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ParkingEye and hired car, advice needed

edited 19 November 2019 at 5:37PM in Parking Tickets, Fines & Parking
39 replies 1.2K views
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  • Coupon-madCoupon-mad Forumite
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    Very good work, impressive from any poster but especially doing all that from another country in another language and getting your head around our law (the POFA 2012)!
    3. After receiving our (the car hirer) contact information, PE send us another (second) PCN . Also from the second PCN the keeper liability is missing, Schedule 4 of the Protection of Freedoms Act 2012 is not mentioned in this notice either.

    [STRIKE]4. PE failed to react on our appeal within an adequate time period. After receiving the PCN, we appealed online on October 9. The response letter in which PE informed us that the appeal is refused is dated November 6, which is exactly 28 days later. We received the letter in the week of November 11, so more than 30 days after our appeal.[/STRIKE]
    The time they took to respond to an appeal is not a POPLA issue, so replace #4 above, with:
    4. Further, the PCN that we received, as if it was a Notice to Hirer, had no enclosures at all. This means it was not compliant with the POFA 2012 (specifically, para 14) and as hirer, I cannot be held liable.

    Paragraph 14(2) and (3) of POFA 2012 covers transferring liability to a hirer, and it says:

    (2) The conditions are that —
    (a) The creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;
    (b) A period of 21 days beginning with the day on which the notice to hirer was given has elapsed; and
    (c) The vehicle was not a stolen vehicle at the beginning of the period of parking to which the unpaid parking charges relate.
    (3) In sub-paragraph (2)(a) ''the relevant period'' is the period of 21 days beginning with the day after that on which the documents required by paragraph 13(2) are given to the creditor.


    Under these regulations, Parking Eye were required to send this information to me (as the hirer) and they did not. So the Notice to Hirer was not properly given and POPLA will need to inform the operator to cancel this charge.
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  • @Coupon Mad, thank you for the constructive proposals.

    I also consulted the similar galexplorer case ("ParkingEye PCN, goldent ticket, rental vehicle - POPLA stage") for additional input and used the structure and some parts from there which I think they are applicable here as well.

    The POPLA appeal right now will become something like:


    ParkingEye PCN Ref. xxxx
    Vehicle Reg xxx

    I write to lodge details of my dispute with ParkingEye Limited (henceforth described as 'ParkingEye') in respect of the above-detailed Parking Charge Notice xxxxx issued by ParkingEye in respect of an alleged breach of terms and conditions of parking at xxxx Car Park on xxxx2019.

    The above-detailed vehicle was on a short-term hire to me and I confirm that I am its hirer for the purpose of the corresponding definitions under the Protection of Freedoms Act 2012

    I set out below why I am not liable for this parking charge:

    A) ParkingEye failed to comply with the strict requirements of POFA
    B) ParkingEye have not shown that the individual who it is pursuing is in fact the driver who was liable for the charge.

    C) ParkingEye failed to provide information requested in the direct appeal
    D) There was no breach of the terms and conditions of parking

    A) ParkingEye failed to comply with the strict requirements of POFA

    The entire communication and information by ParkingEye is not compliant with the POFA requirements, especially for the following points:

    • ParkingEye failed to refer to keeper liability in the first PCN (Notice to Keeper). There is no mentioning of Schedule 4 of the Protection of Freedoms Act 2012 in the first PCN/NTK. After receiving my (the car hirer) contact information, ParkingEye sent me another PCN (Notice to Hirer). Also from the PCN/NTH any reference to keeper/hirer liability is missing, Schedule 4 of the Protection of Freedoms Act 2012 is not mentioned in this notice either.
    • The PCN/NTH that we received, as if it was a Notice to Hirer, had no enclosures at all. This means it was not compliant with the POFA 2012 (specifically, para 14) and as hirer, I cannot be held liable. Paragraph 14(2) and (3) of POFA 2012 covers transferring liability to a hirer, and it says:
      (2) The conditions are that —
      (a) The creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;
      (b) A period of 21 days beginning with the day on which the notice to hirer was given has elapsed; and
      (c) The vehicle was not a stolen vehicle at the beginning of the period of parking to which the unpaid parking charges relate.
      (3) In sub-paragraph (2)(a) ''the relevant period'' is the period of 21 days beginning with the day after that on which the documents required by paragraph 13(2) are given to the creditor.
    • ParkingEye failed to send the first PCN/NTK to the registered keeper (hire company) within 14 days. The parking event occurred on August 15, and the first PCN/NTK is dated August 29. Allowing a domestic letter run-time of two days, this PCN/NTK cannot have reached the hire company within 14 days.

    Under these regulations, Parking Eye were required to send this information to me (as the hirer) and they did not. So the Notice to Hirer was not properly given and POPLA will need to inform the operator to cancel this charge.

    B) ParkingEye have not shown that the individual who it is pursuing is in fact the driver who was liable for the charge.

    In cases with a keeper or hirer appellant, yet no POFA 'keeper/hirer 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. Even a hired/leased vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured, which can be under their own fully comprehensive policy. 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.

    Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be), and 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 hirer without a valid Notice to Hirer with the accompanying documentation required under statute.

    As the hirer 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 because the fact remains I am only the hirer, and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a hirer appellant to be deemed to be the liable party.

    The burden of proof rests with the Operator, because they cannot use the POFA in this case, 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 2012 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 hirer of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

    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.''


    C) PE failed to provide enough information requested in the appeal

    In the direct online appeal I explicitly asked for the log files of the parking machines in order to find out which amount was actually paid. ParkingEye did not include the log files in the response. The non-existent log files make an exact analysis of the event impossible for us and make a suitable defense considerably more difficult.

    D) There was no breach of the terms and conditions of parking

    According to the wording in the refusal letter "insufficient time was paid for on the date of the parking event". The ANPR images show that the car stayed on the parking for 48 minutes. The driver does not recall exactly for which period was paid, and we are still missing the machine log files, but the shortest available period is 30 min. In our opinion a total of 18 minutes of grace periods is not enough. The driver needed probably more than 10 min to produce a ticket considering the following circumstances on that particular parking on August 15:

    • when the driver entered the parking there were already many cars waiting for free spaces, and the cars did not move for several minutes
    • there are marked parking spaces on pavement, but there is also a lawn area which other drives used to park. On the lawn area there were spaces available, however, the driver did not dare to park on the lawn because it might be considered as "parking outside the designated areas" and therefore waited longer than others for a free marked space.
    • After eventually finding a space, the driver started to read the parking rules carefully (as we are not UK residents and do not have experiences with this kind of things we felt we must read and understand the rules).

    I was wondering if it makes sense to add the following points from the galexplorer case together with the respective explanations:

    • ParkingEye has no standing or authority to pursue charges or to form contracts with drivers using this particular car park.
    • The charge is a penalty, breaches the Consumer Rights Act 2015 and is prohibited/unfair under the CPUTRs. It is not saved by ParkingEye v. Beavis.

    Thanks
  • Coupon-madCoupon-mad Forumite
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    Yes, add them as well!
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  • PE has made their input now on POPLA. There are some remarkable statements, e.g. regarding grace periods (in their opinion and according to BPA a single grace period is sufficient) and they also refer to the Beavis case, but especially the last sentence is irritating: "Please be advised, this Parking Charge was not issued under the Protection of Freedoms Act 2012." I am not sure how to deal with that, they simply deny that POFA is applicable?

    Here is an extraction of the answer:

    Grace Period
    Clause 13.2 of the BPA code of practice states ’…you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken’. ParkingEye can confirm a grace period is given to all motorists before a Parking Charge is issued. In relation to clause 13.4, which states: ‘You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action’, this does not mean that a second grace period must be given. The BPA has confirmed that only one grace period ought to be applied per a motorist’s stay onsite.

    ParkingEye can confirm that the grace period on site is fully compliant with the BPA code of Practice.

    Further Information
    ParkingEye ensures that all its signage is clear, ample, and in keeping with the British Parking Association (BPA) regulations.

    The signage at this site demonstrates adequate colour contrast between the text and the backgrounds advised in the BPA Code of Practice, you will note the colour contrast at this site is black text on white background.

    You have stated that you do not believe that the Parking Charge amount is a pre-estimation of loss, or that it is extravagant, unfair or unreasonable. In this regard, ParkingEye relies upon the Supreme Court decision in the matter of ParkingEye v. Beavis [2015] UKSC 67, which was found in ParkingEye’s favour and concerned the value of our Parking Charges.

    The Supreme Court considered the Defendant’s submissions that the Parking Charge should be considered to be penal and unfair, but the Justices supported the findings of the lower courts, where the charge was found to be neither ‘extravagant’ nor ‘unconscionable’.

    In terms of the amount of the Parking Charge, this Judgment, along with the British Parking Association Code of Practice at paragraph 19.5, support the level of Charge issued by ParkingEye, and the Justices note that, “The charge is less than the maximum above which members of the BPA must justify their charges under their code of practice”.

    Lord Hodge states that, “…local authority practice, the BPA guidance, and also the evidence that it is common practice in the United Kingdom to allow motorists to stay for two hours in such private car parks and then to impose a charge of £85, support the view that such a charge was not manifestly excessive […] the fact that motorists entering the car park were given ample warning of both the time limit of their licence and the amount of the charge also supports the view that the parking charge was not unconscionable.

    ParkingEye submits that the Judgment provides clarity and delivers a binding precedent to support the position that our Parking Charges are fair, reasonable and legally enforceable.

    Please be advised, this Parking Charge was not issued under the Protection of Freedoms Act 2012.


    Other than this their input is mainly a collection of data which was never disputed. I am asked to submit a comment within seven days, but the argumentation has not changed (I can enter 2000 characters in the POPLA comment box):
    • A) ParkingEye failed to comply with the strict requirements of POFA
      • They have been unable to deliver the NTK within 14 days after the event
      • There was no mentioning of POFA neither in the NTK nor in the notice to hirer, and no reference to keeper/hirer liability
      • The mandatory documents according to paragraph 13(2) were missing in the notice to hirer
    • B) ParkingEye have not shown that the individual who it is pursuing is in fact the driver who was liable for the charge.
      The additional evidences brought by PE do not show either who the driver was
    • C) ParkingEye has no standing or authority to pursue charges or to form contracts with drivers using this particular car park.
      PE is claiming to have this authority, but the contract is still missing from their input
    • D) The charge is a penalty, breaches the Consumer Rights Act 2015 and is prohibited/unfair under the CPUTRs. It is not saved by ParkingEye v. Beavis.
      I still consider GBP100 to be disproportionately high for 48 min vs. 30min payment, and it has clearly the character of a penalty.
    • E) ParkingEye failed to provide information requested in the direct appeal
    • F) There was no breach of the parking terms and conditions
      In our opinion a single grace period is not enough, the car stayed on the parking for 48 minutes and it was paid for 30min


    Are there any comments or suggestions how to formulate the comment?

    Many thanks...
  • UmkomaasUmkomaas Forumite
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    The BPA has confirmed that only one grace period ought to be applied per a motorist’s stay onsite.
    The BPA Code of Practice does not back up that statement. POPLA must ignore it.

    You need to similarly 'dismantle' anything that isn't correct.

    But if PE have failed PoFA (no hire documents) or are simply saying the are not pursuing under PoFA, as long as the driver has not been identified, you simply restate that you as the hirer, on both counts, cannot be held liable for the charge. Reiterate that point.

    Remember, you have only 2,000 characters (not words) available for your rebuttal. You have a very tight timescale in which to submit it, don't miss it. Also note that you cannot introduce any new points not previously included in your main POPLA appeal.
    Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask.
    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
  • edited 29 November 2019 at 10:55PM
    MistyZMistyZ Forumite
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    edited 29 November 2019 at 10:55PM
    [*]The mandatory documents according to paragraph 13(2) were missing in the notice to hirer

    Emphasise this important point more: 'the documents referred to in PoFA Schedule 4, para.14 (2) (a) were NOT sent to hirer. Therefore this appeal must be allowed.'

    Capital letters can help (apparently italics and bold don't work in rebuttals).
  • Thank you MistyZ and Umkomaas for the constructive comments. I have now filed my comments:

    [FONT=&quot]After carefully reading the evidences brought by ParkingEye we are convinced that POPLA must allow the appeal for the following reasons (repeated from original appeal):[/FONT][FONT=&quot]
    [/FONT]

    [FONT=&quot]A) POFA2012 is definitely applicable in this case according to paragraph 1(1+2) and paragraph 13. ParkingEye failed to comply with the strict requirements of POFA:[/FONT]
    • [FONT=&quot]POFA was NOT mentioned in the notice notice to hirer; neither any reference to keeper/hirer liability as required by paragraph 14(5a)[/FONT]
    • [FONT=&quot]The mandatory documents according to paragraph 13(2) were NOT sent together with the notice to hirer[/FONT]
    • [FONT=&quot]ParkingEye did NOT deliver the NTK within 15 days after the event (Aug 15) as required in paragraph 9(5): According to paragraph 8(6), the NTK can be assumed to have arrived 18 days after the event on Sep. 2[/FONT]

    [FONT=&quot]B) ParkingEye has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge:[/FONT]
    [FONT=&quot]The evidences brought by ParkingEye do NOT show who the driver was. No admission was made, and no assumption must be made. The hirer cannot be held liable to pay this parking charge under consideration of A)[/FONT]
    [FONT=&quot]
    [/FONT]
    [FONT=&quot]C) ParkingEye has no standing or authority to pursue charges or to form contracts with drivers using this particular car park:[/FONT]
    [FONT=&quot]ParkingEye has not been able to provide the landowner contract[/FONT]
    [FONT=&quot]
    [/FONT]
    [FONT=&quot]D) The charge is a penalty, breaches the Consumer Rights Act 2015 and is prohibited/unfair under the CPUTRs. It is not saved by ParkingEye v. Beavis:[/FONT]
    [FONT=&quot]GBP100 compared to the missing 50p charge is disproportionately high and it has clearly the character of a penalty. This case with payable tariff from the first minute is different from the complex ParkingEye vs. Beavis case[/FONT]

    [FONT=&quot]E) ParkingEye failed to provide information requested in the direct appeal[/FONT]
    [FONT=&quot]
    [/FONT]
    [FONT=&quot]F) There was no breach of the parking terms and conditions:[/FONT]
    [FONT=&quot]Granting only a single grace period of 10min is not enough, even BPA suggests a reasonable period before AND after the event. The time not covered by the payment was 18min[/FONT]
  • Coupon-madCoupon-mad Forumite
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    ParkingEye has not been able to provide the landowner contract
    Well, if they didn't even include a Witness Statement from the landowner/agent/retailer, then you will win on that easy point!
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  • Well, if they didn't even include a Witness Statement from the landowner/agent/retailer, then you will win on that easy point!
    They didn't. They only state to have authority in the paragraph below extracted from their POPLA input. Evidence is completely missing:

    Authority
    ParkingEye can confirm that the above site is on private land, is not council owned and that we have written authority to operate and issue Parking Charge Notices at this site from the landowner (or landowner’s agent).

    It must also be noted that any person who makes a contract in his own name without disclosing the existence of a principal, or who, though disclosing the fact that he is acting as an agent on behalf of a principal, renders himself personally liable on the contract, is entitled to enforce it against the other contracting party. (Fairlie v Fenton (1870) LR 5 Exch 169). It follows that a lawful contract between ParkingEye and the motorist will be enforceable by ParkingEye as a party to that contract.
  • We received the POPLA decision today. Against all expectations, the appeal was not successful :mad:.

    Our strongest arguments that the PCN is not compliant with POFA2012 (essential components missing from the PCN) was not honored, the assessor states "I have considered the PCN under the requirements of the Protection of Freedoms Act (PoFA) 2012. I have reviewed the PCN and I am satisfied it was issued in accordance with the requirements of PoFA 2012." The missing landowner contract was not commented at all, instead there is a long section whether the signage of the place is sufficient (which we never questioned).

    This is the complete feedback from the assessor:
    The appellant appealed as the registered keeper. They have not identified themselves as being the driver of the vehicle on the day of the parking event. As such, I have considered the PCN under the requirements of the Protection of Freedoms Act (PoFA) 2012. I have reviewed the PCN and I am satisfied it was issued in accordance with the requirements of PoFA 2012. I am therefore satisfied the operator is entitled to pursue the registered keeper for the PCN. The operator has provided photographic evidence of vehicle XXXXXXX entering the site at 13:12 and exiting at 14:01 totalling a stay of 48 minutes spent at site. When entering onto a private car park such as this one, any motorist forms a contract with the operator by remaining on the land for a reasonable period. The signage in place sets out the terms and conditions of this contract. The operator has provided photographic evidence of the signage in place in the car park, which states: “Parking Tariffs Apply … Tariffs … Up to 30 mins £0.50 … Up to 1 hour £1.00 … How to Pay ... At the payment machine at any time before exiting the car park - your full, correct vehicle registration will be required … Failure to comply with the terms & conditions will result in a Parking Charge of £100” The operator maintains a list of all payments made on the day in question. When searching this list, it shows the payment linked to the appellants vehicle registration covered 30 minutes only. The appellant explains that the PCN does not meet the requirements of PoFA 2012. However, as discussed above, I have reviewed the PCN and am satisfied the requirements of PoFA 2012 have been met. The appellant states there was no breach of terms and conditions. However, as discussed above, when entering onto a private car park such as this one, any motorist forms a contract with the operator by remaining on the land for a reasonable period. The signage in place sets out the terms and conditions of this contract. By purchasing 30 minutes of parking only but remaining for 48 minutes the appellant has breached the terms and conditions of the site. The appellant states the charge is unfair/prohibited. The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.” As such, I must consider whether the signage at this site is sufficient. When doing so, I must consider the minimum standards set out in Section 18 of the BPA Code of Practice. Within Section 18.1 of the BPA Code of Practice, it states as follows: “You must use signs to make it easy for them to find out what your terms and conditions are.” Furthermore, Section 18.3 of the BPA Code of Practice states: “You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.” As stated, these are the minimum standards that could be expected of the parking operator when informing motorists of the terms and conditions at a particular site. In addition to this, I note that within the Protection of Freedoms Act 2012 it discusses the clarity that needs to be provided to make a motorist aware of the charge. Specifically, it requires that the driver is given “adequate notice” of the charge. The act then moved on to define “adequate notice” as follows: (3) For the purposes of sub-paragraph (2) “adequate notice” means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land. Even in circumstances where PoFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own independent assessment of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of section 18 of the BPA Code of Practice and PoFA 2012, I am of the view that the signage at the site is sufficient to bring the parking charge to the attention of the motorist. Therefore, having considered the decision of the Supreme Court decision, I conclude that the parking charge in this instance is allowable. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear, the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court. Ultimately, it is the motorist’s responsibility to comply with the terms and conditions of the car park. Upon consideration of the evidence, the appellant exceeded time paid for, and therefore did not comply with the terms and conditions. As such, I conclude that the PCN has been issued correctly. Accordingly, I must refuse this appeal.

    Any idea what went wrong? It would also be helpful for similar cases with rental cars to adapt the strategy. From our side, as the POPLA decision cannot be challenged, we are probably going to pay the fine now. Going to court does not seem to be appropriate.
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