Preparing appeal for ParkingEye

Thanks gertysingh - yes, I've taken photos

I'll take a look at the BPA links you've provided. Much appreciated

Ok - here we go. POPLA appeal is ready to submit. Much of it is taken from previously posted appeals, but I have tweaked it here & there to reflect this particular incident/location, plus I've re-written most of the Signage section. Any suggestions for alterations etc. gratefully received.

Cheers - grant_uk

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) Inadequate and misleading signage
4) The ANPR system is unreliable and neither synchronised nor accurate



1) No genuine pre-estimate of loss

The amount of £85 demanded by ParkingEye is not a genuine pre-estimate of loss. The estimate *must* be based upon loss following directly from a breach of the parking terms. This might be, for example, loss of parking revenue or possibly loss of retail revenue at a shopping centre. As the car park concerned is free to all users and always has parking available, in addition to which, invoices for over £800 can be provided from the time of the alleged breach, no such losses have been incurred. The aforementioned being the case, I request that ParkingEye provide a full and detailed breakdown of how their costs are calculated, all of which must represent a loss *directly* resulting from the alleged breach and which *must* add up to the exact amount demanded of £85.

The ParkingEye Notice to Keeper 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 might be, for example, a reasonable sum based purely upon any alleged lost parking revenue (not the case here), or even loss of retail revenue at a shopping centre if another car was prevented from parking. However, this is not the case because the occupants of the car recall that the car park had plenty of empty parking spaces on arrival, with many more available on leaving.

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, whilst others which are free car parks (as in this case). 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 or trifling), it is clear there has been no regard paid to establishing that their charge is a genuine pre-estimate of loss caused by this incident in this car park.

The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach *must* be an estimate of losses flowing from the incident. ParkingEye *cannot* change this requirement, so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some subsequently penned 'commercial justification' statement that they may have devised afterwards (since this would not be a pre-estimate):

The British Parking Association Code of Practice uses the word 'MUST':
'19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.'

Neither is this charge 'commercially justified'. In answer to the proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis in any case), POPLA Assessor Chris Adamson stated the following in June 2014:

'In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, "if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach".

This supports the principle 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) No standing or authority to pursue charges nor form contracts with drivers

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. This has not been produced by the operator in their rejection statement so I have no proof that such a document is in existence. I contend that ParkingEye merely hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. 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.

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. This is required so that POPLA and myself can check that it allows this Operator to make contracts with drivers themselves and provides them with full authority to pursue charges, including a right to pursue them in court in their own name. Please note that a witness statement to the effect that a contract is in place will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.). In any case, ParkingEye's witness statements have been exposed as photocopy templates from clients who may well have no knowledge of any individual parking event and the signatory may never even have seen the contract.



3) Inadequate signage -

I submit that the ParkingEye signage fails to comply with the BPA Code of Practice section 18 and appendix B. These signs fail to properly warn/inform the driver of any terms and consequences for breach. ParkingEye, as a mere agent, place their signs so high that they fail 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 would be 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, by a driver, in moving traffic on arrival.

Following the receipt of the charge, I personally visited the site in question to take a closer look at the signage. The entrance sign is situated on the passenger's side of the road (in a standard right hand UK car) and is approximately 6-8ft high on a pole, making it difficult for drivers to see or read from inside the car, regardless of which side of the road the car park is entered from. Stopping the vehicle before entering the car park to get out and read these signs properly prior to parking is completely infeasible as this would cause an obstruction on a public highway and block the entrance to the car park.

The entrance sign itself states 'Parking restrictions in place', but the details of the contract that drivers are being asked to agree to are not present.

In addition, the entrance sign specifies the following in smaller lettering at the bottom - "Failure to follow parking regulations will result in an £80 parking charge". This differs from the other signage in the car park, which state a charge of £85. I have attached photos of the entrance sign and one of the smaller signs from the main parking area as evidence. I propose that the contradiction in fees results in enough ambiguity to render any alleged contract null and void, as does the lack of proper terms on the entrance sign.

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA Assessor would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount (the exact amount contradicted by different signs) that ParkingEye are now demanding. The idea that any driver would accept these terms knowingly is perverse and beyond credibility.



4) The ANPR system is unreliable and neither synchronised nor accurate -

If ParkingEye's ANPR records are completely reliable (which I contest) then this Operator claims the car was parked for around 52 minutes more than the time paid for. Yet their 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 day. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic, as it could be several minutes before any parking actually occurs, which should be when the clock actually starts. Equally, the exit photo is not evidence of 'parking time' at all and has not been shown to be synchronised to any system of calculating actual parking time.

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 that data will be stored/used. It is my charge that 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. If there was such a sign at all then it was not prominent in any way, since the driver did not see it. 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 and I put this Operator to strict proof of full ANPR compliance.

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 and to show how these camera timings are synchronised with the pay and display machine.

I request that my appeal is allowed.

Yours faithfully,

Ah yes, that's what I meant. Good spot