Civil Enforcement PCN - last day to appeal with them tomorrow 06/06

busyasusual

This was their reply, which looks a standard template to me.

I've contacted the payment company to send me the details they have about me on that day and the first failed attempt is in 9 minutes according to their timestamps. 

What are the chances of me winning at popla and what will be my argument?

busyasusual

My main argument will be due to circumstances out of my control I wasn't able to make the payment within 10 minutes as the payment failed for no clear reasons.

This can be proved by the extract I got from the payment company in attachment where it shows I've registered the car reg within 6 minutes and the first attempt was in 9 minutes which failed for no clear reasons. Then I will list the other 3 failed attempts and the fourth one was successful.


Do you think this is enough or should I also include other reasons such as the timestamp is not in the photos?

Coupon-mad

I would use what you said as your first point. With your evidence that point should win it.

Then just add the usual POPLA points, re:

- no landowner authority

- unclear signage.

Never leave those two out of a POPLA appeal.

busyasusual

The photo above is from the car park.

Re: unclear signage, is this photo what should I bring as evidence?

This photo is attached to the PDF file I received from PandP that provided the transactions so there is no way to hide it. What would be my point of unclear signage based on this?

Gr1pr

The very tiny font that is difficult to read, below the charges 

The £100 is tiny and buried away, nothing like the Beavis sign by Parking Eye 9 years ago, its definitely not as prominent as the top half of the sign, neither are those wordy terms and conditions 

The disabled warning is just as bad, especially for people with disabilities 

LDast

You don't show a close up, magnified view of the sign. You show a general overview of the locations which then shows how rubbish the signs are and how it is almost impossible to read the detail on the sign unless your face is less than 6 inches from the sign.

busyasusual

They have produced the above as a proof that have the landowner authority - is this valid, how can this be challenged?

1. It was the driver’s responsibility to ensure that they had complied with the terms or any exemption procedures at the site. Phone and Pay service worked fine on the day in question, please see attached the reports. If the driver did not have the ability to adhere to the terms and conditions of the car park, they should have removed their vehicle from the car park immediately.

2. As per the documentation provided it’s showing clear that the driver tried to pay for parking via Phone and Pay App, after 9 minutes arriving in the car park. We can see the driver attempted 3 times to pay for parking, however their card was declined. It is clear from this that the failure to book a parking session on time was due to user error, and not to a problem with the Phone and Pay service. Please note that driver had an alternative option booking parking by calling the Phone and Pay automated line, however there was no attempt of the driver calling this.

3. An Operator is required to grant motorists a grace period, in which it will not issue a Notice for a breach of any terms of parking which, by their nature, require a grace period to be complied with. For instance, any term that a pay and display ticket must be purchased must imply a grace period for the motorist to purchase the ticket, however, there is no requirement that the Operator gives a general grace period in which any breach of the terms of parking is overlooked simply because it does not occur for very long.

4. Whilst we appreciate the Appellant’s submissions, we are unable to take into account mitigating circumstances; the terms and conditions of parking were clear. It is the motorist’s duty to read the signs and act in accordance with the terms and conditions. As the Appellant failed to adhere to the terms and conditions of the car park, the PCN was issued correctly.

5. There are many clear and visible signs displayed in the car park advising drivers of the terms and conditions applicable when parking in the car park. Drivers are permitted to park in the car park in accordance with the terms and conditions displayed on the signage. These signs constitute an offer by us to enter into a contract with the drivers.

6. Our ANPR cameras recorded the Appellant’s vehicle, registration number in the car park during the times shown on the front summary sheet of this appeal.

7. There is more than adequate signage in the car park, as can be seen from the attached site plan. Furthermore, the car park has sufficient lighting and warnings for the Appellant to have acknowledged the signs, and which the Appellant accepted by their actions.

8. We refer you to the Court of Appeal authority of Vine v Waltham Forest London Borough Council [2000] 4 All ER 169 which states:

   “the presence of notices which are posted where they are bound to be seen, for example at the entrance to a private car park, which are of a type which the car driver would be bound to have read, will lead to a finding that the car driver had knowledge of and appreciated the warning”.

9. The nature of the relationship between the Appellant and our company is contractual. The car park is private land and consequently drivers require permission before parking on the land. The Company granted permission by way of making an offer in the signs displayed in the car parks and the Appellant accepted that offer and the terms set out on the signs by their conduct in parking on the land.

10. As previously stated, there was ample signage throughout the site, such that the Appellant had an opportunity to read them, including signage at the entrance to the car park.

11. The British Parking Association advises all motorists:

    “Regardless of whether they park in private car parks, Council car parks or on- street, motorists should always park properly and always check any signage displayed to make sure they know and understand the rules that apply. This is especially so if they are visiting for the first time - in order to acquaint themselves with the prevailing Terms & Conditions for parking.”

12. When parking on private land a motorist freely enters into an agreement to abide by the conditions of parking, in return for permission to park. Therefore, the onus was on the Appellant to ensure that they could abide by any clearly displayed conditions. 

13. The charge sought is a contractual term, which is within the recommended British Parking Association (BPA) guidelines, and is compliant the BPA code.

    “...the charge does not contravene the penalty rule, or the Unfair Terms in Consumer Contracts Regulations 1999.”

    A summary of the Supreme Court’s judgment in the case of Parking Eye v Beavis has been included in the Operator’s evidence pack, but can also be accessed using the following link:

    https://www.supremecourt.uk/cases/docs/uksc-2013-0280-press-summary.pdf

    We submit that the charge does not cause a significant imbalance of the parties’ rights and obligations arising under the Contract. Furthermore, Lord Neuberger and Lord Sumption asserted the following in the above Supreme Court judgment:

    “Any imbalance in the parties’ rights did not arise ‘contrary to the requirements of good faith’, because ParkingEye and the owners had a legitimate interest in inducing Mr Beavis not to overstay in order to efficiently manage the car park for the benefit of the generality of users of the retail outlets.”

    It would therefore be erroneous to conclude that the sum claimed must be a genuine pre- estimation of loss. 

14.  The Supreme Court, in their judgment of the recent Parking Eye v Beavis appeal, stated that “...the charge does not contravene the penalty rule, or the Unfair Terms in Consumer Contracts Regulations 1999.” 

Any suggestion?

Coupon-mad

Just do POPLA Comments in the usual way. As explained in the 3rd post of the NEWBIES thread where POPLA COMMENTS are covered.  Doesn't matter if you win or lose at POPLA anyway so don't bust a gut over this.  You won't be paying.

busyasusual

Thanks @Coupon-mad