Yet another Parking Eye PCN

jps1610 · 9 June 2014 at 10:01PM

Hi

My wife recently received a PCN from a local hotel car park where we parked one Friday evening as we were going to a number of events in the city centre. Though the name of the car park is the name of the hotel they are not attached - they are separated by a road). The car park holds approx 300 vehicles (from the hotel website) - when we arrived it was about a third to half full. When we left it was probably about 50 cars if not less.

We sent the standard template appeal (from Newbies thread) and have now received the lengthy follow up letter rejecting our appeal and containing the POPLA appeal details.

I've copied majority of the letter from a user who had similar issue (approx 40 mins over their paid period) - 4 hours were paid for (which cost £4.50, 6 hours would have cost £6) but we were 44 mins late. Does it look okay to use?

Any advice or criticism of the letter below is appreciated.

Thanks

My Appeal is

Re: ParkingEye PCN, reference code xxxxxxxxxx
POPLA Code:

I am the registered keeper and I wish to appeal a recent parking charge from ParkingEye. I submit the points below to show that I am not liable for the parking charge:

1) No genuine pre-estimate of loss
2) No standing or authority to pursue charges nor form contracts with drivers
3) Signage
4) ANPR Accuracy

1) No genuine pre-estimate of loss
This car park is Pay and Display. There was no damage nor obstruction caused so there can be no loss arising from the incident. The Car Park was approximately half full at the time we arrived and less than a quarter full when we left. ParkingEye notices allege 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. Given that ParkingEye charge the same lump sum for a 30 minute overstay as they would for 3 hours, and the same fixed charge applies to any alleged contravention (whether serious/damaging), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.

The wording on the signs appears to indicate that the parking charge represents damages for a breach of the parking contract - liquidated damages, in other words compensation agreed in advance. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss flowing from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of retail revenue at a shopping centre.

The parking company submitted that the charge is a genuine pre-estimate of the losses incurred in managing the parking location.

The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I require the parking company to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach at the time. Note:- the charges demanded by the operator as "genuine loss" are those allegedly incurred at the point of issuing the charge, and cannot include speculative future costs relating to internal appeal procedures or mounting a POPLA defence.

For example, were no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included. Equally, as the claim is being made for estimated losses at the time of the alleged contravention, then any costs included by the Operator that relate to accumulated amounts post that date are obviously invalid. Should such cost heads be included in the claim, as well as any profit element, then POPLA must reject the charge.

It would, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.

2) No standing or authority to pursue charges nor form contracts with drivers
ParkingEye do not own the land mentioned in their Notice to Keeper and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. Even if a contract is shown to POPLA, I assert that there are persuasive recent court decisions against ParkingEye which establish that a mere parking agent has no legal standing nor authority which could impact on visiting drivers.

In ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013 District Judge Jenkins checked the ParkingEye contract and quickly picked out the contradiction between clause 3.7, where the landowner appoints ParkingEye as their agent, and clause 22, where it states there is no agency relationship between ParkingEye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between ParkingEye and motorists who used the land. This decision was followed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the Defendant. District Judge Jones concurred completely with the persuasive view in ParkingEye v Sharma that a parking operator has no standing to bring the claim in their own name. My case is the same.

3)The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between ParkingEye and the driver
I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because ParkingEye are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance). Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) ParkingEye have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival.
The only signs are up on poles (away from the Pay & Display machine) and were not read nor even seen by the occupants of the car, who were there to use the car park to partake in events in the city centre.

4) ANPR Accuracy and breach of the BPA Code of Practice 21.3
This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I say that Parking Eye have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. I have also seen no evidence that they have complied with the other requirements in that section of the code.

In addition I question the entire reliability of the system. I require that ParkingEye present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

So, in addition to showing their maintenance records, I require ParkingEye to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from the cameras in this car park is just as unreliable and unsynchronised as the evidence in the Fox-Jones case. As their whole charge rests upon two timed photos, I put ParkingEye to strict proof to the contrary.

I request that my appeal is upheld and for POPLA to inform ParkingEye to cancel the PCN.

Yours faithfully,

THE REGISTERED KEEPER

Coupon-mad · 10 June 2014 at 12:19AM

That template is OK but a little old now and relies too heavily on BPA CoP breaches and Sharma/Gardam cases, none of which win at POPLA in their own right. I have had a look and refreshed the points a bit and would suggest this:

Re: ParkingEye PCN, reference code xxxxxxxxxx
POPLA Code:

I am the registered keeper and I wish to appeal a recent parking charge from ParkingEye. I submit the points below to show that I am not liable for the parking charge:

1) No genuine pre-estimate of loss
2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.
3) No standing or authority to pursue charges nor form contracts with drivers.
4) The signage was not readable so there was no valid contract formed.
5) The ANPR system is unreliable and neither synchronised nor accurate - evidence does not discount two visits shown as one.

1) No genuine pre-estimate of loss
This car park is Pay and Display and as far as I can ascertain as keeper, a payment was made. Having received the Notice in the post I had very little information (see point #2) so went and checked the signage and it seems that up to x hours would have cost £x so the only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge = £x.xx at the most. Parking Eye have not told me these details, despite it being a prerequisite of Schedule 4 (see point #2).

The Operator cannot reasonably claim a broad percentage of their entire business running costs, as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. I suggest there was never any advance meeting held with the client, nor was any due regard paid to establishing any 'genuine pre-estimate of loss' prior to setting the parking charges at this site. I put this operator to strict proof to the contrary and to explain how the calculation happens to be the same whether the alleged overstay is 20 minutes or 20 hours.

The Operator alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This must amount in its entirety, only to a genuine pre-estimate of loss, not some subsequently penned 'commercial justification' statement they have devised afterwards, since this would not be a pre-estimate. Any later 'new' calculation (even if dressed up to look like a loss statement) would fall foul of Mr Greenslade's explanation abut GPEOL in the POPLA 2014 Report and would also falls foul of the DFT Guidance about private parking charges.

In this case, even if the Operator contends there was a small outstanding P&D sum (which they have missed off the Notice to Keeper, so I have no idea) they certainly cannot claim an inflated amount. A GPEOL calculation must be a sum which might reasonably flow directly as a result of a parking event.

An Operator cannot include 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment. Appeals staff are already paid to do their admin job which includes handling appeals among other tasks, so there is no question that there is any 'loss' caused by these staff who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage.

Judge Charles Harris QC in 'A Retailer v Ms B' (where the Claimant tried to claim a 'loss' from a consumer for 'staff and/or management time investigating') stated:
"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do... [16] So the claim in respect of staff time cannot, in my judgment, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home... [17] It follows that the claims must be dismissed’’

http://www.farrarsbuilding.co.uk/cms/uploads/A-Retailer-v-B-K_001.pdf

In the case of private parking charges in general - including this Operator - the administrative staff and Managers who handle challenges and POPLA appeals are not 'significantly diverted from their usual activities', nor do appeals cause any 'significant disruption to its business', nor was there any significant loss of revenue generation. So none of the 'staff time' can be properly included in a GPEOL calculation. If POPLA do accept a small amount of staff time in a GPEOL sum then this could only be 1% of the typical time taken for POPLA appeals, because only 1% of cases follow the POPLA route. No higher figure can have been in the reasonable contemplation of the Operator at the time of the parking event because the chances of POPLA are even less than 'debt collector stage' both being far too remote to be likely.

This charge cannot be 'commercially justified' either, so this Operator would be wasting their time to adduce the flawed and not persuasive 'ParkingEye v Beavis' small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway, due to be heard in February 2015). POPLA Assessor Chris Adamson has stated in June 2014 that:

''the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
As this was a Pay/Display car park, the Notice to Keeper (NTK) has to set out the position clearly in terms of 'describing the parking charges due' which remained unpaid as at the day before the date of issue of the PCN. Due to this timeline stated in Schedule 4, these 'parking charges due' can only be a tariff the driver should have paid, because no higher sum was 'due' before the PCN was even printed!

I can see from the limited information before me in the NTK, only that the car stayed for a certain amount of time and that the contravention was 'either/or' an overstay or failure to pay. This does not create any certainty of terms, it leaves a keeper to wonder what the hourly rate tariff even was and whether the driver paid nothing, or paid too little, or paid only for half an hour or an hour, or paid in full but put in the wrong car registration, or some other event. This Operator has the technology to record car registrations, to collect/record payments and to take photos of cars arriving and leaving, so it would be reasonable to assume that they are able - and indeed are required under the POFA - to state on the NTK the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff) as at the day before the PCN was issued.

These are the omissions:
''9(2)The notice must—
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid...'

The validity of a NTK is fundamental to establishing liability for a parking charge. As POPLA Assessor Matthew Shaw stated: ''Where a Notice is to be relied upon to establish liability...it must, as with any statutory provision, comply with the Act.'' This NTK was not compliant due to the omissions of statutory wording, so it was not properly given and there is no keeper liability.

3) No standing or authority to pursue charges nor form contracts with drivers
[FONT=arial,helvetica,sans-serif]I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, ParkingEye must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. [FONT=arial,helvetica,sans-serif]I therefore put ParkingEye to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between ParkingEye and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to ParkingEye. [/FONT]

4) The signage was not readable so there was no valid contract formed between ParkingEye and the driver
The only signs are up on poles, away from the Pay & Display machine, which is not a 'sign' nor does it communicate full contractual terms & conditions. Any upright signs were not so prominent among all the other signage on site that they were ever seen by the occupants of the car. I believe that ParkingEye place their signs so high that terms would only be legible if a driver got out of a car and climbed a stepladder, holding a torch, to try to read them. Any photos supplied by ParkingEye to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera and the angle may well not show how high the sign is nor the fact the ParkingEye signs are one of many pieces of information in the clutter of this busy customer car park. As such, I require ParkingEye to state the height of each sign in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day without photoshopping or cropping and showing where the signs are placed among a myriad of other information bombarding a customer.[/FONT]

Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. [FONT=arial,helvetica,sans-serif]Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and i[FONT=arial,helvetica,sans-serif]t is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.[/FONT]

5) The ANPR system is unreliable and neither synchronised nor accurate, and there is no evidence that this was just one visit
[/FONT]ParkingEye's evidence shows no parking time, merely photos of a car driving in and out which does not discount the possibility of a double visit that evening. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all and has not been shown to be synchronised to the pay and display machine clock nor even to relate to the same parking event.

As keeper I cannot discount that this may have been a double visit (possibly even with two drivers since the car has more than one family member who drives it). Or the driver may have driven in, realised it was pay and display then driven out to get change before returning (and of course the ANPR cameras show only the first and last visits). The BPA even mention this as an inherent problem with ANPR on their website;
http://www.britishparking.co.uk/How-does-ANPR-work
The BPA's view is: 'As with all new technology, there are issues associated with its use:
a) Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.
b) Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'

Even if an Operator shows a list with 'no record' of that car registration in between the times, this would not discount the 'double visit' possibility as it is well known that car registrations are completely missed when a vehicle is followed closely by a higher vehicle, or by a temporary interruption in the camera recording. Or even an item temporarily obscuring the camera from picking up one car registration, such as a passing bird or wind-blown carrier bag or leaves appearing in front of the camera, even for moments, would stop a record appearing of a car leaving in between the stated times. I put the Operator to strict proof to the contrary. All camera records could be checked and this Operator would still be unable to refute the 'double visit' possibility, since they don't bother to record continuous footage, this not being CCTV. If I am wrong then they must show POPLA a complete 'video' that they allege shows no more entries or exits that day by this car.

Further, this Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice and to have signs stating how the data will be stored and used. I say that Parking Eye have failed to clearly inform drivers about the cameras and how the data will be used and stored. . I have also seen no evidence that they have complied with the other requirements in that section of the code in terms of ANPR logs and maintenance. Indeed, I question the entire reliability of the system. I require that ParkingEye present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times.

This concludes my POPLA appeal.

Yours faithfully,

xxxxxxxxxx {registered keeper's name...}

jps1610 · 10 June 2014 at 9:25AM

Hi Coupon-mad

Thanks so much for your help (especially posting replies after midnight!)

My only point is that it was not pitch black when we arrived - it was 5.22pm. Should I just go for the height and placement of the signs (i.e. away from the pay and display machine) and remove the references to it being dark?

Thanks once again

Coupon-mad · 10 June 2014 at 10:00AM

Yep go for that then.

jps1610 · 10 June 2014 at 10:04AM

Will do
Hopefully will shortly be able to add to the list of success!

tekhieboy · 18 September 2014 at 2:38PM

Hi Coupon-mad, thanks for this guide letter. In my case another driver entered the carpark and recieved a call which meant they were no longer meeting someone at the point where they had parked so left to go and meet them. The system records the visit as only 11 minutes. Should I edit the parts out about possible returned/double visits as this seems highly unlikely in such a short space of time.

ampersand · 18 September 2014 at 2:58PM

Hello tekhie boy -

The policy is one Thread per poster, otherwise you're hi-jacking:-).
In the meantime, read the Newbies Thread for up-to-date guidance. Post any draft up before you send it and you'll receive specific advice.

tekhieboy · 18 September 2014 at 3:01PM

ooops sorry

Yet another Parking Eye PCN

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