DCBL, Smart Parking, POPLA appeal denied 2020

LavenderKuromi

Gr1pr said:

Get the AOS done online on MCOL ASAP,  no need to wait once 5 days has elapsed,  today would be good 

Then draft your template defence paragraphs in word or similar 

AoS has been done. Thank you.

LavenderKuromi

Ok, getting my defence together.
In short, the machine wasn't working. It wouldn't print a ticket.
Due to my disability I sat in the car a little before getting out and certainly at least 5 mins after getting back from the shop. They give 10 minutes leeway. Due to me being slower with my mobility I was an extra 14 minutes. 24 in total.
There were not many cars in the car park and I did not cause them any loss.
Ticket cost for 1hr was 70p. When I have mediation should I offer a fiver or nothing in this instance? 
How much should I include at point 3? Anything which I don't need to add at the mo?
Thank you.

Coupon-mad

Because they accused you of failing to pay a tariff and the machine wasn't working, add this as para 3, 4, 5 & 6, re-number the rest of the template and remove the FINAL template paragraph, to hopefully make it all fit into MCOL:

3. The Defendant was a genuine shopper and made all possible endeavours but the machine was faulty (cost for 1hr was 70p but it was impossible to pay). Any contract was frustrated and void for impossibility.
4. The Defendant is disabled (hampered by impaired mobility and stamina) and sat in the car before getting out and again for at least 5 mins after trying to get the machine to work and using the shop. The Equality Act 2010 applies.

5.  The Supreme Court (SC) considered the penalty rule in the leading case of  ParkingEye v Beavis 2015 UKSC67. The term at issue in this case is one imposing a secondary obligation to pay an inflated charge for breach of the primary obligation to pay the tariff. The SC held that the £85 charge in Beavis was a secondary obligation that engaged the penalty rule but was saved by unique circumstances in that case (ref: Lord Neuberger and Lord Sumption at paragraphs 98 and 99).
6. Similar purposes are not served by the secondary term in this case. The Claimant charges motorists for parking, from which it receives an income stream. There is no purpose of deterring motorists from parking for long periods. On the contrary, the legitimate commercial interests are served by encouraging motorists to stay and pay. The Beavis exception cannot apply to failure to pay a tariff in a pay & display car park and the secondary obligation in the present case is a penalty and unenforceable. 

LavenderKuromi

Thank you very much. Shall I get this defence sent in sooner rather than later?

Le_Kirk

Once you have edited it as above from @Coupon-mad, there is no need to delay, just don't miss the deadline.

Coupon-mad

LavenderKuromi said:

Thank you very much. Shall I get this defence sent in sooner rather than later?

Get it done now. It should fit MCOL but you may have to remove the final paragraph of the template. That's no biggie at all.

Then, once your defence is in:

Please read this message and do the vital,  current Public Consultation in August:

https://forums.moneysavingexpert.com/discussion/comment/81552148/#Comment_81552148

It's important that the Government hears from people with unfair charges who are facing horrific, scary court claims.

The link shows the two vital points to concentrate on, IMHO:

- banning DRA fee add-ons completely

- making sure a new SINGLE appeals service replaces POPLA and the IAS which are seen as not fully independent and involved in a 'race to the bottom'.

Click through to the main thread about the Consultation, Do not be deterred by the fact that some questions are for the parking industry only.

We are discussing how to respond. The issues above are the IMPORTANT ones. Personally, mainly because it means the Code will come in quicker (no signs will have to be changed) I have no issue with PCs 'up to £100 cap' AS LONG AS DRA FEES ARE BANNED.

Please join us in doing this Consultation.

This is your one chance to make a difference re the proper regulation of private parking.

LavenderKuromi

Certainly will. Thank you. Will sort my defence tomorrow. 

LavenderKuromi

Just to let you know it's in. Had a bit of a family situation so was dealing with that. Thank you all and para 10 fitted on the end.
Now we wait.

Coupon-mad

And do the Public Consultation, of course! No sitting on your hands & waiting and missing your only chance to change the law on all this.

We'll be discussing it more this month.

Please bookmark it & come back as we need another week or so to think about our 'recommended' responses to the Consultation a bit more (what we won't do is provide a template, for obvious reasons).

LavenderKuromi

Will do Coupon-mad