POPLA Decisions

Coupon-mad

Case on pepipoo won against Care Parking at Bury Metrolink:

http://forums.pepipoo.com/index.php?showtopic=93044

''Won on the grounds of 'the parking charge is disproportionate. Specifically:

'Clearly, permission to park is not granted, and so the parking charge cannot be a contractual price. Instead, it is clear that the charge is in fact a sum sought as damages, it is paid for a breach of the terms, and therefore must be a genuine pre-estimate of the loss which may be caused by the parking breach. It seems clear that the signs in this car park do not give permission to park in return for the parking charge, and so it cannot be consideration'. ''

noideer

Many thanks to all the helpers on the forum. :T

It was against Parking Eye who couldn't be bothered to show up
again. They know it's not worth fighting you

Money better spent on beer :beer:

Reasons for the Assessor’s Determination
It is the Appellant’s case that the parking charge notice was issued incorrectly.
The Operator has not produced a copy of the parking charge notice, nor any evidence to show a breach of the conditions of parking occurred, nor any evidence that shows what the conditions of parking, in fact, were.
Accordingly I have no option but to allow the appeal.
Amber Ahmed
Assessor

davieboy33

This was my Popla Appeal that worked just fine, many thanks to all those that helped,
Received my letter from Parkingeye today saying the charge had been cancelled, about 4 days after my Popla appeal was upheld and i received an email.

I must say i was a bit daunted with all this at first, the thought of free advice online normally fills me with dread there is nearly always an angle, but im very happy to say you guys rock

anybody that wishes to copy and paste my appeal feel free and i am sure it will work for you to.

dont forget to read it through and make the necessary small changes you will need to make.

The Popla site doesn't take into account already formatted copy and pasted word docs, so you must remember to do this on the appeal site.

hence my wording below i resubmitted the file and formatted it in sittue on their site


I must first apologies for the appeal with no formatting, I did not realize the upload did not accept post formatting.

I have attached the correctly formatted appeal in this evidence.
The word doc. Is attatched as follows.



Re: ParkingEye PCN, reference code xxxxxxxxxx

25/07/2014

POPLA Code: xxxxxxxx

VRN: xxxxxxx

I am the keeper of this vehicle and this is my appeal.

On the above date, the quoted Parking Charge Notice was issued quoting “Not purchasing the appropriate parking time or by remaining at the car park for longer than permitted”. This charge has been contested directly with ParkingEye and rejected with a valid POPLA code.

I contest the charge and request it is dismissed on the following grounds:

1. No genuine pre-estimate of loss

2. Lack of standing/authority from landowner to issue tickets or pursue charges in their own name at court

3. Signage non-compliant with the BPA Code of Practice and no contract formed with driver

4. Unfair terms

5. The ANPR System Usage

6. The ANPR system is unreliable and neither synchronised nor accurate



1) NO GENUINE PRE-ESTIMATE OF LOSS
The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could possibly have been suffered by the Landowner or the Operator.

ParkingEye must therefore be required to explain their charge' by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention. However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused so ParkingEye have no cause of action to pursue this charge.

I specified in my original appeal that I would like to see a breakdown of the costs incurred by ParkingEye as a result of the alleged breach. ParkingEye have failed to provide this information, stating that the charge is in line with BPA guidelines and therefore “deemed reasonable”. This reply completely fails to demonstrate that the whole charge is a genuine pre-estimate of loss. The fact that the recommended maximum level in section 19.5 (“we would not expect this amount to be more than £100”) has not been exceeded merely means that the operator does not have to justify the amount in advance. In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge can “cannot be punitive or unreasonable”.

I put it to ParkingEye to prove that a loss has occurred at the time that this charge was levied and ParkingEye submit a breakdown of how this sum was calculated prior to the parking event, as being capable of directly flowing from a minor alleged breach, such that the charge is a genuine pre-estimate of loss.

If ParkingEye claim that the charge is 'commercially justified' and cite 'ParkingEye v Beavis & Wardley', I put forth that such a claim is irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, POPLA Assessor Chris Adamson has stated in June 2014 upon seeing VCS' latest effort at a loss statement - their latest attempt to get around POPLA that:

''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, 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.''

My case is the same and Parking Eye’s contract with The Sun public house Chesterfield is nothing like ParkingEye's contract in the Beavis case anyway, where Parking Eye paid £1000 per week for what was in effect a 'fishing licence' to catch victims and where the Operator made out they were the principal. In my case, ParkingEye are merely agents at best, with a bare contractor's licence to put up signage and 'issue tickets' and they are known to be paid by their client so they have no standing nor loss to claim in their own right anyway. Of course money changing hands will affect any calculations of so-called 'loss' and is one of several reasons why I will require the landowner contract in full (unredacted) as per point #2.

2) LACK OF STANDING/AUTHORITY FROM LANDOWNER TO ISSUE TICKETS OR PURSUE CHARGES IN THEIR OWN NAME AT COURT
ParkingEye have no proprietary interest in the land concerned and have not responded to a request for a copy of the contract with the landowner in which authority to pursue outstanding parking charges is set out in section 7.2 paragraph (f): “whether or not the landowner authorises you to take legal action to recover charges from drives charged for unauthorised parking” has not been addressed. In the absence of this evidence, I believe that ParkingEye do not have the legal capacity to enforce such a charge.

I require the unredacted landowner contract including any payments made between the parties, names & dates & details of all terms included. I suspect ParkingEye are merely an employed site agent and this is nothing more than a commercial agreement between the two parties. There is nothing that could enable ParkingEye to impact upon visiting drivers in their own right, for their own profit. For the avoidance of doubt, I will not accept a mere “witness statement” or site agreements instead of the relevant contract, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent.. There would be no proof that the alleged signatory can act on behalf of the landowner or has ever seen the relevant contract. Also a letter or statement would fail to show any payments made between the parties, and would omit dates & details of all terms in the actual contract - and so would fail to rebut my appeal point about the Operator's lack of standing & assignment of any rights.

3) SIGNAGE NON COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO CONTRACT FORMED WITH DRIVER
Upon receiving the Parking Charge Notice, I, as keeper of the vehicle, have since visited the site and argue the following :

3.1) 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 read at eye level, for a driver in moving traffic on arrival. The signs on entry are up on poles with the spy cameras attached and these cannot be read by a driver in their vehicle entering the car park. Stopping the vehicle before entering the car park to get out and read these is completely infeasible as this would cause an obstruction on a public highway and block the entrance to the car park.

3.2) A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. In this case, the driver did not see any sign, thus, there was no consideration/acceptance and no contract agreed between the parties.
As a POPLA Assessor has said previously in an adjudication:
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.
ParkingEye 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 Operator is now demanding.

4) UNFAIR TERMS
The terms that the Operator is alleging create a contract, were not reasonable, not individually negotiated and caused a significant imbalance - to my potential detriment. Therefore, this charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says: ‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’

Further, the charge contravenes The Unfair Terms in Consumer Contract Regulations 1999 :
Schedule 2 : Indicative and non-exhaustive list of terms which may be regarded as unfair”
1(e) “Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.”
5(1) ''A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer. (2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.''

From the Office of Fair Trading’s 'Guidance for the Unfair Terms in Consumer Contract Regulations 1999':
Group 5 : Financial penalties – paragraph 1(e) of Schedule 2:
5.1 “It is unfair to impose disproportionate sanctions for a breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law.”
Group 18(a): Allowing the supplier to impose unfair financial burdens
'18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However, as already noted, transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.
19.14 The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term...will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term.'

I contend the above describes the charge exactly as an 'unfair financial burden'. The charge is designed ostensibly to be a deterrent, but is in fact a disguised penalty, issued by a third party agent which is not the landowner and has no assignment of title. Such a charge would normally be restricted to the landowner themselves claiming for any damages or loss.

5) THE ANPR SYSTEM USAGE
Under paragraph 21.1 of the BPA Code of Practice it states 'You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for'
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. If there was such a sign at all, it was not prominent, since the driver (nor the keeper on a more recent visit) did not see it. Photographic evidence of the existence of this sign was not provided by ParkingEye on appeal (see #5). There is no opportunity for drivers in moving traffic at the entrance to be 'informed that this technology is in use and what the Operator will use the data captured by ANPR cameras for'. I contend this is a non-compliant ANPR system being merely a secret high-up spy camera - far from 'transparent' - unreasonably 'farming' the data from moving vehicles at the entrance & exit and neither 'managing, enforcing nor controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any parking event at all.

6) 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 183 minutes. And yet their evidence shows no parking time or evidence that the car was even parked, 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 that evening.

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/used. I have seen no evidence that they have complied with this section of the code (nor 21.1, 21.2 or 21.4) in terms of ANPR logs and maintenance and I put this Operator to strict proof of full ANPR compliance.

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 the 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.

This concludes my appeal, I respectfully request that my appeal be upheld and the charge be dismissed if ParkingEye Ltd. fail to address and provide the necessary evidence as requested in the points highlighted above.

moebius

Hi all

Just won an appeal against UKPC. They sent me final reminder for payment letter before acknowledging my appeal so I complained to BPA and the DVLA and the was case was dropped!

Thank you to everyone for all the advice!

ampersand

c-m may want to know the gubbins:-) as this one flouted several elements of the code of practice.

Testrix456

[FONT=&quot]
[/FONT]
[FONT=&quot]On ********** 2014 the operator issued a parking charge notice to a vehicle with registration mark ************* because it was seen as stopped in a no stopping zone. [/FONT]
[FONT=&quot]The appellant made many representations; however, I shall only deal with the ground upon which the appeal is being allowed. Specifically, the appellant submitted that the charge exceeds a genuine pre-estimate of loss. The implication of this submission is that the parking charge is in fact punitive. [/FONT]
[FONT=&quot]In order to justify that the amount is a genuine pre-estimate of loss, the operator submitted a breakdown of the losses they incurred as a result of the appellant’s breach. Amongst other things, the operator has included costs such as the debt recovery process and final reminder process costs which cannot be taken into account as the operator has not incurred this loss as a result of the appellant’s breach. I am not minded to accept the debt recovery process as part of the justification as not all parking charge notices will go to the debt recovery process stage. I also find that the operator cannot claim the “2[/FONT][FONT=&quot]nd [/FONT][FONT=&quot]Stage Process” to be a separate heading of losses incurred as a result of the appellant’s breach. This is because the procedure for dealing with an appeal is not structured in a way so that the appellant can re-appeal to the operator. Therefore I find that it is not reasonable for the operator to pre-estimate this as a loss. I find that the list submitted by the operator does not substantially reflect the loss suffered as a result of the appellant’s breach. This is because it appears that a substantial portion of the costs refer to the debt recovery process and the “2[/FONT][FONT=&quot]nd [/FONT][FONT=&quot]Stage Process”. [/FONT]
[FONT=&quot]Considering carefully all the evidence before me, I find that the damages sought on this particular occasion do not amount to a genuine pre-estimate of loss. [/FONT]
[FONT=&quot]Accordingly, the appeal is allowed.
:j:j

Would it be helpful to post the GPEL figures included in the VCS evidence that was lodged, or have the moderators/ most helpful posters seen a recent version?

Many thanks

[/FONT]

trisontana

So yet another version of VCS/Excel's GPEOL statement is found to be wanting. Why don't they just give up? They are never going to turn ordinary operating costs into actual "losses" caused by a parking incident.

ampersand

Let's see them - that way we know if they've tried any new ways of counting.
Well done:-)

StuBrooke

Operator: Care Parking (Anchor Services)
Location: Brooklands Metrolink Car Park, South Manchester

Ticket issued for "abused patron parking" (in this case parking outside of tram operating hours)

Care Parking didn't provide any evidence against the appeal which was subsequently upheld:

"Reasons for the Assessor’s Determination

[FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]It is the Appellant’s case that the parking charge notice was issued incorrectly. [/FONT][/FONT]

[FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]The Operator has not produced a copy of the parking charge notice, nor any evidence to show a breach of the conditions of parking occurred, nor any evidence that shows what the conditions of parking, in fact, were. [/FONT][/FONT]

[FONT=Century Gothic,Century Gothic]Accordingly I have no option but to allow the appeal. [/FONT]

[FONT=Century Gothic,Century Gothic]Shehla Pirwany [/FONT]
[FONT=Century Gothic,Century Gothic]Assessor "[/FONT]


[FONT=Century Gothic,Century Gothic]YES! Thank you!! [/FONT][FONT=Century Gothic,Century Gothic]Here's the POPLA appeal:[/FONT]
[FONT=Century Gothic,Century Gothic]

---

[/FONT]

[FONT=Century Gothic,Century Gothic]POPLA Reference Number: XXXXXXX[/FONT]
[FONT=Century Gothic,Century Gothic]Vehicle Reg: XXXXXXXXX[/FONT]
[FONT=Century Gothic,Century Gothic]Keeper: XXXXXXX[/FONT]
[FONT=Century Gothic,Century Gothic]PPC: Care Parking (a trading name of Anchor Security Services Ltd)
PCN Ref: XXXXXXXXXXX
Alleged Contravention Date & Time: XXXXXXXXXX
<DATE>
Dear POPLA Assessor,
I am the registered keeper of XXXXXXX. I have been invoiced by Care Parking for a “parking charge” of £100 for allegedly contravening their terms and conditions at Brooklands Metrolink Car Park at the time and date specified.
I have always understood that this car park is free of charge 24/7 because I have never been made aware that the car park was managed or that terms and conditions applied.
I've now established that the PCN's alleged breach of “Abused Patron Parking” refers to “parking outside of tram hours”.
I wish to appeal this Care Parking PCN on the following grounds:
1. Lack of clear, readable signage - no contract with driver
2. Conflicting Terms and Conditions - no contract with driver
3. Lack of standing/authority from landowner
4. The Charge is not a genuine pre-estimate of loss
5. Summary


1. Lack of clear, readable signage - no contract with driver.
* There was no readable entrance sign available to a driver on entry explaining the car park was managed and terms and conditions applied.
* There was no signage within the vicinity or viewable from bay two where my car was parked.
* What signage did exist was obstructed by parked vehicles up until 300 feet into the car park when the first visible sign appeared 8 feet up a lamp post.
* There was no signage visible/presented to a pedestrian exiting on foot within the vicinity or viewable from bay two where my car was parked or within 100 feet of the location.

None of the signage at Brooklands Metrolink Car Park allows a driver to establish a clear and mutual contract with the Operator and I put Care Parking to strict proof otherwise; as well as a site map they must show photos showing the location and position of signage in place at the time of the alleged breach.

a) Lack of an Entrance Sign (see supporting photos and video)
On returning to the car park to find the Care Parkings signage, I discovered the operator had attached one of their terms and conditions signs 8 feet up a pole to one side of the car park entrance apparently acting as an “entry sign”.
To a driver entering the site it wasn't prominent and it certainly wasn't readable. There was no way of telling on entry that you were entering a managed site and that there were terms and conditions that you needed to abide by.
Neither did Care Parking’s signage at the entrance bear any relationship to the design template described in the BPA's CoP Appendix B. This seems particularly odd given the operator has installed a BPA styled sign at Sale Metrolink Car Park one stop along the tram line.
The Brooklands Metrolink Car Park is also a 10mph restricted site (see the supporting photos and video). The “Barrier Control” situation from the BPA’s Code of Practice Appendix B clearly applies in this situation:
Group 1 text should be a minimum height of 50mm and Group 2 text should be a minimum height of 25mm.
Neither was the case here - the largest text on the sign was 21mm in height and all the text stating that charges apply was only 12mm in height.
In addition, the text is mauve on a white background which does not provide good contrast, especially when considering the sign is eight feet up and has to be viewed by a driver from a moving vehicle.
It was impossible for a driver to take in the essential text on this sign as they enter the car park. There was no way of knowing, as per section 18.2 of the CoP, that the car park was managed and there were terms and conditions that the driver should be aware of.
Given the above this was not an Entrance Sign that meets or exceeds BPAs Code of Practice and this explains why it’s not noticeable or legible to a driver on entry to the car park.

b) Lack of Internal Signs (see supporting photos and video)
Despite Care Parking's protestations the parking signs are not well distributed throughout the site:
The first sign after entry is over 100 feet along on the right hand side attached to the tram fence in front of bay seventeen.
However, this sign (and others further along) are obstructed by parked cars. They are therefore not prominent or readable and a contract cannot be formed based on this signage.
There are no signs on the left hand side after entry until approximately 300 feet into the car park where there's one attached 8 feet up a lamppost.
In fact there are no visible signs at all from the position of bay 2 where I was parked. There was absolutely nothing to indicate the car park was managed or subject to terms and conditions.

c) Lack of Terms and Condition Signs on Exit (see supporting photos)

There were no terms and conditions signs presented on exit by foot from the car park after bay seventeen and especially from the vicinity of bay two where I was parked.

A driver parking in the first two bays of the site will not only be unaware that the site is managed and subject to terms and conditions due to a lack of an adequate entrance sign, they will still be unaware of the terms and conditions as they exit on foot.

The most obvious place to put a terms and conditions sign would be facing back into the car park, at around five feet in height, on the pole situated immediately to the left of the car park exit (instead of around 8.5 foot facing the other direction and masquerading as an “Entrance Sign”). See “Bay 2 to exit - no signs - 2.jpg”

Note: Care Parking say that if I’d used different camera angles and taken another side of the car park it would show an “opposite story”. They don’t say which side or what camera angles they would like nor what the “story” should be so I have no idea what they're talking about.

The video provided is designed to show that no prominent signage is available to a driver on entry to the car park and what signage does appear on entry is obstructed by parked vehicles. It’s not intended to be a presentation of the entire car park which would be a bit senseless considering I was parked in the second bay on entry (and the entry is also the exit – pedestrian exit will always be away from and not towards any signage).

To be clear, there were no signs on the left hand side of the car park on entry and certainly none that were visible from bay two. However, I have been back to the car park and taken photos of this side of the car park showing that there are still no signs, even though Care Parking have recently visited the car park to change and redistribute their signage. Very odd.

Given points a), b) and c) I say that there is no agreement to pay. No consideration / acceptance flowed to and from both parties, so there was no contract formed. This is a non-negotiated and totally unexpected charge.

No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal): 'The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.'
The signs are certainly not 'startling'. The restrictions were not obvious and nor were the terms drawn to the driver's attention in any explicit way - certainly not the risk of any hefty 'charge'. Terms on a notice - even if they were “numerous” and at “regular intervals” whatever those phrases are supposed to mean - are not imported into the contract unless brought home so prominently that the party 'must' have known of the terms and agreed to them in their entirety.

2. Conflicting Terms and Conditions - no contract with driver (see photos)

Although I requested it during the initial appeals process with the operator, Care Parking did not clarify their understanding on the legal and contractual implications of the conflicting signage within the car park:

On closer inspection, the sign acting as an “Entrance Sign” stipulated a £90 penalty charge (£65 if paid within 14 days).

The internal sign attached to the tram fence specified a £100 penalty charge (£60 if paid within 14 days). This sign had been updated with a sticky label.

Care Parking's PCN says that the vehicle was parked “in contravention of the site parking restrictions displayed on the contractual signage in place”.

Given the above I do not believe that I'm bound by any contract with Care Parking given the conflicting charges.

Care Parking have explained that the sign at the car park exit/entrance has been vandalised in order to “facilitate appeals” and is beyond their control.

From what I saw of their signs, “vandalism” amounted to peeling off a sticky label Care Parking have attached to their Terms and Condition signs in order to update their excessive charges.

It would seem to me that replacing the sign with a new one would be a far more practical and efficient approach rather than run the risk of an aggrieved driver shimmying eight feet up a pole in full view of CCTV, Metrolink tram customers, shops and the patrons of the local public house.

Interestingly, just over a couple of weeks after receiving the appeal rejection from Care Parking I again visited Brooklands Metrolink Car Park, It would seem all the terms and conditions signs present during the alleged breach have been pulled down and replaced with newer signage. There is also signage much closer to the car park exit/entrance in bay six (although it's still attached to the fence and obscured by parked cars). There is still no standard entry sign as has been installed at Sale Metrolink Car Park, one stop along and also managed by Care Parking.

3. Lack of standing/authority from landowner to issue tickets

Care Parking has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.
BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Care Parking to strict proof of the contract terms with the actual landowner (not a lessee or agent). Care Parking have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Care Parking are entitled to pursue these charges in their own right.

I require Care Parking to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

4. The Charge is not a genuine pre-estimate of loss.

Care Parking signs (irrespective of conflicting charges) state the charge is for 'contravening parking restrictions” so they must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the car park barely has any vehicles present at the time and date of the alleged breach. The car park is free to Metrolink users, so there was no loss of potential income in a free car park.
This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all. Therefore, the sum they are seeking is not representative of the loss incurred by either the landowner, nor Care Parking (division of Anchor Security Services) flowing from any breach of the terms and conditions.

The Department for Transport guidelines state, in Section 16 Frequently Asked Questions, that:
"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver." The charge is Punitive, unfair and unreasonable.

Nor is the charge 'commercially justified'. If Care Parking cite 'ParkingEye v Beavis & Wardley' it's irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, POPLA Assessor Chris Adamson has stated in June 2014 upon seeing VCS' latest effort at a loss statement - their latest attempt to get around POPLA and likely to be broadly similar to any effort made by their sister firm, Excel - that:
''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, 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.''
My case is the same and Care Parking contracts are nothing like ParkingEye's contract in the Beavis case anyway, where Parking Eye paid £1000 per week for what was in effect a 'fishing licence' to catch victims and where the Operator made out they were the principal. In my case, Care Parking are merely agents at best, with a bare contractor's licence to put up signage and 'issue tickets' and they are known to be paid by their client so they have no standing nor loss to claim in their own right anyway. Of course money changing hands will affect any calculations of so-called 'loss' and is one of several reasons why I will require the landowner contract in full (unredacted) as per point #3.

5. Summary

On the basis of all the points I have raised, this “charge” fails to meet the signage and contract standards set out in sections 18 and 19 and Appendix B of the BPA Code of Practice and also fails to comply with basic contract law. This is therefore an unenforceable penalty and I respectfully request that my appeal is upheld and the charge dismissed

Yours faithfully
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ninjathunderbolt

Thank you to everyone on here for their advice. Today we received notice that we'd beaten ParkingEye. We used the template for parking in ParkingEye pay and displays (which of course includes GPEOL) and they didn't challenge the appeal. Result!!

The Operator issued parking charge notice number ******* arising out of a presence on private land, of a vehicle with registration mark ********.
The Appellant appealed against liability for the parking charge. The Assessor has considered the evidence of both parties and has
determined that the appeal be allowed.
The Assessor’s reasons are as set out.

The Operator should now cancel the parking charge notice forthwith.

Reasons for the Assessor’s Determination

It is the Appellant’s case that the parking charge notice was issued incorrectly.
The Operator has not produced a copy of the parking charge notice, nor any evidence to show a breach of the conditions of parking occurred, nor any evidence that shows what the conditions of parking, in fact, were.
Accordingly I have no option but to allow the appeal.
Amber Ahmed
Assessor