Thursday, 22 August 2013

Smart Parking two, Prankster nil (half-time)

Now that the football season has started, Smart Parking will no doubt be pleased to go into a two-nil lead against the Prankster at POPLA. Here is the match report on their latest successful POPLA case.

The Prankster double dipped an ASDA site, visiting once at lunchtime, once in the late evening and duly received a Parking Charge Notice a few days later.

Initially the Prankster appealed on the grounds he was not parked for the times alleged. He also thought he might have have a valid permit. In passing, he also mentioned that he thought the signage was not in the right company name. Someone seemed to have scribbled on the 'Ltd' in black pen, but it was still clearly visible.

Smart Parking replied, denying the appeal, and also forbidding The Prankster from appealing to POPLA using any other grounds than in his appeal as reported in the Prankster's very first blog. This was naughty of Smart Parking, and after a few letters to the DVLA and BPA this was sorted out as reported here.

The Prankster therefore decided to appeal to POPLA. Initially, despite Smart Parking's fears, he decided to use the same reasons as his original appeal.
Appeal reasons:
The vehicle visited the site twice on the day in question and was therefore not parked for the duration the operator states. This is a first in-last out error. Further details to follow
After a while though, The Prankster considered it would be more helpful to other motorists if he appealed using different reasons than ones he has previously succeeded with. POPLA is very secretive about the reasons motorists can use to appeal. Although Nick Lester regularly reviews the reasons for POPLA appeals succeeding and reports back to the operators advising them how best to modify their cases to succeed, there is no such service provided by Nick Lester to the motorist. Similarly, although Richard Reeve of POPLA regularly meets with Parking Operators (this is in addition to his training seminars reported here) and is willing to meet them at any time, he does not appear willing to meet with motorists. When The Prankster phoned him up to arrange one, he declined.

The Prankster therefore reviewed the photographs of the signage he took during his visit. Here is one of the signs.

The Prankster read the wording on the signs.

2 1/2 hours free parking.
A parking charge notice of £70 will be issued in the following circumstance: 
1. Parking over 2 hours

Amazing at is seems, The Prankster totally missed the fact that the sign says that parking is free for 2 1/2 hours, but that a charge notice will be issued after only 2 hours. Still, it is an easy mistake to make, and no doubt one that Smart Parking will be taking their signwriters to task for at some date in the future.

The Prankster instead considered that the sign implied that the parking charge was for a service; namely parking for more than 2 hours (or perhaps more than 2 1/2 hours!). Nowhere is it forbidden to stay for more than 2 hours; it is just free up until that point, and charged afterwards. The charge is therefore not for breach of contract. It is a charge for parking services. This is similar to the text quoted by the POPLA lead adjudicator in his secret May newsletter to parking companies.

"The amount sought as the parking charge may be a term of the contract, rather than a sum for breach of it. If this is the case then reference to the signage may be sufficient. Some signs make it very clear, for example: ‘The tariff for overstaying or parking outside the bay markings is £100’ "

The Prankster was therefore surprised when he reread his Parking Charge Notice to find this was for a breach of contract.

The notice clearly states there has been a 'contravention' and the charge is for a 'breach of advertised terms'.

The Prankster therefore decided to modify his appeal to say that the signs declared that the parking charge was a contractual charge but the PCN was for breach of contract.

He was therefore surprised when his appeal was turned down. Here are the assessors comments.

Reasons for the Assessor’s Determination
The operator issued a parking charge notice to a vehicle with registration mark  CST U£27. The operator recorded that the vehicle was at Asda Store, Bedminster for longer than the permitted time of 2 ½ hours.
The operator’s case is that the appellant’s vehicle was at the site for longer than the permitted time. The operator submits that this is a breach of the terms and conditions listed on the signage at the site and therefore the parking charge notice was correctly issued.
The appellant does not dispute the operator’s case. The appellant’s case is that “Smart Parking therefore refer to the charge both as a term of the contract and a breach of the contract. As Smart Parking do not refer to the charge in a consistent way and do not appear themselves to know what the charge is for the appellant asks that the appeal be upheld”.
Considering all the evidence before me, I find that the appellant’s case does not have a valid ground in order for me to allow this appeal. I also find that by the appellant being at the site for longer than permitted, they breached the terms and conditions of the site, which they accepted on parking their vehicle there.
Accordingly, this appeal must be refused.
Amber Ahmed

The Prankster is bemused by this decision and does not feel the assessor has properly considered the ramifications of her decision. 

Never mind though; Smart Parking may have a two nil lead at the moment, and be over the moon at their success, but The Prankster is not as sick as a parrot; it is only half-time, and there is still all to play for. The Prankster has no hesitation in mixing his metaphors, switching seamlessly between football and cricket, and has called for his first DRS (decision review system) of the innings.

He has appealed to the Lead Adjudication for the following reasons.

1) The PCN states that the charge is for a 'breach of the terms and conditions'
This is clearly not the case, as no terms and conditions have been breached. The PCN is therefore not valid.

As the appellant has brought this to the assessors notice he requests that this be revisited and fully assessed.

2) A parking charge which is a contractual charge is fundamentally different from a parking charge for breach of contract. A contractual charge is equivalent to a normal parking charge, such as a pay and display ticket. It is a charge for a service, and can be invoiced and VAT applied. It can be reclaimed as a business expense in appropriate circumstances and accounted for against the profits of the business. The true charge will be 20% less if the business can reclaim VAT. A charge for breach of contact has no VAT. It may not necessarily be reclaimable as a business expense or accounted for against business profits. By attempting to change the charge from a contractual charge to a breach of contract, this changes the cost by at least 20%, and potentially 100% to the appellant, who can otherwise charge this as a business expense.

3) Furthermore, contractual charges and breach of contract charges are treated differently in the British Parking Association code of conduct than breach of contract charges. The appellant can argue that a breach of contract charge is not a true pre-estimate of loss, and ask the operator for a breakdown. He cannot do this for a contractual charge. 

4) The appellant therefore believes that he has the right to know what the charge is for, that the operator cannot have signage that asks for a contractual charge and then send a PCN that asks for damages for a breach of contract. As this has been brought to the attention of the operator, and also to the assessor, the appellant believes these points have neither been addressed by the operator or fully and completely considered by the assessor. The appellant asks therefore that the appeal should be revisited and upheld.

Should the Lead Adjudicator disagree, he still has one DRS outstanding which is the small claims court. Should Smart Parking wish to pursue the case to court they will have to produce their mysterious contract with ASDA, explain why their signage hours are contradictory, and explain why they are suing for breach of contract when there has been no breach. Then of course, there is the small matter of The Prankster's photographs of his car at a different location during the time Smart Parking claim it was parked...

The Prankster will keep you updated.


  1. Did you ever hear back for the Lead Adjudicator about the last fiasco when your appeal was refused?

    They really haven't got a Scooby Doo.

    Nice permit by the way. Perhaps a PPC logo in future would suffice?

    1. Not yet, despite a reminder. After one more reminder I will escalate as a complaint to London Councils. Meanwhile, my most overdue decision is up to 120 days.

  2. Cheering you on all the way from Cornwall!!

  3. Well done for testing the defences on a standalone basis.

    This will be invaluable as the battle goes forward.