Please help with parking eye popla appeal.

nigelbb

EHBA wrote: »

Another poster confirmed that the creditor named on a PE/Fistral court claim was Fistral Beach Ltd. However they and Britanic Industries Ltd have the same directors

That's interesting as it supports my view that PE do not have the necessary interest or authorisation in any of their car parks to offer a contract for parking so the contract if there is one must be with the landowner. It then follows that PE cannot sue anyone for breach of contract & that the landowner should always have their name on the court papers. Obviously Fistral Beach Ltd don't care but it would a be a PR disaster for ALDI to sue their customers.

zzzLazyDaisy

On that basis, when doing a 'soft' appeal to Parking Eye, is it worth asking for a copy of the contract with the landowner and a pre-estimate of loss should they refuse the soft appeal? Just thinking that this might make them back off, or at the very least a refusal would be useful at the POPLA appeal.

NOTE - I'm a retired solicitor so capable of considering such documents, but am late to the party so am very happy to be guided by you guys.

nigelbb

zzzLazyDaisy wrote: »

On that basis, when doing a 'soft' appeal to Parking Eye, is it worth asking for a copy of the contract with the landowner and a pre-estimate of loss should they refuse the soft appeal? Just thinking that this might make them back off, or at the very least a refusal would be useful at the POPLA appeal.

NOTE - I'm a retired solicitor so capable of considering such documents, but am late to the party so am very happy to be guided by you guys.

Whatever you put in an appeal PE do not individually address appeals but will respond with a template. It does no harm to rehearse your points for POPLA which will be based some or all of the following:-

No right to offer contract for parking or pursue to court (require
proof by showing contract between PE & landowner)
Charge is said to be for breach of contract but is not a genuine pre-estimate of loss (normal running costs of business cannot be included they must show that the loss from this particular parking contravention has caused them to lose the nice round sum of £100/£60 whatever). There is a discount for early payment so which charge is the genuine pre-estimate of loss? Charge is clearly a penalty.
If pursuing Registered Keeper then almost certainly they have not complied with strict timescales & other requirements of POFA 2012.
Signage is almost certainly not complaint with Code of Practice of BPA Ltd

etc etc

UNITED4EVA_2

Hi all,

Here is my final draft yhat has gone into 3 pages of A4!! Do you think this is ok to send now?? Is writing loads a good thing or can you write too much??? Thanks in advance.


POPLAappeal re Parking Eye ticket number XXXXXXXXXXXX

I am not liable for the parkingcharge and the vehicle was not improperly parked. As such, the parking 'charge'notice (ticket) also exceeded the appropriate amount.

'On arrivalthe driver could see it was a pay and display car park - although the detail onthe signs was simply not visible/readable from the car when driving in. The carwas duly parked as soon as a space was available, then as this is a day-triptourist area and there were young children in the car who had been asleep formuch of the 4 hour journey, there was a reasonable burst of activity neededsimply to help the toddlers to alight safely and to organise them and theirparaphernalia. This involved two adults getting them out of car seats and aquick change into their daytime clothes and applying suncream, putting on hatsand sandals.

Then in addition the family's luggage had to be temporarily moved out of theboot in order to get to the children's pushchairs. The driver then put all theluggage back in, secured the car and without undue delay went straight topurchase a 3 hour ticket which was displayed and the time noted.

When the family arrived back it was still within the 3 hours on the P&Dticket, so the family then got back in, car seats were secured, the luggage hadto be got out again to put the pushchairs back in, and then the luggage wasreplaced into the boot as well. Then the family left without once consideringthat they could possibly have breached an unknown rule over and above theP&D ticket time.

The driver had parked within the time allowed on the P&D ticket at a costof £4.80 which I would say to POPLA is the only tangible evidence of anypossible 'contract'; formed by reading the instructions on the machine andpaying the money as consideration in exchange for a time-bound ticket asacceptance that the car is authorised to park. There was no breach whatsoeverby purchasing a 3 hour ticket in good faith after no undue delay, no sitting inthe car, just normal but busy arrival and alighting activity in safelytransferring young children to buggies, ready for a day out. The onlyrestriction the driver should have to consider is to duly return to the carwithin the time stated on any P&D ticket, which was indeed the case.

If Parking Eye wish to start the timed restriction on arrival then as well asclearer signs they would simply need a barrier and ticket machine at car windowlevel at the entrance and another at the exit. I believe that for the Operatorto combine 'pay-on-foot' manual P&D machines within the busy car park witha completely separate camera system at the entrance and exit is simply notcompatible and is unfair in law. '

I am the registered keeper of the above car and I visited the car park afterreceiving the initial order to try to read the signs, however due to their highposition and the barely legible size of the small print, I found them very hardto read and understand. I contend that the signs and any terms Parking Eye arerelying upon were too small and inappropriately positioned for a driver to see,read or understand therefore no contract can have been entered into. I requestthat POPLA should check the Operator's evidence and signage map/photos on thispoint and compare the signs to the BPA Code of Practice requirements. I contendthat the signs in that car park (wording, position, clarity and positioning) donot comply and fail to properly warn/inform the driver of the terms and anyconsequences for breach (as in the case of Excel Parking Services Ltd vMartin Cutts, 2011)

Parking Eye has not provided me with any evidence that it is lawfully entitledto demand money from the driver, since they do not own nor have any interest orassignment of title of the land in question. I do not believe that the Operatorhas the necessary legal capacity to enter into a contract with a driver of avehicle parking in the car park, or indeed to allege a breach of contract. Iwould require POPLA to check whether Parking Eye have provided a full copy ofthe actual site agreement/contract with the landowner/occupier (not just asigned slip of paper saying it exists) and check whether that contractspecifically enables them to pursue parking charges in the courts, and whetherthat contract is compliant with the requirements set out in the BPA Code ofPractice.

There is no contract between Parking Eye andmyself but even if there was a contract then it is unfair as defined in theUnfair Terms in Consumer Contracts Regulations 1999:

Unfair Terms
5.—(1) A contractual term which has not been individuallynegotiated shall be regarded as unfair if, contrary to the requirement of goodfaith, it causes a significant imbalance in the parties' rights and obligationsarising under the contract, to the detriment of the consumer.


(2) A term shall always be regarded as not having beenindividually negotiated where it has been drafted in advance and the consumerhas therefore not been able to influence the substance of the term.
On the basis of all the points I have raised, this 'charge' failsto meet the standards set out in paragraph 19 of the BPA COP and also fails tocomply with the CPUTR 2008, the UTCCR 1999, the Equality Act 2010 and basiccontract law.



The BPA Code of Practice indicates at paragraph 13.4 that the Respondent should“allow the driver a reasonable period to leave the private car park after theparking contract has ended, before you take enforcement action.” The signage inthe car park provides no indication of the period of time it allows and this isunreasonable, especially as Parking Eye rely on pictures taken of a vehicle atfirst arrival and then when leaving (not showing any evidence at all of actualparking time). So, there is no evidence that the respondent can produce toindicate that my vehicle was parked for more than the arbitrary time limit theyare relying upon and no breach of contract by the driver can be demonstrated bytheir evidence at all. On that basis the sum claimed fails to meet thestandards set out in paragraph 19 of the BPA Code of Practice.

I further contend that Parking Eye have failed to show me any evidence that thecameras in this car park comply with the requirements of the BPA Code ofPractice part 21 (ANPR) and would require POPLA to consider that particularsection of the Code in its entirety and decide whether the Operator has shownproof of contemporaneous manual checks and full compliance with section 21 ofthe Code, in its evidence.

Finally, the Operator alleges that, on the date in question, the driver of thevehicle 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 partywhich is in the public domain, as having stated in 2013 that all their chargesare based on 'breach of contract'. I believe this is also the basis upon whichParking Eye have told the DVLA that they have had 'reasonable cause' tocontinuously obtain data by a permanent EDI link. It is also clear from the following wording of theNotice to Keeper that they are alleging breach of contract rather thanrequesting payment of an agreed charge: "By either not purchasing theappropriate parking time or by remaining at the car park for longer thanpermitted, 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 underparagraph B 19.5 of the BPA Code of Practice and must be required to validatethis argument by providing POPLA with a detailed financial appraisal whichevidences the genuine pre-estimated amount of loss or damages in thisparticular car park for this particular 'contravention'.

If the pre-estimate of loss contains any of the following, then I contendthat these are the costs of running a business and I require the PPC to confirmto POPLA whether or not the pre-estimate of loss contains some or all elementsof

• Erection and maintenance of thesite signage.
• Installation, monitoring and maintenance of the Automatic Number PlateRecognition systems.
• Employment of office-based administrative staff.
• Membership and other fees required to manage the business effectivelyincluding those paid to the SPA, DVLA and ICO.
• General costs including stationery, postage, etc.



Therefore, these 'charges' for an alleged 'breach' are in fact unlawfulattempts at penalties, as was found in the case of Excel Parking Services vHetherington-Jakeman (2008) also OB Services v Thurlow (review, February2011) and in the case with the same Operator, Parking Eye v Smith(Manchester County Court December 2011). Parking Eye will not be able torefute this fact - however many pages of evidence they may send to POPLA - andso this punitive charge is therefore unenforceable in law.

I respectfully request that this appeal be allowed.


Signed:

Dated:

Coupon-mad

Yep looks OK to me but wait and see if anyone else adds anything tomorrow. I did just see a few bits to remove, there are speech marks around those first few paragraphs I wrote for you so remove them, and also remove 'the Equality Act 2010' because your case isn't about disability discrimination unlike the case that quote came from.

UNITED4EVA_2

Hi all,

Just a quick update, ive been on hol for a week, made sure about where i parked this time and doubly read all of the signs and smallprint!!!!

I had an email back from POPLA saying they have sent my appeal to parking eye and are awaiting there response and they have till sometime in Sept to sort it all by.

So i guess its just wait and see time now??????

Coupon-mad

Yep and soon you'll receive PE's weighty 'evidence bundle' which should be worth a laugh.

Guys_Dad

Did you do this online or via surface mail? If online, as it is quite long, you may be caught by POPLA's online problem of cutting your appeal short and missing the end.

Stroma

Coupon-mad wrote: »

Yep and soon you'll receive PE's weighty 'evidence bundle' which should be worth a laugh.

Yes about 50 pages of generic rubbish and blank pages. Unless they come up with the contract they'll lose.

FingersLily

Guys_Dad wrote: »

Did you do this online or via surface mail? If online, as it is quite long, you may be caught by POPLA's online problem of cutting your appeal short and missing the end.

Guys Dad - you helped me on another thread with my appeal against PCM which I sent to POPLA. Their reply to me cut off the end of my appeal but I just assumed it was the email. Are you saying part of my appeal is now missing & should I do something about this?