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Parking Eye - Morrisons. Uncontested POPLA win
post Sun, 25 Nov 2018 - 15:43
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This was a case of parking out of hours at a Morrisons/BM store with ANPR and confusing signage. The appeal below was uncontested by Parking Eye presumably on length and they didnt fancy their odds trying to rebut it all.

I am writing to you to lodge a formal appeal against a parking charge notice sent to myself as registered keeper of the vehicle in question.

I contend that I am not liable for this parking charge on the basis of the below points, any of which is fatal to the assumption by Parking Eye that I am liable for the charge

1) Parking

i) No Parking can be offered

The language on this sign indicates that there is no permitted parking at all during the period of time of relevance. As such no contract is offered - a contract requires an offer, acceptance and consideration. ParkingEye has not provided any consideration at all as "No Parking" is stated. That is not offering parking - it is entirely denying. As such it cannot then hold a contract to exist, when no consideration such as use of parking space has been provided. The driver is by this sign reduced that that of a civil trespasser which is actionable in tort not contract and the only person who may take action is the landowner to sue for damages.

ii) No contract can be formed.

It is averred that there is in fact no contract formed. In this case ParkingEye are seeking payment for a contract formed by driving past a machine at the entrance - the ANPR camera system. The contract is by them made at that point as this is the start of the period of charging. ParkingEye state that by "parking" for any period of time (that being longer than the 0 hours and 0 minutes permitted) a contract is formed.

In Thornton vs Shoe Lane Parking (1970) EWCA Lord Denning, then Master of the Rolls stated that

"The customer pays his money and gets a ticket. He cannot refuse it. He cannot get his money back. He may protest to the machine, even swear at it. But it will remain unmoved. He is committed beyond recall. He was committed at the very moment when he put his money into the machine. The contract was concluded at that time. It can be translated into offer and acceptance in this way: the offer is made when the proprietor of the machine holds it out as being ready to receive the money. The acceptance takes place when the customer puts his money into the slot. The terms of the offer are contained in the notice placed on or near the machine stating what is offered for the money. The customer is bound by those terms as long as they are sufficiently brought to his notice before-hand, but not otherwise. He is not bound by the terms printed on the ticket if they differ from the notice, because the ticket comes too late. The contract has already been made: see Olley v Marlborough Court Ltd [1949] 1 KB 532. The ticket is no more than a voucher or receipt for the money that has been paid (as in the deckchair case, Chapelton v Barry Urban District Council [1940] 1 KB 532) on terms which have been offered and accepted before the ticket is issued."

In this case I would consider that the ticket machine is the ANPR camera and that any applicable offer to the "contract" must be listed on or very close by the machine. It must be readable before the contract is concluded. There is no clear signage. An entrace sign, remote from the machine, which also is obscured from clear view is the sole warning of the "contract" in to which the driver was entering. This signage is hidden behind a larger, more prominent road sign which is bound to draw the drivers attention as a normal consequence of driving. If such an onerous term would be expected to be noticed by the driver as a party to the contract it must be made much more apparant. Indeed, as Denning LJ again mentioned in J Spurling Ltd vs Bradshaw (1956) EWCA such onerous contractual clauses should be prominently displayed - his famous "red hand rule" as noted below:-

"I quite agree that the more unreasonable a clause is, the greater the notice which must be given of it. Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient." - Denning LJ in J Spurling Ltd vs Bradshaw (1956) EWCA

The first notification of the expected charge does not occur until the car has been stopped and the notices read. Upon doing so, the driver is directed to enter details into such a machine as is presumably present. The notices in the car park are in fact incorrect and there is in fact no such machine. With the hidden ANPR camera in a set of trees and no machines actually present the driver is diverted into searching for a machine, and finally driving off in frustration, unable to form any such contract. In this case there has not been a meeting of minds and as such no contract can be formed.

iii) No locus standi

ParkingEye has no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges.

As this operator does not have proprietary interest in the land then I require that they produce an unredacted, contemporaneous copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name.

I believe that after examination of the Planning notices for the building and parking land, there is no permission granted for the provision of paid car parking spaces. As Parking Eye poses it's business model as a contract for services, specifically parking services, such a business would be in violation of planning regulations. I do not therefore think that it is likely that the landowner has permitted such use and that in fact no contract, site agreement, or similar does in fact exist.

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement. Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Specifically this site provides parking for two stores - Wm Morrisons and B&M Bargains. Which part of the car park belongs to which store for example? Where is the delination? Are there overriding leases or easements between the stores as to which car parking space is used. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance: ‘7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.’

7.3 The written authorisation must also set out:

a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined.
b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation.
c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement.
d) who has the responsibility for putting up and maintaining signs.
e) the definition of the services provided by each party to the agreement. ParkingEye have not demonstrated that they had authority to issue parking notices for this site on the date that the PCN was given, and they have not provided a copy of the contract which would allow me to determine my liability and/or to request cancellation of the charge.

I do not believe that the contract allows ParkingEye to charge paying visitors £100 for failure to understand their unremarkable, obscure and misleading notices. It is submitted that to charge for this event is highly unlikely to be a feature of the agreement with the landowner. That is why a generic, bland witness statement with a lack of definition of contraventions will NOT counter this argument.

2) This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the wording used.

Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met as stated in paragraphs 5, 6, 11 & 12. ParkingEye have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording:-

(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates

The notice makes no mention to the period of parking - indeed it cannot as ParkingEye only record the entry and exit times which of necessity are different from the period of parking.

(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full

©describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;

(d)specify the total amount of those parking charges that are unpaid, as at a time which is—

(i)specified in the notice; and

(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4))

There is no mentioned that the driver has not paid in full, a note stating that they (the driver) should pay in full is not a statement that they have not in fact paid. There is no notice of the amount outstanding at a specified date and the amount left to pay. The NTK merely references the total amount of the charge and the Keeper is left entirely in the dark as to the amount, if any, that has been paid.

This means that ParkingEye have failed to meet the strict requirements of the Protection of Freedom Act and there is no grounds for transfer of liability from the driver to the Keeper.

So, this is a charge that could only be potentially enforced against the driver, not against the Keeper.

3) The operator has not shown that the individual who it is pursuing is in fact 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.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court. I am the appellant throughout (as I am entitled to be), and 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 charge cannot be enforced against a keeper without a POFA-compliant NTK.

The burden of proof rests with the Operator, because they cannot use the POFA in this case, 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. 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 as below

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.''

No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v 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.''

4) The charge is a penalty, breaches the Consumer Rights Act 2015 and is prohibited/unfair under the CPUTRs. It is not saved by ParkingEye v Beavis.

The driver has informed me that the machine was not available and could not be found. No evidence has been produced either way by this operator as to the cause of the missing machine that is clearly referenced in their signage nor any consistently-stated facts that made £100 charge payable. The £100 parking charge far exceeds the cost to the landowner of the occupation of a parking space when all surrounding stores are closed. I therefore feel the charge asked for is punitive and unreasonable.

This situation is an 'ordinary' contract involving no overstay and no breach of the legitimate interests of the landowner. This was a simple consumer/trader transaction with the intention to purchase a ticket for parking in good faith and being unable to find the machine as directed. It can be very easily distinguished from the case of ParkingEye Ltd v Beavis.

Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position. At 47 in the Court of Appeal Judgment, it was held:
''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 to the innocent party, 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 consequence of 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.” ‘’

And at the Supreme Court it was held at 14. ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty… ''

At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated complex cases (Beavis) from ordinary/standard contracts with a transaction and tariff paid at a machine: ''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''

This is NOT a 'more complex' case by any stretch of the imagination. At 32, it was held that a trader, in this case a parking company: ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

Clearly a charge ‘out of all proportion’ to the tariff - which was paid in any case - is an unfair penalty to the mind of any reasonable man. A huge charge arising under the excuse of an unexplained event such as a mechanical or system error is unjustified and unfair, if the remedy is out of all proportion with the 'breach' and the (completely different) Beavis case does NOT apply to this argument.

The Consumer Rights Act 2015 supports this position

Schedule 2: 'Consumer contract terms which may be regarded as unfair':
’’A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations…’’
''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

This charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which does NOT supersede other defences. It turned on completely different facts and related only to it's own particular car park with its own unique complexity of commercial justification. This case is not comparable.

The Consumer Protection from Unfair Trading Regulations 2008 also supports my position that this commercial practice of charging for their own system failure is unfair:

(1) Unfair commercial practices are prohibited.

(2) Paragraphs (3) and (4) set out the circumstances when a commercial practice is unfair.
(3) A commercial practice is unfair if—
(a) it contravenes the requirements of professional diligence; and
(b) it materially distorts or is likely to materially distort the economic behaviour of the average consumer...
(4) A commercial practice is unfair if—
(a) it is a misleading action under the provisions of regulation 5;
(b) it is a misleading omission under the provisions of regulation 6;

I have shown that ParkingEye have failed all of the above tests which makes a charge under these circumstances prohibited and unenforceable. The Beavis case established that the penalty rule was certainly deemed ‘engaged’ in parking charge cases. The evidence shows that this charge is the very essence of ‘unconscionable’ which was the Beavis case definition of an unrecoverable penalty.

I have kept proof of submission of this appeal and look forward to your reply.
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