Free Traffic Legal Advice
Live cases legal advice => Private parking tickets => Topic started by: titusandronicus on February 07, 2024, 07:33:44 am
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You are where you are, and IMO you should write to the creditor, tell them you reject the finding of their IAS and will not be paying until unless ordered by a court.
Critical point highlighted above.
One of the main legal points that the IAS assessor failed to respond to, unsurprisingly, is that this is a “penalty”.
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Absolutely spot on, HCA.
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This is a case involving breach of contract. While in general contracts provide for 'dispute resolution' by agreement between the parties(which in most cases I've dealt with is binding), with parking you're forced to accept the services of ill-defined 'adjudication' appointed by the parking company. You wouldn't choose these 'legally qualified' people if you had a choice, but you don't!
The fact that their decision is irrational i.e. there is no evidence that the creditor took your claim for mitigation(arguably frustration of contract and/or de minimis) into account contrary to 'the reasons for the late payment could amount to mitigation, which the operator has duly considered.'is nothing you can act upon.
But a court could.
You are where you are, and IMO you should write to the creditor, tell them you reject the finding of their IAS and will not be paying until ordered by a court. You should be grateful if they would exercise their right to bring this matter to court in a timely manner. Your decision is final and therefore they should not engage in pointless and protracted extra-procedural correspondence which ultimately would be a cost to be borne by them and would only serve to delay matters unnecessarily.
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As above, keep a keen eye out for a Letter Before Claim or Letter Before Action etc. - in the meantime their debt collectors will write a series of letters.
One important point - as they have 6 years to raise a claim, if you move house within that time, and the matter is unresolved, you will need to contact Excel (ideally their Data Protection Officer) informing them of your new address for service. We see quite a few cases where court claims end up going to old addresses, allowing the claimant to acquire a judgement in default, requiring set-asides and lots of unnecessary hassle that could be avoided by updating them with any new addresses.
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What's my next step? just wait for a court date?
Yes. However, they may never bother to go that far. They now have up to 6 years from the contravention date to issue a claim.
You will, in the meantime, receive a flurry of debt collector letters which you can safely ignore. They try to intimidate the low-hanging fruit on the gullible tree into capitulating into paying them by using scary words such as "CCJ" and "bailiff" etc. Feel free to use the as kindling or lining for the bottom of hamster cage.
If/when they send you a LoC, that is when you need to become active again. Come back and you will be guided through the process. A response to an LoC and then a robust defence using a well worn template will likely see them off. Even if it ever got as far as a hearing and you lost, there would be no CJ as you would just pay it within 30 days of judgment. Also, losing a claim invariably means you would pay less than the initial claim. However, that is a very worst case scenario. These shysters are easy to beat.
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just for those following this - the IAS response- no suprise there -
"The Appellant should understand that the Adjudicator is not in a position to give legal advice to either of the parties but they are entitled to seek their own independent legal advice. The Adjudicator's role is to consider whether or not the parking charge has a basis in law and was properly issued in the circumstances of each individual case. In all Appeals the Adjudicator is bound by the relevant law applicable at the time and is only able to consider legal challenges and not factual mistakes nor extenuating or mitigating circumstances. Throughout this appeal the Operator has had the opportunity consider all points raised and could have conceded the appeal at any stage. The Adjudicator who deals with this Appeal is legally qualified and each case is dealt with according to their understanding of the law as it applies and the legal principles involved. A decision by an Adjudicator is not legally binding on an Appellant who is entitled to seek their own legal advice if they so wish.
The signage at The Parkgate Autocare car park is prominent, clear and unequivocal in its terms; After a vehicle has entered the car park, a maximum period of 5 minutes is allowed to purchase a valid ticket or make payment by phone.
The Appellant's vehicle entered the site at 10.22 and left at 13.12, with the ticket being purchased at 10.44, 22 minutes after the vehicle had entered the site.
Despite paying for parking, the advertised terms were not complied with, and the operator has established that the Parking Charge was properly issued in accordance with the law.
The reasons for the late payment could amount to mitigation, which the operator has duly considered.
If the operator felt that the mitigation warranted it, they could have withdrawn the Parking Charge. They have chosen not to do so.
As stated above, as adjudicator I am only able to consider legal argument. The Appellant in this case has no legal argument.
Having considered all the issues raised, I am satisfied that the Appellant failed to comply with the advertised terms for parking, and the operator has established that the Parking Charge was properly issued in accordance with the law.
This appeal therefore has to be dismissed.
What's my next step? just wait for a court date?
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If you can get it in time for IAS you should do so because when faced with an overwhelming case, IAS occasionally does the right thing. Also memories fade so it’s good to get witness statements while the events are still relatively recent
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I did refer to the equality act, pretty much copy and pasted from your suggestion and uploaded my sons birth certificate.
I assumed they'd have video of her in the cas as they sent me pictures of the car on the PCN but my bad. I don't have any evidence as such but could get the booking email from my wife for the baby show and speak to Hulaboo for eye witness statements if it's useful. The question is, is it useful to do that now in ias or just let the kangaroo court do it's thing and gather evidence for real court?
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Having said that, it's never a smart idea to refer to evidence that can be provided later instead of actually providing evidence now.
This. They won't take your word for it - not unreasonably. If you have evidence to support your position there's little benefit to not sharing it.
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IAS is a kangaroo court whose decisions don't bind motorists, so don't lose any sleep over this part of the process. You indicated ages ago that you were ready to tough it out to court if need be.
Having said that, it's never a smart idea to refer to evidence that can be provided later instead of actually providing evidence now. I don't have time now to scroll up and down this thread to look for the answer, but did you refer to the specific section of the Equality Act and did you upload a copy of the birth certificate as I suggested? If not you can do so now, redacting your wife's details if you want to continue shielding her.
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Ok team, new response - this was what I sent them
The driver was my wife, therefore I have a detailed account of what occured. My wife drove to Darlington from our home address in Cambois (NE241SE) with our very young baby (DOB 17.11.2023). Due to traffic the drive took longer than expected, around 90 minutes. When she arrived our son had been screaming for a good half an hour. She pulled into a parking spot and immediately saw to him assuming she could pay the ticket after she'd dealt with the urgent matter of feeding our son. She breast fed him, adjusted her clothes, got him safely out the car and then bought a ticket, this took roughly 21 minutes, as is shown by the time she entered and the time she bought a ticket. She left immediately after paying properly for three hours parking to go about her business. The creditor is seeking to recover a parking charge because payment was not made within the time specified. I submit that in the circumstances this is unenforcable because the driver had a 'protected characteristic' under the equality act and is therefore entitled to reasonable adjustments which include being allowed to pay the tarriff beyond the stipulated period.
My wife was attending a show for babies at theatre hullabaloo nearby, so evidence can be provided in the form of eyewitnesses and ticket bookings if necessary, although I assume the parking cameras at the site would show my wife carrying our baby. I am prepared to take this all the way to court, but I would rather not waste everybody's time and cancel this erroneous matter now.
This is what Excell replied -
The operator made their response on 23/02/2024 14:36:26.
1. If the appellant wishes to transfer liability for the charge to another person they may do so by providing the full name and serviceable address for that person, who will be sent a notice. However if that person denies liability, liability will revert to the appellant as registered keeper of the vehicle under Schedule 4 of PoFA 2012.
2. Any CCTV cameras located on the site are property of the landowner or respective business. If the appellant wishes to view any CCTV footage they may hold, the appellant would have to approach and request this from them themselves. Neither we nor the adjudicator have any investigatory power on the motorist's behalf.
What now - should I A) refer it to arbitration and let the IAS give a verdict or B) dob my wife in and let her fight it on the grounds of the breast feeding C) say something else in response to Excell?
- Thanks for advice as ever, I'm just a bit hazy on wether I'll still be able to use the breast feeding as reason for late parking payment if I'm the one up in court.
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ok, thanks I'll post the above and keep you posted, much appreciated!
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OP IMO, this is losing its focus.
Without offering a view as to whether the account is accurate, if you want to run with it then IMO, your appeal to IAS should be simple and targeted:
The driver was my wife, therefore I have a detailed account of what occurred.
She was driving alone from ** to *** with our **-month old on board. The journey had taken longer than anticipated and ** was due a feed and communicated their demands in the only way they knew;
My wife was breast-feeding at the time;
She pulled in to ***, read the signs and was aware that if she stayed for any period then she would have to pay the necessary tariff. She was happy to do this, however, she had a more, literally, pressing demand on her time. She therefore fed and winded our child which took approx. *** minutes. She then adjusted her clothing and took them with her to pay. As it turned out she entered the site at *** and did not pay until ***. She left immediately after paying.
The creditor is seeking to recover a parking charge because payment was not made within the time specified. You submit that in the circumstances of this case this condition is unenforceable by virtue of the driver having a 'protected characteristic' under the Equality Act and therefore being entitled to reasonable adjustments which include being allowed to pay the tariff beyond the stipulated period.
I'm certain you could work with the above. However, they make the point in their reply that no evidence of your wife's condition was submitted. Do not make the same mistake with IAS. Anyone can concoct a story, so pl give them what they would need to support your account.
+ as a secondary matter whether the NTK complies..
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My apologies, had missed out page 2 when re-reading the thread!
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Yes my response does mention the POFA - this is what I sent them as advised by a board member further up this thread.
1. The keeper was not driving. The operator, therefore, purports to hold rely on Schedule 4 to the Protection of Freedoms Act 2012 ('POFA') to hold the keeper liable. However, in order to do so, the operator must deliver to the keeper within the 'relevant period' as defined in POFA paragraph 9(5) a notice to keeper ('NTK') that satisfies the strict requirements of POFA, including the requirements of POFA paragraph 9(2)(f). Partial or even substantial compliance with POFA is insufficient.
2. The relevant period defined in POFA paragraph 9(5) is 'the period of 14 days beginning with the day after that on which the specified period of parking ended' which has now expired so the operator cannot now deliver a new POFA-compliant NTK.
3. The operator's purported NTK is not POFA-compliant because it does not include the mandatory warning required by POFA paragraph 9(2)(f) which states that a NTK must:
warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii) the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met)have the right to recover from the keeper so much of that amount as remains unpaid
4. The warning in the operator's purported NTK does not include the mandatory statement that the creditor's right to recover from the keeper is subject to all applicable conditions under POFA being met.
5. The operator may seek to argue that their warning conforms to the wording required by the IPC Code of Practice. However POFA is an Act of Parliament and is law. The IPC Code of Conduct is not law. While the operator might in retrospect consider that it made a mistake in choosing to comply with the IPC Code of Practice rather than the law, IAS adjudicators must apply the law and cannot consider mistakes or extenuating circumstances, whether made by the operator or the IPC.
6. The operator's summary of the Equality Act is breathtaking in its ignorance. Reasonable adjustment for breastfeeding mothers is expressly required by the Act and is not limited to the examples cited by the operator. Subsections 17(3) and (4) read as follows:-
(3)A person (A) discriminates against a woman if, in the period of 26 weeks beginning with the day on which she gives birth, A treats her unfavourably because she has given birth.
(4)The reference in subsection (3) to treating a woman unfavourably because she has given birth includes, in particular, a reference to treating her unfavourably because she is breast-feeding..
7. The child in question was less than 26 weeks old at the time of the alleged parking event. A copy of the child's birth certificate has been uploaded. The operator is not entitled to any further 'evidence' of breastfeeding.
8. It is immaterial whether the unadjusted consideration period is 5 or 20 minutes. The adjusted amount of time required by the driver (who was alone with her baby) was 22 minutes and she must be allowed that time by law. Please note that this is a respectful demand for application of a legal right and not a request for consideration of mitigating or extenuating circumstances
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Did you reference the Protection of Freedoms Act (PoFA) in your appeal? If not, I'm not entirely clear why Excel are drawing attention to it in their response.
If not, you could draft a response pointing out that you are not disputing their compliance with PoFA, but your claim is that their charge is not commercially justifiable in the first place, and that Excel have made no effort to refute this in their response.
Show us your planned response before submitting anything.
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I suppose my query was more that I felt like the breastfeeding argument may be our strongest argument against the PCN and wondered if by making this about me as the keeper they're trying to avoid the breastfeeding issue, but if it doesn't make a difference, I'm happy to continue as I am. How do I respond now on the IAS, or should I just refer it to the arbitration and have it done with?
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If you don’t like your wife then snitching on her to a private parking company might seem like a good idea. I can’t think of another reason to do that.
If I were you and I liked my wife I would put in a response to the operator’s comments on the IAS portal
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Just wondered if I notified them of my wife's name then they might send her a notice and then let her off because of the breast feeding.
Has any of the process so far led you to believe that Excel are in the business of letting people off?
You of course do have the option to name the driver, who will in turn receive their own notice. Whether you do this is your choice and depends on your proposed approach. If you're prepared to fight this all the way, then whoever is being pursued will need to be prepared to defend the matter in court. At present, that person if you. If you name your wife as the driver, it'll be her.
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this is just the response from the operator - I could respond again or refer to arbitrator. Just wondered if I notified them of my wife's name then they might send her a notice and then let her off because of the breast feeding.
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No surprise about the IAS decision. You are now in the “limbo” stage and will have to weather the useless debt collector demands. Until you receive a Letter of Claim or an actual claim, there is nothing more for you to do.
They have up to 6 years from the event date to issue a claim. As already advised elsewhere, should you move address within tht period, you must contact their DPO and instruct them to rectify your address for service of documents and they must erase your old address.
As your appeal was based on their failure to comply with the requirements of PoFA, do you really want to throw your wife under the bus by identifying and admitting her as the driver?
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I'm technically still within the 28 days so I could notify them of my wife's name and address if you think it's useful?
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Hey Team,
here's the reply on IAS -
1. The Notice to Keeper (NTK) sent to the appellant states: “Please be warned: that if, after the period of 28 days beginning with the day after that on which the Notice is given, the amount of the unpaid Parking Charge specified in this Notice has not been paid in full and we do not know both the name of the driver and a current address for service for the driver, we will have the right to recover from you, the Keeper, any unpaid balance of the Parking Charge. This Notice will be deemed to have been received by you on the second working day after the Issue Date stated above unless the contrary is proved..”
2. Under Schedule 4 of the Protection of Freedoms Act 2012; by failing to provide those details, the appellant became liable for the Charge Notice.
3. The design, wording and layout of the NTK complies with the IPC Code of Practice.
What do you suggest next?
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Although HCA and I have had some differences of opinion on technical and tactical questions, we are united on this.
If you don't kill a PCN with a successful appeal, you must notify the parking company's data protection officer (DPO) of your new address and require erasure of your old address every time you move home in the 6 years following the original event. The email address for Excel's DPO is dataprotection@excelparking.co.uk
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I don't think I have a silver bullet, I'm quite stubborn though and if the deal is that I put up with all the letters and go to court and worst case scenario* have to pay £180 quid instead of the £100 fine then it's worth it for the challenge and the experience and to waste their time.
Fine. Your eyes are open.
*- worse case scenario is that you might move at some stage during the process and they might lose track of you, possibly leading to court papers not being actioned(because they're served where you live now and you don't receive them), a default judgment being entered against you and a negative effect on your credit rating. But this couldn't happen if you keep on top of matters.
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The costs awarded on the Small Claims Track in the County Court are limited, unless the court deems a party to have behaved 'unreasonably' - this is a high bar, so happens rarely, so as long as you don't do anything particularly stupid that's unlikely to happen.
They may add on £70 of debt collector fees to any claim - these can be defended and are often thrown out as an attempt at 'double recovery'.
We can't provide any guarantees, but for a single parking charge, a loss in court is generally around £200-£250. You're not likely to be forking out thousands if you lose, if that's your concern.
Details of costs are available here - https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27 (https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27)
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I don't think I have a silver bullet, I'm quite stubborn though and if the deal is that I put up with all the letters and go to court and worst case scenario have to pay £180 quid instead of the £100 fine then it's worth it for the challenge and the experience and to waste their time. If it's likely to have more serious cost implications than I realise though please let me know.
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Is it agreed that the NTK was given in time?
For the OP's benefit, how does this work 'OP should be able to beat them' given the current objective data.
If this refers to legal prestidigitation at the end game of a potentially 6-year process of attrition involving threatening letters, court procedures and an ever-lengthening thread then IMO the OP should be made aware.
At present I get the impression they think they have a silver bullet.
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I’m not aware of a court decision on the point and I didn’t suggest it was a winning argument. It’s a credible argument and in my opinion a correct one. I wouldn’t expect the IAS to accept it. But that’s hardly the point. I never expect any argument to win with IAS and especially not this one because it would require an IAS adjudicator to rule that the IPC mandatory NTK doesn’t work, which I can’t see happening.
The point is to show Excel that they have a determined and competent opponent.
If Excel does take the case to court, OP should be able to beat them by following the guidance over on https://forums.moneysavingexpert.com/discussion/4816822/newbies-private-parking-ticket-old-or-new-read-these-faqs-first-thankyou/p1
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Is there any evidence in the way of successful defences in court that the omission of the phrase (subject to ....') prevents the creditor from relying on keeper liability?
The question is relevant because IAS won't buy it, that's for sure..particularly as de facto they have complied with the other conditions.
OP, I urge caution about getting your hopes up too high on this point.
And as for whether it was given in time, the objective evidence is that it was.
The OP told us, but hasn't shown us, the relevant dates:
contravention date - 18/01/2024 - PCN NTK issue date - 25/01/2024 (deemed given 29th)
therefore the elapsed period is 11 days.
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Don’t hold your breath. IAS is not generally regarded as independent and rarely sides with motorists. But no worries because IAS decisions are binding on operators but not on motorists
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Wow this is excellent, thanks so much nosy parker, I'll submit the reply and upload the birth certificate and keep you posted
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I suggest the following:
1. The keeper was not driving. The operator, therefore, purports to hold rely on Schedule 4 to the Protection of Freedoms Act 2012 ('POFA') to hold the keeper liable. However, in order to do so, the operator must deliver to the keeper within the 'relevant period' as defined in POFA paragraph 9(5) a notice to keeper ('NTK') that satisfies the strict requirements of POFA, including the requirements of POFA paragraph 9(2)(f). Partial or even substantial compliance with POFA is insufficient.
2. The relevant period defined in POFA paragraph 9(5) is 'the period of 14 days beginning with the day after that on which the specified period of parking ended' which has now expired so the operator cannot now deliver a new POFA-compliant NTK.
3. The operator's purported NTK is not POFA-compliant because it does not include the mandatory warning required by POFA paragraph 9(2)(f) which states that a NTK must:
warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii) the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met)have the right to recover from the keeper so much of that amount as remains unpaid
4. The warning in the operator's purported NTK does not include the mandatory statement that the creditor's right to recover from the keeper is subject to all applicable conditions under POFA being met.
5. The operator may seek to argue that their warning conforms to the wording required by the IPC Code of Practice. However POFA is an Act of Parliament and is law. The IPC Code of Conduct is not law. While the operator might in retrospect consider that it made a mistake in choosing to comply with the IPC Code of Practice rather than the law, IAS adjudicators must apply the law and cannot consider mistakes or extenuating circumstances, whether made by the operator or the IPC.
6. The operator's summary of the Equality Act is breathtaking in its ignorance. Reasonable adjustment for breastfeeding mothers is expressly required by the Act and is not limited to the examples cited by the operator. Subsections 17(3) and (4) read as follows:-
(3)A person (A) discriminates against a woman if, in the period of 26 weeks beginning with the day on which she gives birth, A treats her unfavourably because she has given birth.
(4)The reference in subsection (3) to treating a woman unfavourably because she has given birth includes, in particular, a reference to treating her unfavourably because she is breast-feeding..
7. The child in question was less than 26 weeks old at the time of the alleged parking event. A copy of the child's birth certificate has been uploaded. The operator is not entitled to any further 'evidence' of breastfeeding.
8. It is immaterial whether the unadjusted consideration period is 5 or 20 minutes. The adjusted amount of time required by the driver (who was alone with her baby) was 22 minutes and she must be allowed that time by law. Please note that this is a respectful demand for application of a legal right and not a request for consideration of mitigating or extenuating circumstances
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contravention date - 18/01/2024 - PCN NTK issue date - 25/01/2024
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What is the date of contravention, and the date of issue on the notice?
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Where did the idea that the driver had a 20 minute consideration period come from?
The keeper mentioning that the driver was breast feeding does not identify the driver. It could be anyone such as the keepers daughter, niece, cousin, friend, work colleague, neighbour and so on.
Playing devils advocate… The keeper says that the driver was breast feeding. Was the keeper in the car at the time? If so, why didn’t the keeper pay for the parking whilst the driver was breast feeding the baby?
“The circumstances cited by the appellant, of which no evidence has been supplied…” is an interesting comment by the operator. Are they really demanding that “evidence” of the woman breast feeding a baby is required? All sorts of connotations there.
Also just to clarify, I (the keeper) was not in the car, my wife was alone with the baby.
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Hey, so the 20 minute idea was my false assumption after googling other excel car parks, we live quite a distance from the car park in question so it wasn't possible to go back and look at the signs. It wasn't listed on the NTK. To be honest we're alien to this idea of car park cameras and my wife assumed she could just buy a ticket when she was settled, she'd driven over an hour with a screaming baby on little sleep and was stressed so just immediately fed him before buying the ticket.
Here's a properly redacted image of the NTK - - https://imgur.com/a/Lyuocm8 front
Thanks for all the advice
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Where did the idea that the driver had a 20 minute consideration period come from?
The keeper mentioning that the driver was breast feeding does not identify the driver. It could be anyone such as the keepers daughter, niece, cousin, friend, work colleague, neighbour and so on.
Playing devils advocate… The keeper says that the driver was breast feeding. Was the keeper in the car at the time? If so, why didn’t the keeper pay for the parking whilst the driver was breast feeding the baby?
“The circumstances cited by the appellant, of which no evidence has been supplied…” is an interesting comment by the operator. Are they really demanding that “evidence” of the woman breast feeding a baby is required? All sorts of connotations there.
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The last time I asked you to show it, you deleted the entire NTK.
It was me who deleted it, as the OP had left personal information visible.
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You told us there was a 20 minute consideration period. Where did you get that from?
Now that the operator has nailed its colours to keeper liability under POFA we really need to see the POFA language on the NTK. The last time I asked you to show it, you deleted the entire NTK. Please now post links to externally hosted and properly redacted copies of the entire front and back.
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As for the argument about discrimination, that is unlikely to hold any sway. The Equality Act 2010 does not explicitly mention breastfeeding mothers. whilst the Act does prohibit discrimination on the basis of sex, which could cover issues related to breastfeeding, it may be a stretch to apply it in this context.
The Equality Act does mention breastfeeding mothers - but only for 26 weeks after giving birth. See subsections 17(3) and (4):-
(3)A person (A) discriminates against a woman if, in the period of 26 weeks beginning with the day on which she gives birth, A treats her unfavourably because she has given birth.
(4)The reference in subsection (3) to treating a woman unfavourably because she has given birth includes, in particular, a reference to treating her unfavourably because she is breast-feeding.
we could be in luck as our baby was roughly 8/9 weeks at the time
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Hi Everyone,
here is the reply from the IAS - I need to reply to this in the next 5 days -- shortly I'll post proper pictures of the original NTK (baby asleep in the room where I left it). Just to clarify, I'm the keeper, my wife was the driver, the fine was sent to me but I haven't officially said it was my wife driving although I have mentioned the breast feeding so it's probably pretty clear to them.
The operator made their Prima Facie Case on 12/02/2024 10:18:23.
The Operator Reported That...
The appellant was the driver.
The appellant was the keeper.
The operator is seeking keeper liability in accordance with PoFA..
ANPR/CCTV was used.
The Notice to Keeper was sent on xyz.
A response was received from the Notice to Keeper.
The ticket was issued on xyz.
The Notice to Keeper (ANPR) was sent in accordance with PoFA.
The charge is based in Contract.
The Operator Made The Following Comments...
1. The Parkgate Car Park Darlington Tyre & Auto Care is private land and motorists are allowed to enter to park their vehicle provided that they abide by any displayed conditions of parking.
2. The signage (supplied) in this area states ‘After a vehicle has entered the car park, a maximum period of 5 minutes is allowed to purchase the required parking tariff.” and “You must ensure the FULL & ACCURATE VEHICLE REGISTRATION MARK (VRM) of the vehicle on site is provided when making payment”. Further to this the signage clearly states: ‘Parking Charge Notices will be issued for the following…Failure to make payment within 5 minutes following entry to the car park/private land‘'
3. Site photographs supplied show that the signage can be seen throughout the car park. The adjudicator will note that the EPS signage onsite, including its wording (which includes the 5 minutes consideration period) and positioning has been audited by the IPC, has passed audit, complies with the IPC Code of Practice and is deemed fit for purpose.
4. Management of the car park is conducted by ANPR cameras, which take photographs of vehicle registration numbers as vehicles enter and leave the car park. The VRM images are compared with tickets purchased at the P&D machines and any vehicle that remains on the car park for 5 minutes and fails to purchase a valid P&D ticket or make payment by phone is issued a Parking Charge Notice (PCN).
5. The ANPR cameras record the time of a vehicle's entry and exit from the car park and the images supplied show that the appellant's vehicle entered the car park at 10:22:44 and exited at 13:12:03 a parking duration of 2hr 49min 19sec.
6. A comprehensive search of the ticket Database, which is a record of all tickets (paper and virtual) supplied purchased at the Car Park and search of all P&D tickets purchased, shows that no ticket was purchased for the motorist's full and accurate VRM of VE10NRU on the date of the contravention during the 5 minutes consideration period granted to the appellant following their entry to the car park. The late purchased and therefore invalid ticket bought for the appellant's vehicle can be seen in the data; timed at 10:44.
7. As registered keeper, we are holding the appellant liable for the Charge Notice under Schedule 4 of the Protection of Freedoms Act 2012, details of which where explained in the formal Notice sent on xyz. We note that the appellant has also declined to name the driver of their vehicle at the time of the incident in question. It is important that we make the adjudicator aware that we will rely on the keeper liability provisions within Schedule 4 of the Protection of Freedoms Act 2012 (PoFA) and as such, do not require those details.
8. A copy of our authority to manage parking on this site, including where the appellant parked their vehicle was supplied as part of the IPC audit process and is available solely to the Adjudicator for their perusal.
9. For the avoidance of doubt, the consideration period at this car park is 5 minutes; not 20.
10. The circumstances cited by the appellant, of which no evidence has been supplied, and the eventual purchase of a ticket for their vehicle do not nullify their liability for the charge. The contract between the appellant and EPS was formed when the motorist entered the car park. When entering this private land, a motorist freely enters into an agreement to abide by the conditions advertised in return for permission to enter. It is the motorist's responsibility to ensure that they abide by any clearly displayed terms and conditions. It is clear that the terms and conditions stated that a valid payment must be made with 5 minutes of entering the car park; otherwise the motorist would face liability for a Charge Notice. The adjudicator will note that the appellant had the opportunity to leave the site if they could not comply with the terms and conditions.
11. Motorists are allowed a sufficient Consideration Period so they may make an informed decision as to whether or not to enter or remain on the Private Land and therefore form a contract. Signage on site clearly provides the motorist with the Consideration Period allowed on site and allows the motorist to either comply with the offered contract to park or decline and remove their vehicle from the car park. The consideration period on this site is a fair and reasonable amount of time for any motorist to make an informed decision. If for any reason the motorist was unable to complete a valid payment via the app within the consideration period they had the option to pay at the machine, call the helpline number displayed on all signage on site or decline the offered contract and remove their vehicle from the car park prior to the expiry of the consideration period.
12. We maintain that our signs are clearly visible and meet the requirements set by the International Parking Community guidelines. As established members of the International Parking Community, we adhere to their Code of Practice. This Code of Practice gives recommendations in regards to the signage within the car park. The signs within the car park fully comply with the recommendations outlined in the Code of Practice and are therefore deemed reasonable. Once the presence of the signs is revealed, it is the motorist's responsibility to ensure that they have read the signs and are familiar with the Terms and Conditions before leaving their vehicle parked in situ.
13. The Equality Act 2010 says that providers of services to the public must make ‘reasonable adjustments' to remove barriers which may discriminate against disabled people. In this instance 'reasonable adjustments' to prevent discrimination are likely to include larger ‘disabled' parking spaces or amenities for disabled people whose mobility is impaired and could include lowered payment machines etc.
14. Ultimately, when entering this private land it was solely the responsibility of the appellant to fully comply with the clearly advertised contractual terms and conditions within the consideration period provided. By their failure to do so the appellant rendered themselves liable for the PCN, which was lawfully issued.
15. The appellant became liable for the Parking Charge Notice issued, as per the Terms and Conditions displayed by failing to make payment for the full and accurate VRM of their vehicle within the consideration period.
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As for the argument about discrimination, that is unlikely to hold any sway. The Equality Act 2010 does not explicitly mention breastfeeding mothers. whilst the Act does prohibit discrimination on the basis of sex, which could cover issues related to breastfeeding, it may be a stretch to apply it in this context.
The Equality Act does mention breastfeeding mothers - but only for 26 weeks after giving birth. See subsections 17(3) and (4):-
(3)A person (A) discriminates against a woman if, in the period of 26 weeks beginning with the day on which she gives birth, A treats her unfavourably because she has given birth.
(4)The reference in subsection (3) to treating a woman unfavourably because she has given birth includes, in particular, a reference to treating her unfavourably because she is breast-feeding.
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Let’s not forget that, at this stage, this is only an appeal to IAS and is likely to be refused anyway. The only recourse after this stage is Plan D… letting a judge decide.
The arguments about whether a term was enforceable or whether it was a penalty would need to be argued in much more detail than the way it was simply quoted in the IAS appeal. The CRA would cover much of the argument so far.
As for the argument about discrimination, that is unlikely to hold any sway. The Equality Act 2010 does not explicitly mention breastfeeding mothers. whilst the Act does prohibit discrimination on the basis of sex, which could cover issues related to breastfeeding, it may be a stretch to apply it in this context.
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Yes they can. You might ask them not to, but it's their decision.
What would be the commercial justification for requiring payment within 20 minutes, in a car park managed entirely by ANPR?
A contract term is not a fair one just because a parking company decide it is and print it on a sign.
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Can you show us what you plan to submit to the IAS?
I did it this afternoon, just copy and pasted the suggestion from above and sent it to the IAS using the online form. --- this one ---
I appeal against this charge on 2 grounds (each of which is alone sufficient to require cancellation):
1. The term you are seeking to invoke concerns failing to pay for parking within 20 minutes of arrival. Payment was made in full, there was no overstay and the correct VRM was entered. The parking charge is therefore an unenforceable penalty that is not saved by the Supreme Court decision in the Beavis case as there is no commercial justification for imposing a time limit for payment that expires before the end of the period of parking.
2. The payment was made 2 minutes after the end of the arbitrary and unenforceable 20-minute parking period. This delay was entirely due to the fact that the driver needed to stay a few minutes longer in the car in order to pacify a screaming child by breastfeeding and you are legally obliged by the Equality Act to make a reasonable adjustment to the 20-minute payment deadline to accommodate this.
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Can you show us what you plan to submit to the IAS?
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thanks everyone, sorry for the tech fails, I'll post back when I've heard back from the IAS
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I've removed the Imgur links for now until the OP can upload better redacted versions.
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OP, your image of the NtK is not sufficiently redacted as the PCN number and VRN are easily discernible under the feeble attempt to obscure them. I have managed to log onto the PPCs website with those details. If I can do it, anyone can. Not everyone will have good intentions and could easily cause you problems. You are advised to re-edit the images of the NtK you have provided and redact them properly.
(https://i.imgur.com/XJ755OU.png)
You state the "we" received an NtK and that your wife "arrived". In whose name is the NtK? In other words, who is the registered keeper (RK)? You say "I'll try the appeal". Only the RK can appeal unless the RK wants to deny being the driver and transfers liability.
Without being able to fully see the page of the NtK that may or may not contain a valid PoFA statement, it may be worthwhile for only the RK to make the appeal.
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thanks so much! I'll try the appeal and update with how it goes. Much appreciated!
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We're getting there but this time you've cut off part of the left side of the front page - and the part you've cut off contains the wording that might show you have a technical defence based on Excel's failure to properly invoke the statutory mechanism for transferring the liability (if any) of the driver (whose name and address they don't know) to the keeper (whose name and address they do know).
So let's keep that point under wraps till you unwrap page 1 of the mystery. Anyway, you have a really strong case on other grounds.
Excel is a member of the bottom-feeding IPC and will most likely reject your appeal and offer you an opportunity to make a second appeal to the IPC's so-called 'Independent Appeals Service' (IAS). Many experts advise that it's not worth appealing to IAS because it's a kangaroo court that is biased against motorists and anything but independent.
In your shoes, I would go through the motions of internal and IAS appeals because a loss at IAS is not legally binding on the motorist. Even if you lose at IAS, Excel will still need to take civil court proceedings and win the case in order to enforce this ticket, and if they're mad enough to do that you should have an easy win. Your case is so strong that even Excel or IAS should see it. Try the following initial appeal to Excel and come back when you hear from Excel - whether it's to report success or ask for advice on the next step:
I appeal against this charge on 2 grounds (each of which is alone sufficient to require cancellation):
1. The term you are seeking to invoke concerns failing to pay for parking within 20 minutes of arrival. Payment was made in full, there was no overstay and the correct VRM was entered. The parking charge is therefore an unenforceable penalty that is not saved by the Supreme Court decision in the Beavis case as there is no commercial justification for imposing a time limit for payment that expires before the end of the period of parking.
2. The payment was made 2 minutes after the end of the arbitrary and unenforceable 20-minute parking period. This delay was entirely due to the fact that the driver needed to stay a few minutes longer in the car in order to pacify a screaming child by breastfeeding and you are legally obliged by the Equality Act to make a reasonable adjustment to the 20-minute payment deadline to accommodate this.
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thanks, I've added a pic of the back and removed attachment
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This should be beatable but you’ve withheld the back of the ticket. It’s like asking us to work out whodunnit but removing the final chapters of the book.
Please delete the image you’ve posted which is eating up scarce space and replace with links to externally hosted links to the front and back of the ticket at a site such as www.imgur.com
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Hi There, we recently got a notice to keeper PCN for an excel private car park, essentially my wife arrived and had to pacify our screaming baby by breast feeding before buying the ticket - this took 22 minutes (2 minutes over the specified 'consideration period'). I appealed using their online appeals process and the template response I found on the MSE forum which doesn't admit who was driving. They've rejected that. What's my next step? wait and see if they take me to court? The ticket my wife did buy and the letter they sent us show she stayed less than the 3 hours she paid for.
Thanks for any advice!
Pics of ticket here -