I wouldn't hold out much hope for the IAS to uphold any appeal. This is most likely going to be resolved in court. Here is my opinion on defence points that Oleigh will be relying on, as and when a defence is needed:
Defence Overview
Oleigh has been parking at a private car park owned and managed by Excel Parking Services for the last 3 years, several times a week. Over this period, Oleigh consistently paid for parking. On the advice of an attendant, Oleigh followed a practice of paying for parking on exit rather than immediately upon entry. Recently, Oleigh received 14 Parking Charge Notices (PCNs) for failing to pay within 10 minutes of entry, despite paying for all the hours spent in the car park. Oleigh’s appeal was rejected, with Excel Parking stating that she breached their terms by not adhering to the 10-minute payment rule.
The following points would present a robust defence and you can try them if you are going to try an IAS appeal:
1. Customary Practice and Promissory Estoppel
Oleigh followed a consistent practice of paying on exit, based on the advice of an Excel Parking attendant. This established a reasonable expectation that this practice was valid and would not incur PCns. For over two years, this advice was followed without any issues, creating reliance on Excel's representation. Under the principle of promissory estoppel, Excel Parking should be prevented from enforcing a PCN for behaviour they had implicitly accepted for an extended period.
2. Failure to Provide Notice of Change in Enforcement
Oleigh's practice of paying on exit had been ongoing for 2 years without any PCN. If Excel Parking intended to enforce a strict 10-minute payment rule, they should have provided clear and explicit notice of this change. The sudden enforcement of this rule without warning is unreasonable and unfair. A sudden shift in enforcement behaviour with no formal notice should invalidate the claim.
3. Unfair Contract Terms (Consumer Rights Act 2015)
The charges imposed by Excel Parking are disproportionate to the alleged breach. Under the Consumer Rights Act 2015, terms that impose disproportionately high charges for minor breaches are deemed unfair. Since Oleigh paid for all parking sessions, Excel Parking did not suffer any financial loss, making the charges purely punitive and unenforceable. Additionally, if the signage was not clear about the 10-minute rule, the term would be considered unclear and unfair under the CRA 2015.
4. No Genuine Pre-estimate of Loss
Excel Parking has admitted that Oleigh paid for all parking sessions, so there was no financial loss. The charges are therefore penal rather than compensatory. Under contract law, penalties that do not reflect a genuine pre-estimate of loss are generally unenforceable. In this case, the £100 per PCN is excessive given that Oleigh made full payment for all parking sessions.
5. Unfairness of the PCNs Under Signage and Clarity Standards (PoFA 2012)
The Protection of Freedoms Act 2012 (PoFA) and the IPC Code of Practice require that signage be clear and legible, allowing drivers to understand the terms they are agreeing to. If Oleigh was given verbal advice from an attendant that contradicted the signage, then the signage was not adequately communicating the correct process. Courts have ruled that terms which impose onerous conditions (like a strict 10-minute rule) must be clearly and prominently displayed (J Spurling Ltd v Bradshaw, the 'red hand' rule). If Excel Parking's signage did not clearly explain the 10-minute rule or make it prominent, this weakens their case for enforcing the charges.
6. Reliance on Credible Testimony
While Oleigh lacks direct written evidence of the conversation with the attendant, the court can accept credible oral testimony as evidence. Oleigh should provide a detailed Witness Statement (WS) describing the conversation, the advice given, and the reliance on that advice. Civil courts operate on a "balance of probabilities," and the court will weigh the credibility of Oleigh’s account against the lack of evidence to the contrary from Excel. Excel Parking is unlikely to produce evidence disproving Oleigh's claim, as they would not have a record of every verbal interaction between their attendants and motorists. Therefore, it is more likely than not that Oleigh’s account of events is accurate.
7. Excel’s Inability to Provide Contradictory Evidence
Excel Parking is unlikely to have evidence that disproves Oleigh’s account of the advice from the attendant. They are unlikely to possess records showing that Oleigh was not advised to pay on exit, which strengthens Oleigh’s case. Without any formal documentation or a written policy that contradicts Oleigh's claim, the court is more likely to side with Oleigh, especially if there were no previous PCNs issued over the two-year period where Oleigh followed the informal practice.
8. Inconsistent Enforcement and Failure to Provide Warnings
For two years, Oleigh parked and paid on exit without receiving any PCNs, suggesting that Excel Parking accepted this method of payment. If Excel now claims that this was a violation of their terms, they should have issued warnings or PCNs during the earlier period. The failure to do so indicates that the enforcement of the rule has been inconsistent and unfair. This sudden change in enforcement without warning creates an argument that Excel failed to properly notify Oleigh of any change in policy, which should have been communicated if they intended to enforce the 10-minute rule strictly.
9. Breach of Legitimate Expectation
Oleigh had a legitimate expectation that the advice provided by the attendant was valid and that paying on exit was acceptable. Given that no previous PCNs were issued for following this practice, Oleigh reasonably believed that this was in accordance with Excel Parking’s rules. Excel’s failure to clarify or notify Oleigh of any changes to this practice should invalidate the PCNs.
10. Proportionality and Mitigation of Loss
Even if the court finds that Oleigh technically breached the terms by not paying within 10 minutes, Excel Parking has a duty to mitigate any loss. In this case, no financial loss occurred since Oleigh made full payment for all parking sessions. Pursuing 14 PCNs for a minor technicality is disproportionate and excessive, and it further suggests that the enforcement of the PCN is punitive rather than compensatory.
11. The Charge is Disproportionate to Breach
The imposition of 14 PCNs for what amounts to a minor breach (timing of payment) is excessive and disproportionate. Courts have generally viewed excessive charges unfavourably, especially when they result in absurd outcomes. Oleigh paid for all parking sessions, meaning that no financial harm was done to Excel Parking, and the issuance of multiple PCNs for such a minor issue goes against principles of fairness.
Conclusion:
It will be argued that Oleigh had a reasonable expectation that paying upon exit was allowed, based on the advice from an attendant and this practice was accepted for over 2 years. The charges issued by Excel Parking are disproportionate, and the enforcement of the strict 10-minute rule without prior notice or warning is unfair. Furthermore, Excel Parking’s failure to suffer any financial loss, combined with the excessive and penal nature of the PCNs, makes their claim untenable.