Naming the driver - Parking Eye

bazster

PikaPorker wrote: »

Thanks! Will do.

The car park was in a motorway service station a fair drive from where I live. It would cost me £100 in petrol to get there to see the manager

Oh right, that wouldn't make a lot of sense then!

PikaPorker

Update.

I wrote an appeal to Parking Eye asking them to cancel the charge as I couldn't see how they or the landowner had lost any money.I asked them for a detailed breakdown of losses, and they replied with the costs of maintaining the signage and cameras! I also asked to see a copy of the contract between them and the service station, but not surprisingly they didn't. They did however, give me a POPLA code. Regarding the POPLA appeal, can I only appeal to them on the points I appealed to Parking Eye? Or could I also dispute the signage etc...

The_Slithy_Tove

PikaPorker wrote: »

Regarding the POPLA appeal, can I only appeal to them on the points I appealed to Parking Eye? Or could I also dispute the signage etc...

You can appeal to POPLA on any points you like. So use the arguments you have already made, plus many more (research here for them).

You must refute their claim that admin costs are part of their "losses", as they are not. There's a recent thread here where POPLA explicitly rejected PE's claim that such costs are losses (can't find the thread right now, but worth quoting).

Hovite_2

The_Slithy_Tove wrote: »

You can appeal to POPLA on any points you like. So use the arguments you have already made, plus many more (research here for them).

You must refute their claim that admin costs are part of their "losses", as they are not. There's a recent thread here where POPLA explicitly rejected PE's claim that such costs are losses (can't find the thread right now, but worth quoting).

I suspect you mean this one :

https://forums.moneysavingexpert.com/discussion/4739105

Stroma

Running costs are not losses, because its tax deductable and they would have incurred these costs whether you parked or not. Frankly they are clutching at straws with this, and its where the whole scam falls apart as its obviously an unlawful penalty charge.

spacey2012

The defence against these in court need re-writing very quickly, the standard Pepipoo defence enters way too high, the posters that wrote it left the site so can not update it.
The defence been offered takes no account of the POFA and enters higher than the starting point of POFA keeper liability.
It needs to start to rely more on the foundation evidence they hold.
Foundation evidence is what the case is built on.
In this case of ANPR cameras, two things form the foundation of evidence.
That the ANPR camera is an accurate and trustworthy evidence source to prove the claim.
The second is that you created a contract.

Now on ANPR the Vehicle Certification Agency standard is accepted by courts as the minimum certification for ANPR evidence in Police, DVLA, Local Authorties, Council car parks, council bus lanes, yellow box junction cameras and just about anywhere.
The stretch to pull it over a private companies evidence is would be such a simple challenge and once a district circuit judge agrees they are dead in the water and can not prove you were even there, let alone jump to POFA liability.

The second is "contract law" in contract law there is "consideration" a consideration is a collateral gained by both parties, the motorists gains free parking as his offer, the parking company claims they offer parking.
Now how can you offer something you do not own and make contract on behalf of someone else.
The parking company can not make you an offer of anything as consideration as they do not own the land.
With some clever arguments, you could have the parking company removed from the proceedings and force the land owner to pursue their own loss.

I am sure similar arguments with the contract did have some success but the unlawful penalty argument was a better one at the time.
However, the game appears to have changed again and it is time to start re-writing the defence and attacking them on the foundation.
It may work, it may not, but it is there for the challenge, each case is different and we would only have to beat them once for them to skulk back.

Guys_Dad

See also para 22 onwards here http://forums.pepipoo.com/index.php?act=attach&type=post&id=16231

Now this is NOT a precedent as far as the law goes, but you could use it in your POPLA appeal as, after all, you are just an unrepresented member of the public who doesn't understand all this legal jargon, do you ?????

PikaPorker

Thanks for all the replies and advice, guys. It is greatly appreciated!!!!

Coupon-mad

PikaPorker wrote: »

Thanks for all the replies and advice, guys. It is greatly appreciated!!!!

You are not there yet with your POPLA appeal, there's more:

https://forums.moneysavingexpert.com/discussion/4711233

That one is a POPLA appeal specific to a Motorway Services Area (MSA). It was good but needed some headings to break it up and make the points clearer. Here's another one with headings and lots of legal stuff (do not dismiss it even though you aren't law trained; it's all relevant and the POPLA adjudicators are law graduates):

https://forums.moneysavingexpert.com/discussion/4695227

...and a general thread showing what to include in ay POPLA appeal, how to win at POPLA, and more examples:

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

So write your own version, copying stuff but using your own words & introduction (NOT stating who was driving of course!). Show us your draft first if there is time - you only gave 28 days so don't miss the deadline - and if you submit it online then attach it as a PDF link because a copy & pasted long appeal will NOT fit in the limited word-count box on POPLA. People have had their appeals cut short before now and not realised it.

PikaPorker

Ok, what do you think of this for an appeal? I'm not very good at writing lengthy essays/letters etc..so I've cut and pasted from several posts and changed a few little things.

Dear POPLA,

APPEAL RE: PARKING EYE

The driver received a parking charge penalty notice from Parking Eye on ……… Informing the driver overstayed in a car park by 47 minutes. I appealed to Parking Eye and the appeal was rejected on the grounds because I did not provide sufficient evidence to show that I did not break the terms and conditions on the signage. (They also stated that a number of the queries were of a genetic nature, a number they have seen before.)

I would like to make the following points –

The driver is not liable for the parking charge penalty and the vehicle was not improperly parked. As such, the parking charge penalty notice exceeds the appropriate amount. Parking Eye is requiring payment from the driver under Schedule 4 of the Protection of Freedoms Act 2012. The driver says they have not met all the conditions imposed by this Act and so there is no obligation or liability on them at all. Additionally 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.

By making free parking available to prospective customers the owners and/or management of Welcome Break are clearly giving such prospective customers permission to park there. However, because the car park is free, the driver gave nothing to them in return for permission to park i.e. no consideration passed from the driver to them (or to Parking Eye), and where there is no consideration there is no contract.


NO EVIDENCE OF PARKING TIME OR SUFFICIENT DETAIL OF CONTRAVENTION
A driver 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.
The postal 'ticket' fails to clarify the issue and so it is a nullity, since it fails to meet the requirements for a Notice to Keeper under the Protection of Freedoms Act 2012.
The wording from the Notice to Keeper quoted fails to specify precisely which term of the alleged contract was allegedly breached; the Notice therefore fails to comply with the Protection of Freedoms Act 2012, Schedule 4 Clause 9(2)(c) and no keeper liability can arise.



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.



CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE TICKETS
Parking Eye does not own the car park and I dispute that they have the authority to enter into contracts regarding the land or to pursue charges allegedly arising.
Parking Eye has also not provided 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.



UNCLEAR & NON-COMPLIANT SIGNAGE FORMING NO CONTRACT WITH DRIVERS The signage failed to comply with the BPA Code of Practice Appendix B, and that entrance signage is not readable by the driver of a moving vehicle as he enters the land cannot bind that driver into a contract.

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, 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 I 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 me 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. This is not a fair ‘contract’ or a contract at all.

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 does 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.

Also, as this was a Motorway Services Area. Which is specifically designed for drivers to rest. Oper¬a¬tors of Motorway Services Areas (MSAs) and their agents must com¬ply with the require¬ments of Gov¬ern¬ment pol¬icy. These provisions are reflected in the Traffic Signs Agreements into which they enter with the Highways Agency.

The High¬ways Agency, on behalf of the Depart¬ment for Trans¬port (DfT), pub-lished a pol¬icy on the pro¬vi¬sion of road¬side facil¬i¬ties on its net¬work. That pol-icy is 'DfT Circular 01/2008: Policy on Service Areas and other Roadside Facilities on Motorways and All-purpose Trunk Roads in England'.



''Signing within roadside facilities
100. All traffic signs and markings within roadside facilities should conform to the standards laid down in the TSRGD 2002 as amended or replaced from time to time.''

I require Parking Eye to show proof to the POPLA adjudicator that the DFT/Highways Agency has granted special authorisation for Parking Eye's 'traffic signs' in this particular MSA, to be exempt from this policy requirement. It will not be enough for Parking Eye to claim that their particular signs placed in this MSA are in Parking Eye's own opinion, not 'traffic signs' when clearly they can indeed be interpreted as such and - unlike other adverts and signs on site - are not intended to direct pedestrians.

NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS
Were a contract to exist (which is denied) there has been no loss to Parking Eye or the owners/managers of the service station arising from the alleged overstay; accordingly the charge sought is an unenforceable contractual penalty.
Should Parking Eye choose instead to claim that the charge is an agreed contractual charge (contrary to the wording in their notice) this fails on the grounds that (i) it is clearly punitive and intended as a deterrent, in that it only (allegedly) became payable upon the breach of other terms in the alleged contract (ii) no means of payment was available at the time the charge allegedly fell due and (iii) no VAT invoice was issued. Accordingly it is clearly a penalty and therefore unenforceable.
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 47 minutes parking, which would be a nominal amount, not the fixed standard charge on all their tickets at this car park (no matter what the contravention alleged I believe the ticket amount is always the same on this site which calls into question the basis for the charge). Also as this is a free car park the Operator receives no income except from ‘parking tickets’. Does Parking Eye seriously expect me and the POPLA adjudicator to believe that their operation runs in this car park at a permanent loss, only clawed back when people pay? This is clearly untrue and Parking Eye will not be able to show POPLA that it can possible be the case in their business model’’



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.

I am aware from court rulings and previous POPLA decisions that the cost of running the business may not be included in these pre-estimate losses.



See here a recent POPLA appeal

"The Operator submitted that the charge is based upon the cost of enforcing parking restrictions at the site (for example, by erecting signage and employing administrative staff) and the charge was agreed by the land owner and specified on site signage.


However, this does not represent a loss resulting from a breach of the parking contract. The loss specified by the Operator is the cost of providing parking enforcement at the site. In other words, was no breach to have occurred the cost of parking enforcement would still have been the same.



Consequently, I have no evidence before me to refute the Appellant’s submission that the parking charge is unenforceable.


I must allow the appeal on this ground.


Matthew Shaw

Assessor


Private parking tickets unrelated to any genuine loss are unenforceable penalties, as was found in the Parking Eye v Smith case 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).


BREACH OF UTCCR 1999
Furthermore no terms of the alleged contract are individually negotiated, and the terms create a serious imbalance to the benefit of the company and the detriment of the consumer. Clearly, then, the terms of the alleged contract fall foul of the Unfair Terms in Consumer Contracts Regulations 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.

Other Court case examples -
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 a 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...''


CONCLUSION

I believe this ‘charge’ for an alleged ‘breach’ is in fact an unlawful attempt at a penalty, as was found in the case of Excel Parking Services v Hetherington-Jakeman (2008) also OBServices v Thurlow (review, February 2011) and in the case with the same Operator, Parking Eye v Smith (Manchester County Court December 2011). Parking Eye will not be able to refute this fact - however many pages of evidence they may send to POPLA - and so this punitive charge is therefore unenforceable in law.

I respectfully request that this appeal be allowed.

yours,

NAME