Booked by Parking Eye

Umkomaas

bazster wrote: »

Yes, please check the bit I have quoted from their usual notices. Anyone else want to comment or add anything before U.M. sends it off?

Just needs to post up the OP's final draft before sending to POPLA. As the OP says they don't fully understand some of the points, so a final look-over to be sure that the 'uncertain' points link together and read sequentially.

unamused_me

Great, thanks. I'll tackle it tonight/tom morn and post for you to have a look.
Thanks for all the help and advice everyone so much appreciated.

unamused_me

Hi heres my draft for popla - i is a little long, Ive done hours of research on popla appeals and I honestly done a lot of copy and pasting if that’s ok
Red is what im not sure about wether to put in in or not, give me your feedback.
And thanks to Coupon mad, spare me a dime, umkomaas, guys dad and everyone else on MSE.
Also which box do I tick on the popla appeal, and shall I email it to them?

• the vehicle was not improperly parked
• the parking ticket exceeds the appropriate amount
• I am not liable for the parking charge

Dear POPLA,

APPEAL RE: PARKING EYE CHARGE ******/******,********* CAR PARK **/**/2013, VEHICLE REG: **** ***


I recently received and invoice from Parking Eye on ……… That I overstayed in a car park by 17 minutes. I immediately appealed to Parking Eye and my appeal was rejected on the grounds of, because I did not provide sufficient evidence to show that I did not break the terms and conditions of on the signage. ( they also stated that a number of my queries were of a genetic nature, a number they have seen before.)

The points I would like to make are –

I am not liable for the parking charge and the vehicle was not improperly parked. As such, the parking 'charge' notice exceeds the appropriate amount. Parking Eye is requiring payment from me as the Registered Keeper under Schedule 4 of the Protection of Freedoms Act 2012. I say they have not met all the conditions imposed by this Act and so there is no obligation or liability on me at all. In addition they have failed to show that this standard fixed charge in that car park is a genuine pre-estimate of loss, have not formed any fair contract with the driver to justify the amount demanded and have not complied with all aspects of the BPA Code of Practice.

By making free parking available to prospective customers the owners and/or management of the retail park are clearly giving such prospective customers permission to park there. However, because the car park is free, the driver gave nothing to them in return for permission to park i.e. no consideration passed from the driver to them (or to ParkingEye), and where there is no consideration there is no contract.


NO EVIDENCE OF PARKING TIME OR SUFFICIENT DETAIL OF CONTRAVENTION
A registered keeper like myself cannot make an informed decision based on a couple of photos of a car driving in and out of the entrance area of a car park at different times and no clear explanation of the alleged contravention.

The Operator is relying simply on pictures taken of a vehicle at first arrival and then when leaving. These pictures show no evidence at all of actual parking time or where the car was after driving in, whether it stayed in the car park or left and then returned within the recorded timescale.
The postal 'ticket' fails to clarify the issue and so it is a nullity, since it fails to meet the requirements for a Notice to Keeper under the Protection of Freedoms Act 2012.


ANPR REQUIREMENTS- PART 21 OF THE BPA CODE OF PRACTICE
Parking Eye have failed to show me any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part21 (ANPR). I need POPLA to consider whether the Operator has shown documented evidence of contemporaneous manual checks of the cameras, clocks and related machinery in that particular car park. These maintenance checks are a requirement of section 21 of the Code.



CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE TICKETS
ParkingEye does not own the car park and I dispute that they have the authority to enter into contracts regarding the land or to pursue charges allegedly arising.
Parking Eye have also not provided me with any evidence that it is lawfully entitled to demand money from the driver or keeper. They do not own nor have any proprietary or agency rights or assignment of title or share of the land in question. 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 they do not own, or indeed the lawful status to allege a breach of contract in their name.

Parking Eye must provide documentary evidence in the form of a copy of the actual site agreement/contract with the landowner/occupier (not just a signed slip of paper saying it exists). Specifically, to comply with the Code of Practice, the contract needs to specifically grant Parking Eye the right to pursue parking charges in the courts in their own name, as creditor.

The British Parking Association Code of Practice clearly states that drivers must be given a grace period (i) when they enter the car park, in order to decide whether they wish to park and remain and (ii) to leave the car park at the end of the parking; these two grace periods together would amount to more than the 17 minutes of the alleged overstay.

The charge is intended to represent damages arising from an alleged breach of contract. This is clear from the following wording in the Notice to Keeper:
The exact wording that they have booked me for is - THE SIGNAGE WHICH IS CLEARLY DISPLAYED AT THE ENTRANCE TO AND THROUGHOUT THE CAR PARK STATES THAT THIS IS PRIVATE LAND, THE CAR PARK IS MANAGED BY PARKING EYE LTD, THAT THE MAXIMUM FREE STAY AUTHORISED IS 2HRS 0 MINS, ALONG WITH OTHER TERMS AND CONDITIONS OF THE CAR PARK BY WHICH THOSE PARK IN THE CAR PARK AGREE TO BE BOUND.
BY REMAINING AT THE CAR PARK FOR LONGER THAN THE STAY AUTHORISED OF WITHOUT AUTHORISATION, IN ACCORDANCE WITH THE TERMS AND CONDITIONS SET OUT IN THE SIGNAGE, THE PARKING CHARGE IS NOW PAYABLE TO PARKING EYE LTD AS THE CREDITOR.
YOU AR NOTIFIED UNDER PARAGRAPH 9 (2) (b) OF SCHEDULE 4 OF THE PROTECTION OF FREEDOMS ACT 2012 THAT THE FRIVER OF THE MOTOR VEHICLE IS REQUIRED TO PAY THIS PARKING CHARGE IN FULL.
THEN THEY GO ON ABOUT WARNING ME ON PARAGRAPH 9 (F)…..

The wording from the Notice to Keeper quoted above fails to specify precisely which term of the alleged contract was allegedly breached; the Notice therefore fails to comply with the Protection of Freedoms Act 2012, Schedule 4 Clause 9(2)(c) and no keeper liability can arise.



UNCLEAR & NON-COMPLIANT SIGNAGE FORMING NO CONTRACT WITH DRIVERS The signage failed to comply with the BPA Code of Practice Appendix B, and that entrance signage is not readable by the driver of a moving vehicle as he enters the land cannot bind that driver into a contract.

I believe the signs and any core parking terms Parking Eye are relying upon were too high and too small for any driver to see, read or understand when driving into this car park. The Operator needs to show evidence and signage map/photos on this point - specifically showing the height of the signs and where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in. Any terms displayed on the ticket machines or on a ticket itself, do not alter the contract which must be shown in full at the entrance.

I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park and any consequences for breach, as was found in a comparable camera-reliant car park in the case of Excel Parking Services Ltd v Martin Cutts, 2011.

Parking Eye needs to prove that I actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by me to park in exchange for paying the extortionate fixed amount the Operator is now demanding, rather than simply the nominal amount presumably due in a machine on site.

The idea that any driver would accept these terms knowingly is perverse and beyond credibility.
In Mendelssohn v Normand Ltd [1970] 1 QB177 Lord Denning MR at 182 dealt with the question whether a term on a notice board at a car park might have been incorporated into a contract where it was not obvious as the driver came in but was obvious when paying for parking at the end, and where the plaintiff had parked oftenbefore. He said:
“He may have seen the notice, but he had never read it. Such a notice is not imported into the contract unless it is brought home to the party so prominently that he must be taken to have known of it and agreed with it.”

So in addition, because the signs fail to properly inform drivers of the full terms & conditions in a very prominent place at a low enough height at the entrance, the elements of a contract have not been met. Any alleged contract would 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.

Parking Eye do not provide signage of sufficient written text size or at a suitable height to be read from the vehicle at the entrance or at any location on the premises. They may claim that generic signage is displayed around the car park on poles but this does not meet the requirements for consideration when forming the alleged contract. I suggest Parking Eye need clear signs and means for a driver to read the full terms and to make payment with a machine at the entrance to the car park if they wish to try to establish a contract requiring payment in exchange for a parking space here.



NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS
Were a contract to exist (which is denied) there has been no loss to Parking Eye or the owners/managers of the retail park arising from the alleged overstay; accordingly the charge sought is an unenforceable contractual penalty.
Should Parking Eye choose instead to claim that the charge is an agreed contractual charge (contrary to the wording in their notice) this fails on the grounds that (i) it is clearly punitive and intended as a deterrent, in that it only (allegedly) became payable upon the breach of other terms in the alleged contract (ii) no means of payment was available at the time the charge allegedly fell due and (iii) no VAT invoice was issued. Accordingly it is clearly a penalty and therefore unenforceable. Furthermore no terms of the alleged contract are individually negotiated, and the terms create a serious imbalance to the benefit of the company and the detriment of the consumer. Clearly, then, the terms of the alleged contract fall foul of the Unfair Terms in Consumer Contracts Regulations 1999
Parking Eye are on record from a letter to a third party which is in the public domain, as having stated in 2013 that all their charges are based on 'breach of contract' and this is also borne out by their letters to me. In addition, I understand that Parking Eye have told the DVLA that they have had 'reasonable cause' to continuously obtain data by a permanent EDI link due to issuing tickets for 'breach of contract'.

So they are clearly attempting to enforce this charge under paragraph B 19.5 of the BPA Code of Practice and must be required to validate this argument by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this particular 'contravention'. Operators cannot lawfully include their operational day-to-day running costs in any 'loss' claimed.

Parking Eye are suggesting that the driver has overstayed in the car park, but in any case any 'loss' could only be the amount of the payment due for 17 minutes parking, which would be a nominal amount, not the fixed standard charge on all their tickets at this car park (no matter what the contravention alleged I believe the ticket amount is always the same on this site which calls into question the basis for the charge).



UNLAWFUL PENALTY CHARGE
- Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, this 'charge' can only be an unlawful attempt at dressing up a penalty to impersonate a parking ticket.

Parking Eye quoted a non-parking related court case from 2011 so I would like to quote more relevant and persuasive decisions.

Private parking tickets unrelated to any genuine loss are unenforceable penalties, as was found in the Parking Eye v Smith case also in Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review decision by Circuit Judge, February 2011), and UKCPS v Murphy (April 2012).



BREACH OF UTCCR 1999
Finally, I believe Parking Eye are in breach of the Unfair Terms in Consumer Contract Regulations 1999 (UTCCR):

Schedule 2, paragraph 1:
...terms may be unfair if they have the object or effect of:

(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.

Unfair Terms
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.



CONCLUSION AND EQUALITY ACT 2010 PROTECTION AGAINST HARASSMENT
I feel I need to state now that this matter has already caused me a huge amount of upset and distress - and POPLA need to know that this is not a case of 'mitigating circumstances' so please do not dismiss this point.

The fact is, I suffer from depression and anxiety and so if Parking Eye pursue this charge (if it is not cancelled at this stage) they will be in breach of the Equality Act 2010. People with 'protected characteristics' such as the effects of my recently-diagnosed depression are specifically protected from harassment under that Act.

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


yours,

NAME

Coupon-mad

That's a good basis for an appeal.

A few points:

- you said on your other Hospital thread that you didn't have a longterm medical condition that could be considered a disability - but you do if you suffer from diagnosed depression and anxiety.

- font needs tidying (maybe just because you copied & pasted)

- as it's long do not try to make it fit in the online appeal box on the POPLA website, attach it to an email as a separate document.

- tick all 3 of those boxes, that's what I tell everyone.

- avoid saying 'they booked ME' as it imples who was driving. They didn't 'book' anyone as they are aren't the Police or real parking CEOs.

- maybe improve your grace periods point, summat like: ''...grace period (i) when they enter the car park, to queue for a space, park and then read the (high up on a pole) sign to decide whether they wish to remain and (ii) at the end of the visit to load the shopping bags, return the trolley and then queue to leave the car park at the end of the parking; I contend that this would amount to more than the nominal 17 minutes of the alleged overstay.''

- remove this bit as it tells them who was driving and if it was a free car park there was no machine: ''Parking Eye needs to prove that I actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by me to park in exchange for paying the extortionate fixed amount the Operator is now demanding, rather than simply the nominal amount presumably due in a machine on site.''

- this bit needs to be moved, could be placed under the heading NO EVIDENCE OF PARKING OR SUFFICIENT DETAIL OF CONTRAVENTION: ''The wording from the Notice to Keeper fails to specify precisely which term of the alleged contract was allegedly breached; the Notice therefore fails to comply with the Protection of Freedoms Act 2012, Schedule 4 Clause 9(2)(c) and no keeper liability can arise.''

- you don't need any of this, much of it not relevant in a free car park:

'The idea that any driver would accept these terms knowingly is perverse and beyond credibility.
In Mendelssohn v Normand Ltd [1970] 1 QB177 Lord Denning MR at 182 dealt with the question whether a term on a notice board at a car park might have been incorporated into a contract where it was not obvious as the driver came in but was obvious when paying for parking at the end, and where the plaintiff had parked oftenbefore. He said:
“He may have seen the notice, but he had never read it. Such a notice is not imported into the contract unless it is brought home to the party so prominently that he must be taken to have known of it and agreed with it.”

''I suggest Parking Eye need clear signs and means for a driver to read the full terms and to make payment with a machine at the entrance to the car park if they wish to try to establish a contract requiring payment in exchange for a parking space here.''

'This is clear from the following wording in the Notice to Keeper:
The exact wording that they have booked me for is - THE SIGNAGE WHICH IS CLEARLY DISPLAYED AT THE ENTRANCE TO AND THROUGHOUT THE CAR PARK STATES THAT THIS IS PRIVATE LAND, THE CAR PARK IS MANAGED BY PARKING EYE LTD, THAT THE MAXIMUM FREE STAY AUTHORISED IS 2HRS 0 MINS, ALONG WITH OTHER TERMS AND CONDITIONS OF THE CAR PARK BY WHICH THOSE PARK IN THE CAR PARK AGREE TO BE BOUND.
BY REMAINING AT THE CAR PARK FOR LONGER THAN THE STAY AUTHORISED OF WITHOUT AUTHORISATION, IN ACCORDANCE WITH THE TERMS AND CONDITIONS SET OUT IN THE SIGNAGE, THE PARKING CHARGE IS NOW PAYABLE TO PARKING EYE LTD AS THE CREDITOR.
YOU AR NOTIFIED UNDER PARAGRAPH 9 (2) (b) OF SCHEDULE 4 OF THE PROTECTION OF FREEDOMS ACT 2012 THAT THE FRIVER OF THE MOTOR VEHICLE IS REQUIRED TO PAY THIS PARKING CHARGE IN FULL.
THEN THEY GO ON ABOUT WARNING ME ON PARAGRAPH 9 (F)…..

bazster

Coupon-mad wrote: »

''The wording from the Notice to Keeper fails to specify precisely which term of the alleged contract was allegedly breached; the Notice therefore fails to comply with the Protection of Freedoms Act 2012, Schedule 4 Clause 9(2)(c) and no keeper liability can arise.''

If the OP has accurately transcribed his [STRIKE]Notice[/STRIKE] sheet of toilet paper then this bit no longer applies: it seems that PE has changed its standard notice to remove the vagueness and it now makes the specific accusation of overstaying.

The more I think about it the more I like the "no consideration hence no contract" argument when it's a breach-of-contract allegation in a free car park. POPLA is gonna bend over backwards to avoid ruling on this one because it would destroy a vast proportion of the scam, so, including it means they will desperately look for some other ground to allow the appeal ('cos if they denied the appeal on all the other grounds then they would be forced to rule on no consideration = no contract).

Hopefully one day someone playful will bang in an appeal that only has this ground, and thereby force them to show their hand.

unamused_me

Coupon-mad wrote: »

That's a good basis for an appeal.

A few points:

- you said on your other Hospital thread that you didn't have a longterm medical condition that could be considered a disability - but you do if you suffer from diagnosed depression and anxiety. - i do suffer with depression i dont concider it a disability, the hospital tkt was when i suffered a miscarriage hence the many visits to hosp.

- font needs tidying (maybe just because you copied & pasted) -yes

- as it's long do not try to make it fit in the online appeal box on the POPLA website, attach it to an email as a separate document. was going to add and attachment

- tick all 3 of those boxes, that's what I tell everyone. ok

- avoid saying 'they booked ME' as it imples who was driving. They didn't 'book' anyone as they are aren't the Police or real parking CEOs. ok i understand i have to use 'the driver'

- maybe improve your grace periods point, summat like: ''...grace period (i) when they enter the car park, to queue for a space, park and then read the (high up on a pole) sign to decide whether they wish to remain and (ii) at the end of the visit to load the shopping bags, return the trolley and then queue to leave the car park at the end of the parking; I contend that this would amount to more than the nominal 17 minutes of the alleged overstay.'' ok

- remove this bit as it tells them who was driving and if it was a free car park there was no machine: ''Parking Eye needs to prove that I actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by me to park in exchange for paying the extortionate fixed amount the Operator is now demanding, rather than simply the nominal amount presumably due in a machine on site.'' Completly remove this paragraph?

- this bit needs to be moved, could be placed under the heading NO EVIDENCE OF PARKING OR SUFFICIENT DETAIL OF CONTRAVENTION: ''The wording from the Notice to Keeper fails to specify precisely which term of the alleged contract was allegedly breached; the Notice therefore fails to comply with the Protection of Freedoms Act 2012, Schedule 4 Clause 9(2)(c) and no keeper liability can arise.'' -ok

- you don't need any of this, much of it not relevant in a free car park:

'The idea that any driver would accept these terms knowingly is perverse and beyond credibility.
In Mendelssohn v Normand Ltd [1970] 1 QB177 Lord Denning MR at 182 dealt with the question whether a term on a notice board at a car park might have been incorporated into a contract where it was not obvious as the driver came in but was obvious when paying for parking at the end, and where the plaintiff had parked oftenbefore. He said:
“He may have seen the notice, but he had never read it. Such a notice is not imported into the contract unless it is brought home to the party so prominently that he must be taken to have known of it and agreed with it.”

''I suggest Parking Eye need clear signs and means for a driver to read the full terms and to make payment with a machine at the entrance to the car park if they wish to try to establish a contract requiring payment in exchange for a parking space here.''

'This is clear from the following wording in the Notice to Keeper:
The exact wording that they have booked me for is - THE SIGNAGE WHICH IS CLEARLY DISPLAYED AT THE ENTRANCE TO AND THROUGHOUT THE CAR PARK STATES THAT THIS IS PRIVATE LAND, THE CAR PARK IS MANAGED BY PARKING EYE LTD, THAT THE MAXIMUM FREE STAY AUTHORISED IS 2HRS 0 MINS, ALONG WITH OTHER TERMS AND CONDITIONS OF THE CAR PARK BY WHICH THOSE PARK IN THE CAR PARK AGREE TO BE BOUND.
BY REMAINING AT THE CAR PARK FOR LONGER THAN THE STAY AUTHORISED OF WITHOUT AUTHORISATION, IN ACCORDANCE WITH THE TERMS AND CONDITIONS SET OUT IN THE SIGNAGE, THE PARKING CHARGE IS NOW PAYABLE TO PARKING EYE LTD AS THE CREDITOR.
YOU AR NOTIFIED UNDER PARAGRAPH 9 (2) (b) OF SCHEDULE 4 OF THE PROTECTION OF FREEDOMS ACT 2012 THAT THE FRIVER OF THE MOTOR VEHICLE IS REQUIRED TO PAY THIS PARKING CHARGE IN FULL.
THEN THEY GO ON ABOUT WARNING ME ON PARAGRAPH 9 (F)…..

- ok i'll delete the above and repost asap....many thanks

unamused_me

Coupon mad How is this for my final draft?
Cheers

Dear POPLA,

APPEAL RE: PARKING EYE CHARGE ******/******,********* CAR PARK **/**/2013, VEHICLE REG: **** ***


The keeper received and invoice from Parking Eye on ……… That they overstayed in a car park by 17 minutes. They immediately appealed to Parking Eye and it appeal was rejected on the grounds because they did not provide sufficient evidence to show that they did not break the terms and conditions of on the signage. (They also stated that a number of the queries were of a genetic nature, a number they have seen before.)

The points the keeper would like to make are –

The driver is not liable for the parking charge and the vehicle was not improperly parked. As such, the parking 'charge' notice exceeds the appropriate amount. Parking Eye is requiring payment from the Registered Keeper under Schedule 4 of the Protection of Freedoms Act 2012. The keeper says they have not met all the conditions imposed by this Act and so there is no obligation or liability on them at all. In addition they have failed to show that this standard fixed charge in that car park is a genuine pre-estimate of loss, have not formed any fair contract with the driver to justify the amount demanded and have not complied with all aspects of the BPA Code of Practice.

By making free parking available to prospective customers the owners and/or management of the retail park are clearly giving such prospective customers permission to park there. However, because the car park is free, the driver gave nothing to them in return for permission to park i.e. no consideration passed from the driver to them (or to Parking Eye), and where there is no consideration there is no contract.


NO EVIDENCE OF PARKING TIME OR SUFFICIENT DETAIL OF CONTRAVENTION
A registered keeper like myself cannot make an informed decision based on a couple of photos of a car driving in and out of the entrance area of a car park at different times and no clear explanation of the alleged contravention.

The Operator is relying simply on pictures taken of a vehicle at first arrival and then when leaving. These pictures show no evidence at all of actual parking time or where the car was after driving in, whether it stayed in the car park or left and then returned within the recorded timescale.
The postal 'ticket' fails to clarify the issue and so it is a nullity, since it fails to meet the requirements for a Notice to Keeper under the Protection of Freedoms Act 2012.
The wording from the Notice to Keeper quoted fails to specify precisely which term of the alleged contract was allegedly breached; the Notice therefore fails to comply with the Protection of Freedoms Act 2012, Schedule 4 Clause 9(2)(c) and no keeper liability can arise.



ANPR REQUIREMENTS- PART 21 OF THE BPA CODE OF PRACTICE
Parking Eye have failed to show me any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part21 (ANPR). I need POPLA to consider whether the Operator has shown documented evidence of contemporaneous manual checks of the cameras, clocks and related machinery in that particular car park. These maintenance checks are a requirement of section 21 of the Code.



CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE TICKETS
Parking Eye does not own the car park and we dispute that they have the authority to enter into contracts regarding the land or to pursue charges allegedly arising.
Parking Eye has also not provided any evidence that it is lawfully entitled to demand money from the driver or keeper. They do not own nor have any proprietary or agency rights or assignment of title or share of the land in question. 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 they do not own, or indeed the lawful status to allege a breach of contract in their name.

Parking Eye must provide documentary evidence in the form of a copy of the actual site agreement/contract with the landowner/occupier (not just a signed slip of paper saying it exists). Specifically, to comply with the Code of Practice, the contract needs to specifically grant Parking Eye the right to pursue parking charges in the courts in their own name, as creditor.

The British Parking Association Code of Practice clearly states that drivers must be given a grace period (i) when they enter the car park, to queue for a space, park and then read the (high up on a pole) sign to decide whether they wish to remain and (ii) at the end of the visit to load the shopping bags, return the trolley and then queue to leave the car park at the end of the parking; I contend that this would amount to more than the nominal 17 minutes of the alleged overstay


UNCLEAR & NON-COMPLIANT SIGNAGE FORMING NO CONTRACT WITH DRIVERS The signage failed to comply with the BPA Code of Practice Appendix B, and that entrance signage is not readable bythe driver of a moving vehicle as he enters the land cannot bind that driver into a contract.

I believe the signs and any core parking terms Parking Eye are relying upon were too high and too small for any driver to see, read or understand when driving into this car park. The Operator needs to show evidence and signage map/photos on this point - specifically showing the height of the signs and where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in. Any terms displayed on the ticket machines or on a ticket itself, do not alter the contract which must be shown in full at the entrance.

I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park and any consequences for breach, as was found in a comparable camera-reliant car park in the case of Excel Parking Services Ltd v Martin Cutts, 2011.

Parking Eye needs to prove that I actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by me to park in exchange for paying the extortionate fixed amount the Operator is now demanding, rather than simply the nominal amount presumably due in a machine on site.

The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

So in addition, because the signs fail to properly inform drivers of the full terms & conditions in a very prominent place at a low enough height at the entrance, the elements of a contract have not been met. Any alleged contract would 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.

Parking Eye do not provide signage of sufficient written text size or at a suitable height to be read from the vehicle at the entrance or at any location on the premises. They may claim that generic signage is displayed around the car park on poles but this does not meet the requirements for consideration when forming the alleged contract.

NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS
Were a contract to exist (which is denied) there has been no loss to Parking Eye or the owners/managers of the retail park arising from the alleged overstay; accordingly the charge sought is an unenforceable contractual penalty.
Should Parking Eye choose instead to claim that the charge is an agreed contractual charge (contrary to the wording in their notice) this fails on the grounds that (i) it is clearly punitive and intended as a deterrent, in that it only (allegedly) became payable upon the breach of other terms in the alleged contract (ii) no means of payment was available at the time the charge allegedly fell due and (iii) no VAT invoice was issued. Accordingly it is clearly a penalty and therefore unenforceable. Furthermore no terms of the alleged contract are individually negotiated, and the terms create a serious imbalance to the benefit of the company and the detriment of the consumer. Clearly, then, the terms of the alleged contract fall foul of the Unfair Terms in Consumer Contracts Regulations 1999
Parking Eye are on record from a letter to a third party which is in the public domain, as having stated in 2013 that all their charges are based on 'breach of contract' and this is also borne out by their letters to me. In addition, I understand that Parking Eye have told the DVLA that they have had 'reasonable cause' to continuously obtain data by a permanent EDI link due to issuing tickets for 'breach of contract'.

So they are clearly attempting to enforce this charge under paragraph B 19.5 of the BPA Code of Practice and must be required to validate this argument by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this particular 'contravention'. Operators cannot lawfully include their operational day-to-day running costs in any 'loss' claimed.

Parking Eye are suggesting that the driver has overstayed in the car park, but in any case any 'loss' could only be the amount of the payment due for 17 minutes parking, which would be a nominal amount, not the fixed standard charge on all their tickets at this car park (no matter what the contravention alleged I believe the ticket amount is always the same on this site which calls into question the basis for the charge).



UNLAWFUL PENALTY CHARGE
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, this 'charge' can only be an unlawful attempt at dressing up a penalty to impersonate a parking ticket.

Parking Eye quoted a non-parking related court case from 2011 so I would like to quote more relevant and persuasive decisions.

Private parking tickets unrelated to any genuine loss are unenforceable penalties, as was found in the Parking Eye v Smith case also in Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review decision by Circuit Judge, February 2011), and UKCPS v Murphy (April 2012).


BREACH OF UTCCR 1999
Finally, I believe Parking Eye are in breach of the Unfair Terms in Consumer Contract Regulations 1999 (UTCCR):

Schedule 2, paragraph 1:
...terms may be unfair if they have the object or effect of:

(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.

Unfair Terms
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.


CONCLUSION AND EQUALITY ACT 2010 PROTECTION AGAINST HARASSMENT
I feel I need to state now that this matter has already caused me a huge amount of upset and distress - and POPLA need to know that this is not a case of 'mitigating circumstances' so please do not dismiss this point.

The fact is, I suffer from depression and anxiety and so if Parking Eye pursue this charge (if it is not cancelled at this stage) they will be in breach of the Equality Act 2010. People with 'protected characteristics' such as the effects of my recently-diagnosed depression are specifically protected from harassment under that Act.

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


yours,

NAME

Coupon-mad

I would change these as shown:

''Any terms displayed on [STRIKE]the ticket machines or on a ticket itself[/STRIKE] other signs do not alter the contract which must be shown in full at the entrance.''

''Parking Eye needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by [STRIKE]me[/STRIKE] the driver that day to park in exchange for paying the extortionate fixed amount the Operator is now demanding. [STRIKE]rather than simply the nominal amount presumably due in a machine on site.
[/STRIKE]
The idea that any driver would accept these terms knowingly is perverse and beyond credibility - this is not a fair 'contract' nor any contract at all.''

A suggestion of some added wording here:

''Parking Eye are suggesting that the driver has overstayed in the car park, but in any case any 'loss' could only be the amount of the payment due for 17 minutes parking, which would be a nominal amount, not the fixed standard charge on all their tickets at this car park (no matter what the contravention alleged I believe the ticket amount is always the same on this site which calls into question the basis for the charge). Also as this is a free car park the Operator receives no income except from 'parking tickets'. Do Parking Eye seriously expect me and the POPLA adjudicator to believe that their operation runs in this car park at a permanent loss, only clawed back when people pay? This is clearly untrue and Parking Eye will not be able to show POPLA that it can possibly be the case in their business model.''



and this bit should be moved down to where you quote from the UTCCR 1999 near the end:

'' Furthermore no terms of the alleged contract are individually negotiated, and the terms create a serious imbalance to the benefit of the company and the detriment of the consumer. Clearly, then, the terms of the alleged contract fall foul of the Unfair Terms in Consumer Contracts Regulations 1999''


Finally how about some more persuasive court cases & stuff after the UTCCR paragraph?


In the case of Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd, Lord Dunedin offered as tests which might prove "helpful, or even conclusive":

"(A) It will be held to be penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach..….

(B) It will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid ….. This though one of the most ancient instances is truly a corollary to the last test. Whether it had its historical origin in the doctrine of the common law that when A. promised to pay B. a sum of money on a certain day and did not do so, B. could only recover the sum with, in certain cases, interest, but could never recover further damages for non-timeous payment, or whether it was a survival of the time when equity reformed unconscionable bargains merely because they were unconscionable ….. is probably more interesting than material.

(C) There is a presumption (but no more) that it is penalty when "a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".


And in Lordsvale Finance Plc v. Bank of Zambia [1996] QB 752, 762G,
discussing Dunlop:

"whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for breach. That the contractual function is deterrent rather than compensatory can be deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred."

This statement has been approved by the Court of Appeal in Murray v Leisureplay plc [2005] IRLR 946.



And from the Office of Fair Trading, Guidance re Unfair Contract Terms:
''It is unfair to impose disproportionate sanctions for 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...''





JUST DON'T TRY TO MAKE ALL THAT FIT IN THE WORDCOUNT BOX ON POPLA'S ONLINE SUBMISSIONS THINGY! EITHER ATTACH THE WHOLE THING AS A WORD OR PDF DOCUMENT, OR POST IT IF YOU HAVE BEEN GIVEN A HARD COPY POPLA FORM.

Stroma

We can't move it, so please don't hijack this thread and create your own - thanks
http://forums.moneysavingexpert.com/forumdisplay.php?f=163

wowsers

Thanks for your kind advice stroma