Free Traffic Legal Advice

To help us help you, read the following thread and provide as much of the information it asks for that you are able to. In particular, edit your post to not reveal who was driving, as per the guide, and provide the NTK

READ THIS FIRST - Private Parking Charges Forum guide

Send me a direct message with what you want your post to say and I'll edit it for you.

There is nothing there that justifies the issuance of an NtK. Your evidence shows that the driver paid for parking at 23:47 on 3rd May. The Ntk shows that the driver entered the car park at 23:37 on 3rd May.

Payment receipt shows that the permit was valid for 12 hours until 11:47 on 4th May. The NtK shows that the vehicle left at 09:30 on the 4th May.

The NtK says that the alleged contravention is that the driver failed to purchase a permit or did not do so within the time permitted. The receipt shows that a permit was purchased. Therefore the only conclusion can be is that Excel are trying to con you out of £100 because they deem the driver did not purchase the permit quickly enough.

Is there any mention in the terms signage that a permit must be purchased within a set time?

Also, it says the contravention time was 09:30 on the 4th May. If the vehicle had not contravened any of the permint terms before that time, how can there have been any contravention? The photo evidences the car leaving the car park at that time.

Perhaps that barrister would like to explain what the commercial justification is for requiring payment within 5 minutes, and charging a motorist £100 for taking 10 minutes to pay.

I think Excel would (or should) struggle to convince a judge that 5 minutes is a reasonable time period to enter a car park, find a space, park, read all of the terms and conditions of parking, accept them, and then make payment.

See how long it takes you to read all of the terms and conditions detailed on the sign, for example... A motorist must be given sufficient time to read the terms he is agreeing to before making payment.

Do they display them outside of the car park? From what I can see on Google Street View, they are displayed just inside the entrance next to the payment machine, with a smaller sign by the entrance presumably providing a short summary (do you have a photo of this?).

It would be farcical for Excel to claim that the driver is expected to have read the terms before entering (what is he supposed to do, stop in the entrance? Park elsewhere and walk to the car park to look at the signs?)

What you're saying is absolutely right, but would a judge think that way? Aren't they more focused on the facts

If the argument is presented to them well and thoroughly they should. The facts of your case are that it was impossible to comply with the terms on offer. The driver needed to first find a space and park. Then he needed to read the terms before even attempting to make payment, reading the terms took roughly _ minutes, then he had to make payment, which involved downloading and registering for an app, entering details etc. etc., then paying. A term that is impossible to comply with would seem to be clearly unfair.

You can also add in the point I mentioned about commercial justification - this links into the famous ParkingEye vs Beavis case in the supreme court, which is the main basis for these £100 charges being allowed at all. Penalty clauses in contracts are normally forbidding, but the Beavis case stated that they are commercially justifiable where the parking company is protecting a legitimate interest. In this case, it is unclear what legitimate interest is being protected by charging a motorist who pays in full, but takes longer than 5 minutes to do so. If this car park was patrolled on foot by wardens and one needed to display a ticket, it would make good sense that payment is required promptly and a ticket displayed, so that the wardens can tell who has paid. In a car park controlled entirely remotely by ANPR cameras, it's not clear that requiring payment within 5 minutes serves any legitimate aim*, other than increasing the number of charges Excel can issue.

*indeed, a lot of car parks that use ANPR allow payment to be made at any time before the motorist leaves, so that they don't have to guess in advance how long they'll be staying.

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.