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#Post#: 34820--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: Rightbak
Date: August 28, 2024, 7:53 am
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--- Quote from: b789 link ---
>
> Where has it been suggested that the PCN is not appealed??
>
--- End Quote ---
Given that the Parking Eye appeals process is managed
internally, I anticipated that the majority of appeals would be
rejected, making it seem almost futile to attempt one. However,
I have just submitted an appeal using some of the wording you
provided—thank you for that.
#Post#: 34822--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: DWMB2
Date: August 28, 2024, 8:05 am
---------------------------------------------------------
Appeals are routinely rejected. But when they do reject, you
then have a shot at POPLA. It's also often considered a
reasonable thing to do - if someone writes to you demanding
money, and you don't believe you owe it to them, it's generally
considered reasonable to tell them as such and explain why.
#Post#: 34823--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: Rightbak
Date: August 28, 2024, 8:14 am
---------------------------------------------------------
--- Quote from: DWMB2 link ---
>
> Appeals are routinely rejected. But when they do reject, you
then have a shot at POPLA. It's also often considered a
reasonable thing to do - if someone writes to you demanding
money, and you don't believe you owe it to them, it's generally
considered reasonable to tell them as such and explain why.
>
--- End Quote ---
Yes, point taken thanks. Should the Parking Eye appeal be
rejected then I will appeal to POPLA as suggested. If I may I
will post my appeal on here before sending in, just to make sure
I have the points down correctly.
#Post#: 34834--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: b789
Date: August 28, 2024, 8:50 am
---------------------------------------------------------
Just remember, you are appealing as the keeper of the vehicle.
What the driver did or didn’t do, can be relayed but there is no
legal obligation for the keeper to identify the driver. The
keeper, the recipient of the NtK, is known to the operator. The
driver, is unknown to the operator.
The keeper and the driver are two separate legal entities. The
only way the operator can identify the driver is if the keeper
tells them, inadvertently or otherwise.
#Post#: 37315--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: Rightbak
Date: September 18, 2024, 6:19 am
---------------------------------------------------------
I would like to provide an update on my situation.
Unfortunately, my appeal to ParkingEye was unsuccessful. I am
now preparing to escalate the matter to POPLA and am currently
compiling my case.
Based on previous discussions, I understand there are two
primary arguments for my defense:
1) The notice does not comply with the requirements of Schedule
4 of the Protection of Freedoms Act 2012 to hold the registered
keeper liable for the charge. Specifically, it fails to "invite"
the keeper to pay the charge, as stipulated under paragraph
9(2)(e)(i) of the Act. I plan to use the well-worded section
kindly provided by b789 above.
2) Additionally, an argument could be made that as parking was
forbidden during the times the vehicle was parked, no contract
was formed, as no consideration was offered by ParkingEye (the
sign isn't making a genuine offer to park for £100 when the
store is closed).
For point 2, is there any template or standardised wording I
should use? Alternatively, are there any relevant court cases
where this argument has been successfully tested that I should
reference?
Thank you
#Post#: 37327--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: b789
Date: September 18, 2024, 7:28 am
---------------------------------------------------------
Yes, there are legal precedents that touch on the idea that no
contract is formed when parking is forbidden during certain
hours, or when there is no genuine offer of consideration. One
key point is the absence of an offer and no consideration when
parking is prohibited or when certain conditions, such as a
store being closed, are in place.
Vine v London Borough of Waltham Forest [2000] EWCA Civ 106
HTML https://knyvet.bailii.org/ew/cases/EWCA/Civ/2000/106.html:
In
this case, the Court of Appeal ruled that a motorist cannot be
deemed to have agreed to the terms of a parking contract if they
were unaware of the terms. If parking is prohibited, then the
motorist is not accepting an offer but rather breaching a
restriction, and no contract is formed.
Thornton v Shoe Lane Parking [1971] 2 QB 163
HTML https://www.bailii.org/ew/cases/EWCA/Civ/1970/2.html:
In this
case, Lord Denning held that an offer must be clear and capable
of being accepted by the driver. If no clear offer is made, no
contract is formed. When parking is expressly prohibited during
certain hours or in specific circumstances, no valid offer can
be made, thus preventing a contract from being formed.
ParkingEye Ltd v Beavis [2015] UKSC 67
HTML https://www.bailii.org/uk/cases/UKSC/2015/67.html:
This is the
leading case on parking charges, but it also reinforces the
point that contracts in these situations are formed based on an
offer of parking. However, if parking is not permitted at
certain times (such as when a store is closed or outside
designated hours), no valid offer is made, and no contract can
be said to exist. The judgment implies that for a charge to be
enforceable, a valid offer and acceptance must be in place,
meaning the signage must constitute a genuine offer.
If the signage suggests a punitive charge rather than an offer
to park, especially during times when parking is not allowed
(such as when the store is closed), then the argument can be
made that no contract was formed due to the lack of
consideration and the absence of a valid offer.
#Post#: 37346--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: Rightbak
Date: September 18, 2024, 8:42 am
---------------------------------------------------------
--- Quote from: b789 link ---
>
> Yes, there are legal precedents that touch on the idea that no
contract is formed when parking is forbidden during certain
hours, or when there is no genuine offer of consideration. One
key point is the absence of an offer and no consideration when
parking is prohibited or when certain conditions, such as a
store being closed, are in place.
>
> Vine v London Borough of Waltham Forest [2000] EWCA Civ 106
HTML https://knyvet.bailii.org/ew/cases/EWCA/Civ/2000/106.html:
In
this case, the Court of Appeal ruled that a motorist cannot be
deemed to have agreed to the terms of a parking contract if they
were unaware of the terms. If parking is prohibited, then the
motorist is not accepting an offer but rather breaching a
restriction, and no contract is formed.
>
> Thornton v Shoe Lane Parking [1971] 2 QB 163
HTML https://www.bailii.org/ew/cases/EWCA/Civ/1970/2.html:
In this
case, Lord Denning held that an offer must be clear and capable
of being accepted by the driver. If no clear offer is made, no
contract is formed. When parking is expressly prohibited during
certain hours or in specific circumstances, no valid offer can
be made, thus preventing a contract from being formed.
>
> ParkingEye Ltd v Beavis [2015] UKSC 67
HTML https://www.bailii.org/uk/cases/UKSC/2015/67.html:
This is the
leading case on parking charges, but it also reinforces the
point that contracts in these situations are formed based on an
offer of parking. However, if parking is not permitted at
certain times (such as when a store is closed or outside
designated hours), no valid offer is made, and no contract can
be said to exist. The judgment implies that for a charge to be
enforceable, a valid offer and acceptance must be in place,
meaning the signage must constitute a genuine offer.
>
> If the signage suggests a punitive charge rather than an offer
to park, especially during times when parking is not allowed
(such as when the store is closed), then the argument can be
made that no contract was formed due to the lack of
consideration and the absence of a valid offer.
>
--- End Quote ---
Thank you so much for your continued help with this appeal, it
is very much appreciated. I will therefore submit my appeal to
POPLA essentially using your wording/links and also the update
you posted previously as supporting evidence.
I'll update again should this go further.
Thanks!
#Post#: 37354--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: DWMB2
Date: September 18, 2024, 9:06 am
---------------------------------------------------------
You may wish to share a draft before submission.
Also, don't expect POPLA to accept your appeal - not necessarily
because it is without merit, but because POPLA rarely go for the
'forbidding signage' argument.
#Post#: 37357--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: b789
Date: September 18, 2024, 9:18 am
---------------------------------------------------------
You'll need a bit more than that for your POPLA appeal. You seem
to be under the assumption that a POPLA assessor is somehow
fully legally trained. Absolutely not. You have to lead the by
the nose to any point you are trying to make. Think of the as
being a bit dimwitted and having to explain in great detail the
point you are trying to make.
You should always argue signage, BPA Code of Practice (CoP)
breaches, landowner authority.
#Post#: 37976--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: Rightbak
Date: September 23, 2024, 3:55 pm
---------------------------------------------------------
--- Quote from: DWMB2 link ---
>
> You may wish to share a draft before submission.
>
> Also, don't expect POPLA to accept your appeal - not
necessarily because it is without merit, but because POPLA
rarely go for the 'forbidding signage' argument.
>
--- End Quote ---
I have drafted my appeal before submission as follows (basically
a cut and paste of prior posts, plus some further explanation)
I would be very grateful for any further pointers before
submitting to POPLA. Thanks :)
"I am appealing as the KEEPER of vehicle registered xxxxxxx.
I believe that this ticket has been issued unfairly and wish to
contest it based on the following two legal principles
concerning contract formation.
Ground 1 - PoFA 9(2)(e)(i) failures
Schedule 4, Paragraph 9(2)(e)(i) of PoFA 2012
This paragraph mandates that for a parking operator to hold the
vehicle's registered keeper liable for a parking charge, the
Notice to Keeper (NtK) must include:
An "Invitation to Pay": The notice must explicitly invite the
keeper to pay the unpaid parking charges.
Exact Wording: The wording must clearly convey this invitation
and mere implication or indirect suggestions are insufficient.
The act requires strict compliance, meaning that any failure to
fully incorporate this invitation renders the notice
non-compliant with the requirements of PoFA 2012.
Non-Compliance Issue: The NtK fails to include a clear
"invitation to pay", or any synonym of the word "invitation",
this omission is a breach of Schedule 4, Paragraph 9(2)(e)(i).
Even if the notice suggests that payment is required, without an
explicit invitation directed towards the keeper to settle the
charge, the notice does not meet the exacting requirements of
PoFA 2012.
Significance of Full Compliance
Strict Liability: The law mandates full and exact compliance
with the specified wording and content outlined in PoFA 2012.
Partial or even Substantial Compliance Insufficient: Even if the
notice largely complies with other requirements, the absence of
a clear invitation to the keeper to pay is a significant flaw.
The operator cannot rely on partial or even substantial
compliance — every element as specified in the legislation must
be present and correct.
Consequences for the Operator
Challenge Basis: If the notice is found to lack this crucial
element, it can be used as a basis to challenge the parking
charge.
Keeper Liability: The operator cannot transfer liability to the
keeper.
Conclusion
In summary, the PCN does not include an explicit "invitation"
for the keeper to pay the charge and therefore is not fully
compliant with Schedule 4, Paragraph 9(2)(e)(i) of PoFA 2012.
Since the law demands strict adherence, any omission, even if
minor, invalidates the notice and relieves the keeper of any
obligation to pay.
Ground 2 – Parking was forbidden during the times the vehicle
was parked, thus no contract was formed as no consideration was
offered by Parking Eye (the sign isn’t making a genuine offer to
park for £100 when the store is closed)
For a contract to be formed, there must be a valid offer and
acceptance, as well as consideration.
In this case, no contract can be formed when parking is
explicitly prohibited during certain hours or under certain
conditions.
Where parking is forbidden, there is no genuine offer being made
to park the vehicle.
Consequently, without an offer, there can be no consideration,
as the driver is not receiving any benefit for which they would
be expected to give something in return.
By issuing this parking charge, it implies that a contract has
been formed between the driver and the parking operator.
However, as parking was not permitted at the time, no such
contract could exist.
When parking is prohibited, the mere presence of signage
indicating restricted parking cannot be deemed an offer to
contract, and therefore, any such charge is unenforceable due to
the absence of mutual agreement and consideration.
There are legal precedents that touch on the idea that no
contract is formed when parking is forbidden during certain
hours, or when there is no genuine offer of consideration. One
key point is the absence of an offer and no consideration when
parking is prohibited or when certain conditions, such as a
store being closed, are in place.
Vine v London Borough of Waltham Forest [2000] EWCA Civ 106: In
this case, the Court of Appeal ruled that a motorist cannot be
deemed to have agreed to the terms of a parking contract if they
were unaware of the terms. If parking is prohibited, then the
motorist is not accepting an offer but rather breaching a
restriction, and no contract is formed.
Thornton v Shoe Lane Parking [1971] 2 QB 163: In this case, Lord
Denning held that an offer must be clear and capable of being
accepted by the driver. If no clear offer is made, no contract
is formed. When parking is expressly prohibited during certain
hours or in specific circumstances, no valid offer can be made,
thus preventing a contract from being formed.
ParkingEye Ltd v Beavis [2015] UKSC 67: This is the leading case
on parking charges, but it also reinforces the point that
contracts in these situations are formed based on an offer of
parking. However, if parking is not permitted at certain times
(such as when a store is closed or outside designated hours), no
valid offer is made, and no contract can be said to exist. The
judgment implies that for a charge to be enforceable, a valid
offer and acceptance must be in place, meaning the signage must
constitute a genuine offer.
Conclusion
Parking was prohibited during the times the vehicle was parked,
thus no contract was formed as no consideration was offered by
Parking Eye. Hence the PCN is unenforceable due to the absence
of mutual agreement and consideration.
I kindly request that you review both grounds I am contesting
the PCN against."
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