Part 2: Points 5 to 7
5) Misleading system and signage at fault
In the appeal rejection MET Parking Services have alleged that "When you left the car park you acknowledged that you had not validated your stay and confirmed you were parked without authorisation by pressing the button to raise the barrier."
The way MET Parking Services have worded their appeal rejection letter implies I was the driver even though I appealed as the keeper and clearly stated to them that I was not the driver.
As a result of this claim and during a visit to McDonalds restaurant at Gatwick Airport on the 17/07/2018 at approximately 13:15 during bright sunny spell, similar to the conditions present on the 30 May 2018 it was noticed that there is no signage at the car park entrance from the main road, nor are clear instructions regarding:
a) What is expected from the drivers using these car park facilities
b) How to validate the ticket
c) Where to validate the ticket
Text displayed by the entry and exit barrier screens was not clearly visible or readable under these conditions.
Two red signs displayed at this car park, can't be seen from every space in the car park from the driver's seat let alone read it. One of these signs is directly opposite to the exit barrier, however, a driver leaving the car park will be focusing his/her attention onto the car in front, pedestrians, the exit barrier and on-coming traffic direction, opposite where this sign is displayed.
During this visit, I also witnessed a small queue leaving the car park and drivers clearly experiencing difficulties trying to get the exit barrier to open: their natural and almost instinctive reaction when the automatic barrier did not open when the ticket was presented was to press the button requesting assistance as in many other car parks around the country.
MET Parking Services system does not considers this natural response and conveniently interprets this reaction as a consent to pay a disproportionate car park charge (where 60 minutes free parking is actually granted to customers).
Also, nowhere on their sign and on the button/barrier does it state that pushing the button will actually raise the barrier. Their sign says "use their validated ticket to raise the exit barrier". This instruction suggests to me that the barrier won't lift without the presentation of a validated ticket, this is not true.
I approached the exit barrier on foot and therefore can categorically state that it is possible to lift the barrier by simply pressing a button without the need to use a validated ticket.
This shows that the whole parking system is deliberately flawed. There are no instructions at the entrance saying a validated ticket must be obtained, and it is possible to leave the car park without having such a ticket. This is entrapment.
No signs related to the car park validation requirements are displayed inside the cafe, where the ticket validation is supposed to take place and no member of the staff offered to validate the car park ticket. The PPC is put to strict proof that there are prominent signs within the cafe.
I also had a fairly long conversation with the Manager on a subsequent visit: He was unhappy that these complaints were becoming a frequent occurrence. The Manager expressed his disgust with the way MET Parking Services are producing these PCNs to legitimate patrons and driving away business and expressed his wish that unfair PCN be cancelled.
He also stated that the signage was confusing, not enough signs for the large car park area and not present inside the restaurant where tickets are actually validated.
6) 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.
Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious and parking terms and 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, some of the signs in this car park do not display the full terms and there are no details of the sum of the parking charge itself in large lettering at the entrance or at the exit barrier either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.
This case is 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.''
Based on a recent visit to this car Park and 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.
As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:
''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.''
''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:
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.
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.
7) Consumer Protection from Unfair Trading Regulations - breach
The Consumer Rights Act 2015 states a 'requirement for transparency' in establishing a contract and 'a trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent'.
A contract can't be formed by a sign displayed at the opposite side were the driver's attention is focused at the exit barrier.
Even if the alleged contract existed, which does not, between the driver of my car and MET Parking Services, it was illegal at its formation because it was incapable of being created without an illegal act, due to the points explained above:
2) Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012
3) Failure to comply with the data protection 'ICO Code of Practice' applicable to ANPR (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate). A serious BPA CoP breach.
4) No evidence of Landowner Authority nor legal standing to form contracts or charge drivers - the operator is put to strict proof of full compliance with the BPA Code of Practice.
5) Misleading system and signage at fault.
6) 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.
Furthermore, where a contract is illegal when formed, neither party will acquire rights under that contract, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it had never been entered into. As such, the asserted contract cannot be enforced.
In support of this argument, ParkingEye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338 is cited: Whilst the facts of that case differ, due to the arguments between the two commercial parties, the Judge's comments at paragraph 29 of the Transcript of Somerfield are of importance, where he discussed ParkingEye's misleading letters to consumers, whereby they had committed the tort of deceit. : ''At common law, historically, a distinction has been drawn between cases where the guilty party intended from the time of entering the contract unlawfully and cases where the intention to perform unlawfully was only made subsequently''. Laws LJ, in Somerfield, concluded that ParkingEye did not set out to deceive consumers before they signed the contract with Somerfield, so the contract was upheld in that case.
Differently in this case, it is asserted that MET Parking Services did deliberately or negligently break the DPA. Being a BPA member with access to a wealth of ICO and DVLA-led data compliance information, relevant articles, compliance events and specific parking & DPA related legal advice for members, it cannot justify nor plead ignorance to excuse their conduct in failing to meet their legal obligations both before enforcement and by way of regular evaluations to avoid just this sort of data abuse.
At paragraphs 65-74 of the Somerfield transcript, Laws LJ set out three factors show a contract cannot be formed. The key issues in this action are that:
a) The commission of an illegal wrong being present at the time of entering the contract means that the Claimant will not be able to enforce the contract.
b) The illegality is central to the contract and is not merely a minor aspect, thus it should not be held to be too remote so as to render the contract enforceable.
c) The nature of the illegality: in this case it was a breach of legal obligations regarding data, and not merely a civil tort as in Somerfield. The gravity of the illegality is therefore far greater.
A contract cannot be formed by a sign displayed at the opposite side were the driver's attention is focused at the exit barrier. It cannot.
It is also maintained that a breach of the DPA and failure to comply with ICO rules regarding data captured by ANPR, also transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015 (enacted after the final hearing in Beavis and not considered in that case).
I honestly believe that the driver of my vehicle on the 30 May 2018 has done nothing wrong as a matter of principle as they were genuine customers of the restaurant that day.
For the reason above, I therefore request that POPLA uphold my appeal and cancel this PCN.
Last edited by P3dr0; 17-08-2018 at 10:16 PM.