Saba/Indigo appeal successful

Handbags-at-dawn

I don't know why, but Saba have cancelled this ticket.

It was a penalty notice (windscreen ticket) issued at a Southeastern railway station a month ago. The parking had been paid for but the ticket not displayed. Alleged breach: failing to display a valid ticket or voucher.

The car park signage describes the penalty as being for breach of the Byelaws. However the windscreen ticket says "By entering the car you have agreed and are contracted to be legally bound by the terms and conditions" - which suggests the "penalty" is for breach of contract.
So before appealing, we asked 4 them times if the penalty was for breach of contract or breach of the byelaws. Of course they just shuffled between the two. By suggesting it's a byelaws penalty they can a) make it all sound more official and frightening; b) if the driver doesn't succumb, they can later bamboozle people into believing, wrongly, the owner must pay. On the downside, for them, a byelaws penalty is not enforceable - only a charge for breach of contract is. So no wonder they didn't want to give a definitive answer.

Meanwhile the 28 day limit for appealing this ticket loomed so an appeal was sent off anyway, by 1st class post (with proof of posting). This is what it said:

Dear Sirs,

Re Penalty Notice number xxxxxxxxxxxxx

I am the registered keeper of car registration number XXXXXXX. Your customer support department has indicated that both the keeper and the driver are welcome to make an appeal against a parking penalty. Accordingly, I am lodging this appeal against the above notice as keeper, on the grounds set out below.

I should firstly point out that your customer support department has not yet confirmed whether the penalty notice was for breach of contract or breach of the Railway Byelaws. This is in spite of being asked four times. I am therefore forced to appeal without knowing what exactly I am appealing against. I reserve the right to amend this appeal if and when the legal basis for your claim is properly clarified.

Grounds of appeal

1. Inadequate signage
The driver cannot be in breach of either the terms and conditions of a parking contract, or the requirements of the Railway Byelaws, unless these are properly displayed on signs throughout the car park. It is the responsibility of the operator to ensure the signs are both conspicuous and clear, and positioned so that passengers can readily see them in the time between parking the car and catching a train. In particular, penalties for failing to abide by the rules must be prominently displayed in large letters at frequent intervals throughout the car park.

I have visited Stonegate station car park to see if the signage fulfils these conditions. It does not. A thorough search reveals there are just 2 signs. The first is hidden behind a pay machine over to the right as one drives in. It faces, and is only readable from, the rear of the carpark. The second sign is placed directly behind the payment machine in the main part of the car park. Although its presence may be spotted from a distance by a keen observer it is totally obscured from view as one drives past it.

Clearly the signage falls far short of what is required. A reasonable person is likely to miss the signs entirely. Furthermore, on the two signs that do exist the £100 penalty is not displayed in large or eye-catching letters; on the contrary, it is written in small black print in the middle of a large amount of other information.

Thus the terms and conditions were not sufficiently communicated to form part of a binding contract; nor was the penalty “displayed” as defined in the Oxford English dictionary: “to display: to put something in a prominent place in order that it may readily be seen”.


2. No breach in any event
The breach is alleged to be “failing to display a valid ticket or voucher.” However:-

a) There is no byelaw requiring the driver to display a valid ticket or voucher.

b) Nor was there a contractual term requiring the driver to display a valid ticket or voucher. The fee for the day’s parking was paid by credit card. Thus a “valid cashless parking session covering the duration of the stay” was purchased and in accordance with the requirements set out on the signage there was no obligation to display a voucher.

There was no breach of either the Railway Byelaws or a contractual term.

3. Quantum
If, which is denied, there was a contractual requirement for the driver to display a voucher, then his failure to do so caused no loss. As stated above, the correct payment was in fact made; a voucher would merely represent proof of that payment.

Where damages in excess of a genuine pre-estimate of loss are claimed, it is up to the claimant to prove they have a legitimate interest in doing so. Whilst it is accepted there may be a legitimate interest in charging an amount which would deter non-payers, there can be no legitimate interest in charging this amount where proof of payment can be provided in another way.

4. Keeper liability
In an email exchange regarding this ticket Mr. Nolan of Customer Services stated that under the railway byelaws the keeper becomes liable for breach of contract if the penalty proceeds to debt recovery. This is not true.

Under contract law, only a party to the contract (ie the driver) can be liable for its breach. Although Schedule 4 of the Protection of Freedoms Act 2012 allows for liability for breach of contract to be transferred to the keeper in certain circumstances, there is no such provision in the Railway Byelaws. (Nor can there be, for power to make such a byelaw is not granted in the enabling legislation).

For the sake of completeness I should also point out that there is no presumption in law that the keeper was either the driver or the owner of vehicle at the relevant time.


Conclusion
For the above reasons, any one of which can stand by itself, this appeal should be allowed and the penalty notice cancelled.

Please also note that even if my appeal is unsuccessful, liability for this penalty will remain denied in its entirety. It would therefore be improper to pass the matter on to any form of debt collection agency and to do so will be considered harassment. Furthermore, to pass on my personal data without a proper legitimate interest in doing so would be a breach of the Data Protection Act 2018.

I would be very grateful if you would communicate your response to me by email as well as surface mail.

Yours faithfully,
XXX


Of course it's right the appeal succeeded, but I really didn't expect it to. Perhaps a certain number go through for cosmetic purposes and this one was pulled out of the hat. Or perhaps asking questions before appeal gives it a "too much trouble" label. Who knows?

Coupon-mad

The fee for the day’s parking was paid by credit card. Thus a “valid cashless parking session covering the duration of the stay” was purchased and in accordance with the requirements set out on the signage there was no obligation to display a voucher.

That's a decent point for us to use again.

Paying by card, even at the machine, is undoubtedly a CASHLESS method, thus no PDT needs to be displayed.

A new idea, I like it! Only applies where the signs are worded like these about valid cashless payments.