Just to say hi!

[notahappybunny]

Re: Just to say hi!

Pcn attached

[mystery1]

Re: Just to say hi!

Further to my previous appeal i wish to add the following :-


ParkingEye are keen to submit that the Supreme Court Judgment provides ''clarity'' and ''supports the position that our Parking Charges are fair, reasonable and legally enforceable.'' This is not the case; there is no blanket application of that judgment to ANY other car parks and certainly not those less complex sites without the same 'common practice' regime mentioned by Lord Hodge when discussing the 'complex' contract in question: ''it is common practice in the United Kingdom to allow motorists to stay for two hours in such private car parks and then to impose a charge of £85''.




That is as maybe - but here at this location, that is not the practice.




There are no free hours to park, thereafter offset by a high charge seen by the Judges as 'quid pro quo' for the valuable free parking licence at that specific car park. I put ParkingEye to strict proof to show clear evidence about their interest and commercial justification to charge more than the sum that a landowner could claim in damages for breach at this car park.




Further, I state that the Beavis case has no relevant application at all as regards other types of car park regimes, especially standard consumer contracts involving tariffs. In the material case involving my vehicle, this is a 'standard' economic contract, where the small tariff arguably due cannot increase tenfold or higher because that would fall foul of the Consumer Rights Act 2015 in charging a 'disproportionately high sum in compensation for an alleged non-payment of a much smaller charge'.




My position in saying this regime is not supported by the Beavis case is based upon the comments of the Judges at both the Court of Appeal stage and the Supreme Court. Firstly, analysis of paragraphs 43-51 from the Court of Appeal stage hearing, clearly demonstrates that the Judges would have considered the charge in this case as an unenforceable penalty. 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.'' Moore-Bick LJ at the Court of Appeal, remarked the contract and interests under consideration were 'entirely different' from a 'standard' financial contract flowing from alleged non-payment of a quantifiable sum.




Then at Supreme Court stage, it was held at 32:




''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the {parking operator} in the enforcement of the primary obligation. The innocent party 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.''




I submit that this is certainly a straightforward 'damages clause' where interest cannot extend beyond the small tariff allegedly unpaid (whatever that is, because the PCN fails to inform me). There can be no legitimate interest in influencing the conduct of the contracting party which can give this operator in these particular circumstances in THIS car park, a right to charge such a high sum which exceeds any restitutionary damages.




The Judges at the SC also commented:




'the penalty rule is plainly engaged' and 'The question whether a contractual provision is a penalty turns on the construction of the contract.'




Finally, the Supreme Court were at pains to rush out a Tweet within 24 hours of the Beavis Judgment being handed down, making it clear that the judgment was unique and applicable only to that case:




https://mobile.twitter.com/UKSupreme...46322417397760




UK Supreme Court– Verified account @UKSupremeCourt




Parking charge “neither extravagant nor unconscionable… taking into account use of this particular car park & clear wording of the notices”




It is worth noting that the previous POPLA Lead Adjudicator, when adjourning cases for the Beavis outcome, stated in 2015:




''It does remain the position that it is for the party seeking to rely on any authority from a case in the higher courts, to explain how they submit it relates to the appeal in question and in particular the matter to be determined.''




I contend that the penalty rule remains firmly engaged and cannot be unlocked merely by ParkingEye throwing the Beavis case into the ring.
PCN in a private car park in England/Wales.








There is no contract or other evidence to show the operator has authority.




The code of practice states




“4.1 Any organisation or person applying for BPA or AOS
membership must:
• sign a declaration agreeing to keep to the Code and
its principles
• agree to keep appropriate records to show full and
effective compliance with the Code requirements and
to allow a full review of these records by the BPA if
we make a reasonable request “




“7.1 If you do not own the land on which you are carrying
out parking management, you must have the written
authorisation of the landowner (or their appointed
agent). The written confirmation must be given before
you can start operating on the land in question and
give you the authority to carry out all the aspects of car
park management for the site that you are responsible
for. In particular, it must say that the landowner (or their
appointed agent) requires you to keep to the Code
of Practice and that you have the authority to pursue
outstanding parking charges.
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”




As can be seen it is a requirement for operators to comply with the code of practice and it must be a condition of a contract that the operator is required to comply with the code of practice. Such a condition would be ineffective if non compliance with the code of practice did not matter. Therefore if the operator does not comply strictly with the code of practice the implications are that the contract is void and the operator has no standing. I believe this is the case and explain the reasoning below.


The operator has failed to follow the BPA code, Section 21.1 of the BPA’s Code of Practice states, “You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for”. while I note that the sign merely advises that the “car park monitored by ANPR systems”, it does not inform the motorist what it is using “the data captured by ANPR cameras for”.




The notice to keeper does not conform to pofa as previously advised. I would further highlight "(d)specify the total amount of those parking charges that are unpaid, as at a time which is—
(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 such information on the copy provided in the evidence pack, however this was never received in any event.






I submit this in addition to my earlier submissions.


M1