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barnet hospital parkingEye parking charge court case, i never parked - only waited inside the car park
chawal2
post Tue, 12 Jun 2018 - 15:02
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please can you review and comment on the final defence i prepared and shared below? should i add, edit or remove something? thanks,
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parking eye (PE) manages barnet hospital car park. car park has no barriers. on 8 feb 2017, i waited in car park for 46 minutes to get a parking space desperately - as were several other drivers. i never parked nor i got out of the car. then i left car park to park somewhere else as i was getting late for my hospital appointment. PE sent me the parking ticket which i appealed against but both PE and POPLA rejected my appeal. then i got letter before action and now court letter. i have sent AOS online. i need your help to know if my defence is robust or can i add or remove something.

PE signage:

I have got the terms and conditions of PE from POPLA Appeal document: I have typed relevant text below from PE terms and conditions signage:

*PE is authorized by landowner to operate the private car park for and on its behalf. We are not responsible for car park surface, damage or loss to and from motor vehicles or general site safety. Parking is subject to the terms and conditions that apply are set within this notice (The Parking Contract). By parking, waiting, or otherwise remaining within this private car park, you agree to comply with these terms and conditions (the Parking Contract) and are authorized to park only if you follow these correctly, including making payment where directed... and so on. If you fail to comply, you accept liability to pay the fee for unauthorised parking (the Parking Charge)
This Parking Contract shall form the entire agreement between the parties.
...more text but irrelevant to our case...

By entering this private car park, you consent, for the purpose of car park management to: capturing of photographs of vehicle and registration by APNR cameras and/or by the attendant and for sub-contractor to check compliance with the Parking Contract.
Furthermore, you consent to the processing of this data to request registered keeper details from DVLA, where the Parking Contract is not adhered to and a) enforcement is undertaken remotely via ANPR; or ...;

Parking charges incurred: a) will be notified to the registered keeper by post, where ANPR system identifies non-compliance with the Parking Contract,...;

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based on above, my defence is:

Background:

Defendant took his 13 year old son to Barnet Hospital for Phototherapy appointment with the nurse. Defendant entered car park and saw that many other cars were waiting to get a vacant parking bay to park car. Defendant too waited in the car park hoping to eventually find a vacant parking bay to park car and visit the hospital dermatology nurse. Defendant desperately waited inside the car along with his son but when in 46 minutes no parking bay became available, then rushed out of the car park to avoid losing the hospital appointment slot. Defendant then found a parking bay in a street and ran with his son to visit hospital nurse. Defendant did not leave car or get any parking bay to park so there was no contract formed to pay to land owner of car park or claimant.

Defence:

1. This claim should be rejected by court as no parking took place due to absence of a vacant parking spot. No contract formed between Claimant and Driver/Defendant
1. signage does not talk about grace period so waiting or grace period does not form part of contract with driver
2. signage does not mention any contract for waiting so waiting does not form terms and conditions or contract.
3. parking charge - as mentioned in signage is for parking and since no parking took place for lack of space, no contract formed or got violated so this charge is unlawful
4. PE has violated consumer contract regulations: consumer-contract-regulations-2013

In this case, a parking charge for breach of the terms and conditions (i.e. the charges of £100) would be.

The signage at this location fails to create any contractual liability due to the failure to comply with the provisions of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. The purported contract created by the signage is a ‘distance contract’ as defined in section 5 of the Regulations, and is therefore subject to the mandatory requirements set out in section 13, relating to the statutory information which must be provided by the trader.

The Regulations state, at 13(1)(a), that the information listed in Schedule 2 must be given or made available to the consumer in a clear and comprehensible manner. The Claimant’s notice fails to comply with various clauses of Schedule 2, as follows:

2© – Requirement to provide a geographical address. The Claimant’s address is given as a PO Box number.
2(k) – Requirement to provide a complaint handling policy. This is not described on the signage.
2(o) – Requirement to provide information about the right to cancel, or to state that there is no right to cancel. This is not stated on the signage.
2® – Requirement to provide information about Codes of Conduct. This does not appear on the signage.
2(x) – Requirement for access to an Alternative Dispute Resolution mechanism. Not indicated by the signage.]


5. Claimant has failed to provide any evidence that Defendant parked in the parking area. The APNR images showing the time car entered and exited car park do not prove if i parked so this parking penalty is unlawful.
6. The signage has very small letters and cannot be read unless driver comes out of the car. Without getting opportunity to park the car, it is not possible to read the signage so no contact can be formed until car was parked and since in this case car was not parked, no contract was formed.
7. The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says;
If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the Creditor; within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner's behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.


Due to these significant breaches of the Regulations, it is submitted that Defendant cannot be held contractually liable, according to the wording of the Regulations at 13 (1) “Before the consumer is bound by a distance contract, the trader must …”.

8. Defendant is yet to have knowledge of all documents provided to the court in support of the application, despite sending an email request to the claimant's website contact form in first week of June.
9. In the pre court stage the Claimant refused to provide defendant with the necessary information requested in order for defence by Defendant against the alleged debt.
They did not send following to defendant:
9a. evidence that the occupants of car left the car.
9b. the car was parked in the Private Eye Car Park
9c. there was any vacant parking bay during the time of alleged use of car park.

10. no parking space was provided by claimant and no service was used by defendant so no contract applies in this case.

11. The Claimant has at no time provided an explanation how the parking charge has been calculated, the conduct that gave rise to it or how the amount has escalated from £60 to £100. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
11.1. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.
11.2. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
11.2.1. The Defendant denies that the driver would have agreed to pay the original demand of £60 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.
Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Parking Eye and no proof has been provided.


12. The contract displayed on the signage by Claimant was actually discharged by frustration. The contract into which Driver (defendant) may have been willing to enter with the Claimant while entering the car park, was frustrated immediately upon entering car park - by the Claimant's lack of a parking space in the car park for the whole of the time when Defendant was there. Where a contract is found to be frustrated, each party is discharged from future obligations under the contract and neither party may sue for breach.
This proves that this claim is unlawful.


13. Claimant has failed to provide following details in the claim:
a) Full particulars of the parking charges
b) Who the party was that contracted with Claimant
c) The full legal identity of the landowner
d) A full copy of the contract with the landholder that demonstrated that Claimant had their authority.
e) If the charges were based on damages for breach of contract and if so to provide justification of this sum.

The Defendant asks that the court orders Further and Better Particulars of Claim and asks leave to amend the Defence.

14. the claimant is not trading responsibly and has clearly failed to secure its parking area by allowing every car to enter its premises - irrespective of whether any parking bay is vacant or not. Claimant should be forced to put barriers in its parking are and allow a car inside only if there is a vacant parking bay. the parking contract is frustrated as soon as claimant allows a car inside when no parking bay is available.

15. I suggest that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support.



16. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes.
Charges cannot exist merely to punish drivers. This claimant has failed to show any comparable 'legitimate interest' to save their charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges found was still adequate in less complex cases, such as this allegation.


17. It is denied that there was any 'relevant obligation' or 'relevant contract' relating to any single parking event.

18. It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event. The signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding the driver, which distinguishes this case from the Beavis case:
a) Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum.
b) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
c) The signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999.
d) No promise was made by the driver that could constitute consideration because there was no offer made nor accepted. No consideration flowed from the Claimant.
e) Absent the elements of a contract, there can be no breach of contract.

19. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.
It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.
As such, I am keeping a note of my wasted time/costs in dealing with this matter.

20. I request the court strike out this claim for the reasons stated above, and for similar reasons cited by District Judge Hayes County Court on 17
th March 2014 Case No: 3JD08399 where a similar claim by the Claimant failed, as the Defendent was not parked (she only waited in car park like Defendent in this case) and therefore Claimant could not prove that any parking took place.

21. Claimant has failed to comply with the following documentation which specifically addresses hospital parking and are at least as authoritative as the Code of Practice: '07-03 Health Service Technical Memorandum - NHS Parking and the British Parking Association Charter for Hospital Parking'.
This failure disqualifies ParkingEye from relying on the Beavis decision

22. Appeal Court, considering Beavis, stated that the penalty could never be disengaged for a pay car park



Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.
Signature and Date

This post has been edited by chawal2: Sun, 17 Jun 2018 - 19:47
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post Tue, 12 Jun 2018 - 15:02
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chawal2
post Sun, 17 Jun 2018 - 19:52
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QUOTE (nosferatu1001 @ Thu, 14 Jun 2018 - 19:23) *
Seems ok to me

Re point 22 - I didn't say remove it. I said develop it. The development is the one redivi gave you already - which is that the appeal court said this is never lifted in pay and display and the Supreme Court did not disagree. That means they agree, in the logic of courts.



dear 'nosferatu1001'

i have updated point 21 as below. i hope it is now fit for purpose.

21. Claimant has failed to comply with the following documentation which specifically addresses hospital parking and are at least as authoritative as the Code of Practice: '07-03 Health Service Technical Memorandum - NHS Parking and the British Parking Association Charter for Hospital Parking'.
This failure disqualifies ParkingEye from relying on the Beavis decision

I have tried a lot to understand as to what should be meant by point 22:
we seem to be justifying penalty here: as we are saying penalty is never disengaged from pay car park. please forgive me but i do not understand what is the point being made here.
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chawal2
post Sun, 17 Jun 2018 - 20:04
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Is there a way I can get court to dismiss this case without going any further?

this seems such a waste of time and energy and money and almost a harassment of an innocent driver.

can my defence start with following statement:?

1. Claimant is unable to prove that parking ever took place and hence unable to provide any evidence of parking so this case should be immediately dismissed at this stage itself.
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nosferatu1001
post Sun, 17 Jun 2018 - 20:23
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You have zero chance of getting this struck out now. None. Stop thinking this.

You wou,d have to pay a judge to look at it. £100. No one reads your defence prior to the hearing otherwise. Not sure why you think they would.

For 22 - I'm TELLING YOU that the penalty rule is never disengaged in a pay and display therefore this remains a penalty. On,y courts can penalise, not private companies. So if it is a penalty it cannot be recovered.

The appeal court said the above about penalty in pay and display. The Supreme Court didn't disagree, which means they agree.
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I-LOV-MONEY
post Sun, 17 Jun 2018 - 20:51
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QUOTE (chawal2 @ Sun, 17 Jun 2018 - 20:17) *
please can you advise - why is barnet hospital/PE obliged to put up sign on 'hospital entrance' that parking control is in place? What point can i raise in my defence? many thanks...


I am not an expert like nosferatu, but if there is a sign that explains there are parking controls, you may decide to go and park elsewhere rather than paying the parking fee.

By entering this private car park, you consent, for the purpose of car park management to: capturing of photographs of vehicle and registration by APNR cameras and/or by the attendant and for sub-contractor to check compliance with the Parking Contract.

If you have not been advised of this, you don't have a choice of consent or not once you have entered.

(I believe Barnet Council however, are going to restrict parking on the nearby side roads in the near future).

I will be going to Barnet Hospital on Thursday 21st, so will try and remember to check out the signage and will advise you, unless someone else comes on here and says it is irrelevant.




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flexeh
post Mon, 18 Jun 2018 - 09:03
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Im not one of the gurus here..

But the ANPR system is flawed if your waiting for a space so parking is assumed..... Obviously its hard to prove you wasnt parked, but thinking outside the box

If you waited for 45 minutes to get a space and then left because you could not find one. ANPR will have the exact Entry/Exit times... I would guess that the hospital would have the check-in time of the appointment when someone went to the desk. I.E clicking to say your here is recorded.

Wondering if this can be used as part of the defense. You waited, no space, you left, you found alternate location to park, Son checked in, had appointment, went back to car. Car was not parked on site. If you had parked on site, wouldnt your car had remained on site for the check in/ duration of the appointment.

This post has been edited by flexeh: Mon, 18 Jun 2018 - 09:04
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nosferatu1001
post Mon, 18 Jun 2018 - 12:25
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Pretty sure I said that already on page 1, to prove that the driver was more than likely NOT parked for that time, as their appointment hadnt even started by the exit time
Remember this is BALANCE OF PROBABILITIES and thats all you need to do - show you were more likely than NOT driving, and thats it.
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chawal2
post Mon, 18 Jun 2018 - 12:28
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QUOTE (flexeh @ Mon, 18 Jun 2018 - 10:03) *
Im not one of the gurus here..

But the ANPR system is flawed if your waiting for a space so parking is assumed..... Obviously its hard to prove you wasnt parked, but thinking outside the box

If you waited for 45 minutes to get a space and then left because you could not find one. ANPR will have the exact Entry/Exit times... I would guess that the hospital would have the check-in time of the appointment when someone went to the desk. I.E clicking to say your here is recorded.

Wondering if this can be used as part of the defense. You waited, no space, you left, you found alternate location to park, Son checked in, had appointment, went back to car. Car was not parked on site. If you had parked on site, wouldnt your car had remained on site for the check in/ duration of the appointment.


dear 'flexeh',

thanks for your advice.
i tried hard with the Barnet hospital dermatology department - they do not keep record of times patient came in and went out for the therapy my son went for.
hospital CCTV cameras history do not last more than a few weeks.

So i have no proof of the time i went inside hospital. i also do not have proof that i parked somewhere else, as it was off street and not monitored.
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nosferatu1001
post Mon, 18 Jun 2018 - 12:44
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I've already told you how to deal with that
Your own testimony is evidence, obvoiuusly
You have letters, almost certianly, giving appointment times. this is also evidence.
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chawal2
post Mon, 18 Jun 2018 - 13:00
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QUOTE (nosferatu1001 @ Mon, 18 Jun 2018 - 13:44) *
I've already told you how to deal with that
Your own testimony is evidence, obvoiuusly
You have letters, almost certianly, giving appointment times. this is also evidence.

yes 'nosferatu1001' thanks... i was replying to other volunteer's suggestion.

FYI...

sadly, phototherapy department issues appointments on phone and no letter is sent as it is mutually arranged timings for each of thrice a week sessions for 6-8 weeks.
so no proof of appointment time.

but i understand how to defend in this case. i will say truth and then rely on 'on balance of probabilities'

and driver and 13 year old patient will be witnesses
------------------------------------------------------------------------

i am wondering if i can get one more piece of advice. could the following help in defence?

driver/defendent had seen many other fellow drivers waiting inside car park to get parking space that morning - along with him. is it worth looking at possibility of getting numbers for parking tickets issued by parking eye for that morning for that car park? i am confident that many others would have been targeted during that time - although they did not park.

this will prove on balance of probabilities that not so many people can park without tickets at the same time - indicating there was no parking space in car park that morning.

i do not know yet if i can get the data regarding number of parking tickets issued by PE that morning.

This post has been edited by chawal2: Mon, 18 Jun 2018 - 13:01
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nosferatu1001
post Mon, 18 Jun 2018 - 13:04
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Dont they have their own records of appointments? Surely these are kept!

I doubt you have any rights to see that data, and its mostly tangential. Dont ask a quesiton you dont already know the answer to, and where you know the answer helps you.
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I-LOV-MONEY
post Mon, 18 Jun 2018 - 13:35
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Out of interest, Nosferatu or someone else, can you confirm if it is at all relevant if there are no 'warning' signs about parking regulations on the entrance to the hospital ? If it is relevant, I can see a lot of people having their cases overturned.


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Redivi
post Mon, 18 Jun 2018 - 14:35
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The British Parking Association Code of Practice requires an entrance sign but it only has to draw attention to other signs with the details
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I-LOV-MONEY
post Mon, 18 Jun 2018 - 16:07
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I will check on Thursday, but I don't recall ever seeing any sign.

This post has been edited by I-LOV-MONEY: Mon, 18 Jun 2018 - 16:07


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Umkomaas
post Mon, 18 Jun 2018 - 20:56
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QUOTE (I-LOV-MONEY @ Mon, 18 Jun 2018 - 17:07) *
I will check on Thursday, but I don't recall ever seeing any sign.

Take a photo if there isn't such a sign at the entrance.
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I-LOV-MONEY
post Mon, 18 Jun 2018 - 21:44
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There are two entrances / exits. I will come in through one and leave through the other!

This post has been edited by I-LOV-MONEY: Mon, 18 Jun 2018 - 21:45


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chawal2
post Tue, 19 Jun 2018 - 15:16
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help requested please:

1. while i am still drafting my defence - to add reference to Beavis court case - that penalty not being disengaged from pay and display car park, please can someone advise me if there is also any other way i can distinguish my case from Beavis????



2. Also, can someone please advise if following can also be used in my case's defence?

i do not understand it well yet. I did read about it.

Lord Dunedin's four tests for a penalty

3. apart from above two points, i believe my defence document is complete and can be posted to court online by tuesday. I will post the defence here by thursday - for a final review by experts.

many thanks for your help everyone.

QUOTE (nosferatu1001 @ Mon, 18 Jun 2018 - 14:04) *
Dont they have their own records of appointments? Surely these are kept!

I doubt you have any rights to see that data, and its mostly tangential. Dont ask a quesiton you dont already know the answer to, and where you know the answer helps you.



thanks a lot for your advice!
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nosferatu1001
post Wed, 20 Jun 2018 - 11:47
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1) Are the signs small? Amounts hidden? Beavis required that they fully complied with the rele vant COP as well - so if the signs are missing, they donthave a contract with the landowner etc - all breaches of the CoP - then the case is distinguished.
2) THis sets out what is a penalty,a nd a penalty cannot normaly be recovered in UK law - so yuo use this case to state this is clearly a penalty, and because Beavis doesnt apply to stop this being a penalty, it cannot be recovered.
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chawal2
post Wed, 20 Jun 2018 - 12:52
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QUOTE (nosferatu1001 @ Wed, 20 Jun 2018 - 12:47) *
1) Are the signs small? Amounts hidden? Beavis required that they fully complied with the rele vant COP as well - so if the signs are missing, they donthave a contract with the landowner etc - all breaches of the CoP - then the case is distinguished.
2) THis sets out what is a penalty,a nd a penalty cannot normaly be recovered in UK law - so yuo use this case to state this is clearly a penalty, and because Beavis doesnt apply to stop this being a penalty, it cannot be recovered.


many thanks Nodferatu1001...

barnet hospital and parking eye have not yet confimed if they have contract. i will mention this in my defence document.
i think now it is time to make final updates to the defence document.

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Redivi
post Wed, 20 Jun 2018 - 14:00
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I would take out the part about Dunedin and his four tests

ParkingEye v Beavis wasn't concerned with whether the amount was a penalty
The Supreme Court agreed that it was

The issue was whether the landowner should be able to discourage overstaying visitors in the public interest

The County Court had previously decided that, because ParkingEye paid rent, it had the same rights as a landowner
You could include this as another point of difference
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I-LOV-MONEY
post Thu, 21 Jun 2018 - 22:50
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I am sorry for misleading you all. I checked both entrances / exits to Barnet Hospital and there are indeed large signs that state there are parking restrictions. I go there quite regularly and you go straight to your destination point rather than looking at signs.




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