Parking Eye PCN - issued three months later.

Coupon-mad

For some reason - even when changing the 'dot' to . and adding http:// - I can't get the links to work.

But If I were you I would literally copy what you've said above into the signage section of your appeal, including the fact a friend has taken these pictures as you aren't local and are only the registered keeper of course.

Make sure you don't try to fit this appeal into the word-count limited box on the POPLA website (send it as a PDF and/or hard copy attachment with POPLA ref repeated at the top of every page).

fisherjim

Try these:

http://s121.photobucket.com/user/trade-surplus/media/PE_sign_01_Redacted.jpg.html

http://s121.photobucket.com/user/trade-surplus/media/PE_sign_02_Redacted.jpg.html

Coupon-mad

Maybe take a day or two also to check the Planning Consent with the Council, for that car park, to see if it really is supposed to be for 'customers only' (of whom?! we are all customers!!).

Hoster

Ok. Final-ish draft.

---

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:

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

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 serve 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.

(A copy of the Notice to Keeper is enclosed to prove this point)
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.

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.

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. 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, 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 at the entrance. 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. ''

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

Picture one shows a zoomed-in picture of the signs that placed in the car park. 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 Parking Eye expects the people that park here to carry binoculars to see the terms and conditions.

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

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.

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.

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.

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 [REDACTED] Centre carpark has no ticketing machines and does not charge drivers to park the operator cannot lawfully claim damages.

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 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

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.

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

[Hoster]

Coupon-mad

Nice - based on one of mine so what can I say?!

Did the Planning Dept help? Best to get that answer first as that would be your slam-dunk point to add, if their signage is illegal!

Hoster

Still waiting on the council. I found the application number on their website, but the PDF has to be requested by emailing them (I've was without internet for a few days, so the email was only sent yesterday)

In the mean time I've found this.

ait-trafficdotcom/Measuring%20ANPR%20System%20Performance.pdf

I'm not sure whether to use it. For example I could write:

"Parking Eye Ltd need to show that they employ modern ANPR equipment as it has been documented by industry publications that older ANPR equipment only has a performance rate of 60-80% and that it is adversely affected by poor weather conditions; ANPR systems need clear bright days to run at optimum performance.

The alleged infringement took place on a date when Official Met-Office records show that [County Name] had the coldest temperatures experienced by the east of England in 50 years; unseasonable falls of snow and overcast skies. These are not weather conditions in which ANPR systems can perform optimally."

Hoster

Also, although I don't yet have the original planning documents, I've searched through the index of planning for that site for the past 25 years and there are no applications for alterations to the parking save for one lodged in 1991 pertaining to the rear of the retail park:

"PLANNING PERMISSION FOR THE X CENTRE MAKES NO ALLOWANCE FOR PARKING CHARGES

Parking Eye Ltd need to show proof that the original planning permission for the X centre grants the right to charge for parking. Permission for construction of the X supermarket and adjacent car park was sort in 1986 (X City Council, application X) However ANPR cameras were not commercially available until the middle of the 1990s and no planning application for the installation of ANPR cameras has been lodged with X City Council since 1986.

Therefore; the original application made no provision to charge for parking and because ANPR cameras were not then available, Parking Eye have exceeded the bounds of the planning permission granted to the owners of the Beehive centre.

The only additional application made to X City Council was in 1991 (X) pertaining only to parking at the at the rear of the X centre, not at the front where non-staff and non-trade vehicles park.

Coupon-mad

Remember the POPLA code is time-bound and you CANNOT use it late:

http://parking-prankster.blogspot.co.uk/2013/07/what-does-my-popla-code-mean.html

Get it sent.

Hoster

Hi, Just a quick note to say that I won my POPLA appeal against ParkingEye and to thank you all for your help putting it together. I did not win the case on the two-month-overdue point as I expected, but on the fact that PE's speculative invoice was not an accurate pre-estimate of losses.

From the PDF sent to me:

The Operator’s case is that the Appellant’s vehicle was parked in breach of the car park conditions by remaining at the car park for longer than the stay authorised or without authorisation.

The Appellant made representations stating his case. The Appellant raised a number of points and of the points was the fact that there was no genuine pre-estimate of loss and that the penalty charge is unlawful. The Appellant has also stated that there has been a breach of the Unfair Terms in Consumer Contract Regulations 1999.

The Appellant has submitted that the parking charge does not represent a genuine pre-estimate of the Operator’s loss, and so is not enforceable.

The onus is on the Operator to prove its case on the balance of probabilities. Accordingly, once an Appellant submits that the parking charge is not a genuine pre-estimate of loss, the onus is on the Operator to produce some explanation or evidence to tip the balance in its favour. The Operator has produced a statement which it submits justifies the charge as a pre-estimate of loss; however, I am not minded to accept this justification.

The Operator must show that the charge sought is a genuine estimate of the potential loss caused by the parking breach. The Operator has produced a list of costs; however, these appear to be general operational costs, and not losses consequential to the Appellant’s breach.

Consequently I must find that the Operator has failed to produce sufficient evidence to demonstrate that the parking charge is a genuine pre-estimate of loss.

Accordingly, I allow the appeal.

I will of course post the above in the PCN sticky thread at the top of the forum.

Thankyou and kind regards.

android26

Another good news story to start the weekend.