPLA appeal that they have
not proven their claim.

Let's see how good their IT system is ???

stayhappy

Hi, is this looking okay for a popla appeal. Am I missing any crucial points. I have basically amended a previous template. Amy help would be appreciated thanks.

I am appealing this pcn and I contend that I am not liable for the parking charge on the grounds listed below. If this operator remains silent on any appeal point then it is deemed accepted.


1) Breach of the BPA Code of Practice Principles

Under section 21 of the CoP, AOS members are only allowed to use ANPR if they:

(a) Use it to enforce parking in a reasonable, consistent and transparent manner.

(b) Have clear signs which tell drivers that the operator is using this technology and what the data captured by ANPR cameras will be used for.

21 Automatic number plate recognition (ANPR) General principles
21.1 ''You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. 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.''

The facts are that a ticket was bought, sent as proof and it was clear early on, that the driver had paid in good faith but had simply keyed in one wrong digit of the registration number. Replacing zero with the letter o is easily done as the font on the car registration plate is the same for both. This is not mitigation, this is a fact that I submit cannot give rise to a PCN because it is not 'transparent' in the terms on signs/the P&D machine, that a correct VRN is an 'obligation' which runs such a risk and will be compared to the ANPR data for the purpose of imposing a charge.

The fact is, a BPA AOS operator is required to have transparent, fair and professional procedures including manual checks to identify such minor infringements. I require that the operator provides POPLA with a copy of their policy and proof that those checks were made in this instance. Further, I require proof that ''wrong VRN' is in fact incorporated into the contract from the landowner as a penalty-generating 'contravention' since I find it highly unlikely that the retailer/landowner allows this unfair fining of paying customers.

If it is not in the contract it is not a contravention that can give rise to a penalty.

In their rejection letter, Smart have failed to explain what manual checks were made or why they consider that enforcement is appropriate, nor whether the contract even allows a charge for 'wrong VRN'. Nor do they show in what terms it is made clear to the payee standing at the machine, that when making payment they have an obligation to input a correct vehicle VRN and run the risk of a punitive so-called 'parking charge' (unfairly set as a fixed sum at the same level as a non-payer) for that action alone.

This is an inappropriate parking charge which should have been cancelled on appeal. I remind Smart that operation and enforcement is not just about issuing PCNs and collecting money from hapless victims, regardless of any legitimate interest, reasonableness or appropriateness. In fact the BPA CoP mentions in the Introduction 'minimum standards' (suggesting they are set low) as well as the importance of 'acting in a professional, reasonable and diligent way' in issuing 'appropriate' parking charges:

2.6 By creating the Code the parking industry has set out the minimum standards by which you will be judged by anyone coming into professional contact with you. Members of the public should be able to expect that you will keep to the law, and act in a professional, reasonable and diligent way.

2.9 The Code and its appendices cover the operation of parking on private, unregulated land. This includes:
• designing and using signs
• using ANPR and associated systems
• appropriate parking charges.

And in the ANPR section:

21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action.

To any right-minded person's viewing, refusing an appeal from a genuine shopper who did pay and display is neither 'professional and reasonable' nor 'diligent'. Their own ANPR records show that there was no vehicle on site with the VRN I accidentally keyed in and as evidence, I was able to produce the ticket as proof that I paid but made an inadvertent error with the VRN, thereby showing that THIS ticket did relate to THIS vehicle and no other in the car park.

I submit that it was clear that it was not 'appropriate to take action' so the PCN should have been cancelled. I submit that to pursue a genuine parker who paid & displayed is contrary to the wishes of the retailers/landowners and this PCN is unauthorised. As such, the parking charge cannot be considered 'properly given' at the point of inappropriately refusing my appeal.




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

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner to evidence the definition of the services provided. This includes a list of grace periods, charges and all restrictions authorised where a parking charge can arise, as I do not believe they are authorised by the landowner to charge a paying customer for a mere VRN error.

The contract and any 'landowner agreement/Manual' setting out details including restrictions, charges and exemptions - such as 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 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 and any cancellation rights offered to genuine shoppers.

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.



3) The signs in this car park are not prominent, clear or legible from all parking spaces and although the parking fees/tariffs are in large lettering, there is insufficient notice of the sum of the punitive 'parking charge' itself

There was no contract beyond an agreement to pay a tariff, which I did. There was no agreement whatsoever on the penalty 'parking charge'. It is submitted that I did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion to the parking tariffs 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.

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, nor could learn about the 'parking charge' when reading about the tariffs.

Evidence shows that the terms appear to be displayed inadequately, in letters no more than about half an inch, to one 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.



''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 an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in 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 to be able to read the terms.

One wonders why the tariffs are in larger font than the 'parking charge' except as entrapment, which fails Lord Denning's Red Hand Rule for onerous terms which are required in contract law, to be: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms and parking charge itself 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 next to the P&D machine, or even as a warning message on the P&D machine itself which flashes up and warns of the huge implications of a wrong VRN, before using the keypad.

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:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

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 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 they were obscured/not adjacent to the car and could not have been seen and read by the driver 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. Including photos of the P&D machine screen and tariff signs, to evidence whether the 'parking charge' meets Lord Denning's 'red hand rule'.



4) 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 thought twice before inputting the VRN in error. As I did NOT know this, I cannot be deemed bound by the terms.



6) 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 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 £100 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 visitors for accidentally inputting a wrong VRN on a single occasion, yet using the car park for exactly the purpose intended by the owner 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 £100 was a reasonable amount given these specific circumstances.

Although the charge was the same 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.

pappa_golf

you entered a different VRN to that shown on your car?

interestingly the Charles Wright font as used on UK numberplates does NOT have a 0 and a O , so why have this set of scammers included this on the display , why not a pretty picture of an elephant?




one might be temptred to believe adding symbols on the display that had ne meaning could almost be classified as "preditary"

stayhappy

Hi, is this looking okay for a popla appeal. Am I missing any crucial points. I have basically amended a previous template. Amy help would be appreciated thanks.

I am appealing this pcn and I contend that I am not liable for the parking charge on the grounds listed below. If this operator remains silent on any appeal point then it is deemed accepted.


1) Breach of the BPA Code of Practice Principles

Under section 21 of the CoP, AOS members are only allowed to use ANPR if they:

(a) Use it to enforce parking in a reasonable, consistent and transparent manner.

(b) Have clear signs which tell drivers that the operator is using this technology and what the data captured by ANPR cameras will be used for.

21 Automatic number plate recognition (ANPR) General principles
21.1 ''You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. 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.''

The facts are that a ticket was bought, sent as proof and it was clear early on, that the driver had paid in good faith but had simply keyed in one wrong digit of the registration number. Replacing zero with the letter o is easily done as the font on the car registration plate is the same for both. This is not mitigation, this is a fact that I submit cannot give rise to a PCN because it is not 'transparent' in the terms on signs/the P&D machine, that a correct VRN is an 'obligation' which runs such a risk and will be compared to the ANPR data for the purpose of imposing a charge.

The fact is, a BPA AOS operator is required to have transparent, fair and professional procedures including manual checks to identify such minor infringements. I require that the operator provides POPLA with a copy of their policy and proof that those checks were made in this instance. Further, I require proof that ''wrong VRN' is in fact incorporated into the contract from the landowner as a penalty-generating 'contravention' since I find it highly unlikely that the retailer/landowner allows this unfair fining of paying customers.

If it is not in the contract it is not a contravention that can give rise to a penalty.

In their rejection letter, Smart have failed to explain what manual checks were made or why they consider that enforcement is appropriate, nor whether the contract even allows a charge for 'wrong VRN'. Nor do they show in what terms it is made clear to the payee standing at the machine, that when making payment they have an obligation to input a correct vehicle VRN and run the risk of a punitive so-called 'parking charge' (unfairly set as a fixed sum at the same level as a non-payer) for that action alone.

This is an inappropriate parking charge which should have been cancelled on appeal. I remind Smart that operation and enforcement is not just about issuing PCNs and collecting money from hapless victims, regardless of any legitimate interest, reasonableness or appropriateness. In fact the BPA CoP mentions in the Introduction 'minimum standards' (suggesting they are set low) as well as the importance of 'acting in a professional, reasonable and diligent way' in issuing 'appropriate' parking charges:

2.6 By creating the Code the parking industry has set out the minimum standards by which you will be judged by anyone coming into professional contact with you. Members of the public should be able to expect that you will keep to the law, and act in a professional, reasonable and diligent way.

2.9 The Code and its appendices cover the operation of parking on private, unregulated land. This includes:
• designing and using signs
• using ANPR and associated systems
• appropriate parking charges.

And in the ANPR section:

21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action.

To any right-minded person's viewing, refusing an appeal from a genuine shopper who did pay and display is neither 'professional and reasonable' nor 'diligent'. Their own ANPR records show that there was no vehicle on site with the VRN I accidentally keyed in and as evidence, I was able to produce the ticket as proof that I paid but made an inadvertent error with the VRN, thereby showing that THIS ticket did relate to THIS vehicle and no other in the car park.

I submit that it was clear that it was not 'appropriate to take action' so the PCN should have been cancelled. I submit that to pursue a genuine parker who paid & displayed is contrary to the wishes of the retailers/landowners and this PCN is unauthorised. As such, the parking charge cannot be considered 'properly given' at the point of inappropriately refusing my appeal.




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

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner to evidence the definition of the services provided. This includes a list of grace periods, charges and all restrictions authorised where a parking charge can arise, as I do not believe they are authorised by the landowner to charge a paying customer for a mere VRN error.

The contract and any 'landowner agreement/Manual' setting out details including restrictions, charges and exemptions - such as 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 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 and any cancellation rights offered to genuine shoppers.

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.



3) The signs in this car park are not prominent, clear or legible from all parking spaces and although the parking fees/tariffs are in large lettering, there is insufficient notice of the sum of the punitive 'parking charge' itself

There was no contract beyond an agreement to pay a tariff, which I did. There was no agreement whatsoever on the penalty 'parking charge'. It is submitted that I did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion to the parking tariffs 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.

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, nor could learn about the 'parking charge' when reading about the tariffs.

Evidence shows that the terms appear to be displayed inadequately, in letters no more than about half an inch, to one 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.



''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 an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in 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 to be able to read the terms.

One wonders why the tariffs are in larger font than the 'parking charge' except as entrapment, which fails Lord Denning's Red Hand Rule for onerous terms which are required in contract law, to be: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms and parking charge itself 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 next to the P&D machine, or even as a warning message on the P&D machine itself which flashes up and warns of the huge implications of a wrong VRN, before using the keypad.

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:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

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 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 they were obscured/not adjacent to the car and could not have been seen and read by the driver 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. Including photos of the P&D machine screen and tariff signs, to evidence whether the 'parking charge' meets Lord Denning's 'red hand rule'.



4) 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 thought twice before inputting the VRN in error. As I did NOT know this, I cannot be deemed bound by the terms.



6) 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 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 £100 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 visitors for accidentally inputting a wrong VRN on a single occasion, yet using the car park for exactly the purpose intended by the owner 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 £100 was a reasonable amount given these specific circumstances.

Although the charge was the same 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.

The_Deep

The signage looks quite clear when I have googled it.

If you look on google earth at the far end, co-ordinates 50.25.03.45N, 5.05.55.81W, (nearest the sea), you will see a separate board which I presume is the terms and conditions which form part of the contract.

Imo they are too long, too dense, and too small, people do not want to read all this stuff, they want to get their kids to the beach.

Umkomaas

A POPLA appeal needs to include:

1. No keeper liability, including Notice to Keeper errors (PoFA 2012) - if the driver’s identity has not already been provided to the PPC
2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
3. No Contract to manage parking
4. No landowner authority to issue and pursue charges.
5. Signage
6. Grace Periods (if appropriate)
7. Why Beavis doesn't apply in your parking event

There are template appeal points for you to use, which should form the basis of your appeal, and when Smart see these, they often withdraw before POPLA. See the NEWBIES FAQ sticky, post #3 for the templates.

Your appeal points (1 & 4) about ANPR are not a case-winners for you as POPLA has never adjudicated on ANPR issues. While you can leave them in (but amalgamate them) to give Smart more to do, I’d relegate to the final appeal point.

The facts are that a ticket was bought......

Telling POPLA ‘what happened’ is a very risky strategy as I’ve seen a similar case where the appellant admitted an incorrect digit being entered, lost the appeal on that basis. Personally, I’d steer clear of any of that and win this on technical and legal points.

You also risk, by telling the story, of losing the protection for the keeper provided by PoFA. You’re getting very close to this in comments made about ‘paying for the ticket’, who ‘entered the wrong digit’, and POPLA have previously drawn inferences from such statements as to who the driver was.

You don’t seem to have an appeal point 5, jumping from 4 to 6.

You need to have a bulletpoint list of appeal points at the opening, corresponding with the appeal points you are making. Each appeal section should have its own heading in bold print to make it all look much more presentationally professional.

You need another go at tidying this up - it’s very jumbled at the moment - and adding further sections, as appropriate from the bullet list I’ve provided.

pappa_golf

1:
9.5 You must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious and sanctionable instance of non-compliance and may go the Professional Conduct Panel.

work out 2,3 and 4 for yourselves