Parking charge @ supermarket

Taadaa

I received the rejection notice this morning for not providing sufficient evidence that the terms of parking weren't breached. they also noted that my queries were of a generic nature and they had seen a number of them before. I have the popla code. So what now guys?

bazster

As expected. Now you write an appeal to POPLA. Get some ideas here, put something together, and come back and show us:

https://forums.moneysavingexpert.com/discussion/comment/61968045#Comment_61968045

n.b. you might need to follow a few links, but each of them will lead you to a POPLA appeal which you can get ideas from.

The fact that you made generic points is neither here nor there, everything they do is generic. They are going to see a lot more generic points (that they've seen before!) in your POPLA appeal, and just as before their generic responses will fail and they will lose!

Guys_Dad

have a look here https://forums.moneysavingexpert.com/discussion/4688485 and then the winning appeals on the POPLA Decisions sticky

You will see the standard appeal points that you need to include in your appeal. You can then frame them with any other points that are specific to your case.

Hovite_2

The latest win posted on the link mentioned is a Parking Eye one and all around the charge figure not being a true pre-estimate of loss - make sure you use that as one of your points !

Taadaa

Okay this is what I have so far (haven't uploaded pics): Its only a rounh first draft, I have plagarised a little:

Parking Eye stated on the PCN that there is a sign clearly displayed at the entrance to the car park (see Evidence 1).
The car park is accessed by a slip road, therefore the driver assumes the entrance to the car park is be where the gate is. There is no parking signage at the entrance to the car park (see Evidence 2), despite their written assertion on the PCN that there is a sign, and the inference that the driver should have read it - even if this meant stopping on a road.
Parking Eye stated on the PCN that by parking I agreed to be bound by the three hour limit and other terms (see Evidence 1). The signage does not clearly state that the driver is bound by terms when they agree to park (see Evidence 3). The driver, upon return to gather evidence for this appeal, found the writing at the bottom of the sign too difficult to read due to the position of the sign and the size of the writing. I therefore was not aware at any time that I had entered into a contract with Parking Eye. Indeed, the driver had never heard of them prior to their PCN landing on the door mat. The driver contends that the signs and any terms Parking Eye are relying upon were too small and inappropriately positioned for a driver to see, read or understand therefore no contract can have been entered into, thus contravening the BPA Code of Practice.
Parking Eye have not clearly stated what their loss is in relation to overstaying in the car park by 24 minutes. Parking Eye have not explained why their loss, which had already been incurred, is reduced if they had been paid within a certain time.
Parking Eye has not provided me with any evidence that it is lawfully entitled to demand money from the driver, since they do not own nor have any interest or assignment of title of the land in question. The driver does not believe that Parking Eye has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract.
The driver contends that Parking Eye have failed to provide 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 POPLA to consider that particulars action of the Code in its entirety and decide whether the Operator has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence.

Parking Eye alleges that, on the date in question, the driver of the vehicle remained in the car park for longer than the stay they allege is 'authorised'. Parking Eye are also 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'. I believe this is also the basis upon which Parking Eye have told the DVLA that they have had 'reasonable cause' to continuously obtain data by a permanent EDI link.It is also clear from the following wording of the Notice to Keeper that they are alleging breach of contract rather than requesting payment of an agreed charge: "By either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted, in accordance with the terms and conditions set out in the signage ,the Parking Charge is now payable".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 or damages in this particular car park for this particular 'contravention'.

Guys_Dad

The layout is poor. Number your points and create white space.

You keep jumping from "the driver" to "I". Stick to the former.

Where is the bit about contract authority?

Search forum for recent posts with the "Have you tested your cameras recently? point.

But for a 1st draft, it's ok (ish) !!

Taadaa

What do I have to say about contract authority?

It would be useful to have a sticky on the main points that need to be made

Taadaa

Okay here is a second draft, but I am still unsure of what I am supposed to put about contract authority:

The registered keeper of the vehicle xxxxx received a ‘Notice to Keeper’ Parking Charge Penalty in the post on July 2nd 2013, dated xx2013. The PCN alleges that the vehicle in question overstayed the three hour limit imposed by the land owners by 26 minutes. Parking Eye stated on the PCN that there is a sign clearly displayed at the entrance to the car park (see Evidence 1).

The car park is accessed by a slip road, therefore the driver assumes the entrance to the car park is be where the gate is. There is no parking signage at the entrance to the car park (see Evidence 2), despite their written assertion on the PCN that there is a sign, and the inference that the driver should have read it. Even if there was a sign located there, it would not be possible for drivers stop and read the sign without causing an obstruction to other vehicles. It would not be safe to overtake, as there is a bend. Therefore even if the sign was there, it would not be in an appropriate place.

Parking Eye stated on the PCN that by parking I agreed to be bound by the three hour limit and other terms and conditions. (see Evidence 1). The signage does not state that by parking, the driver is agreeing to be bound by terms when they park (see Evidence 3). The driver, upon return to gather evidence for this appeal, found the writing at the bottom of the sign too difficult to read due to the position of the sign and the size of the writing. Therefore the driver was not aware at any time that they had entered into a contract with Parking Eye, and was required to be bound by their terms and conditions. The driver asserts that the signs and any terms Parking Eye are relying upon were too small and inappropriately positioned for a driver to see, read or understand therefore no contract can have been entered into, thus contravening the BPA Code of Practice.

Parking Eye have not clearly stated what their loss is in relation to overstaying in the car park by 26 minutes. Parking Eye has not explained why their loss, which had already been incurred, is reduced if they had been paid within a certain time. It is the drivers understanding that the land is not owned by Parking Eye; it is owned by Morrisons Supermarket. Therefore any loss incurred is not Parking Eye’s to claim. Parking Eye has not provided me with any evidence that it is lawfully entitled to demand money from the driver, since they do not own nor have any interest or assignment of title of the land in question. The driver does not believe that Parking Eye has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract.

The driver contends that Parking Eye have failed to provide 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 POPLA to consider that particulars action of the Code in its entirety and decide whether the Operator has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence.

Guys_Dad

Contract authority? Have a look here http://forums.moneysavingexpert.com/showpost.php?p=62472201&postcount=32

Also plenty on POPLA Appeals sticky thread at top of this forum

Taadaa

Any thoughts on this please?

Parking Eye has not provided any evidence that it is lawfully entitled to demand money from the driver or registered 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 Parking Eye 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). 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.

4. Trespass

If there was no contract, then at most the driver was guilty of a civil trespass (though this is denied; the car park is there for users of the supermarket, which the driver was). If this were the case, the driver may be liable to damages. Given that no ‘damage’ was done to the car park, there was in fact no loss at all.

5. The sum demanded is not a genuine pre estimate of loss

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 26 minutes parking, which would be a nominal amount, not the fixed standard charge on all their tickets at this car park. Regardless of the length of alleged contravention I believe the ticket amount to always the same on this site which calls into question the basis for the charge.


6. The charge is punitive, unfair and unreasonable

6(a). Punitive

The parking charge is punitive and therefore void (i.e. unenforceable). The £85 parking charge is arbitrary and disproportionate to any alleged breach of contract or trespass. This would also apply to any mention of any costs incurred through debt recovery unless it followed a court order.

6(b). Unfair

The £85 parking charge is an unfair term (and therefore not binding) under the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations which 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) says:

‘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), which 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.’

6(c). Unreasonable

The £85 parking 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.’


7. Evidence of Loss

If it is the case that a trespass was committed or that a contract was breached such that the PCN is a claim for damages, I request Parking Eye provide a full breakdown of the actual loss suffered by Parking Eye or the landowner/landholder in relation to the driver overstaying in the car park by 26 minutes.
Parking Eye has not explained why their loss, which had already been incurred, would have been reduced to £50.00 if I had paid within 14 days.
8. Signage
Parking Eye stated on the PCN that there is a sign clearly displayed at the entrance to the car park (see Evidence 1).
The car park is accessed by a slip road, therefore the driver assumes the entrance to the car park is be where the gate is; the gate that presumably prevents vehicle access when the supermarket is closed for business. There is no parking signage at the entrance to the car park (see Evidence 2), despite their written assertion on the PCN that there is a sign, and the inference that the driver should have read it. Even if there was a sign located there, it would not have been possible for the driver to stop and read the sign without causing an obstruction to other vehicles.
The driver asserts that any terms Parking Eye are relying upon on the signage are too small and inappropriately positioned for a driver to see read or understand, and are a breach of the BPA Code of Practice as a result.
9. Use of ANPR and personal data
Parking Eye has failed to show me any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice Section 21 (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.
I request that Parking Eye provide a copy of their procedures for handling and processing photographic evidence and the relevant audit trail.