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Bank Park v Foster, Failure to claim free parking
andy_foster
post Wed, 22 Jun 2022 - 14:17
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On 12th January 2021 it appears that the driver of a car registered to me parked for under 30 minutes in the car park on Oxford Road, Reading by Tesco Reading West without obtaining the free ticket that the signs indicate the 30 minutes free parking offered is contingent on, and which is not required to be displaid as the car park is enforced by ANPR.

Some time later (almost certainly more than 14 days) I received a notice entitled "Notice to Owner" from Bank Park claiming that the driver somehow owed them £100 reduced to £60 for not claiming a free parking session, and listing the arrival and departure times. It invited me to name the driver, but required me to state that I had passed the NtK on to the driver in order to do so.

Clearly this was an unenforceable penalty, and no PPC would be stupid or arrogant enough to try to take it to court, so I paid little heed to it. Obviously, it was followed by the usual threat-o-grams, culminating an an LBA which (IIRC) stated that if I did not pay their absurd penalty they would take me to court.

Imagine my surprise when the fumb ducks actually issued a generic County Court Claim, via DCBL which helpfully narrowed the claim down to contract (as opposed to tort), stating that C either owned or managed the land, that I was liable as the driver or keeper, and that it for an unpaid PCN issued on 12/01/2021. N.B. No PCN was issued, and nothing was issued on 12/01/2021, but that is a minor point in the great scheme of things.

I submitted a defence pointing out that there was no commercial justification for the penalty, and that their pants were on fire, and they responded with a number of factually incorrect statements, and a core argument that some case called ParkingEye v Beavis declared that they could enforce such charges and that the signs said that they could charge a penalty if the driver failed to obtain a free ticket. I also made a counterclaim for £1 more than whatever it was they were seeking to extort from me - would have been rude not to.

For various reasons, the hearing was held while I was in Spain on Friday, so I dropped off a written submission at the court. I received the General Form of Judgment or Order in the post this morning. The Claimant was represented by a solicitor but AIUI was not there in person to explain himself.

"...
IT IS ORDERED THAT:

1. The Claimant's claim be and is hereby dismissed.

2. The Defendant's counterclaim be and is hereby dismissed."

It is perhaps not surprising that the counterclaim, which was a somewhat vague claim for breach of DPA and harassment failed as I was not there to give evidence (or explain to the judge whey they should go Old Testament on the Claimant), but in cases where the facts are beyond dispute and the only issue is the law, it would seem that cases can be successfully defended by written submission.






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Andy

"Whatever the intention of Parliament was, or was not, the law is quite clear." - The Rookie
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post Wed, 22 Jun 2022 - 14:17
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Slumberished
post Wed, 29 Jun 2022 - 15:14
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Excellent result - well done.

Driver in a similar situation for parking at the same place. Thread here - should the driver ignore and wait for a CCC or be proactive and draft a letter of defence.
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hcandersen
post Sat, 2 Jul 2022 - 14:50
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Can't draw too many lessons from such a sparse report, but I agree with ' there was no commercial justification for the penalty, and that their pants were on fire, and they responded with a number of factually incorrect statements, and a core argument that some case called ParkingEye v Beavis declared that they could enforce such charges'

IMO, Beavis has been misunderstood because it turns on its own facts which, if not replicated in a case under consideration, should not be applied i.e. £100 was not considered unconscionable in the nature of the business model which applied in the Beavis case.

If a PPC is handsomely paid by their client, perhaps out of the proceeds of permit purchases, not indeterminate and ad-hoc sales, then in this example there is NO commercial or IMO legal justification for a penalty of £100.

A win is a win though.
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andy_foster
post Sat, 2 Jul 2022 - 19:03
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That was the gist of the judgement in ParkingEye v Cargius - which has little connection to my case (other than that I used to work with Franco Cargius many years ago). Personally, I believe that the District Judge in that case simply hung his hat on whatever argument best justified distinguishing Beavis as he was unable to overtly disregard it as (at the time) it was a judgment from the most senior judge on his circuit.

The gist of Beavis is that if motorists could overstay in privately operated car parks with impunity, it would lead to carmageddon - the "factual" basis of such a finding appears to be somewhat sketchy, but an £85 penalty preventing (or discouraging) motorists from taking up valuable parking spaces beyond the time they are allowed (in a busy retail park near Chelmsford train station and town centre) was deemed not to be disproportionate to the legitimate interest being protected.

In my case, ignoring the fact that despite Bank Park's claims to the contrary, the landowner agreement specified 30 minutes free parking which was not contingent on obtaining a free ticket, in that car park (or any other car park operating the same system) there is no conceivable harm caused by forgetting to get a ticket, and therefore no commercial justification for a penalty for a breach that cannot cause harm.



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Andy

"Whatever the intention of Parliament was, or was not, the law is quite clear." - The Rookie
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PhoenixBelle100
post Mon, 25 Jul 2022 - 06:48
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QUOTE (andy_foster @ Wed, 22 Jun 2022 - 15:17) *
On 12th January 2021 it appears that the driver of a car registered to me parked for under 30 minutes in the car park on Oxford Road, Reading by Tesco Reading West without obtaining the free ticket that the signs indicate the 30 minutes free parking offered is contingent on, and which is not required to be displaid as the car park is enforced by ANPR.

Some time later (almost certainly more than 14 days) I received a notice entitled "Notice to Owner" from Bank Park claiming that the driver somehow owed them £100 reduced to £60 for not claiming a free parking session, and listing the arrival and departure times. It invited me to name the driver, but required me to state that I had passed the NtK on to the driver in order to do so.

Clearly this was an unenforceable penalty, and no PPC would be stupid or arrogant enough to try to take it to court, so I paid little heed to it. Obviously, it was followed by the usual threat-o-grams, culminating an an LBA which (IIRC) stated that if I did not pay their absurd penalty they would take me to court.

Imagine my surprise when the fumb ducks actually issued a generic County Court Claim, via DCBL which helpfully narrowed the claim down to contract (as opposed to tort), stating that C either owned or managed the land, that I was liable as the driver or keeper, and that it for an unpaid PCN issued on 12/01/2021. N.B. No PCN was issued, and nothing was issued on 12/01/2021, but that is a minor point in the great scheme of things.

I submitted a defence pointing out that there was no commercial justification for the penalty, and that their pants were on fire, and they responded with a number of factually incorrect statements, and a core argument that some case called ParkingEye v Beavis declared that they could enforce such charges and that the signs said that they could charge a penalty if the driver failed to obtain a free ticket. I also made a counterclaim for £1 more than whatever it was they were seeking to extort from me - would have been rude not to.

For various reasons, the hearing was held while I was in Spain on Friday, so I dropped off a written submission at the court. I received the General Form of Judgment or Order in the post this morning. The Claimant was represented by a solicitor but AIUI was not there in person to explain himself.

"...
IT IS ORDERED THAT:

1. The Claimant's claim be and is hereby dismissed.

2. The Defendant's counterclaim be and is hereby dismissed."

It is perhaps not surprising that the counterclaim, which was a somewhat vague claim for breach of DPA and harassment failed as I was not there to give evidence (or explain to the judge whey they should go Old Testament on the Claimant), but in cases where the facts are beyond dispute and the only issue is the law, it would seem that cases can be successfully defended by written submission.


Just read you post I didn’t submit a defence in time so had to pay it but im glad yours was successful
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