Free Traffic Legal Advice

Well, we discussed that the 5 minutes to pay is in fact a penalty and not allowed. In the Beavis case the Supreme Court held that when considering whether a contractual clause is a penalty “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 [...] 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.”

It is an impossibility to enter the car park, find a parking space, find the signs, read the signs, download the app, set up the app and then purchase the permit in under 5 minutes. However, as long as the permit was purchased and covered the period of parking, Excel have no right in law to "punish" you for breaching an impossible term.

The CRA 2015 section 62 also applies. An unfair term is not binding on the consumer. Also, a term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer.

You can pick loads of things from the CRA, have read of it.

As you are dealing with the intellectually malnourished ex-clamper thugs at Excel/VCS, I wouldn't put much more effort into it at this stage. What you have written is good enough. You could write War & Peace and throw in a ton of case history but you'd be wasting your time as they will reject it, no matter what.

You're just going through the motions to show that you have made an effort to engage. Send what you have written but don't hold your hopes up for a quick or easy resolution. this will eventually be won but you have to know what to expect. As long as you follow the advice you will win in the end.

Of course you should be complaining to the landowner. They are jointly and severally liable for the actions o their agent. You have paid for your parking but their agent is acting unlawfully by trying to charge you a penalty which, as pointed out above, is not allowed.

Here is how you break down the unfairness of the 5 minute requirement in the "contract"

In this situation, the 5-minute requirement for payment can be considered both an unfair term and potentially an instance of impossibility, especially within the context of the CRA and principles of contract fairness. Here’s a detailed analysis:

  Impossibility

1. Objective Impossibility: The requirement to pay within 5 minutes of entering the land can be argued as objectively impossible due to several factors:
  - Physical Constraints: It often takes more than 5 minutes just to find a parking spot, locate a sign, and read and understand the terms and conditions.
  - Practical Constraints: If the payment method involves downloading an app, setting up an account, and entering payment information, this process typically takes longer than 5 minutes.
 
2. Lack of Reasonable Opportunity: The terms were not presented in a manner that allowed the driver to comply within the stipulated timeframe, thus making compliance practically impossible under normal circumstances.

  Unfair Terms

Under the Consumer Rights Act 2015, the following aspects make the 5-minute requirement potentially unfair:

1. Transparency and Clarity: Terms and conditions must be transparent and clearly communicated to consumers. A sign with tightly packed text and confusing information does not meet this standard. It should be reasonably readable and understandable at a glance.
 
2. Fair Dealing: Terms that place an undue burden on the consumer or are unreasonably advantageous to the business can be deemed unfair. The requirement to pay within 5 minutes, especially when it’s practically impossible to do so, constitutes an unfair term.

3. Good Faith: The principle of good faith requires that terms are not only clear but also fair and not misleading. The imposition of a heavy penalty for something that the consumer could not reasonably comply with violates this principle.

  Legal Protections and Remedies

Given the circumstances, the driver has several potential legal arguments and protections:

1. Challenge the PCN: The driver can contest the parking charge notice, citing the impossibility of complying with the 5-minute payment rule due to the unclear signage and the practical time required to find a parking spot and understand the terms.

2. Unfair Terms Legislation: The driver can argue that the 5-minute rule is an unfair contract term under the Consumer Rights Act 2015. The Act protects consumers from unfair terms in contracts they have not had the opportunity to negotiate.

  Conclusion

The 5-minute payment requirement appears to be both an impossibility and an unfair term. It imposes an unreasonable and practically unachievable condition on the driver, leading to an unfair penalty. Challenge the parking charge notice on these grounds, citing both the practical impossibility of compliance and the unfair nature of the term under applicable consumer protection laws.

The above is just on a single point. There are more.