Parking Eye.... sigh

zzzLazyDaisy

Guys_Dad wrote: »

The Parking Prankster has just reported on the POPLA Decisions that he has just LOST a POPLA case on the double entry scam that you have claimed.

Please read his post on the last page and realise that it is an absolute lottery. He lost because he hadn't supplied proof that he visited twice.

To be fair, the reason PP lost was because he was testing this particular point - and a good job too that there are people around like him who are willing to keep pushing the boundaries to see what works!

But in the real world we would never advise anyone to rely on just one point.

However, OP, since POPLA is so fond of witness statements, it might be worth asking your mates / work colleagues / window cleaner / whoever you were with in the intervening period to complete witness statements about what you were doing and when. Somewhere on the forum is an example of a witness statement drafted by POPLA for the PPCs to use. If you follow that exact format, it is difficult to imagine how they could rule against you :A

Also, ask them for their full camera log for the day so that POPLA can check to confirm that you did indeed visit on two occasions.

(But I'd still hedge my bets with more 'mainstreams' appeal points too).

D

Coupon-mad

avem wrote: »

Update...

Hi guys,

So now I have received my POPLA Code

So now you write your draft POPLA appeal based on examples:

https://forums.moneysavingexpert.com/discussion/comment/62180281#Comment_62180281

https://forums.moneysavingexpert.com/discussion/comment/62523345#Comment_62523345

HTH, let's see your draft posted here asap because your POPLA code is strictly timebound.

avem

Great, thanks for the input guys. Just seen this as have been away.
Will be working on it tonight and will submit drafts tomorrow morning.

avem

Ok here is my draft appeal to Popla, it's mostly copy and paste with some amendments, please check over the red text to see if i ahve made myself clear.

I can't tell you all how valuable your help is, thank you so much.


Dear Popla,

Appeal Re: Verification Code xxxxxxxxxx
Parking Eye Charge: xxxxxx/xxxxxx
Vehicle Reg No: xxxxxxx
Date of Issue: xx/xx/xx

I am not liable for the parking charge mentioned above and the vehicle was not improperly parked for the length of time stated on Parking Eye’s Parking Charge Notice as I visited the car park twice on the above mentioned day. As such, the parking 'charge' notice exceeds the appropriate amount Parking Eye is requiring payment from me.

In addition they have failed to show that
1. This standard fixed charge in that car park is a genuine pre-estimate of loss.
2. Have not formed any fair contract with the driver to justify the amount demanded.
3. Have not complied with all aspects of the BPA Code of Practice.

I have researched the matter, taken legal advice and would like to point out the following as my appeal against said charge:


UNCLEAR, INADEQUATE AND NON-COMPLIANT SIGNAGE

Due to their overall small size and the barely legible size of the small print, the signs in this car park are very hard to read and understand. I contend that the signs and any core parking terms the operator are relying upon were too small for any driver to see, read or understand upon entering the car park.

I require that the Operator's provides documentary evidence and signage map/photos on this point, lighting at night, colours used in cases of driver colour blindness and compare the signs to the BPA Code of Practice requirements.

I contend that the signs on this land (wording, position, clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2])


CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND/OR NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES

The operator does not appear to own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, The Operator has not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.

I require The Operator to provide a full copy of the actual contemporaneous, signed & dated contract with the landowner.

Contracts are complicated things, so a witness statement signed by someone is not good enough, neither is a statement that a person has seen it. A copy of the original showing the points above is the only acceptable items as evidence that a contract exists and authorises The Operator the right, under contract to write numerous letters to an appellant chasing monies without taking them to Court, to pursue parking charges in their own name, to retain any monies received from appellants and to pursue them through to Court.

I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.

I do not believe that The Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges. It was stated that: "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be." The ruling of the Court was that "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses, as set out above.


USE OF ANPR and DATA COLLATION

I further contend that The Operator has failed to show me any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR) and would require them to provide documented compliance to this section of the Code in its entirety.
This evidence must show documentary proof of contemporaneous manual checks, maintenance, calibration and full compliance with section 21 of the Code, in its evidence.

I also challenge The Operator to show that DPA registration (data collecting CCTV) is also complaint with legal and BPA requirements and demand that they demonstrate adherence.


NO CONTRACT WITH THE DRIVER

There is no contract between PPC and the driver, but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc, were not satisfied.


UNFAIR TERMS

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(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." Furthermore, Regulation 5(1) states that: "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" and 5(2) states: "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."


UNREASONABLE

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "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.”


NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS

The car park is free for the first two hours. On the date of the claimed loss it was only at 40% capacity during both visits and there was no physical damage caused. There can have been no loss arising from this incident. Neither can (PPC) lawfully include their operational day-to-day running costs in enforcing parking restrictions at the site (for example, by erecting signage and employing administration staff) in any 'loss' claimed. This does not represent a loss resulting from a breach of the alleged parking contract. In other words, were no breach to have occurred, the cost of parking enforcement would still have been the same. This has been quoted by POPLA itself in adjudication.

I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.

The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges of free all day parking on a Bank Holiday. This is all the more so for the additional charges which operator states accrues after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by 40% by early payment that it is unreasonable to begin with.


UNLAWFUL PENALTY CHARGE

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .

The operator is either charging for losses or it is a penalty/fine.

The operator could state the letter as an invoice or request for monies, but chooses to use the wording “CONTRACTUAL PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.



FAILED TO COMPLY WITH INITIAL REQUEST FOR A POPLA CODE

I contacted The Operator on xx/xx/xx and clearly stated that I denied all liability to their company and required a POPLA verification code for me to appeal independently as per the BPA Code of Practice. I had nothing further to add and stated that it was my final position.
I then received a letter of rejection on xx/xx/xx requesting further evidence. On xx/xx/xx I replied stating that I had nothing further to add and required a POPLA code within 35 days of my original appeal as per the BPA Code of Practice. I stated that should they fail to provide the POPLA code within the allotted time then I shall consider their invoice cancelled and any further correspondence would be treated as harassment.

The Operator ignored this requirement within the allotted time frame and produced the POPLA code on xx/xx/xx, 99 days after my original request. They therefore failed to comply with the BPA Code of Practice.


SUMMARY

On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with basic contract law.

As such, and because of the evidence in my appeal, I believe POPLA should order that this unjustified charge is cancelled.

Yours faithfully,

Guys_Dad

You write

I contacted The Operator on xx/xx/xx and clearly stated that I denied all liability to their company and required a POPLA verification code for me to appeal independently as per the BPA Code of Practice. I had nothing further to add and stated that it was my final position.
I then received a letter of rejection on xx/xx/xx requesting further evidence. On xx/xx/xx I replied stating that I had nothing further to add and required a POPLA code within 35 days of my original appeal as per the BPA Code of Practice. I stated that should they fail to provide the POPLA code within the allotted time then I shall consider their invoice cancelled and any further correspondence would be treated as harassment.

You didn't say that you appealed, only that you wrote nor gave the grounds of your appeal. No appeal - the PPC doesn't have to issue a POPLA code .

Custard_Pie

Guys_Dad wrote: »

You write

I contacted The Operator on xx/xx/xx and clearly stated that I denied all liability to their company and required a POPLA verification code for me to appeal independently as per the BPA Code of Practice. I had nothing further to add and stated that it was my final position.
I then received a letter of rejection on xx/xx/xx requesting further evidence. On xx/xx/xx I replied stating that I had nothing further to add and required a POPLA code within 35 days of my original appeal as per the BPA Code of Practice. I stated that should they fail to provide the POPLA code within the allotted time then I shall consider their invoice cancelled and any further correspondence would be treated as harassment.

You didn't say that you appealed, only that you wrote nor gave the grounds of your appeal. No appeal - the PPC doesn't have to issue a POPLA code .

Unless I missed it, I also don't recall seeing you challenging the PPC to provide evidence of the complete in-out registration for all cameras at that location on that day. In reality, who feels a need to register their movements in any given day. You may have been browsing or dropping someone off an waiting for them, etc. The onus is on those making the allegations to prove that your defense is wrong, not the other way around. You need to clearly state this in your appeal, or it leaves PoPLA grounds to rule against you.

Either way, all the other points should see you win the appeal, it's just if it was me I'd want to go with the full deck.

ulfhednar

Hi, I'm new on here and can't find the Start new thread button. so apologies for posting here.

I have had parking eye fine notices before and have ignored them with no consequences. My other half overstayed in a BM Homestores car park for around 15 mins overtime. We ignored it thinking it would be no problem, we got the second letter and ignored that one. However I now have a real court letter and i'm unsure what to do. Unfortunately my wife has appealed to moneyclaim.gov.uk The letter states amount claimed £100 court fee £15 solicitor's cost £50 so a total of £165. what do we do?

Guys_Dad

ulfhednar wrote: »

Hi, I'm new on here and can't find the Start new thread button. so apologies for posting here.

I have had parking eye fine notices before and have ignored them with no consequences. My other half overstayed in a BM Homestores car park for around 15 mins overtime. We ignored it thinking it would be no problem, we got the second letter and ignored that one. However I now have a real court letter and i'm unsure what to do. Unfortunately my wife has appealed to moneyclaim.gov.uk The letter states amount claimed £100 court fee £15 solicitor's cost £50 so a total of £165. what do we do?

Go here http://forums.moneysavingexpert.com/forumdisplay.php?f=163

Look down till you see all the page numbers you can go to. On the left hand side, there is a big blue button.

That's how you do it!

Coupon-mad

avem wrote: »

NICE FIRST DRAFT POPLA APPEAL...

I saw a typo that always happens to me as well!

''(data collecting CCTV) is also complaint with legal and BPA requirements''

should be:

''(data collecting CCTV) is also compliant with legal and BPA requirements''

and I think you should spell it out a bit more that this was a situation with two visits, give times like you did in your OP:

''The Operator's photos show me entering the car park at ...am and leaving at ...pm when in actual fact I entered at ...am, left around midday, then returned around ...pm and left at ...pm. I have told the Operator this but they have failed to show me evidence from their records and without that I cannot know whether they even checked the day's footage at all. I contend they did not and cannot show any evidence that my car was there the whole time because the truth is, it was not. ''

Could you show receipts or Bank statements to show two separate purchases, or a product return credit on a credit card statement or something to corroborate your version of events? I think you should try to prove your case (don't say 'I can't prove it as I was at home in between' or POPLA will side with the PPC on that point).

Guys_Dad

They should be asked to provide an unedited copy of their photographic file for the period in question.

Has been provided to POPLA before but POPLA couldn't read format and PPC lost.