Euro Car Parks - "Underpaid"

tweener17

I have drafted a response. It needs to be sent by midnight tomorrow.

Is the below OK, does it cover everything (my dad admitted he was the driver):

POPLA CODE:

I am the registered keeper and driver and I am appealing this parking charge from Euro Car Parks at The Arcadian - Birmingham.

The driver is 65 year old who suffers from Type 2 diabetes who after entering the correct VRM asked for support from the employees on site. The assisted him in accessing the theatre rate and the amount to pay. The driver then asked for a receipt which prompted the employee to fetch a manager who advised there would be no issue.

Upon entering the driver’s VRM and via the employees support the correct amount should have been prompted by the pay machine because it should be linked to the ANPR scameras and this system should have calculated the correct tariff, which must have been higher than the Theatre rate.

If the system failed to prompt the correct amount, or allowed a lower amount to be paid, then the system must have been faulty, therefore the motorist was prevented from or deceived into paying an incorrect amount. This then would be classed as a frustration of contract because the driver was unable to pay the current amount.
The system should be set up so that it would be impossible to pay an incorrect amount. The technology exists to do/prevent this, so there is no excuse for parking companies not to install it.

Where a contract is found to be frustrated, each party is discharged from future obligations under the contract and neither party may sue for breach. The allocation of loss is decided by the Law Reform (Frustrated Contracts) Act 1943, but in this case there was no loss to the Claimant, or landowner, at the time the contract was breached, and so they have no valid claim for £100 or any amount at all. The case of Nicholl and Knight v Ashton, Eldridge & Co [1901] 2 KB 126 provides authority for this.

The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

The sign says the correct payment due will be displayed by the pay machine, but obviously it wasn't, or the machine was faulty, because otherwise the correct amount would have been displayed and paid. 

The driver requested the following proof:

- CCTV proof of the time of the payment.

- CCTV footage of the driver speaking to car park staff.

None of which has been provided.

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.

My appeal as the registered keeper is as follows:

The contravention on the PCN did not occur.

The PCN says that the driver failed to purchase sufficient time/underpaid a tariff. But it seems from interactions with the staff and the technology, the driver did as was advised. So it cannot be said that the PCN was properly given because the driver paid with support of staff via the pay machine.

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

I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines '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 assessment, as appellant, 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 - given the minuscule font size of the £sum, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion 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:

http://imgur.com/a/AkMCN

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.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

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.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an 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.

The letters seem to be no larger than .40 font size going by this guide:

http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2' letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3' or even larger.''

...and the same chart is reproduced here:

http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

''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 half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded 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 and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms 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 and in far larger lettering, with fewer words and more 'white space' as background contrast. 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 (who had not seen any signs/lines) 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 the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat 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. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this

tweener17

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.

The contract and any 'site agreement' or 'User Manual' setting out details - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

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 authorised on the material date, 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 by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.

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

The charge is a penalty, breaches the CRA & is not saved by ParkingEye v Beavis

This situation is an 'ordinary' contract, a simple consumer/trader transaction with a ticket for parking being purchased in good faith and produced by a faulty set of machines and can be very easily distinguished from the case of ParkingEye Ltd v Beavis. Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position. 

At 47 in the Court of Appeal Judgment in 'ParkingEye Ltd v Beavis' 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. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 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.” ''

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 contracts with a transaction and tariff: ''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 - which was paid in any case for the time actually parked and the driver left before expiry of the ticket - is an unfair penalty to the mind of any reasonable man, regardless of whether in the small print, the sign may have said somewhere 'enter the full registration'. A huge charge arising under the excuse of such a minor term is unjustified and unfair, if the remedy is out of all proportion with the 'breach' and the (completely different) Beavis case does NOT apply to this argument. 

The Consumer Rights Act 2015 (the CRA, enacted after the Beavis parking event) supports a consumer's position: - Under Schedule 2 'Consumer contract terms which may be regarded as unfair' it includes: ''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.''

As 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 turned on completely different facts and related only to that car park with its own unique complexity of commercial justification.

I confirm that the above facts and statements are true to the best of my knowledge and recollection.

KeithP

Do all the links in your missive work as you expect them to?

Etccarmageddon

I would personally remove the admissions re being the driver and the diabetes info

The rest looks good.

tweener17

Thanks @KeithP and @Etccarmageddon.

Yes all links work and I will remove admissions around being the driver. Thanks.

KeithP

tweener17 said:

Thanks @KeithP and @Etccarmageddon.

Yes all links work and I will remove admissions around being the driver. Thanks.

OK, but I did use the words "as you would expect them to".

Let me rephrase my earlier post...
You would be wise not to use that ebay link. 
It does not do what you want it to do.

You have stated that one can see 'a chart'. Can you see a chart when clicking on that link?

tweener17

KeithP said:

tweener17 said:

Thanks @KeithP and @Etccarmageddon.

Yes all links work and I will remove admissions around being the driver. Thanks.

OK, but I did use the words "as you would expect them to".

Let me rephrase my earlier post...
You would be wise not to use that ebay link. 
It does not do what you want it to do.

You have stated that one can see 'a chart'. Can you see a chart when clicking on that link?

Fair response. I appreciate the honest feedback
Proof reading now.

Coupon-mad

What's this doing in a POPLA appeal?

The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

tweener17

Coupon-mad said:

What's this doing in a POPLA appeal?

The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

Thanks for calling out @Coupon-mad I had removed when proof reading.

tweener17

Thanks all for your help - got confirmation that Euro Car Parks have cancelled the parking charge