Grace period

BJ63 · 7 November 2015 at 6:35PM

Hi,
Hope someone can advise me regarding my POPLA appeal.
My car was photographed at an ANPR monitored car park with the recorded time of stay being 2hrs and 10 mins. I have evidence to prove that I purchased 2 hrs of parking and that I left the car park 1hr and 58 mins from the time that my payment by phone was processed. The payment process took 4 mins, which leaves me with approx 6 minutes in which time I parked my car and read the instructions on the sign as to how to pay by phone. The evidence from Parking Eye states that it
"Operates a grace period on all sites, which gives the motorist time to enter a car park, park, and establish whether or not they wish to be bound by the terms and conditions of parking. These grace periods are sufficient for this purpose. We do not find it credible that this time was overstayed and that the Apellant was not parked within the car park at any time"

I can't find any information as to what the exact grace period is though.
I am clearly angry that I have been penalised (£100) when I had a valid ticket and left within the paid time, my only 'crime' or supposed breach of contract was to take 6 minutes to find a parking place, read the info on the sign and make a phone payment. Surely that is more than within a reasonable grace period?

I have 5 more days in which to submit my supporting statement for my appeal so any advice will be gratefully received as I'm getting pretty stressed.

Many thanks in advance!

salmosalaris · 7 November 2015 at 6:42PM

Your parking contract began the moment your coin dropped into the slot not their secret ANPR timing . If the ANPR exit time is less than 2 hrs from you making payment it is game over . Their grace period is their own concoction and irrelevant .
Quote Lord Denning
https://en.m.wikipedia.org/wiki/Thornton_v_Shoe_Lane_Parking_Ltd

For interest which car park is it ? And do you have the VAT no. on the ticket ? I bet it isn't PE's in which case you contracted with some other party anyway .

Jim_AFCB · 7 November 2015 at 6:47PM

If you were shopping at any of the outlets on site, have you been in touch with the places concerned complaining about PE's conduct? It's one avenue to possibly getting the charge cancelled.

You need to look at recent POPLA appeals on this forum regarding PE, and appeal on the standard points including non-compliance with POFA, not having authority to issue such charges and ANPR innacurracies etc.

There is a good example here, which was won at the New POPLA due to "not having written authority from the Landowner to issue parking charges"
http://forums.moneysavingexpert.com/showthread.php?t=5307735&page=1

Ignore any mention of Genuine Pre-Estimate of Loss, that argument was lost in the Supreme Court last week.

Not sure about signage, given that you said you took time to read it all and make your payment, but will leave the more learned members on here to comment on that.

You could also include the point about having time to read the T&C and organise a phone payment. The "Old POPLA" didn't do mitigation, but we don't yet know how much the "New POPLA" will take circumstances such as yours into account, so it's worth including.

In any case, post your draft on here for comment.

Guys_Dad · 7 November 2015 at 7:15PM

My appeal in this case would be on the facts. Send evidence of your parking ticket purchase and your leaving site very much along the lines that you have highlighted here, possibly laid out as follows.

12.00 entered car parking area
12.02 (or whenever) Phoned xxx to pay for parking
12.06 payment process completed
14.04 ANPR records me leaving site

As you can see, I paid for 2 hours parking and actually parked for 1 hour 56 minutes, taking into account the time it took me to exit the car park after actually parking. In a car park with both ANPR and a separate method to record the actual parking time, then the latter must be the overriding method for the parking start time, provided it was purchased at the earliest opportunity.

You are a member of the BPA whose code of practice requires you to allow a grace period of not less that 10 minutes for drivers entering and exiting the car park.

I therefore contend that the contravention did not occur and if by any chance there is a dispute on the ANPR recorded times, then the BPA CoP requirements are that a grace period of 10 minutes is required.

Obviously, change my times for the actual times that actually apply, but remember to give yourself a cpouple of minutes to exit rather than the ANPR time.

You can also use "the driver" rather than I if you want to use the 3rd person, but in your case, as you will be using your mobile phone record to confirm time parked, then I don't see the point.

One final thing - have you checked that you gave the correct site address and car reg when you bought the parking time?

BJ63 · 7 November 2015 at 7:16PM

For interest which car park is it ? And do you have the VAT no. on the ticket ? I bet it isn't PE's in which case you contracted with some other party anyway .[/QUOTE]

Thanks for your reply.
I paid by phone so no ticket or receipt to show VAT number. It was a PE car park on private land at the back of a department store.

salmosalaris · 7 November 2015 at 7:20PM

Sorry , danger of skim reading !
Well in that case the contract began when you gave your card details not their ANPR timing on the assumption you paid as soon as possible .
Obviously if you had paid an hour later this could not be argued but a few minutes would be as expected . How on earth can you be held to an entry time that you were unaware of and why should you be charged as part of your parking time for the ten minutes finding a space and arranging payment ?

BJ63 · 7 November 2015 at 7:22PM

Guys_Dad wrote: »

My appeal in this case would be on the facts. Send evidence of your parking ticket purchase and your leaving site very much along the lines that you have highlighted here, possibly laid out as follows.

12.00 entered car parking area
12.02 (or whenever) Phoned xxx to pay for parking
12.06 payment process completed
14.04 ANPR records me leaving site

As you can see, I paid for 2 hours parking and actually parked for 1 hour 56 minutes, taking into account the time it took me to exit the car park after actually parking. In a car park with both ANPR and a separate method to record the actual parking time, then the latter must be the overriding method for the parking start time, provided it was purchased at the earliest opportunity.

You are a member of the BPA whose code of practice requires you to allow a grace period of not less that 10 minutes for drivers entering and exiting the car park.

I therefore contend that the contravention did not occur and if by any chance there is a dispute on the ANPR recorded times, then the BPA CoP requirements are that a grace period of 10 minutes is required.

Obviously, change my times for the actual times that actually apply, but remember to give yourself a cpouple of minutes to exit rather than the ANPR time.

You can also use "the driver" rather than I if you want to use the 3rd person, but in your case, as you will be using your mobile phone record to confirm time parked, then I don't see the point.

One final thing - have you checked that you gave the correct site address and car reg when you bought the parking time?

That's really helpful, thank you!
I'm assuming the details entered my phone were correct as they have provided accurate evidence of the car ref, my 2 hr payment and the address of the car park.

Ivor_Pecheque · 7 November 2015 at 7:24PM

Not sure if CS018 helps... http://www.parking-prankster.com/case-law.html

BJ63 · 8 November 2015 at 10:07AM

Thanks for all your advice everyone; I'm still to draft my final response so please add any other comments that you think would strengthen my case.
From reading the numerous posts regarding POPLA appeals against PE, there seem to be a significant number of successes based on the operator failing to prove that they had the authority to operate on private land. In the evidence provided by PE, they claim they have authority but I'm assuming that isn't evidence in itself? should they be providing written authority of the landowner? My question is though, can I include this point in my response to their evidence when it wasn't part of my original grounds for appeal?

Jim_AFCB · 8 November 2015 at 10:31AM

Yes, appeal on the "standard points", always. Even if you don't think it is relevant to your situation. You are querying the validity of the ticket on points of law.

The aim of the initial appeal (while knowing it will probably fail) is to hook that POPLA code.

The best thing to do is put a draft appeal together and post it on this thread.
Once you have done that, we can make further suggestions.

Go with the standard points, include signage for now and add a further point about your situation, i.e. you read the signs, and went through the process of buying aticket through mobile app, etc etc.
then it can be fine tuned.

salmosalaris · 8 November 2015 at 11:25AM

I would major on the fact there was no breach of contract using Guys Dad's post as a guide to bring up the issues of the the dual timings , grace period etc .I would add that under the principle of contra proferentem an ambiguous contractual term must be read in a manner most favourable to the motorist . In this situation the word "stay" is ambiguous as the operator is relying on this beginning at a time which was not brought to the notice of the driver and is clearly open to a different interpretation .

I'd also stick something like the following in

As Parking Eye do not have proprietary interest in the land then I demand that they produce an unredacted copy of the contract with the landowner that authorises them to offer contracts for parking in their name, issue Parking Charge Notices and take legal action in their name for breach of contract.

----

The contract entered into between the driver and ParkingEye is a simple financial consumer contract. An offer of parking for a set sum was made and in return payment was made. This makes plain that the sum of £100 being demanded is nothing other than a penalty clause designed to profit from inadvertent errors or minor underpayment , and is consequently unenforceable. As this is a simple financial contract any claim for liquidated damages for breach of contract must represent a genuine pre-estimate of loss. If ParkingEye believe that inadequate payment was made (which their PCN fails to make clear and which I deny ) their demand should be for any unpaid tariff as that would be their only loss. The vehicle parked for an authorised stay that was fully paid for. £100 is quite clearly not a genuine pre estimate of their loss and is clearly extravagant and unconscionable compared to the supposed unpaid tariff. If ParkingEye believe their charge is a genuine pre-estimate of their loss I demand they produce a detailed and itemised breakdown of how this

I would refer the POPLA adjudicator to the persuasive remarks of Sir Timothy Lloyd in the judgment handed down by the Court of Appeal in the case of Parking Eye v Barry Beavis. In that situation the penalty charge was justified on the basis that it was necessary to deter motorists staying longer than allowed to facilitate the turnover of free parking places. It was determined that the contract was not a financial one in that there was no economic transaction between ParkingEye and the motorist.

This is in stark contrast to the present case where there was an economic transaction between ParkingEye and the motorist, and no restriction on the time of stay was made provided payment was made.
This car park is no different to any other commercial enterprise. There can be no argument of commercial justification allowing what would otherwise be a clear penalty simply because a small payment was purportedly not made or a VRN incorrectly inputted into a machine when the vehicle would otherwise have been welcome to park as it did.

A contractual term which imposes the requirement to pay a disproportionately large sum for failing to pay a far smaller one is the very essence of an unlawful penalty. Analysis of paragraphs 43-51 from the judgment clearly demonstrates that the Court of Appeal would have considered the charge in this case as an unenforceable penalty. This case can be clearly distinguished from that of ParkingEye v Beavis the judgment in which is irrelevant in this situation.

Any reliance on the Supreme Court judgment in the case of Parking Eye v Beavis should also be disregarded as the judgment simply reaffirms that the decision in that case was based on the use of that particular car park which was free and the charge justified to ensure motorists left within 2 hours for the good of all other drivers and the facility . As previously mentioned in this situation there is no such justification .

----

The charge is quite clearly an unfair contractual term under UTCCR 1999 and is consequently unenforceable.
a. The charge of £100 is clearly grossly disproportionate to any purported loss which would only be a small parking tariff if no payment had been made at all which is denied.
b. The contract causes an imbalance in the rights and obligations of the parties to the detriment of the motorist. ---

. ParkingEye has failed to satisfy the requirements of Schedule 4 of the Protection of Freedoms Act

a.The unpaid parking charge that should have been requested ( paragraph 9(1) of the Act ) is that which was unpaid on the day before the Notice to Keeper was issued. This can only be the purportedly unpaid parking tariff and not £100 which had not been requested and which there was no facility to pay on the day before the Notice to Keeper was issued. Consequently £100 cannot be considered unpaid for the purposes of the Act. It clearly demonstrates that ParkingEye has failed to satisfy the requirements of the Act and cannot rely on it. At no time was the registered keeper asked to pay the purportedly unpaid tariff.

b. ParkingEye have failed to notify me why the parking charge is due as is required by the Act. Their generic template PCN indicates that the vehicle supposedly stayed longer than was authorised or was not authorised at all. Which is it? The Act demands that the reason for the charge is made clear and again ParkingEye have failed to comply with the requirements of the Act and consequently cannot rely on its provisions

Grace period

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