Free Traffic Legal Advice

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.

Thanks to you and @DWMB2 for all your helpful comments. This is a lot of information to take in, so I'll need some time this evening to carefully re-read everything you guys mentioned and take things from there.

Is there a guide on how to appeal or templates on how to write the appeal letters? I'd like to start on that this evening as I only have until the 24th if I wanted to get the discounted charge (not thinking of paying them, but wondering if an appeal before then may be stronger?) or until the 31st (based on what the letter says is the deadline for the appeal)

Sorry, I forgot to answer your question about templates. It often depends on which ATA the PPC belongs to. In this case it is Excel and they are members of the IPC. Herein, the problem lies with the various steps in the process of appealing and defending any claim.

I'm not sure if you were asked about the landowner of the car park. Is it a part of a hotel you stayed at? WE always advise victims to start with Plan A. Plan A requires you to find out who owns the car park (it is not Excel) or who manages the land that the car park is on (again, it is not excel). If it a hotel where you were a patron, then a complaint as high up the management food chain asking them to get the PCN cancelled is easiest. You can continue with Plan A all the way up the start of Plan D.

Plan B is the initial appeal to the operator (Excel). No need to rush this but don't miss the IPC 21 day deadline. This appeal is more likely than not going to be rejected no matter how well it is argued. You are not dealing with a customer service led organisation. You are dealing with ex-clamper thugs out to sea you for as much as they can.

Plan C can only be carried out if Plan B has been tried and failed. However, as Excel are members of the IPC, any appeal to them is also likely to fail, irrespective of how well you argue the facts. Some on here would advise that you try them anyway. Personally, I wouldn't bother but it is up top you whether you think you have a chance.

Plan D is when this is likely to finally be cancelled. Plan D is after a period of limbo after Plan C where you weather a storm of useless debt collector letters. They ay seem scary but they are really powerless to do anything. They are employed solely to try and scare the low-hanging fruit on the gullible tree into pooping their pants and paying up the now inflated charge.

Once you have weathered all the useless debt collector letters, Excel may or may not engage a firm of roboclaim solicitors to send you a Letter of Claim and an actual claim. This is where you are most likely to win. Whilst they issue the claim, they really don't want a truly independent arbiter, a judge, to decide whether the debt they say you owe them is valid or not.

We would provide a robust defence template for you to use. You only need to edit two paragraphs. Eventually, they will either discontinue or you will have a judge decide. In any event, whatever they put in their claim, even if you lost, you'd pay less than the claim amount. There is no danger of a CCJ because as long as the amount is paid in full within 30 days there is no record of it on your credit file. That is a worst case scenario.

For now, have a go at what you think is a good appeal to Excel and show us. We will critique it and make suggestions as we go forward. You will learn a lot from this experience.

One question I had was, should I write the appeal in the sense that I understand that I am being charged for not paying within the first 5min or should I write it being ignorant of the 5min rule?

In other words should I say
"The driver wasn't able to pay within the 5min because of this this and this"
or
"The 9.30am exit time is wrong because the driver does have a valid parking ticket covering this period"

My personal view would be the first angle (of the two you suggest).

As b789 notes, there's a good chance they'll reject either way, but the appeal provides you with an opportunity to demonstrate to them you are well informed, and not an easy target.

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.

The Premier Inn is a good point of contact. Were you a patron of the Premier Inn at the time?

Land registry or enquire with the local council to find out who pays the rates for the car park are some other options.

Sigh… I’ve just had the same PCN from the same firm at the same car park for the same reason. I’ve mis understood and jumped straight in with an appeal saying I did pay through RingGo (absolutely no signal or my phone or my partners - had to go to the local swimming baths and join the WiFi to pay) so it took 20 minutes.

Any advice? how did this appeal go?