Free Traffic Legal Advice

Hello,

Here is a quick summary of what happened to lead to a PCN.
The driver went into Derby with their daughter who felt off colour on the way.  They got to Copeland Street car park and looked around for a space.  It too a few minutes.  They both got out of the car and the daughter stumbled and fell.  She hurt her hands and the driver comforted her for a few minutes.  The driver realised they were running late for an opticians appointment so they hurried to the opticians.  They did a couple of errands and returned to the car.  As the driver approached the car they realised they had not got a ticket on arrival- as they were busy with the child, so it was an oversight.  The driver immediately purchased a ticket and paid £3- more than needed.  They kept the ticket just in case and went home.

They subsequently received a PCN.  They appealed this explaining what had happened with the child and attached a photo of the parking ticket they had bought- to show that a ticket had been bought albeit at the point of departure.  They hoped for some understanding from the company.  On Christmas Eve the company sent an e mail with a letter attached outlining that this was not acceptable.

The driver felt quote irritated by this and has contacted the MP who was interested and will take this up with them.  The driver assumes that the company, if they do respond to the MP will do this after the deadline for paying the fee.  The driver wonders if you have any advice on how to best proceed.

[ Guests cannot view attachments ]

The first page is uploaded,  also included is the main text of the response without too many details.  There isn't a copy of the appeal.  The most appropriate selection was child ill, which was selected then the additional info was that this distracted the driver as they were rushing to an appointment that this made them late for. 

the wording of your appeal is important

That said, I know I said I was distracted by my daughter feeling poorly, who then stumbled as she got out of the car and she hurt her hands.  I comforted her then we rushed to my appointment.  I was distracted by her and completely forgot about paying for a ticket. I'd say this was pretty much my appeal.  There wasn't room for much more.  In doing that I've confirmed I was the driver, which I now know I shouldn't have done.  My peeve is that I paid on return to the car, so I feel deeply annoyed at their fine in the first place, nevermind the rejection of my appeal.  Seems really unfair. 

Yes,  The photographs on the PCN are taken at the entry and exit to the car park. It states on the PCN paperwork   "The contravention was detected and recorded by Automatic Number Plate Recognition (ANPR) cameras at the Privately Operated Park/site specified opposite" 

I totally agree, its a money-making tactic.  I'm annoyed that I paid for the two hours so they are not out of pocket for the time I was in the space and I then received the notice two weeks later. 

Photos of the signs would be useful, but even if they do state a requirement to pay within X minutes, I'd stand by my previous point. The fact that a term is printed on a sign does not mean it is automatically commercially justifiable.

Copeland Street car park is the infamous Excel car park where the recent case of Ms Rosey Hudson was highlighted in the press.

Car park operator drops £1,906 'rip-off charge'

I did discuss this case with a judge and, whilst I did not fully agree with him, it ws interesting to see how a judge would view the case and how it would best to argue it.

Just so as you can get a glimpse into the judges way of thinking, I repeat the WhatsApp conversation below:

Me: Isn’t a term requiring payment within 5 minutes of entering the car park an unenforceable penalty in contract law, as long as payment is made to cover the period of parking? That’s always been the argument I’ve put forward. Never had it get in front of a judge though.

Judge: No. If the contract says pay within 5 minutes, it’s a breach if you pay any later than that.

Me: So, if it is an almost impossible term to comply with because it can often take more than 5 minutes from entering the car park and finding a parking spot and then reading the terms and deciding to remain and then being presented with more issues due to the time it takes to download an app and set up the app to accept payment etc.

Would an argument that the time allowed is designed to entrap users? As long as the users pay for the time parked, the operator has not lost anything of value and the 5 minutes allowed is simply a form of penalty clause designed to entrap the driver and should be unenforceable to to frustration of contract?

Judge: It isn’t right to talk about entrapment or a penalty clause or frustration of contract. These are really emotive and subjective terms
Think of it in this way. It is fact specific. If the signage hides the “five minute rule” in very small print and/or in complex language, then this clause could be construed as an unfair contract term and cannot therefore be relied on.

Me: My argument for the defence to you as the “judge” would be:

Yes, it’s a breach: By the strict terms of the contract, failing to pay within the stipulated time is a breach. But is it enforceable?:

Even if a breach occurs, the enforceability of the penalty (£100 in this case) depends on whether the term is fair, proportionate, and in compliance with consumer protection laws.

Under the CRA, contractual terms must be fair and not create a significant imbalance in the rights and obligations of the parties to the detriment of the consumer. A 5-minute window should be considered unfair as it is unreasonably short, especially if drivers need time to park, read the signs, and decide whether to stay.

If payment was made after 5 minutes but adequately covers the parking period, enforcing a £100 penalty would be disproportionate and arguably unfair.

The £100 charge for late payment should be viewed as a penalty clause, which is unenforceable as it does not protect a legitimate business interest and is extravagant or even unconscionable.

If the operator suffers no significant loss (because payment is made for the parking period), the £100 charge can only be punitive rather than compensatory or justified by any commercial need.

In the Beavis case, the Supreme Court upheld the parking charge because it served a legitimate interest in managing parking spaces and ensuring turnover. In this case, the operator needs to show why enforcing payment within 5 minutes is necessary and justified. Without a clear justification, the charge cannot meet the "legitimate interest" threshold.

If the delay in payment is minor, penalising the driver £100 for missing a short deadline should be seen as disproportionate. Would you not consider degree of the breach and the harm caused when assessing proportionality?

Judge: Firstly, it is not a penalty clause. It is just a clause that penalises somebody for breach. Your argument is a little overcomplicated. If you can demonstrate that it is literally impossible to do everything you have to do within the five minute window then there are two consequences.

If the clause is central to the performance of the contract then the whole contract is void. If the clause can be severed from the rest of the contract leaving the rest of the contract able to be performed, then only that clause is void

It seems to me that this clause is central to the performance of the contract and therefore the whole contract is void. End of

I Hope that makes sense.

Me: This is the contract:



Judge: Ok

Me: And this is the term, hidden in the bigger sign:



Judge: Lolol. Not only would you need about half an hour to read all of that, but you need a microscope

Me: Which is always the case, especially with Excel and VCS.

So, if you were presented with my argument and the evidence, would you say that the 5 minute clause is enforceable?

Judge: No I would not.

So, according to the thinking of a judge when it comes to whether the 5 minute clause is enforceable at this car park... it isn't. As that clause is central to the contract, the whole contract is void.

While the 5-minute clause is not a "penalty clause" in the traditional sense, it can still be successfully challenged on grounds of fairness, proportionality, and enforceability under the CRA.

How many times does it have to be said? The contract is unenforceable. Excel will have to discontinue or else face a spanking in court.

Why do you think they discontinued with the case I showed you above which is for an amount that, had they been successful, could have been pursued with a warrant. The publicity helped but it never went in front of a judge.