BPA reject my complaint

[jax50]

Re: BPA reject my complaint

Don't forget that at the time that the cameras recorded the car it was moving and not actually parked. So there are several minutes after passing that entry camera for a parking place to be found, the conditions read and agreed to and the payment made. There is a school of thought (sensible I think) that the contract is not made until the contract is accepted and the money is paid. Was this a paid for car park?

I'd agree, how can you enter a contract when you don't know the T&C's ...I'd say this period is 'conditional acceptance'..and thus not the start of the contract..especially as you can just leave so there has been no offer/acceptance or consideration ?

No advertising consent is a criminal act and, as has been said, an application can not be backdated. As the sign is there illegally then a contract can not created by an illegal act.

I'm desperately searching for precedents for this...An unmanned car park which relies wholly on the signage to enter into contracts with drivers must surely need to ensure these comply with the law. It is also part of the CoP for BPA membership..and thus accessibility to the DVLA data.

- - - Updated - - -

While I agree that 'advertising' consent cannot be retrospective, the decision whether or not to prosecute is discretionary.
& it would appear that LA's often excercise their discretion for the benefit of parking co's. (The 'public safety & amenity' clause is usually their (LA) 'get out of jail' card..... http://www.legislation.gov.uk/uksi/2...ulation/3/made )

A LA does not need to prosecute to make it illegal, it is already and offence, all the LA can do is enforce to ensure compliance, otherwise it remains illegal.

[jax50]

Re: BPA reject my complaint

So, where am I with this. I entered through the ANPR and departed through the ANPR 16 minutes later. The BPA says 10 minutes minimum is allowed 'at the end of the parking period'. I have had an additional one minutes allowed from entering, to parking and time allowed to read the signs when it has taken 7 minutes to actually read the signs, never mind driving, parking and getting my cash out (assuming I did). The BPA do say that the odd minute overdue should be considered as unreasonable to pursue...so that's one main point

In addition to the grace period, there is the fact that surely entry through the ANPR is not the acceptance of a contract but merely conditional acceptance (which I suppose is catered for above). The Unfair terms in consumer contracts regs 1999 SI 2083 state you must not irretrievably bind a consumer to terms that they have had no opportunity of being aware of before the contract is formed.

Then, point three, the failure to have consent for the signs and the ANPR cameras. The latter I believe can be retrospectively granted, but not the former. Is there a winnable argument that contracts formed with an illegal act are unenforceable...it looks like it, but is it reliable ?

Fourth, there is the breach of the BPA code of practice, for at least 14 years that I know of. Annual returns sent to BPA will have confirmed compliance with the code to maintain membership and access to DVLA records. The BPA have a penalty points system, so how many points for 14 years worth of lying ? there is also the protection from unfair trading regs (2008) SI 1277(1999) - misleading information when stating full compliance with the BPA code of practice. You could add in reckless misrepresentation too

[ostell]

Re: BPA reject my complaint

Is there a ticket in existence with a time stamped on it?

[charitynjw]

Re: BPA reject my complaint

Thank you, well that definitely states a grace period of a minimum 10 mins to leave the car park (although it says after the contract ends),
It would be absurd if the 10 mins 'exit' time was only allowed on the condition that the driver has contracted to park....a person would have to be given time to exit even if they decided for some reason not to park.
plus a grace period before deciding whether to stay and to read the signs. LCP allowed 11 minutes, so that's the minimum 10 to leave plus 1 minute to read the signs and park. It just took me
5 mins and 50 seconds to read the T&C's, 30 seconds to read the ANPR sign and35 seconds to read the Tariff Board sign.
LCP haven't got the authority to set in stone these periods. It would be for a court to decide what is reasonable given the circumstances of the particular car park & what occurred on the particular day, etc. There may be factors involved which only the driver knows of.....ANPR would not capture, say, a delay due to some other vehicle driver blocking one's way into or out of the car park.

####

[charitynjw]

Re: BPA reject my complaint

Then, point three, the failure to have consent for the signs and the ANPR cameras. The latter I believe can be retrospectively granted, but not the former. Is there a winnable argument that contracts formed with an illegal act are unenforceable...it looks like it, but is it reliable ?

Imho, this is probably the least winnable argument .
Illegality in contract law, particularly in common law, is a complex subject.
You can't just say that a contract contains or is based on an illegality & is therefore unlawful.
Clearly, if the object of the contract was itself illegal, it would likely be void or voidable. (A classic here would be hiring someone to commit murder...neither party could sue for breach, so the contract is void).
If, however, the illegality is merely incidental to the contract, much less weight would be given as to whether the contract is, or is not, enforceable.
There is a huge body of case law concerning illegality of contract, much of it seemingly contradictory, & probably requiring a lot of time (& legal expertise) to consider.
Perhaps that it why it is glossed over at county court level

[jax50]

Re: BPA reject my complaint

Is there a ticket in existence with a time stamped on it?

there's the photos from the cameras, in and out
- i didn't pay (in error) because I just 'assumed' because it it was a shopping area there was a free period of at least an hour like all the shopping areas I go to in my own area. This was my mistake..I should have paid the £1.20..

[jax50]

Re: BPA reject my complaint

Imho, this is probably the least winnable argument .
Illegality in contract law, particularly in common law, is a complex subject.
You can't just say that a contract contains or is based on an illegality & is therefore unlawful.
Clearly, if the object of the contract was itself illegal, it would likely be void or voidable. (A classic here would be hiring someone to commit murder...neither party could sue for breach, so the contract is void).
If, however, the illegality is merely incidental to the contract, much less weight would be given as to whether the contract is, or is not, enforceable.
There is a huge body of case law concerning illegality of contract, much of it seemingly contradictory, & probably requiring a lot of time (& legal expertise) to consider.
Perhaps that it why it is glossed over at county court level

In the beginning I thought this was my main argument , but I agree with your summation here that it is too complex and there is no definitive ruling specific enough to rely on. While not a perhaps a 'winner' it probably is worth a mention if I have to defend, if only to explain that this is in breach of the rules of the BPA who supposedly require annual certificates of compliance with the code. I have a quote from the Supreme Court [Parking Eye v beavis] where the Judge says ".... although the BPA code is not contractual it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details from DVLA...."

[ostell]

Re: BPA reject my complaint

I would think add the illegal signs being use to create a contract into the mix in the defence. Every little helps

[charitynjw]

Re: BPA reject my complaint

I would also add it to the defence (no planning permission).

Re UTCCRs, this has now been superseded by the Consumer Rights Act 2015 Unfair Contract Terms provisions.

[ostell]

Re: BPA reject my complaint

Not the lack of planning permission, that can be obtained retrospectively, but the lack of advertising consent which is a criminal act (even if not pursued) which cannot be applied for retrospectively.

[charitynjw]

Re: BPA reject my complaint

Not the lack of planning permission, that can be obtained retrospectively, but the lack of advertising consent which is a criminal act (even if not pursued) which cannot be applied for retrospectively.

Yep, advertising consent......thanks for the correction, ostell.

[jax50]

Re: BPA reject my complaint

Not the lack of planning permission, that can be obtained retrospectively, but the lack of advertising consent which is a criminal act (even if not pursued) which cannot be applied for retrospectively.

The BPA don't seem to support the illegal signs argument, here is their reply..

Thank you for your email.

We will contact the parking operator for further information regarding the advertising consent and will be back in contact once we have received a response.

However, it is the position of the British Parking Association (BPA) that the absence of advertisement consent does not invalidate the agreement that a private parking operator has with the landowner and they are able to manage the land. It is also our position that the absence of advertisement consent does not make the sign and its contents unlawful. Therefore, the charge would not automatically be deemed as invalid and may still be pursued by the operator if the terms and conditions of parking were breached.

Yours Sincerely,

Esme Berry
AOS Investigations Team
British Parking Association

[ostell]

Re: BPA reject my complaint

What else do you expect from the BPA? Who pays for the BPA?

It is their opinion only. So you state that they tring to obtain an advantage by the use of illegal signs.

[jax50]

Re: BPA reject my complaint

What else do you expect from the BPA? Who pays for the BPA?

It is their opinion only. So you state that they tring to obtain an advantage by the use of illegal signs.

Am just reading the Consumer Rights Act 2015 unfair contract terms , but there is a comment that one unfair term/condition does not automatically invalidate the whole contract...I'll keep reading

[charitynjw]

Re: BPA reject my complaint

Could you post up a picture of the site signage?