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Final reminder for a parking charge notice, (No NtK received - only final reminder for breach of contract)
HardDoneBy62
post Thu, 18 Oct 2018 - 15:16
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Hello - I am hoping some of your experiences may be able to help me.

I received a final reminder to pay a parking charge for a breach of contract -- i.e parking in a station car park without paying on exit.

The driver did not obviously read the terms and conditions and was there to drop somebody off but ended up waiting with them for a lot longer than they should have.

I appealed to the parking operator (NCP) on the bases that I have not received a notice to keeper which they are required to send within 14 days.
I therefore have not had a chance to exercise any of the options available to the keeper. As I am not responsible for this breach, I shall not be paying the fine.

As expected, the appeal has been rejected and a POPLA reference also provided.

Since then I have checked with NCP and apparently a NtK was sent - I have never received it.

I have also checked the signs in the car park – and it is not too obvious that charges apply 24 hours a day. There is a big sign on entry and one
more in the middle. There are also a couple of sign that says “Drop off only” and 15 minutes maximum stay under that. Another sign that states the car park is
open to general public, terms and conditions apply the fact that parking charge notice will be issued for not complying with terms and conditions and the charge
amount.

There are also signs that says ANPR in operation, but nothing that states what the ANPR is used for.

The terms and conditions are also displayed on the sign that has the parking charges. The font size used on terms and conditions is very small, but that is probably
because they have to squeeze a lot in and maybe to make it unreadable. The PPC would however claim this is within the required standard.

The driver has never visited this car park before, so I am pretty sure the keeper details would have been obtained from DVLA. I have sent a request to
dvla to get confirmation from them and date when keeper details were requested.

The land that NCP operates on belongs to London Underground Limited and I would think that NCP have a contract to operate there.

I have the option of appealing to POPLA, but I have a feeling this is probably going to be rejected.

Question I have is can the PPC make a claim against me in court for breach of contract even though I was not party to any contract and I did not enter the car park.
Would they not need to find out who the driver was and to bring any claims against them?

Assuming that they had sent the notice to keeper and according to wording of the law I have been “given” the notice 2 working days after the company posts it
– would they still be able to pursue me even though I have never received it?

I would rather not reveal the drivers name, but not sure if by doing that, the PPC can recover the charges from the keeper.

Any help on the technicalities will be appreciated. Am I as keeper now liable for the charge?

This post has been edited by HardDoneBy62: Sat, 20 Oct 2018 - 02:16
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nosferatu1001
post Thu, 18 Oct 2018 - 15:26
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No

POFA 2012 states that Keeper liabiltiy does not apply where the land is under statutory control. This land is under statutory control
DOes the Notice or ANY of the NCP communicaiton state that the Keeper is liable? Yes or No.
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HardDoneBy62
post Thu, 18 Oct 2018 - 16:34
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QUOTE (nosferatu1001 @ Thu, 18 Oct 2018 - 16:26) *
DOes the Notice or ANY of the NCP communicaiton state that the Keeper is liable? Yes or No.


No

QUOTE (nosferatu1001 @ Thu, 18 Oct 2018 - 16:26) *
POFA 2012 states that Keeper liabiltiy does not apply where the land is under statutory control. This land is under statutory control


OK. What does this mean? They can never pursue the Keeper?

I also read somewhere breach of contract cases can remain open for 6 years.
Even if it is 6 months, I do not want to go this way.
They have threatened court (via their debt collectors) if I don't pay up. Can they take my case to court? and would I have to defend myself?
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The Rookie
post Thu, 18 Oct 2018 - 16:37
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It’s not for breach of contract (then they could only sue for damages) but a contractually agreed sum. Yes they can make a claim for up to 6 years.

However as byelaws apply then the Protection of Freedoms act 2012 does not, as such the keeper cannot be held liable only the driver who of course they don’t know and you won’t be telling them. The driver would be liable for a criminal prosecution for breaching the railway byelaws but again they dint know who the driver is and they would have to bring that action within 6 months.


--------------------
There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

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ostell
post Thu, 18 Oct 2018 - 22:01
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Have a read of POFA
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SchoolRunMum
post Thu, 18 Oct 2018 - 23:19
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QUOTE
The land that NCP operates on belongs to London Underground Limited and I would think that NCP have a contract to operate there.

I have the option of appealing to POPLA, but I have a feeling this is probably going to be rejected.


Not with a non POFA PCN issue on land covered by statutory control, you won't lose at POPLA, as long as the keeper appeals pointing all this out.

No idea why people worry, just read similar cases and show me a railways byelaws one lost?!
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HardDoneBy62
post Sat, 20 Oct 2018 - 02:07
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QUOTE (SchoolRunMum @ Fri, 19 Oct 2018 - 00:19) *
QUOTE
The land that NCP operates on belongs to London Underground Limited and I would think that NCP have a contract to operate there.

I have the option of appealing to POPLA, but I have a feeling this is probably going to be rejected.


Not with a non POFA PCN issue on land covered by statutory control, you won't lose at POPLA, as long as the keeper appeals pointing all this out.

No idea why people worry, just read similar cases and show me a railways byelaws one lost?!


Ok was just being paranoid... icon_hang.gif

I have done a lot of reading and researched POFA and Railway Byelaws and I am beginning to get the gist...... smile.gif

I have prepared an appeal for POPLA - rather long. Is it worth adding everything or simply leave it at No Keeper Liability? At the moment, I have following points covered:

1. No Keeper Liability
2. Railway Land is Not ‘Relevant Land’
3. No standing or authority to neither pursue charges nor form contracts with drivers.
4. Unclear and non-compliant signage, forming no contract with drivers.
5. Disproportionate private parking charge.

I have until 13th November so plenty of time. Can I upload onto here to see if it is on right track?

This post has been edited by HardDoneBy62: Sun, 21 Oct 2018 - 18:19
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ostell
post Sat, 20 Oct 2018 - 07:53
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They can form a contract with the driver (but if they don't kow the driver they are stuck).

Please post up here first for critique
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HardDoneBy62
post Sat, 20 Oct 2018 - 13:00
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QUOTE (ostell @ Sat, 20 Oct 2018 - 08:53) *
They can form a contract with the driver (but if they don't kow the driver they are stuck).

Please post up here first for critique

Will do once I have anonymised the links to pictures.
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SchoolRunMum
post Sat, 20 Oct 2018 - 18:16
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QUOTE
Can I upload onto here to see if it is on right track?


Not upload, best to copy & paste it.

Long is GOOD for POPLA, honestly.
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HardDoneBy62
post Sat, 20 Oct 2018 - 21:16
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QUOTE (SchoolRunMum @ Sat, 20 Oct 2018 - 19:16) *
Not upload, best to copy & paste it.

Long is GOOD for POPLA, honestly.


Ok - here goes (some formatting lost though). POPLA will recognise most of this.....
QUOTE
PCN Number: XXXXXXXXXX
POPLA Verification Code: XXXXXXXXXX

I write to you as the registered keeper of the vehicle XXXX XXX and outline my appeal below

1. No Keeper Liability
2. Railway Land is Not ‘Relevant Land’
3. No standing or authority to neither pursue charges nor form contracts with drivers.
4. Unclear and non-compliant signage, forming no contract with drivers.
5. Disproportionate private parking charge.


1. No Keeper Liability

The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person. 

In this case, no other party apart from an evidenced driver can be told to pay. As there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

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.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
'There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle. 

There is no 'reasonable presumption' in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.'

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA. 

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found: 
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

2. Railway Land is Not ‘Relevant Land’

The NCP operated car park at XXXX XXXXXX London Underground Station is located upon land belonging to the railway. Railway land is subject to The Transport for London Railway Byelaws and applies to London Underground, Docklands Light Railway and London Overground services and regulate the use and working of, and travel on, the railway and railway premises and the conduct of all people while on those premises. 

The definition of “relevant land” is provided within the Schedule 4 of the Protection of Freedoms Act 2012, under section 3(1)©. It says that “relevant land” means any land other than that on which the parking of a vehicle is subject to “statutory control.”

A Byelaw is a long standing and recognised form of “statutory control”. Breaches are dealt with through the Magistrates Courts and upon finding a defendant guilty a penalty may be imposed. Section 23 of the Byelaws states “Any person who breaches any of the Byelaws commits an offence and may be liable for each such offence to a penalty not exceeding level 3 on the standard scale.”

On the basis that Byelaws cover this station , it follows that the Protection of Freedom Act 2012 is not applicable to this case and any claim made for parking charges by NCP against the driver, hirer or registered keeper is unfounded. The onus is upon the operator, NCP, to provide evidence to the contrary. If they disagree with this point I require them to produce documentary proof from Transport for London/London Underground that this land is not covered by the said byelaws.

3. No standing or authority to pursue charges nor form contracts with drivers

I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, NCP must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has neither automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put NCP to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between NCP and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to NCP.

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

4. Unclear and non-compliant signage, forming no contract with drivers.

In their rejection, the operator did not respond to my appeal that I had not received the Keeper Notice and that I was not the driver. They reponded with a statement that clear signs are displayed throughout their facilities and for motorists to ensure valid payments are made within the stipulated time. Well, they will need to take that up with the driver and if they have any proof of who was driving then they are perfectly within their right to demand payment from them.

Even though I don’t believe I need to do this, I will however refute their claim that their signage is adequate.


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.

The parking charge sign was not located in a position that can be easily seen:

https://ibb.co/eNyHgL

The requirement to pay £100 is not clear and prominent as the Supreme Court commented on in Beavis. Such an onerous obligation should be the most prominent part of the sign, as is stated in Lord Denning's Red Hand Rule.

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:

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 and in a prominent position. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges. 

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.

In particular, in the entrance of the car park the sign indicating dropping off time limit is obscured by a black and yellow pillar:

https://ibb.co/nPhUT0

In the same picture, another dropping off time limit sign is seen just above the speed limit sign of 5 miles/hr. The driver would have to turn their heads to 90 degree to see this as they pass.

Again in the same picture, the main sign indicating cost of parking, terms and conditions and ways to pay, the reflective perspex front reflects light from the car park lights and car headlamps and this makes it hard to see the writing on it.

When looked at closer (and you would have to get out of the car and go very close to it), the terms and conditions are in such small font, they are illegible or unreadable. It would be very difficult for an average person to be able to read the terms and conditions fully.

https://ibb.co/ivY6bL

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 the car.

The main sign showing parking charges appears once more in the middle of the car park, however you would need to park in that vicinity to see it. The perspex glass on the stand reflects lights from car park and approaching cars and this makes it difficult to read. Here is the sign as seen when out of the car.

https://ibb.co/ezoTqf

As seen, the writing is not particularly large and is difficult to read – particularly the terms and conditions.

Apart from the two signs showing the parking charges and terms and conditions, the parking violation charge sign on the ground, the dropping off time limit in front, the ANPR/CCTV in use sign, there are no other signs in the car park to warn anyone that this is private land and parking restrictions and hours of operation. Here is a welcome sign with the ANPR message:

https://ibb.co/kroNGL

From the signage that are sporadically spread in a small area as you enter the car park, it cannot be assumed that a driver drove past and could read all of them let alone the most important one(s). They definitely would not have parked near one as there are none in the car park save for one in the middle.

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 operator’s 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.

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

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 inch 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 inches; or even larger.''

''...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. 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:

https://en.wikipedia.org/wiki/Vine_v_London..._Waltham_Forest

In allowing Ms Vine's appeal Roch LJ, said (Para. 19 of the judgment):

“...Normally 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. In this case the recorder might have reached such a conclusion about the plaintiff's state of knowledge, but he did not do so. The recorder made a clear finding of fact that the plaintiff did not see the sign. That finding is not surprising in view of the absence of any notice on the wall opposite the southern parking space and the plaintiff's distressed state, the reason why the plaintiff parked and left her car hurriedly. It was the plaintiff's evidence that she did not see the sign. There was never any suggestion that the plaintiff was other than a truthful witness."

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 also submit further a movie of the approach into the car park from the road showing how inadequate and unreadable the signs are in the night.

<TBD: Link to Movie>

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.

I contest whether NCP has obtained planning permission to erect poles for ANPR camera(s) and the signage and so put this operator to strict proof to produce evidence of consent being granted for the same.

5. Neither irrelevant case law (ParkingEye v Beavis, which is not applicable) nor the remedy under the Railway byelaws can support or provide a rationale for this disproportionate private parking charge. 

(a) This land is covered by Railway Byelaws. As such, the remedy for any breach is an actual 'penalty' as defined in those byelaws. Prescribed statutory rules (not the BPA CoP) apply to penalties and the offer of parking is made by the Train Operating Company (TOC) or landowner, only by virtue of the byelaws, in the same way that any offence can only flow from defined restrictions within those byelaws. A parking offence can only be pursued in the Magistrates Court by the landowner/TOC themselves which is the only true legitimate interest on this land which is under statutory control. 

The car park is already offered/controlled by the TOC which has the lawful remedy of a byelaws penalty open to them. There is no 'legitimate' interest in NCP re-offering the spaces under wholly different terms and charging £100 for their own profit. Two separate sets of terms, obligations and remedies relating to the same parking behaviour cannot co-exist; the land falls under byelaws so there is no scope for what seems to be potentially, a bribe: 'pay us £100 and we won't tell the TOC to pursue the matter under the applicable byelaws'.

Where there is any ambiguity regarding duplication or confusion in contractual or statutory terms/charges or obligations, the interpretation which most favours a consumer must prevail. In this case the interpretation which most favours a registered keeper appellant, is that NCP have no 'legitimate interest' in imposing their own 'charge' instead of a byelaws penalty, which only applies to an established driver. 

NCP or the TOC should have identified the alleged offender and the TOC should then have followed their own byelaws procedures; their only legitimate interest in the matter, if they believed there was a case against the driver that day.

(b) NCP seem to be under the misapprehension that POPLA Assessors will swallow the BPA line that the Supreme Court judgment was a green light legitimising all frivolous parking charges. Yet there is no comparison between this case and that one; the only similarity is both operators (NCP and ParkingEye) described the sum as a 'parking charge'. 

There the similarities end. The Beavis case has no application here, except in favour of my case as appellant. 

That decision related to those specific facts and unusual 'free parking licence' & 'complex' contractual arrangement flowing from specific landowner interests and reliant upon that 'prominent and clear' Riverside Retail Park signage only. The Supreme Court Judges tweeted on the day of the decision, to clarify that decision turned on those facts, that free car park in that case only.

The Beavis decision is not a silver bullet and it cannot be twisted to strike out the majority of private parking ticket appeals and certainly not those which are regarding a Pay and Display site where the alleged loss (tariff) begins as a tangible sum. 

This is clearly a 'standard' monetary dispute over an alleged unpaid tariff.

In a standard economic dispute over a financial transaction between a consumer and a trader, like this one, the loss is easily calculable.

By stark contrast, the contract offered to Mr Beavis in the Chelmsford car park in the Beavis case was described by the Judges as a 'complex' contract which Moore-Bick LJ at the Court of Appeal remarked was 'entirely different' from this sort of financial contract flowing from alleged non-payment of a quantifiable sum to NCP. 

As regards the Beavis case, it was made plain that in more complex contracts (in that case, a free car park with no monetary sum paid per hour) the trader must demonstrate a 'legitimate interest' in enforcing a disproportionately high charge, to avoid such a charge in each individual case from being an unenforceable penalty. 

But this case can easily be distinguished from Parking Eye v Beavis because this case is not a 'complex' contractual arrangement at all, so the same leap cannot be made to disengage the penalty rule by arguing 'legitimate interest'. If that was the case, then every alleged underpayment of a quantifiable sum between any trader and consumer could be escalated x 100. If you underpay your paper bill by £1 - the amount due remains at £1, same as in this case - it cannot escalate to £100 because the Beavis case rationale does not apply to standard contracts. 

In Beavis, the difference was there was no small sum owed and so, to reach their decision, the Judges had to consider other interests and the value of the free licence to park at that location made it a far more complex contract than this one. None of the reasons that gave Parking Eye a legitimate interest which disengaged the 'penalty rule' in their case against Mr Beavis are present in this material case, in which the penalty rule remains firmly engaged and where there is a quantified tariff in play. 

The appellant respectfully submits that the assessor carefully reads the Supreme Court judgment and the preceding Court of Appeal judgment from the same case. The Judges set apart the Beavis contract from this type of 'simple financial contract'. This is one the Judges had seen many times before, where there is a quantified small sum at stake in the first instance as a result of a primary obligation. 

This sort of contract was not under discussion in the Beavis case. In fact, the Supreme Court considered that Lord Dunedin's four tests to identify an unenforceable penalty were still a "useful tool" in deciding whether a simple damages clause in a standard contract was 'unconscionable' or 'extravagant'. 

The penalty rule is clearly engaged in this case of a standard contract with a quantified tariff, but unlike in Parking Eye v Beavis it is not disengaged by NCP merely pointing to the Beavis case as if it has blanket relevance (otherwise your local paper shop could point to the Beavis case regarding that £1 underpaid paper bill, as could any trader over any small sum owed). Clearly the 'tweet' from the Supreme Court on the day that their decision was handed down, made it clear that was not the intention of the judgment which turned on its own facts regarding a complex set of circumstances, relevant to a complex contract of its kind only.

At the Court of Appeal stage, when addressing the issue of pre-estimate of loss versus commercial justification, Lord Justice Moore-Bick agreed with HHJ Moloney QC’s findings, and opined at paragraph 27 that: “The application in a case of this kind of a rule based on a simple comparison between the amount of the payment and the direct loss [...] is inappropriate.”

In agreement with Moore-Bick LJ, and distinguishing the contract formed between ParkingEye and the motorist from a commercial contract, Sir Timothy Lloyd stated at paragraph 47 that, “[...] the principles underlying the doctrine of penalty ought not to strike down a provision of this kind, in relation to a contract such as we are concerned with,...”.

The Judges were only discussing ''a contract such as we are concerned with'' which was a far more complex one than ''all the previous cases shown to us {which} have concerned contracts of a financial or at least an economic nature.''

Here, this is one of those cases Courts have seen many times before, a simple contract of a 'financial/economic nature' and the only interest NCP has in enforcing their £100 charge instead of the 'outstanding tariff' (or indeed instead of the TOC enforcing the penalty arguably arising under the byelaws) is NCP's profit alone. 

This position is reinforced in the earlier judgment from the Court of Appeal, where the judgment states:

"44. All the previous cases shown to us have concerned contracts of a financial or at least an economic nature, where the transaction between the contracting parties can be assessed in monetary terms, as can the effects of a breach of the contract...

45. The contract in the present case is entirely different. There is no economic transaction between the car park operator and the driver who uses the car park, if he or she stays no longer than two hours; there is no more than (for that time) a gratuitous licence to use the land...''

47. ...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...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 consequencecof 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.” 

The Consumer Rights Act 2015 includes the fact that a consumer cannot lawfully be expected to pay a disproportionate sum in compensation for a small sum owed and is the fundamental legislation relating to standard contracts between traders and consumers. It is applicable to this case.

The ParkingEye v Beavis judgment makes clear that the Court of Appeal would have considered the disproportionate charge in this case (but not the more complex Beavis case or cases 'of its kind') a clear penalty. They found the contract in Beavis 'entirely different' from simple, commercial 'monetary transaction' cases such as they had seen before. 

'ENTIRELY DIFFERENT'. So without displaying intellectual dishonesty or copy/pasting skewed 'guidance' from the BPA or another parking industry interested party, I suggest that it would be impossible to apply ParkingEye v Beavis to this standard economic contract. As NCP have shown no other compelling reason or rationale for escalating a pound or two parking tariff to £100, they fall foul of the penalty rule... just as ParkingEye would have, if they had taken a 'standard contract' case to Supreme Court level. 

Therefore, it is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point.

Yours faithfully


This post has been edited by HardDoneBy62: Sun, 21 Oct 2018 - 20:34
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HardDoneBy62
post Tue, 6 Nov 2018 - 18:11
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Just wondering if the RK is same as owner, can operator legally pursue the owner for the charge even if they were not driving?
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Redivi
post Tue, 6 Nov 2018 - 18:48
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No

This situation only arises with a penalty notice issued under the Railway Byelaws
Even then, the operator is on very shaky legal ground

The legislation is very far from clear if such a penalty notice can be enforced
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HardDoneBy62
post Tue, 6 Nov 2018 - 21:12
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QUOTE (Redivi @ Tue, 6 Nov 2018 - 18:48) *
No

This situation only arises with a penalty notice issued under the Railway Byelaws
Even then, the operator is on very shaky legal ground

The legislation is very far from clear if such a penalty notice can be enforced

Ok. If I am understanding this right, the notice can’t be enforced on RK or owner due to Railway Byelaws and non POFA.
The reason I ask is because the NtK has a statement in there which basically suggests I am required to do one of two things. Either pay up or let them know who the driver was and pass the notice to them. This makes me wonder if there is something I’m missing..
BTW, i never saw the original NtK, only a copy after I requested details from the operator.
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ostell
post Tue, 6 Nov 2018 - 22:25
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If you looks at POFA the statement is to "INVITE" the keeper to pay or identify the driver. The use of require is misstating their authority and misquoting POFA. 8 or 9 (2) (e).

For clarification there is the owner, the registered keeper, the keeper and the driver. All different legal entities.
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HardDoneBy62
post Tue, 6 Nov 2018 - 23:22
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QUOTE (ostell @ Tue, 6 Nov 2018 - 22:25) *
If you looks at POFA the statement is to "INVITE" the keeper to pay or identify the driver. The use of require is misstating their authority and misquoting POFA. 8 or 9 (2) (e).

For clarification there is the owner, the registered keeper, the keeper and the driver. All different legal entities.

POFA2012 does not apply to parking place provided or controlled by a traffic authority (e.g. tfl) or where parking is subject to statutory control. So wondering if this is the reason why the wording says ‘required’ and not ‘invite’. Am I right in thinking this is how the operator is trying to scare or give the impression that the receiver is required by law to comply, when in reality the RK does not need to do anything.

On your point about legal entities, if the operator becomes aware of the owner, can they than pursue them in place of RK or driver? So far I have only seen references to RK and driver
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ostell
post Wed, 7 Nov 2018 - 08:09
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POFA only talks about keeper and registered keeper, no mention of owner. Byelaws may mention owner but as has been mentioned the legislation to support this was not put in place.

They are not using byelaws. If they were that would mean a trip to the magistrates court and the money would go to the court and not them, which is a pointless exercise.
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