another Parking Eyes

newcook

Hi all,

a friend of mine received a parking fine from Parking eyes and sent the following letter:


You issued me with a parking ticket on 14/06/13 however, I believe the ticket was unfairly issued and I will not be paying your demand for payment of £70.00 for the following reason:

• The fee is disproportionate
According to the Unfair Terms in Consumer Contract Regulations, parking charges on private land must not exceed the cost to the landowner during the period the motorist is parked there. In my case, the £70.00 charge you are asking for far exceeds the cost to the landowner of £0.00.


If you choose to pursue me please be aware that I will not enter into any correspondence and this will be the only letter you will receive from me until you answer the specific points raised in my letter.



will this letter be ok or should I get my friend to send a different letter?!

thanks

Umkomaas

newcook wrote: »

Hi all,

a friend of mine received a parking fine from Parking eyes and sent the following letter:


You issued me with a parking ticket on 14/06/13 however, I believe the ticket was unfairly issued and I will not be paying your demand for payment of £70.00 for the following reason:

• The fee is disproportionate
According to the Unfair Terms in Consumer Contract Regulations, parking charges on private land must not exceed the cost to the landowner during the period the motorist is parked there. In my case, the £70.00 charge you are asking for far exceeds the cost to the landowner of £0.00.


If you choose to pursue me please be aware that I will not enter into any correspondence and this will be the only letter you will receive from me until you answer the specific points raised in my letter.



will this letter be ok or should I get my friend to send a different letter?!

thanks

Just add:

'I expect a reply within 35 days of the date of issue of this letter confirming the cancellation of this charge; if none is received I will consider this charge cancelled.

If you reject this challenge, I expect to receive from you, and within 35 days, a POPLA verification code through which I will vigorously challenge this unenforceable charge'.

Guys_Dad

Umkomaas wrote: »

Just add:

'I expect a reply within 35 days of the date of issue of this letter confirming the cancellation of this charge; if none is received I will consider this charge cancelled.

If you reject this challenge, I expect to receive from you, and within 35 days, a POPLA verification code through which I will vigorously challenge this unenforceable charge'.

Actually, you should send stroma's soft appeal expecting a rejection. Your current letter leaves you in a cleft stick.

If PPC replies "We disagree and believe it to be fair", but don't send a POPLA code, you have to go back on your "If you choose to pursue me please be aware that I will not enter into any correspondence and this will be the only letter you will receive from me until you answer the specific points raised in my letter"

The point is that you have selected only 1 of the standard appeal points and not drafted it well either. Save it and add all the others for POPLA.

newcook

Hi! its me again!!

well, parking Eye has replied to the appeal letter and included a POPLA reference - obviously rejecting it.

what is the next step? do I tell my friend to complete the POPLA appeal form or is there a different letter that needs to be sent?!

many thanks

Custard_Pie

Guys_Dad wrote: »

Actually, you should send stroma's soft appeal expecting a rejection. Your current letter leaves you in a cleft stick.

If PPC replies "We disagree and believe it to be fair", but don't send a POPLA code, you have to go back on your "If you choose to pursue me please be aware that I will not enter into any correspondence and this will be the only letter you will receive from me until you answer the specific points raised in my letter"

The point is that you have selected only 1 of the standard appeal points and not drafted it well either. Save it and add all the others for POPLA.

Out of interest Guys Dad (and others), do you think it matters if you go for soft appeal on one point then save a full list for PoPLA?

Coupon-mad

Custard_Pie wrote: »

Out of interest Guys Dad (and others), do you think it matters if you go for soft appeal on one point then save a full list for PoPLA?

Don't think it matters but I favour a strong appeal both times, personally, as some PPCs fold before POPLA and that's less hassle all round for the motorist.

newcook wrote: »

Hi! its me again!!

well, Parking Eye has replied to the appeal letter and included a POPLA reference - obviously rejecting it.

what is the next step? do I tell my friend to complete the POPLA appeal form or is there a different letter that needs to be sent?!

many thanks

A very different letter to go with the form, yes! A strong POPLA appeal with lots of points, all pages quoting the 10 digit code at the top and securely stapled (not paper-clipped) to the POPLA form.

We do know how to word winning POPLA appeals!

Your friend should draft this sort of long appeal, write it as the registered keeper (not implying who was driving at all!):

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

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

Let's see the draft appeal your friend puts together; take some days over it to get it right - as you have 28 days from the date of rejection letter to get this to POPLA.

Also in the meantime if this was a retailer, tell him/her to get back in there with the stupid fake PCN and receipts, and COMPLAIN to the Store Manager (who may well just cancel the pathetic threats on the spot!).

nigelbb

My view now is that you should go in with all guns blazing right from the off & use all the relevant arguments (signage, contract, penalty etc).

If POPLA continues to to uphold appeals against PE that their charge is not a genuine pre-estimate of loss this undermines their whole business model & will result in POPLA being leaned on to ensure that they produce the 'right' result alternatively PE will leave BPA Ltd & set up their own ATA & avoid POPLA entirely. Then cases won't be quashed at POPLA but will inevitably end up in court. It will do a great deal of good when defending a case that you have been entirely consistent in your challenge to PE & denial of the debt & not just cobbled together something from Internet forums to try & wriggle out of the debt in court.

newcook

sorry its long but here goes!!


Without Prejudice,

The registered keeper is not liable for the parking charge, for the following reasons:

1) 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."

In this case, ParkingEye has failed to provide any calculation to show how the £40.00 figure is arrived at, whether as an actual or pre-estimated loss. It is the Appellant's position that ParkingEye has suffered no loss whatsoever in this case.


2) It is trite law that penalty clauses cannot be recovered under contract law (see Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd (1915) AC 79). The registered keeper asserts that whilst a person of average intelligence, who had no legal training, or exposure to the civil legal system might not be aware of this basic and fundamental principle, it is such that “any man who knows the law” ought to know it, and that any intelligent man with any legal training who employed threats of legal action to recover sums which he knows cannot be lawfully recovered would seem to be acting somewhat dishonestly, and would not have the clean hands necessary to be able to obtain equitable relief in any related matter.


3) The sum claimed cannot be a genuine pre-estimate of loss, as any contractual breach attracts the exact same apparent amount of loss, whether no permit was displayed or a car was parked over a white line. The registered keeper notes that the wording of the charge on the notice suggests that the sum claimed is a penalty charge, very thinly disguised as pre-liquidated damages, rather than an individual assessment of actual damages. If the sum claimed were a genuine pre-estimate of loss, it follows that the loss cannot be £40.00 on days 1 to 14, then £70.00 thereafter. This is clearly an arbitrary sum invented by ParkingEye.


4) Propietary Interest in the Land:
The registered keeper relies on the Upper Tier Tax Tribunal Ruling (March 2012) in the case of Vehicle Control Services (VCS) v HMRC. Although this case was primarily concerned with VAT liabilities, it was necessary for the Judges to make rulings on the legality of Private Parking Company contracts in order to assess those liabilities. In the matter of contracts, the rulings were very clear that if the Private Parking Company has no ownership of, or proprietary interest in, the land, they cannot lawfully create contracts with drivers, irrespective of any signage. It therefore follows that any so-called “parking charges” are unlawful and unenforceable. In this instance, ParkingEye have not adduced any evidence of ownership of the land, and the situation is therefore analogous to that of VCS in the case referred to. This ruling was reinforced recently by Judge McIlwaine in the case of VCS v Ibbotson in the S!!!!horpe County Court.


5) Unfair Terms in Consumer Contracts Regulations (1999):
Private Parking Company charges are unfair terms (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 outcome”.

The registered keeper therefore invites the Adjudicator to uphold the appeal, and to cancel the parking charge.

newcook

bump!!!!!

Coupon-mad

Did you send it yet? Not half bad but not everything is there that I would normally suggest. Lets them off the hook in having to rebut some more difficult points.

Remove the 'Without Prejudice' which is legalese and would stop you showing it if ever you needed to in small claims (won't happen as you'll win at POPLA anyway).

Didn't see anything there about non-compliant signage (ALWAYS the case and puts them to - difficult - proof of every sign on site and what it says) and saw nothing asking for evidence that they have complied with the ANPR section of the BPA CoP with evidence of relevant checks & maintenance of the cameras at this site at that time. Read the BPA Code of Practice and see what you missed, add it by post to both PE and to POPLA as 'further evidence to add to my appeal'. POPLA adjudications take months so you have time if you do add something soon.

How come the charge is 'only' £40 (almost unheard of for PE, surely a typo?!).