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kernowrn

Thank you for all your help. I've used a few template arguments not reproduced below (e.g. signange, grace period, ANPR) and written a few (Section 1 & 2) myself, which you can see below. I'd be extremely grateful for your opinion on them.



In addition, Section 3 on keeper liability - it was the only template No Keeper Liability argument I could find, but I'm not certain it's appropriate in this case (PoFA compliant letter in post, no windscreen ticket). I was wondering whether you might recommend keeping it, removing it or finding a different one?


Appeal points:

• No contract was offered to park, and therefore there cannot be a breach of contract.
• The penalty rule still applies, and therefore the parking charge does not represent a genuine pre-estimate of loss
• The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge
• 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
• The operator provides no evidence of landowner authority
• There is no evidence that the ANPR system used is reliable.
• The minimum grace period was not allowed by the operator

1. No contract was offered to park, and therefore there cannot be a breach of contract

The signs clearly offers a 2 hour parking contract between the hours of XXXXX Monday to Saturday and XXXX on Sundays for free parking to customers. However, outside of these hours, no contract to park has been offered. The sign instead states “No parking outside these times”, and, with the vehicle entering at XXXX, it is under this clause that the penalty was issued, and therefore no other aspect of this contract can be considered. This is clearly a forbidding sign.

Judges in various cases have found forbidding notices to not be enforceable by the operator by way of penalty, and only by the landowner by way of trespass.

In Horizon parking vs. Mr J. Guildford (C5GF17X2), the judge stated the following regarding a sign’s contract that only applied to permit holders, in this case, customers parking within the hours of operation, and not to others forbidden from entering the area, in this case, the driver:

Forbidding nature of sign:
Judge finds this is a forbidding notice, not an invitation to park on certain terms. It disallows other parking. Could be construed as only applying to permit holders, not others who are forbidden from entering the area. IF this is the case, it only offers to permit holders. This therefore means this is a landowner issue for trespass. The agreement between PPC and landowner does not allow for Horizon to collect for trespass issues. This notice forbids any parking at all except by permit holders and is not an offer at all. Does not make a contractual offer, so they cannot claim against me for this.

A similar judgement was made by the judge in KPC v Masterson (B4GF26K6). The sign to which the judge referred can be found at Appendix 1.

(Paragraph 6) I am not able to consider that that is an open offer to contract to park at first sight. If anything, it prohibits unauthorised parking on my reading of it...

(Paragraph 8) So for those reasons, I am unable to accept that the particular circumstances of this case reveal a contractual licence to park with a contract between the parking manager, in this case UKPC, ... and the vehicle owner or driver, in this case the defendant...

Again, in PCM (UK) v Mr B (B4GF26K6), PCM (UK) v Mr W (B4GF27K3) and PCM (UK) v Ms L (B4GF26K2)

(Paragraph 18) I am afraid that in my judgment that analysis just does not work in this case. It does not work for this reason. If the notice had said no more than if you park on this roadway you agree to pay a charge then it would have been implicit that PCM was
saying we will allow you to park on this roadway if you pay £100 and I would agree
with Mr Samuels’ first analysis that essentially the £100 was a part of the core
consideration for the licence and was not a penalty for breach. The difficulty is that
this notice does not say that at all. This notice is an absolute prohibition against
parking at any time, for any period, on the roadway. It is impossible to construct out
of this in any way, either actually or contingently or conditionally, any permission for
anyone to park on the roadway. All this is essentially saying is you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the
form of a contract, the right to charge you a sum of money which really would be
damages for trespass, assuming of course that the claimant had any interest in the land
in order to proceed in trespass.

The ParkingEye v Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.

2. The penalty rule still applies, and therefore the parking charge does not represent a genuine pre-estimate of loss.

In addition to Section 1, this case differs from ParkingEye v Beavis as the penalty rule still applies, and therefore the charge cannot be considered a genuine pre-estimate of loss.

In the case of ParkingEye v Beavis, the Supreme Court considered that case did not infringe on the penalty rule as the purpose of the charge was to manage the use of the car park efficiently in the interest of the retail shops to maximise customer parking availability.

Lord Mance sums up the penalty test as:

“first, whether any (and if so what) legitimate business interest is served and protected by the clause, and, second, whether, assuming such an interest to exist, the provision made for the interest is nevertheless in the circumstances extravagant, exorbitant or unconscionable”

In this case, the only shop located at the car park, XXXXXXX, shuts at XXXX, 87 minutes before the alleged breach of contract. This parking charge can therefore not serve any “legitimate business interest” while the business is shut, and therefore represents a penalty. The penalty of £100 does not represent a genuine pre-estimate of loss.


3. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. As there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
'There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no 'reasonable presumption' in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.'

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:

''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

Fruitcake

Your initial post needs editing to remove the comment about who stayed NN minutes. I would remove the whole sentence.

Normally this would be outside grace periods but you could have fun by saying that since the overstay was 0h 0 min, then they have failed to allow grace periods.

kernowrn

Thank you. Just realised what was written there - it's been changed.

They actually state the overstay of 30+ minutes, but that the max stay at this time (which I now understand as a forbidding notice) was 00:00. I'll try and sneak it in though, good suggestion, thank you

Le_Kirk

The penalty rule still applies, and therefore the parking charge does not represent a genuine pre-estimate of loss

You need to lose this, as it is not a valid point since Beavis. Search the forum for GPEOL and see what others say.

kernowrn

While doing my research, I was of the impression that the contract law surrounding penalties (including GPEOL) is not now struck from law, but that a penalty test (as above) was used to determine whether a penalty served a legitimate interest, and that in cases where it was indeed a penalty, the law surrounding GPEOL still applies. Is that not correct?

waamo

kernowrn wrote: »

While doing my research, I was of the impression that the contract law surrounding penalties (including GPEOL) is not now struck from law, but that a penalty test (as above) was used to determine whether a penalty served a legitimate interest, and that in cases where it was indeed a penalty, the law surrounding GPEOL still applies. Is that not correct?

That is correct but their lordships decided parking was a legitimate interest. It was a parking ticket case after all.

kernowrn

Okay thank you.



Does anyone have any comments on the "no contract offered" bit, which is what this argument hinges on (the rest is just back up)?


Many thanks,

Fruitcake

I think the no contract points are OK. You have cited several cases where it was thrown out which is good. I would embed the images with the text where you refer to them, rather than in an appendix. The assessor won't want to keep flipping between different parts of the appeal, and may even miss them completely.

Have you demanded that they provide a contract showing they can issue charges outside the parking hours stated on the signs?

You need to tidy up your appeal point headings as there are more headings than appeal points.
I can't see an Inadequate Signage point. This would be in addition to Forbidding Signs. If they can issue PCNs outside opening times it should warn you. If there is no warning then they are inadequate. If they cannot enforce outside opening then they are forbidding.
It backs up the forbidding point in a circular sort of way.