Free Traffic Legal Advice
Live cases legal advice => Private parking tickets => Topic started by: kaizer28 on January 10, 2024, 06:04:03 pm
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The OP is where they are i.e. waiting to see whether they are sued for breach of contract by Smart.
By their written admission:
On the 19th of September 2023 I parked in said car park from 1214hrs to 1415hrs, my partner purchased a parking session
OP, yours is an unenviable situation, but it's where you are.
Whether Smart have any standing to offer contracts on this land and sue for breaches in their own name, who knows? IMO, all you can do is play a straight bat and tell them you will resist any claim from them should they be minded to issue one and would be grateful if they would pursue any claim expeditiously.
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It's a pity that the OP revealed the identity of the driver. (not so) Smart Parking don't issue PoFA compliant NtKs. However, as has been mentioned above, if the OP had been in time to try a POPLA appeal, they could have won on lack of contract. Their only recourse now is to wait out the usual debt collector letter and wait and see if (not so) Smart try to get one of the roboclaim solicitors to issue a LoC or an actual claim. Either way, they would likely discontinue as they do not want a spanking in court.
They rely on low-hanging fruit on the gullible tree to pay up on their scams.
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See the two images someone from Reddit kindly provided to me :)
Appreciate they aren't the best quality but between the two of them you can see all of the parking and payment terms.
(https://i.redd.it/wmrt2lmkvxbc1.jpeg)
(https://i.redd.it/6kq9eomkvxbc1.jpeg)
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Let's get away from signs pl.
Given the answer to one of your questions would be at least partly found in the contents of the signs, I'm not sure we should. They're not the sole focus, but seeing them would be useful.
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OP, POPLA do not take mitigating factors into account.
Did you enter into a contract by remaining on the site beyond any period which could be allowed for consideration of the terms? Yes.
Were you aware of the key terms of the contract, specifically how much and how to pay? Apparently yes.
Were you in breach of those terms? This is for a court to decide. You have not walked us through the payment requirement, process and precisely what you did. Is it an open or closed-loop process, did you fulfil every reasonable requirement over which you could exercise control? No idea.
Over to you.
Let's get away from signs pl. In as much as they needed to convey key terms, they obviously did, either at that time or because you were a frequent flyer there you already knew. Be in no doubt, the Code of Practice is NOT law and as they would be pursuing you as driver, PoFA has no real relevance either, neither has any CoP. A court is free to discover facts and decide on whether there was a breach, including the effect of the CRA and issues of fairness and balance of responsibility.
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I realise it's too late to appeal to POPLA - my point around Smart withdrawing at POPLA when the issue of their authority is raised, was to point out that it suggests they have issues with their contracts with landowners, and is something you could challenge them on if the matter goes to court.
The ball is now essentially in their court, as to what they do next.
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Good evening, it was very hasty of me to appeal, I figured it was a simple admin error and they would see sense in an appeal but I suppose that's how they get you!
I have asked on a local forum for photo's of the signage so will see how that goes, I've attached the standard terms from their website but obviously appreciate that there will be variations.
Monzo does not require verification for every transaction, it is intermittent, I suspect based on whether they see if it as suspicious transaction or not.
Sadly I have shot my bolt on the appeal route having raised and lost my appeal directly to Smart Parking and having not received their rejection in time I have lost my POPLA verification code. I did ask them to provide me with a new verification code but they ignored that part of my email just showing proof the email was sent.
I appreciate your reply :)
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This is of course of no use in the current matter, but so that you are aware if you receive another charge in the future, I would recommend coming here for advice before sending any appeals. It's usually very quick and simple to get charges from Smart Parking cancelled if one does not reveal who was driving.
I see it as follows, I have entered a contract to pay £5 for 3 hours parking, the payment attempted on my behalf has been unsuccessful unbeknownst to us, I have attempted to mitigate losses by leaving asap and emailed them offering to make payment.
It would be useful to see the terms of the contract that has allegedly been formed - are you able to get photos of the signage? It is not ideal for us to advise on challenging the terms of a contract we haven't seen. Smart are likely to argue that you entered into a contract whereby you agreed to either;
- Pay £5 for 3 hours parking before you left the site (or upon entry, depending what the signs say) OR:
- Pay £100 thereafter
That you contacted them asap may help as it at least shows you were not seeking to avoid paying. I'm not overly familiar with how Monzo accounts work - do you have to verify/authorise every card transaction?
One non-case-specific point that may be useful down the line - Smart used to* have a habit of withdrawing at the POPLA stage if the appellant put them to proof that they had a valid contract to enforce parking on the site in question. I'm not sure of the actual issue but they did this so routinely that it suggested there were issues with their contracts with landowners. If a claim is forthcoming, including this in your defence would be wise. At worst, they produce a valid contract and it doesn't help you, at best, it means you win.
*I say "used to" because I haven't seen a Smart case that's gone to POPLA for a while, as they usually cancel at first appeal with the right approach.
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Good evening all,
https://maps.app.goo.gl/GvRb82XkAXsgaLR16 this is the church in question, unfortunately I do not have photo's of the signage from the car park, it is currently administered by Smart Parking, these are the standard parking terms from their website: https://web.archive.org/web/20230410174744im_/https://www.smartparking.com/asset/804.jpeg
The following are the facts and actions I have taken so far:
On the 19th of September 2023 I parked in said car park from 1214hrs to 1415hrs, my partner purchased a parking session through the application of choice for that car park and we set off. Around an hour later my partner notices a notification which arrived an hour later from Monzo stating she had not authorised the transaction in time so they had declined it. Newquay is an area of poor signal and the notification did not arrive when my partner was making the initial payment. I have decided that we would return to the car park to see if there was any contact details for the parking company and to avoid overstaying the parking we attempted to pay for. We then left.
I have sent the following email with the attached reply:
Re: Payment error
Info <info@smartparking.com>
Fri 22/09/2023 10:20
To:
[REDACTED]
Good morning,
Thank you for your recent communication.
All motorists must adhere to the advertised Terms and Conditions whilst their vehicle is on site, prior to their vehicle exiting the car park.
Unfortunately, once your vehicle has exited the car park we are unable to prevent a Parking Charge Notice from being issued if the correct process has not been followed on the date in question.
In the event that you do receive a Parking Charge Notice and you wish to dispute it, please refer to the appeals procedure located on the reverse of the charge.
Kind regards,
Smart Parking Ltd
Email: info@smartparking.com
Website: www.smartparking.com
From:
[REDACTED]
Sent:
20 September 2023 12:04
To:
Info <info@smartparking.com>
Subject:
Payment error
Good morning,
Me and my partner parked my car [REDACTED] in a car park in Newquay, Cornwall yesterday which is administered by yourselves. She purchased 3 hours of parking through the RingGo app for £5 however on returning to the car we found that the bank had blocked the transaction so took this email address from the terms and conditions sign.
Please can you advise me of the correct method to pay the outstanding £5.
Unfortunately, we have no signal at the site we are staying at, hence the delay in correspondence.
Kind regards, [REDACTED].
Sent from
Outlook for Android
I subsequently received a parking charge notice in the mail as the R/K dated 16/10/2023, I have appealed the matter as I had no intention to refute my being the driver. I do not have a copy of my reply as I expected to receive a copy of it acknowledging my appeal, but sadly that did not happen. I did not receive any correspondence for some time so I contacted them receiving a reply on the 4th of January 2024, they stated they emailed me on the 13th of November 2023, they attached the following correspondence:
Dear Mr [REDACTED],
POPLA Verification Code: 8513143345
Parking Charge Notice: TC78258520
Thank you for your recent communication.
Having considered your appeal in detail we have decided to uphold the Parking Charge Notice (PCN) as we believe that it was correctly issued in accordance with the terms and conditions advertised within the area concerned. As your appeal was received within the initial discount period we have extended the discount period until 25/11/2023.
We note the comments made in your appeal; however, we cannot rescind the PCN on this basis. Please be advised that when using the car park in question you must adhere to the advertised Terms and Conditions and it is the responsibility of the driver to ensure they acknowledge the signage upon entering the site. We can confirm that there is signage on entrance to, and around the car park grounds. All signage is BPA approved.
As detailed on the car park signage, all motorists are required to pay for their vehicles parking by entering their vehicle registration details into the payment machine and making payment for their required total stay duration. We can confirm that the total stay duration is calculated via the ANPR cameras from entrance to exit.
The BPA Code of Practice January 2020, paragraph 19.2, states as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. It also states in paragraph 19.3, Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site. There are several signs situated around the car park that advise of the terms and conditions and we can confirm all signage on site is BPA approved. Please be aware all signs are set to a standardised height, regulations and written in clearly and intelligible language, as per the BPA requirements. There is no ambiguous language or jargon on any of the Smart Parking signs at this site.
We wish to inform that the car park in question is operated by ANPR cameras which capture images of your vehicle entering and exiting the site, which subsequently calculates your total stay duration. This information is then paired with the information entered into the payment machine to ensure the correct payment has been made against the full and correct vehicle registration for the total duration the vehicle is on site, which is calculated from entrance to exit.
We wish to confirm that the contravention occurred as our payment system confirms that no payment was made for your vehicle registration for the 120 minutes the vehicle was on site. The signage clearly advises motorists to enter the full correct vehicle registration into the payment machine/alternative payment system and ensure that payment is made to cover the entire duration of the vehicles stay on site. As you have failed to pay for your visit, we can confirm that this PCN has been issued correctly and in accordance with the advertised Terms and Conditions. The Terms and Conditions of the car park are clearly advertised around the site and must be adhered to by all drivers.
You have now reached the end of our internal appeals procedure and therefore you now have two options, you can pay or appeal - you cannot do both.
If the PCN was issued in England and Wales you also have the right of appeal to an independent appeals service (POPLA). If you wish to make an appeal to POPLA the forms are available on their website at www.popla.co.uk
The verification code you will need in order to appeal to the Independent Appeals Service is 8513143345. It is important that you reference this on the appeals form as appeals submitted without this code will not be assessed. You have 28 days from the date of this letter to lodge your appeal with POPLA. Please note, should you decide to appeal to POPLA and your appeal is subsequently rejected, the option to pay a discounted amount will no longer be available and the full amount of the PCN will become due.
By law we are also required to inform you that Ombudsman Services (www.ombudsman-services.org/) provides an alternative dispute resolution service that would be competent to deal with your appeal. However, we have not chosen to participate in their alternative dispute resolution service. As such should you wish to appeal then you must do so to POPLA, as explained above.
If you have any trouble in appealing or cannot access the website please contact us on the number above. Alternatively, your 3 payment options are:
•
•
By Post: Please send a cheque or postal order, payable to Smart Parking Ltd to Smart Parking Ltd, Unit 43, Elmdon Trading Estate, Bickenhill Lane, Marston Green, Birmingham B37 7HE.
By Web: To make a payment online with a debit or credit card, please visit
www.smartparking.com and have your Parking Charge Notice Number to hand.
By Phone: Pay via our 24 hour automated telephone payment service on 0845 805 4802. Please have your Parking Charge Notice Number to hand.
Yours Sincerely
Smart Parking Limited
This is a copy of my correspondence chasing them:
Re: Appeal Acknowledgment - TC78258520
Info <info@smartparking.com>
Good afternoon,
Thank you for your recent communication.
We can confirm that your appeal response was sent via our internal system to the email address provided when submitting your appeal - please see the below.
Kind regards,
Smart Parking Ltd
Email: info@smartparking.com
Website: www.smartparking.com
From: [REDACTED]
Sent: 05 January 2024 19:29
To: Info <info@smartparking.com>
Subject: Re: Appeal Acknowledgment - TC78258520
Good evening,
I cannot find a record of this email, please can you provide me a new verification code so I may take the matter to the Independent Appeals Service.
Kind regards, [REDACTED].
From: Info <info@smartparking.com>
Sent: 04 January 2024 09:39
To: [REDACTED]
Subject: Re: Appeal Acknowledgment - TC78258520
Good morning,
Thank you for your recent communication.
We can confirm a response to your appeal was sent via email on the 13th November 2023 - please see a copy of this correspondence below.
Please be advised as a gesture of good will, we have closed the charge with Debt Recovery and reinstated with Smart Parking at the discount amount of £60.00, which is now valid for a further 14 days from todays date.
Please note, that if no payment is received by the aforementioned date, the PCN will continue to progress naturally, initially to full charge, and then on to Debt Recovery. At either stage we will be unable to reinstate the discount period once again.
Please be advised that payment can be made via the below methods:
• By Post: Please send a cheque or postal order, payable to Smart Parking Ltd to Smart Parking Ltd, Unit 43, Elmdon Trading Estate, Bickenhill Lane, Marston Green, Birmingham B37 7HE.
• By Web: To make a payment online with a debit or credit card, please visit www.smartparking.com and have your Parking Charge Notice Number to hand.
• By phone: Pay via our 24 hour automated telephone payment service on 0845 805 4802. Please have your Parking Charge Notice Number to hand.
Kind regards,
Smart Parking Ltd
Email: info@smartparking.com
Website: www.smartparking.com
From: [REDACTED]
Sent: 23 December 2023 11:16
To: Info <info@smartparking.com>
Subject: Fw: Appeal Acknowledgment - TC78258520
Good morning,
I lodged this appeal 62 days ago, do you have an update in relation to this?
Kind regards,
[REDACTED].
From: noreply@services.smartsys.io <noreply@services.smartsys.io>
Sent: 22 October 2023 06:34
To: [REDACTED]
Subject: Appeal Acknowledgment - TC78258520
Dear Mr [REDACTED],
Parking Charge Notice: TC78258520
Thank you for your recent communication.
We can confirm that your appeal has been received and that all action has been suspended pending adjudication. We will endeavour to respond to your appeal within 35 days.
If your appeal has been received within 28 days of issue of the Parking Charge Notice (PCN) and your appeal is unsuccessful, the PCN will revert to the amount outstanding at the point of appeal and the payment terms will be extended.
Yours sincerely,
Smart Parking Limited
I see it as follows, I have entered a contract to pay £5 for 3 hours parking, the payment attempted on my behalf has been unsuccessful unbeknownst to us, I have attempted to mitigate losses by leaving asap and emailed them offering to make payment. Whilst the terms state you must comply prior to removing your vehicle it is ambiguous as to how to resolve this specific situation. Ultimately parking is seen as paid for with a 'start' and 'end' time, I did not feel comfortable paying for 3 hours parking having already been in the car park an hour as they may try to argue I should have paid just after parking.
So I come to you for advice, at present I no longer have the option for POPLA as my code has expired, I essentially have the choice to cough up £60 or to see the matter go to County Court.