Parking Eye PCN - issued three months later.

The_Slithy_Tove

Hoster wrote: »

They sent me a POPLA form - I'm going to rehash the argument I put forth in the initial appeal: it's out of time, goes against paragraph 9.4 of the PoFA etc. Is this the way to go or do we adopt a different strategy for POPLA?

That, and a lot more. Never rely on a single point to win at POPLA. You must challenge everything. You only need to win on one point to win altogether, so the more, the better.

You'll need to do some homework. There is lots of information on POPLA here, and some example appeals. You'll need to dig around a bit. Draft something up, post it here, and we'll take it from there.

nigelbb

Please take some photos of the entrance sign at the car park & upload it here. Chances are that they make clear that any parking contract is with the landowner & that PE are just the agent & also that the parking charge is for breaching the T&Cs of that contract. If so any damages for breach of contract must be a genuine pre-estimate of loss to the landowner. PE must also demonstrate that they are able to enter into a contract on behalf of the landowner by producing their contract with the landowner.

Main points of POPLA appeal are thus:-
Contract with landowner
Charge is a penalty not a genuine pre-estimate of loss
Signage is rubbish
+
The killer blow that the Notice To Keeper is out of time so they need to chase the driver for the parking charge.

This must all be automated as if there was a human brain involved they wouldn't be so stupid as to pursue a case that is unwinnable.

Coupon-mad

Some POPLA appeal wording on threads & links:

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

And Parking Cowboys on 'How to win your POPLA appeal':

http://www.parkingcowboys.co.uk/popla/

HTH

Hoster

Ok, this is what I have so far - it's a bit of a cut 'n' paste special with a few modifications to account for the fact that this is not a Pay and Display carpark but one at a retail park that offer 3 hours of 'free' parking.

---

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.
The Keeper challenges the PCN on the following grounds:

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.

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.

UNCLEAR & NON-COMPLIANT SIGNAGE FORMING NO CONTRACT WITH DRIVERS

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 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 the driver 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.

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

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.

NO BREACH OF CONTRACT AND NO 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 v Smith (Manchester County Court December 2011) is a more relevant and persuasive case than the Somerfield (contract with a Store) case Parking Eye cite. At the Parking Eye v Smith hearing the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty.

As The XXXXX Centre carpark has no ticketing machines and does not charge drivers to park the operator cannot lawfully claim damages from the driver.

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 I have already mentioned and 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).

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...''

BREACH OF UTCCR 1999

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.

THE NOTICE TO KEEPER WAS NOT ISSUED WITHIN THE 14 DAY STATUTORY PERIOD

Finally, the Notice to Keeper is in breach of the Protection of Freedoms Act 2012 (PoFA)

The requirements of Schedule 4 PoFA are quite clear in that there must be strict compliance with all of its requirements in order to take advantage of the rights granted under that Act to pursue the registered keeper in respect of a driver’s alleged debt.

The BPA Ltd AOS Code of Practice supports the need for strict compliance (para 21.5 refers).

Parking Eye Limited have failed to comply with paragraph 9.4 of Schedule 4 of the Act in that they failed to give the Notice to Keeper to me within the “relevant period”.

The alleged infringement occurred on the 23rd March 2013 and no ‘Notice to Driver’ was issued at the time. The Notice to Keeper is dated 28th June 2013 which is more than 3 months after the event and too late to ensure delivery within the statutory 14 days prescribed by PoFA.

Paragraph 9(4) indicates that the Notice to Keeper must be given to the registered keeper not more than 14 days after the car allegedly infringed the car park terms and conditions. Paragraph 9(6) states that “A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted”.

Parking Eye Limited would have been well aware of these facts when they took the decision to send out the Notice to Keeper under PoFA. They have misrepresented their legal position in the full knowledge that there can be no keeper liability.

The parking company has not met the keeper liability requirements and therefore keeper liability does not apply. The parking company can therefore only pursue the driver. As the keeper of the vehicle, I decline, as is my right, to provide the name of the driver(s) at the time. As the parking company have neither named the driver(s) nor provided any evidence as to who the driver(s) were I submit I am not liable to any charge.

Thankyou and Kind Regards

My Name

Guys_Dad

I would make the last point the first point. It would help if we got a win on that point.

Secondly, I would be more specific an less subjective about the signs.

Were they the colours suggested by the BPA COP and you require the PPC to state that they were of the minimum height in the BPA COP as you believe them not to be. What size were they (you should ask)?

Contract with landowner - I have suggested the following

I require the PPC to provide a copy of the relevant sections of the contract that they are working under in order for me to check (a) the contract is, in fact, with the landowner whose details have been supplied to me by the council and (b) in order for me to check the limit of their authority to levy charges as some landowner contracts do not, in fact, grant that authority.

Hoster

Cheers Guy's Dad.

I'll have some pictures of the parking signs this lunch time.

Guys_Dad

If you are you going there, take a tape measure to check. If you can actually find out that they are too small that would be brilliant.

Coupon-mad

That's a good POPLA appeal especially if the very late Notice to Keeper issue is first. They've failed, there is no case against you as long as you've never implied who was driving.

A couple of tweaks:


''as was found in [STRIKE]the[/STRIKE] Parking Eye v Smith, Manchester County Court 1XJ81016 [STRIKE]case I have already mentioned[/STRIKE]


''failed to give the Notice to Keeper'' = ''failed to serve the Notice to Keeper''

and you need to re-read the whole appeal to remove stuff that isn't relevant to your case, for example there is wording left in which relates only to a Pay and Display car park but yours was an alleged overstay in a free car park. Read it again afresh and consider if it all makes sense for your own case:

''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 the driver 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.

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 often before. 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 [STRIKE]and to make payment with a machine [/STRIKE] at the entrance [STRIKE]to the car park if they wish to try to establish a contract requiring payment in exchange for a parking space here.[/STRIKE] if they are to comply with Appendix B of the BPA Code of Practice. Entrance signage must be in the direct view of a driver on arrival and the full terms & conditions of parking must be readable at that point. ''

Hoster

Whoops, should have read through that more carefully, thanks for the heads-up

Hoster

I asked a friend to go take some photos of the signs in the carpark where the alleged infringement took place. (I live some way away)

Again, as a new user I've changed the .com to dotcom to get past any auto-moderation, apologies for the inconvenience.

Picture one shows a zoomed-in picture of the signs that placed in the car park. The picture has been cropped, the name of the carpark redacted and the levels have been adjusted in Photoshop to make the writing easier to read, but it is full size. Unfortunately you cannot make out the terms and conditions because the lettering is still too small to make out. The meta-data on the photo indicates that it was taken with a mid-level point-and-click camera that has 5x optical zoom, but this is still not enough to accurately capture the terms and conditions. Presumably the PPC expects the people that park here to carry binoculars to see the terms and conditions.

i121.photobucketdotcom/albums/o233/trade-surplus/PE_sign_01_Redacted.jpg

Picture two illustrates this point further by showing that the signs bearing the T&Cs are mounted ten feet above the ground on lampposts.

i121.photobucketdotcom/albums/o233/trade-surplus/PE_sign_02_Redacted.jpg

Picture three shows the general scarcity of the signs - they're a few hundred metres apart. In picture three none of the adjacent lamp posts have T&C signs.

i121.photobucketdotcom/albums/o233/trade-surplus/PE_sign_03_Redacted.jpg

In pictures two and three I have blanked out any number plates and distinguishing landmarks/buildings, I've also shrunk down photos 2 and 3 just to save the pain of having to load a 16 megapixel photo, but I can upload full sized ones if needed.