To whom is your daughter writing and what is she hoping to achieve? The period for arguing the toss ended 5 years ago. She's now involved in process.
The letter admits the contravention i.e. she acknowledges that parking rights ended at 16.49 and the car left the car park at 17.00. As the judge said in the cited case, it would be wrong to ignore the regulatory framework which controls a claimant's access to keeper data. But I cannot understand your desire to argue what is unarguable, a penalty charge was not incurred until a period of 10 minutes had elapsed after parking rights ended. The framework has been complied with, so what's your point? If you are seeking to differentiate between the parking charge and, dare I say, semantics regarding the notice of the parking charge sent to the keeper i.e. NTK, then be clear
Can you pl assemble the evidence and decide what line to adopt should proceedings commence.
Sorry if this goes against the grain, but evidentially it must surely be the case.
I take it that the time on the ticket is the expiry time, unless you can show anything to the contrary. I think I wrongly put starting timeYes, change that to expiry time. It says it was issued at 15:49 at the bottom.
As an aside, if you look at the CURRENT signage posted earlier on in my thread, it does say that the site is monitored by CCTV/ANPR cameras and by parking attendants.A lot of car park signage includes both as a matter of course. Presumably to save the cost of having to change the signs if they change enforcement methods.
The ticket which my daughter bought and displayed in her windscreen (as required under the terms and conditions) shows a starting time of 16.49.
The PCN shows a contravention time of 17.02
The camera shows her car exiting the car park at 17.00.
The various photographs taken by the parking attendant are timed at 16:50:52 to 16:51:19 which are 2 minutes after the 1 hour parking time.
So, she paid for 1 hour's parking starting at 16:49, exited the car park 11 minutes later and somehow managed to exceed the 1 hour at 17:02, 2 minutes after she left the car park (13 minutes after the starting time displayed on the ticket)?
The ticket which my daughter bought and displayed in her windscreen (as required under the terms and conditions) shows a starting time of 16.49.
The PCN shows a contravention time of 17.02
The camera shows her car exiting the car park at 17.00.
The various photographs taken by the parking attendant are timed at 16:50:52 to 16:51:19 which are 2 minutes after the 1 hour parking time.
As previously mentioned to you I do not agree with these responses and deny that any breach of contract has occurred.To confirm, what previous correspondence are you referring to here? The opening post suggested your daughter was previously unaware of the situation and had only contacted Excel to make a Subject Access Request, with another letter being sent to the third party debt collector.
those shown on your ANPR cameraIs there an ANPR camera? If it's warden-controlled that would seem unlikely, and indeed all of the photos look like they were taken by an attendant.
There are no photographs evidencing my vehicle being on the site after the expiry of the grace period.There is (one). What there are not, are any photos of the vehicle parked after the expiry of the grace period, which is the important part. Driving to the exit is not parking.
At 17:01:54 “car parked after the ticket purchased has expired” This is timed after my vehicle had left the site and makes no provision for the grace period.The one in bold is the only one that has any relevance to the material arguments. The other two risk being a distraction in my opinion - in cases where the vehicle drives off whilst the attendant is in the process of producing a PCN it is inevitable that they'll input information after the vehicle has left. That the attendant input some information after the car left is unimportant, what is important is your argument about when the vehicle was parked, and their lack of evidence that it was parked outside of the grace period.
At 17:02:05 “Driver drove off before I could take the last pictures” I assume from this that the attendant was intending to take a picture of my vehicle on site after the grace period but his failure to do so was because my vehicle had already left the site within said period (being a minimum of 10 minutes).
At 17:14:10 “Ticket edited on 02-07-2018 by Jack Bailey” I have no idea what this means or even how anyone can edit a ticket which is inside my vehicle.
What does the attendant mean about "last pictures"? Does this refer to pictures he would have taken to show that the car was still there after the grace period?Your guess is as good as mine - that may well be the case. They might be instructed to take a certain series of images at certain times.
1 If their camera shows the car exiting at 17.00 the contravention could not have taken place at 17.02, so is the PCN enforceable in court? The signage says that that the site is monitored by CCTV/ANPR for the purposes of ensuring compliance with the terms and conditions. So the time stamp of the exit photo must surely be the time of any contravention?That'll presumably when the attendant logged the PCN on whatever device he was using. You're right that it can't be the time the contravention occurred, but given there are timestamps on everything showing what occurred when I'd say it's unlikely to make much material difference on its own, and the defence would be stronger focusing on other matters.
2 The current signage does not mention anything about a grace period not applying. The photograph taken at the time by the parking attendant is unhelpful as it is too blurred to be read. Allowing for a minimum 10 minute grace period, the ticket could have been purchased at 16:49:59 which would give a grace period expiring at 16:59:59 a full 1 second before the earliest recorded exit time. Is a judge likely to consider this as a breach of contract?You could certainly argue the point I would say. The Code of Practice is not law, but it should be followed by Excel. Excel will likely argue that enforcement has to start somewhere, and that the driver exceeded the paid for time by 11 minutes. In turn you could argue that the final photo shows the car at the exit - take off the time taken to move from the parking space to the exit and they may well have left within the 10 minute period. It's not a clear cut one either way here.
3 The post by SPARXY above shows that the code of practice in force at the relevant time suggests a MINIMUM period of 10 minutes grace period. I’m not sure why it would specify a minimum rather than a maximum period. So with nothing specified, would 11 minutes (ie 16.49 to 17.00) be a reasonable period to argue with shopping to unload and 2 toddlers to deal with? Could she really be considered as “overstaying” if loading the car and driving to the exit would have taken around at least a minute and would have brought her well within the minimum grace period?It specifies a minimum because some operators may choose to apply a longer grace period (for example if they use ANPR and are particularly large, where exiting them may take a significant period of time). If it's at least 10 minutes, they don't need to tell drivers what the grace period is - after all, it's not a bonus period of additional free parking, it's meant to prevent overly sharp practice, and account for the fact that people can't be expected to keep time to the precise second.
4 The signage (posted above) has a sign showing the terms and conditions in a separate box on the right hand side Those include things like displaying the ticket clearly, entering your reg no, parking between the lines, disabled badge holders to pay, etc etc. It doesn’t mention anything about not overstaying. At the top left of the sign is the tariff and at the bottom left is a box which explains the circumstances giving rise to a £100 charge (but is not headed terms and conditions). That box refers again to breaking the terms and conditions and each item mentioned there refers to one of the terms and conditions except the overstay.This is unlikely to be a convincing argument.
As previously stated the photograph supplied of the signage in force is blurred and appears to be set out slightly differently, but I assume it contains the same details.
So the point I’m questioning is does an overstay breach the terms and conditions if the maximum period is not shown as part of the terms and conditions? Or could it be argued that my daughter complied with the terms and conditions as listed and no breach of contract has occurred?
5 The parking attendants notes include:Can't see much of use in that - just means they finished typing up notes etc. after the driver had left.
“Driver drove off before I could take the last pictures” yet his pictures were taken ten minutes before the exit time.
“Car parked after the ticket purchased has expired” ignoring the grace period
“Ticket edited on 02-07-2018 by Jack Bailey” no idea what this means.
All these notes are timed after the car had exited
So far we know:
The creditor claims that at 17.02 the motorist was 'parked after the expiry of time purchased'.
We don't know:
How much time was purchased and when.
Distance sellingThat quote would seem to be taken from guidance, rather than the law, and the list certainly doesn't seem to be exhaustive (although as I explained above there's still little chance that this case would be considered in scope)
You must provide certain information if you’re selling goods or services through digital TV, by mail order or by phone or text message. This is called distance selling.
I didn't realise that legal costs were given in the small claims track.The costs allowed are very minimal.
She hasn't moved and as far as I'm aware the V5C is correct.I'd recommend she physically checks the V5C, just to make sure there isn't some sort of spelling mistake or similar that has caused post to go missing. For her only to have found out about the matter now requires multiple letters to have gone missing - this can happen, but it's worth making sure it isn't due to an error on the V5C, which could cause her similar issues in the future.
If the ! hour limit didn't apply in 2018 then that brings the 10 minute grace period into play. Do you happen to know whether it existed as part of the code back then?Off the top of my head yes, but unhelpfully IPC don't keep previous versions of their CoP on the website - you might be able to find an archived copy with some Googling.
If they pass it back to Excel for court action, are they right in saying that her total charge may rise to £235? Is the extra the court fee for filing the claim?Roughly - in general a loss in court costs around £200-220, comprised of the £100 parking charge, around £70 in debt collector costs*, around £50 in legal representative costs, £35 court fee, and interest**.
Whether these signs were there 5 years ago I have no idea.That's likely to be part of the issue - this from Google Street View suggests that the '1 hour max stay' may be a recent change, it wasn't on the signage in 2018 - GSV 2018 (https://www.google.com/maps/@51.5886401,0.0802157,3a,15y,362.45h,89.39t/data=!3m7!1e1!3m5!1s32ggOaYwgYL3982uklH9gA!2e0!5s20180401T000000!7i16384!8i8192?entry=ttu)(and wasn't even as recently as last year - GSV 2022 (https://www.google.com/maps/@51.588688,0.0802239,3a,34.8y,-3.13h,86.94t/data=!3m7!1e1!3m5!1sdj9n0FgH2pa6MinK_6V8pQ!2e0!5s20220301T000000!7i16384!8i8192?entry=ttu))
I'll get her to send a SAR but, as they have 30 days to respond, I fear that the imminent legal action may commence in the meantime.It shouldn't - Debt Recovery Plus can't take legal action. They'd need to refer it back to Excel, who'd need to instruct their solicitors to issue a Letter Before Claim. Your daughter would have the opportunity to respond to this and they would need to give time to do so - at least 2 weeks but generally around 4. Then they would issue a court claim, and again there'd be 30+ days to prepare a defence, if service is acknowledged at the right time.
This is from the IPC code of practice.Indeed - this point will depend on what the signs say, it's only relevant if the maximum time that can be purchased is 1 hour, and if they do not offer a grace period.
https://1drv.ms/i/s!AgBjZaEfjV0RsnG8H0xWBwrZM_7d?e=biclcx
I note what you say about POPLA but I would argue that the ANPR merely records the timings, it does not operate the parking contract. There is a ticket machine which you have to pay £1 for 1 hour's parking. This is not a vending machine. I would argue that the distance contract rules apply. I'm not sure it's ever been tested.Just had a quick search of the other main 2 forums (PePiPoo & MSE) to see if it has been tested - there's little mention of it but I did find a thread with a post from Bargepole - https://forums.moneysavingexpert.com/discussion/comment/76437908/#Comment_76437908 (https://forums.moneysavingexpert.com/discussion/comment/76437908/#Comment_76437908) - who at the time of writing had tried the argument with 6 different judges without any success. It seems noteworthy that despite sporadic mentions of such arguments, there seem to be no readily available examples of success. It seems like the argument would be at best an uphill battle - your daughter would first need to convince the judge to consider CCR 2013 at all, then convince them that the machine that dispenses tickets in exchange for money isn't a vending machine, then that the use of ANPR doesn't make it an automated premises, and then that the address provided doesn't constitute a geographical address (and then that all of this means that no money is owed).
Wouldn't this be against the Court's procedural rules?At this point it's just at debt collection stage - if they send a Letter Before Claim and she were to respond asking for said information that may be a different matter. As I mentioned, sending a Subject Access Request ought to elicit all the information they have - sending one might be beneficial so that she isn't going into this blind.
1 Do they have to respond giving proof of the overstay before taking her to court? I would have thought it would need to be evidenced somehow.They'd certainly need to offer some evidence in court, but there's no requirement for them to do so beforehand. Although it's unusual that no photos are included on the PCN. She could submit a Subject Access Request to Excel to see what photos they have.
2 The IPC code of practice says that there should be a 10 minute leeway before issuing a ticket unless the parking time allowed is no more than 1 hour and the signage prominently displays that there is no leeway. The current signage makes no mention of this, although what signage was in operation 5 years ago I have no idea.I'm not sure what you mean by this - they have to offer a grace period at the end of a permitted period of parking, but they don't need to say this on the signage.
3 The distance selling regulations require certain items to be displayed on signage before a contract is legally enforceable, I understand. These include a GEOGRAPHICAL address and details of a complaint procedure if applicable. The current signage only displays a PO Box address and has no complaint procedure. Does that make the signage unenforceable?I can't say I've ever seen this argument used successfully - perhaps other users will advise. I know that POPLA have always argued that ANPR-controlled private parking does not fall within the scope of distance selling, as they argue that ANPR car parks count as ‘automated premises’. At any rate, I think it might need a very friendly judge to rule that no money was owed solely on the basis of Excel only providing a PO Box address.