Booked by Parking Eye

unamused_me

Hi Copon mad, think this could be the one to send. If you agree ill email today and keep you all posted.
Once again many thanks for all your hard work (everyone) and input on this site, you have made such an impact on people being hit with these 'unfair invoices'...keep up the good work!!

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, 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.

The idea that any driver would accept these terms knowingly is perverse and beyond credibility. This is not a fair ‘contract’ nor a contract at all.

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.
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). Also as this is a free car park the Operator receives no income except from ‘parking tickets’. Do Parking Eye seriously expect me and 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 possible be the case in their business model’’



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
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, 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.

Other Court case examples -
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 a 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...''


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

Guys_Dad

Remember that POPLA has a problem with its online site and long appeals being cut short with the last chunk missing, and the adjudicators only consider what is in front of them.

Send a copy with the references on by surface mail as well.

unamused_me

Will do thanks Guys Dad.

Umkomaas

Just one other point to have a look at in this otherwise comprehensive appeal - just after the Martin Cutts reference you drift away from the third person - the driver, the RK, to a paragraph where the first person is used - I this, I that....

You might have another think about that and consider rephrasing, we advise never to give any evidence of who the driver might, or might not have been.

Great work - let's see whether PE can escape this one - if so they will have Harry Houdini working alongside Rachel

unamused_me

Thanks Umkomaas, noted and made changes.
Sent appeal via popla web but had message saying site had crashed after submitting, so not sure if it went through (can i re-submit?)
Also sent via their email @enquiries to be sure and sent appeal as an attachment.
Now have to play the waiting game.
I will keep you all posted.

once again many thanks for all your input and hard work.
Cheers

zzzLazyDaisy

unamused_me wrote: »

they already have my deatils form the other ticket.

Just a question to the regular posters about this....

I understood that under their membership of BPA the PPCs must comply with data protection requirements.

I also understood that they must make a separate application to DVLA each time and can't keep the RKs details for future use against the same RK (though I can't find the reference for that at the moment).

I've seen recently a PCN where there was only three days between being caught on camera and the date on the PCN. In these cases is it worth asking for proof of the DVLA request and/or making a formal complaint to DVLA/BPA?

Dx

Umkomaas

zzzLazyDaisy wrote: »

Just a question to the regular posters about this....

I understood that under their membership of BPA the PPCs must comply with data protection requirements.

I also understood that they must make a separate application to DVLA each time and can't keep the RKs details for future use against the same RK (though I can't find the reference for that at the moment).

I've seen recently a PCN where there was only three days between being caught on camera and the date on the PCN. In these cases is it worth asking for proof of the DVLA request and/or making a formal complaint to DVLA/BPA?

Dx

Every reason to request information from DVLA, especially if it helps the case. However, if it's a general request, DVLA will not respond unless you pay a fee of £5 (£2.50 to PPCs - a BOGOF price for them, go figure!). So you have to phrase it as a complaint, not a request, then the information should be forthcoming f.o.c. (a price even a PPC can't get )

unamused_me

Just had my automated response from popla, says they will hopefully respond within 5 days......so i'll be stressed for the next week lol.

bazster

unamused_me wrote: »

Just had my automated response from popla, says they will hopefully respond within 5 days......so i'll be stressed for the next week lol.

Don't get stressed, they are actually months behind schedule!

unamused_me

Yep, had my reply they wil have an answer or me at the end of Sept.