The Appellant raises two main grounds of appeal, the lack of notice due to the absence of visible signs at night time and that the charge is not commercially justifiable.
Both the Appellant and Operator provide evidence of the site at night time, the photographs of the Appellant show that the signs are difficult to read, and those of the Operator contradict this and present the signs as visible and prominent. In this appeal the onus is on the Appellant to prove their claims are more likely than not. As the evidence from both parties supports their argument I cannot be satisfied by either party, and therefore, as the onus is on the Appellant, I cannot allow the appeal on this basis.
Commercial justifiability of the charge is only relevant where the claim is for breach of contract. In this case, in my view, the claim is not for breach. The contractual terms confirm that any driver parking without displaying a ticket agrees to pay the charge. It is, in effect, the price the Appellant has agreed to pay for not having a ticket. Once the driver has entered an agreement with the Operator to pay the charge, the Operator does not have to subsequently show that the charge is commercially justifiable.
Even if the claim is for breach the recent Court of appeal case of Beavis v Parking Eye made it clear that such charges are legal if they are commercially justifiable. As the amount here is similar to that allowed by the Court of Appeal, this ground of appeal is dismissed.
Finally, any complaints regarding the Operator or the independence of this appeal fall outside of the scope of this appeal and should be raised as complaints should the Appellant so wish.
The operator evidence of the site at night time contained signs illuminated by torches and headlights. Only an incompetent assessor would have failed to realise this, leading to the obvious conclusion that the assessor is either incompetent or institutionally biased against motorists.
The Prankster has not seen the actual signage at this site, but has seen plenty of other Excel signage and therefore considers it likely the charge is for breach of contract. POPLA, judges, and even Excel themselves have previously ruled the same in large numbers of documented cases and therefore the Unfair Terms in Consumer Contract Regulations 1999, regulation 7 comes into play - if there is any ambiguity it must be resolved in favour of the consumer. As a multitude of legally qualified persons have rules Excel's signage implies charges are for breach of contract, then any competent assessor would rule similarly.
The assessor also show their bias and incompetence by quoting ParkingEye v Beavis without justification. The proper appeals service, POPLA, has this to say.
However is not clear that the Court of Appeal decision actually gave the clarity that has been widely reported, particularly in situations where some payment is required to park. It is arguable that the decision does not apply in such circumstances and it is possible this could be the course followed in the County Court in future cases.
It is becoming more and more obvious that the IPC appeals service is not fit for purpose and should be suspended by the DVLA as soon as possible.
No doubt the IAS barista makes a lovely cup of coffee but they are a disgrace to the legal profession and have no business working in an appeals service. If Will Hurley and John Davies have any morals they will suspend the barista and report them to the Solicitors Regulatory Authority.
It is worth referring to the recent briefing paper, published this month. Although the document is flawed and contains many inaccuracies, The Prankster notes the following:
Where this marks a change from previous practice is that formerly a landowner only had recourse to the courts if they made a charge for parking on their land but did not enforce it with clamping. The changes outlined in the 2012 Act allow landowners to recover parking charges and drivers and vehicle owners to challenge fines without having to go to court, a process which can be time consuming and costly.
As the IAS decisions are irrational and either incompetent or institutionally biased, this can only lead to more court cases, not less. Nothing makes this more clear than the statement in the assessment:
In this appeal the onus is on the Appellant to prove their claims are more likely than not
As this is the exact opposite of the legal system in this courtly, where the claimant is required to prove their case, not the defendant, then no IAS judgment is worth the paper it is written on.
The Parking Prankster