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#Post#: 14974--------------------------------------------------
Re: Lidl Car Park, Ilford - ParkingEye
DIR By: b789
Date: February 4, 2024, 10:11 am
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--- Quote from: zeezee link ---
>
> Appreciate your response - Thank you.
>
> So I'll just wait now for PE's response and as you said they
will reject but essentially give us the POPLA appeal and then we
can make that appeal. Lets see how long that letter coems back
then
>
--- End Quote ---
What exactly did you put in your appeal to PE?
#Post#: 14981--------------------------------------------------
Re: Lidl Car Park, Ilford - ParkingEye
DIR By: zeezee
Date: February 4, 2024, 10:26 am
---------------------------------------------------------
--- Quote from: zeezee link ---
>
> Would I be able to submit the following or have the rules
changed?
>
> bearing in mind that the 28 period is nearly up...
>
> ---------
> have just received your Notice to Keeper for the vehicle VRM
xxxxxxxx.
>
> You have failed to comply with the requirements of Schedule 4
of The Protection Of Freedoms Act 2012 namely, but not limited
to, failing to give notice of keeper liability as prescribed by
section 9 (2) (f) of the Act. You cannot, therefore, transfer
liability for the alleged charge from the driver at the time to
me, the keeper.
>
> There is no legal requirement to name the driver at the time
and I will not be doing so.
>
> I do not expect to hear from you again, or your debt
collectors, except to confirm that no further action will be
taken on this matter and my details have been removed from your
records.
>
> #
> --------------------
>
--- End Quote ---
This was submitted (edited version)
#Post#: 14985--------------------------------------------------
Re: Lidl Car Park, Ilford - ParkingEye
DIR By: b789
Date: February 4, 2024, 11:16 am
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But that is more like a complaint rather than an appeal and
bears no relevance to your original statement that you could not
make payment because the payment machine was broken.
You claim that the NtK is not compliant with PoFA. However, you
were already told that, in fact, it is compliant. Saying you are
appealing as the keeper, in this instance, does not absolve you
from liability for the charge.
The whole point was that you could not be held contractually
liable as the failure of their payment machine with no other
obvious method for making payment, frustrated your ability to
complete any contract.
Anyway, this is all moot at this point. PE will likely reject
your appeal and issue you with a POPLA code for your Plan C
appeal.
Your POPLA appeal will be based on frustration of contract and
will put PE to strict proof that the payment machine was in good
working order at the time you attempted to make payment in good
faith. You will, of course add any other points that PE must
respond to such as evidence of a contract flowing from the
landowner to PE permitting them to issue charge notices etc.
POPLA will not consider any mitigating factors. You must argue
the frustration of contract issue on legal points and anything
you can find in the BPA CoP. The Consumer Rights Act 2015 (CRA)
is another piece of legislation you should try and familiarise
yourself with as there are probably some points in the Act that
could be useful.
HTML https://www.legislation.gov.uk/ukpga/2015/15/contents/enacted
#Post#: 14991--------------------------------------------------
Re: Lidl Car Park, Ilford - ParkingEye
DIR By: b789
Date: February 4, 2024, 1:00 pm
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Your rights as a consumer in this case are probably covered
under the following points in the CRA and must be used in your
eventual POPLA appeal:
- Impossibility of Performance: CRA Section 55(3) applies. You
would need to emphasise that the frustration of contract
occurred due to the impossibility of completing the payment
element of the contract. Despite your willingness to fulfill
your obligation to pay for parking, the faulty payment machine
made it impossible to do so at the time of departure, as
required by the terms of the contract.
- Lack of Alternative Payment Methods: CRA Section 49 applies.
Highlight the fact that there were no alternative methods of
payment available. Since the contract did not provide any
instructions or alternatives in the event of a malfunctioning
payment machine, you were effectively left with no means to
fulfil your payment obligation. While this section primarily
addresses the quality and timing of services, it indirectly
encompasses situations where a service provider fails to provide
reasonable alternatives or instructions for completing a
transaction when unforeseen circumstances arise. The lack of
alternative payment methods could be considered a failure to
perform the service with reasonable care and skill, as it
hinders the consumer's ability to fulfill their payment
obligation as agreed upon in the contract.
- Unilateral Contract: While the CRA doesn't explicitly address
unilateral contracts, its principles of fairness,
reasonableness, and obligations of service providers to perform
services with reasonable care and skill can still be applied to
situations involving unilateral contracts, such as this.
Acknowledge that while a contract by agreement was entered into
at the time of parking, the payment aspect of the contract
constitutes a unilateral contract. In a unilateral contract, one
party (Parking Eye) promises to provide a service (parking) in
exchange for the other party (you, the consumer) performing a
specific act (making payment upon departure). Since you were
unable to perform this specific act due to circumstances beyond
your control, the contract was frustrated.
- Good Faith and Fair Dealing: Section 49 requires that Parking
Eye has a duty to act in good faith and deal fairly with
consumers. This includes providing reasonable alternatives or
instructions in situations where the performance of the contract
becomes impossible due to unforeseen circumstances. The lack of
any guidance or alternatives from Parking Eye further supports
the argument of frustration of contract.
- Consumer Rights Act 2015: Reiterate the relevant sections of
the CRA, particularly Sections 49 and 56, which outline
consumers' rights to services performed with reasonable care and
skill, as well as situations where services are not performed in
accordance with the contract. Emphasise that Parking Eye's
failure to provide a working payment machine constitutes a
breach of these rights.
The combination of the impossibility of performance, the lack of
alternative payment methods, and the absence of guidance or
alternatives from Parking Eye strengthens the argument for
frustration of contract. You are entitled to request a remedy in
line with the Consumer Rights Act 2015, such as a refund for any
fees incurred, a waiver of the parking fee, or, in this case,
you are requesting that Parking Eye cancel the PCN.
#Post#: 15045--------------------------------------------------
Re: Lidl Car Park, Ilford - ParkingEye
DIR By: DWMB2
Date: February 5, 2024, 4:46 am
---------------------------------------------------------
--- Quote from: b789 link ---
>
> The whole point was that you could not be held contractually
liable as the failure of their payment machine with no other
obvious method for making payment, frustrated your ability to
complete any contract.
>
--- End Quote ---
I think it's important to back this point up with the fact that
payment is only required before leaving, and that the driver
only realised the machine was defective at the end of their stay
when they went to pay before leaving (this is why I asked the
question further up the thread).
ParkingEye may try to argue that if a driver is unable to pay,
then they should choose not to park and leave. If it was a 'pay
on entry' car park, this might be a stronger argument, as this
choice would have been open to the driver. In this case however,
with it being a 'pay before exit' car park, the driver only
became aware of the inability to pay after choosing to park.
#Post#: 15068--------------------------------------------------
Re: Lidl Car Park, Ilford - ParkingEye
DIR By: H C Andersen
Date: February 5, 2024, 8:16 am
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With respect..
The whole point was that ....[the driver] could not be held
contractually liable as the failure of their payment machine
with no other obvious method for making payment, frustrated your
ability to complete any contract.
Is pure speculation.
The OP posted:
However, regardless of this, the person in question still
attempted and with a lot of difficulty put in the car
registration and swiped the bank card. However, no money was
taken having checked the statements.
How could they swipe their bank card unless a tariff was
demanded by the machine? And how would the machine know how to
calculate this tariff unless the correct VRM was input? So OP pl
focus on process of payment as opposed to perceived lighting
etc. problems none of which -just using your account -
prevented the driver from getting to the point of a tariff being
demanded.
OP, IMO it's not for us to bolster spurious suggestions which,
simply by looking at your account, had no effect on the
transaction:
Correct VRM entered: in all probability yes;
A tariff for the period demanded: would naturally follow;
Payment not taken from driver's account: so we're informed.
Is there a barrier on exit? GSV shows not.
So, is this just a simple case of the driver not making payment
at all i.e. skipping out and the story is just that, a story, or
was a genuine attempt made and despite using a valid card with
sufficient accessible funds and no further user input required
payment wasn't taken for reasons outside the driver's control?
OP, IMO what's needed is to discard the spurious and misleading
and to focus on the events at the site. Only the driver could
help with the first part.
#Post#: 15351--------------------------------------------------
Re: Lidl Car Park, Ilford - ParkingEye
DIR By: zeezee
Date: February 10, 2024, 5:33 am
---------------------------------------------------------
Ok Guys - I've spoken to the driver again and after querying the
person I've found out (annoyingly) that upon recollection the
driver did not make payment via any debit card but was made by
slotting coins into the machine!
The payment total came to £3.50, and £4 was inputted with no
change coming out at all...
The person paid and left the car park - there were no barriers
in place.
I'm not sure if this changes anything?
#Post#: 15354--------------------------------------------------
Re: Lidl Car Park, Ilford - ParkingEye
DIR By: H C Andersen
Date: February 10, 2024, 6:41 am
---------------------------------------------------------
OP, why are you placing all the burden on this forum? Why isn't
the driver using a little common-sense and anticipating
questions and giving answers in advance??
£3.50 tariff - buys what, 1 hr, 3 hrs, all day?
Is it pay on exit or what?
Is entering a VRM required?
Was a receipt/ticket issued?
What proof do they have?
If the car park is ANPR controlled then the machines must link
with a central database which in turn feeds into the machine to
enable it to calculate the tariff. On this basis it should be
impossible to input the wrong VRM.
But instead of us guessing, I suggest the driver puts their
memory hat on and sets out everything which transpired.
#Post#: 15397--------------------------------------------------
Re: Lidl Car Park, Ilford - ParkingEye
DIR By: zeezee
Date: February 11, 2024, 6:17 am
---------------------------------------------------------
Sincere sincere apologies Guys -
No excuses - this should have been done in the beginning - but I
had to have a sit-down talk with the driver and this is what was
explained to me:
- The driver was attending a live show with an eleven-year-old
child and parked at the Ilford Retail car park. The show was
meant to finish at 10 o'clock, however, it finished later than
expected at 11 o'clock.
- The driver then rushed to the car park as it was getting late
to midnight and was raining down (and had the child with),
wanted to pay and leave ASAP as (the driver) was additionally a
little worried because of the heightened crime in the area. (as
the area usually has a lot of drunk and disorderly behavior).
- The driver inputted the car reg correctly, and although the
screen was difficult to see at the time, the charge came up to
[b]£2, (which seemed to be the right amount) and was paid with a
respective receipt coming out of teh machine as proof of payment
(Please see below)
[/b]
- It was worth noting that there are no barriers at the
location.
As the receipt has now been found, is it a simple matter of
contacting PE and asking them to cancel?
HTML https://i.imgur.com/xKmTwFY.jpeg
#Post#: 15399--------------------------------------------------
Re: Lidl Car Park, Ilford - ParkingEye
DIR By: DWMB2
Date: February 11, 2024, 6:44 am
---------------------------------------------------------
With the greatest respect, this is becoming slightly farcical.
Every post you make gives a different version of events.
First, you say that the driver sought to pay by card, but no
payment was taken.
Then, you change this version of events and say that the driver
actually paid by cash, paying £4 to cover a £3.50 tariff.
Now, you state that they actually paid £2 (which is not one of
the tariffs on offer according to the signs), and have a
receipt, but the receipt says "Trinity Way Car Park", not Ilford
Retail Park.
It's almost impossible to advise on the best course of action
when we've no idea what actually happened, because the story
keeps changing so much.
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