HELP! Britannia Parking PCN Received for "Non-Parking Restricted Area or Access Way"

dudders24

Thanks Umkomaas. I have updated points 1 and 2, and read up on CRA 2015, as advised. Just want to check I've understood it and updated this section correctly? I got a lot confused by all the references to this and that case : (

5. The charge is a penalty, breaches the Consumer Rights Act 2015 and is prohibited/unfair under the CPUTRs. It is not saved by ParkingEye vs. Beavis.
The amount being charged £100 (discounted to £60 if paid within 14 days) is utterly punitive.

In reference to the ‘Parking (Code of Practice) Bill, Sir Greg Knight (East Yorkshire) (Con) stated that “Parking is an indispensable part of motoring. If you arrive by a car, you need to park it.”

Especially if you are a disabled driver and rely on a car to maintain independence.

He continues “Motorists should have the certainty that when they enter a car park on private land, they are entering into a contract that is reasonable, transparent and involves a consistent process. Poor signage, unreasonable terms, exorbitant fines, aggressive demands for payment and an opaque appeals process, together with some motorists being hit with a fine for just driving in and out of a car park without stopping, have no place in 21st-century Britain.”

This is a simple consumer / trader transaction with a ticket for parking in a designated space being purchased in good faith. Therefore, the Judges' findings at the Court of Appeal stage, which were not disputed nor overturned at the Supreme Court, stand as part of that binding case law – fully support my view that the case of 'Kemble vs. 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.”

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 is an unfair penalty to the mind of any reasonable man.

The Consumer Rights Act 2015 supports my position, and Britannia Parking’s failure to ensure all parking spaces are clearly designated, that charges are not issued appropriately, are unfair and unenforceable: Web link (legislation dot gov dot 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. The Consumer Protection from Unfair Trading Regulations 2008 No. 1277 also supports my position that this commercial practice of charging for their own system failure is unfair: Web link (legislation dot gov dot uk ukdsi 2008 9780110811574 regulation 3)

Prohibition of unfair commercial practices
3.—(1) Unfair commercial practices are prohibited.
(2) Paragraphs (3) and (4) set out the circumstances when a commercial practice is unfair.
(3) A commercial practice is unfair if—
(a) it contravenes the requirements of professional diligence; and
(b) it materially distorts or is likely to materially distort the economic behaviour of the
average consumer with regard to the product.
(4) A commercial practice is unfair if—
(a) it is a misleading action under the provisions of regulation 5;
(b) it is a misleading omission under the provisions of regulation 6;
(c) it is aggressive under the provisions of regulation 7; or
(d) it is listed in Schedule 1.

Per the above, a charge under these circumstances is prohibited and unenforceable. The Beavis case established that the penalty rule was certainly deemed ‘engaged’ in parking charge cases. Even if POPLA cannot consider consumer law (whyever not?) then the evidence shows that this charge is the very essence of ‘unconscionable’ which was the Beavis case definition of an unrecoverable penalty.

I contend it is wholly unreasonable for a company to attempt to profit by charging a disproportionate sum where no loss has been caused by the act of parking. I put Britannia Parking to strict proof, under the circumstances described, to justify their charge does not cause a significant imbalance to my detriment and to justify the charge does not breach the Consumer Credit Act 2015.


Also, do you think it's worth contacting the Consumer Council? According to their Unfair Private Parking Penalty Tickets/Fines Factsheet, they can help get the fine cancelled!?

Coupon-mad

and to justify the charge does not breach the Consumer Credit Act 2015.

Really, the CCA that applies to banks and other lenders? Nope:

and to justify the charge does not breach the Consumer Rights Act 2015.

Also, do you think it's worth contacting the Consumer Council? According to their Unfair Private Parking Penalty Tickets/Fines Factsheet, they can help get the fine cancelled!?

Doubt it but it might be fun to contact them and see what their advice is. Tell us here!