My POPLA appeal. Any thoughts?

Spare_Me_A_Dime

Hi everyone

I've justcobbled together my draft POPLA appeal against my PE fine and wonder what youthink of it. It's a real cut-and-paste job I'm afraid and I give my sincerethanks to everyone I've stolen bits off. I couldn't have managed it withoutyou.



"APPEAL RE: PARKING EYE CHARGE ******/******,********* CAR PARK **/**/2013, VEHICLE REG: **** ***

I am not liablefor the parking charge and the vehicle was not improperly parked. As such, the parking'charge' notice exceeds the appropriate amount.

As theregistered keeper, I wrote to Parking Eye to appeal this ticket but theirresponse gave no clear evidence that I am liable for the parking charge.

I furthercontend that Parking Eye have failed to show me any evidence that the camerasin this car park comply with the requirements of the BPA Code of Practice part21 (ANPR) and would require POPLA to consider that particular section of theCode in its entirety and decide whether the Operator has shown proof ofcontemporaneous manual checks and full compliance with section 21 of the Code,in its evidence.

Parking Eye havealso not provided me with any evidence that it is lawfully entitled to demandmoney 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

I contend thatthe signs and any core parking terms Parking Eye are relying upon were toosmall for any driver to see, read or understand when driving into this car park.I also recall that the sign lighting was particularly poor around dusk whenthis ‘contravention’ was supposed to have occurred. I request that POPLA shouldcheck the Operator's evidence and signage map/photos on this point and comparethe signs to the BPA Code of Practice requirements. I contend that the signs inthis car park (wording, position, clarity) do not comply and fail to properlywarn/inform the driver of the terms and any consequences for breach,

Parking Eye havealso provided no evidence that the pre-estimated amount of loss or damages inthis particular car park for this particular 'contravention' is justified."



So, is it okay?I did consider adding that it was my underlying clinical anxiety that caused meto pull in and park in the first place (this wouldn't be too far from the truthas I had been driving many hours and was starting to feel anxious) but as whatI suffer from is technically noise anxiety (although other things can set itoff) it probably wouldn't help my case. Also, it was only diagnosed veryrecently and I haven't yet received any treatment for it so proving that Isuffer from it with doctor's notes, etc may be difficult.

By the way, howlong do people generally have to wait for a decision? I hope it's less than twoweeks otherwise the fine is going to increase in the meantime.

Coupon-mad

You would do better to have added it to your existing thread as posters glancing at this thread haven't a clue as to your situation:

https://forums.moneysavingexpert.com/discussion/4693439

I know you've already said that you suffer from clinical anxiety and I think you have done a great job to pull this appeal together. It angers me that vulnerable people are harassed like this by scum PPCs.

The fine is not going to increase as it is NOT a real fine! You will not be paying it so forget the bribe of the so-called discount! The scam fake PCN goes on hold once you send a POPLA appeal and the decisions at the moment take 3 or 4 MONTHS!

If you did lose you could still pay it then but you would not HAVE to because the decision is not binding on you. Conversely, if Parking Eye lose they do have to cancel it.

Please relax and as soon as you have sent it, forget about it. But wait a bit to perfect it!

Can I add my suggestions, as below in a suggested 'fuller version' which does mention your clinical anxiety because you are protected by the Equality Act 2010 from the very moment of diagnosis and do you not have to prove it. IMHO they should be told about this medical condition because it is relevant. From my experience (life experience and working with people with similar conditions in a couple of previous jobs) anxiety fixated mainly towards one thing (noise) can be the tip of the iceberg.

We can tell from your posts how stressed this fake PCN has made you as well as the fact you were stressed after driving for several hours.

What about this, be careful to attach it to your email to POPLA and do not try to copy & paste it into the box provided as a long appeal will be cut off short! Or send it by post if you have a hard copy POPLA appeal form.






Dear POPLA,

APPEAL RE: PARKING EYE CHARGE ******/******,********* CAR PARK **/**/2013, VEHICLE REG: **** ***

I am not liable for the parking charge and the vehicle was not improperly parked. As such, the parking 'charge' notice exceeds the appropriate amount. 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.


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. There are also no pictures of the windscreen displaying (properly or not) a P&D ticket if there was such a machine on site and the Operator has not even explained the breach. Was there no P&D ticket displayed or was the car registration number not properly entered?

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.


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 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.


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.


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.

It is not clear whether Parking Eye are suggesting that the driver has not properly displayed a ticket or perhaps not properly entered the vehicle registration details into a machine after parking, but in either case any 'loss' could only be the amount of the payment due for 40 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).

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.


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 UNFAIR TERMS ACT 1977 and BREACH OF UTCCR 1999
Finally, I believe Parking Eye are in breach of the Unfair Terms Act 1977 and 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.



CONCLUSION AND EQUALITY ACT 2010 PROTECTION AGAINST HARASSMENT
I feel I need to state now that this matter has already caused me a huge amount of upset and distress - and POPLA need to know that this is not a case of 'mitigating circumstances' so please do not dismiss this point.

The fact is, I suffer from clinical anxiety and so if Parking Eye pursue this charge (if it is not cancelled at this stage) they will be in breach of the Equality Act 2010. People with 'protected characteristics' such as the effects of my recently-diagnosed anxiety are specifically protected from harassment under that Act.

As such, and because of the evidence in my appeal, I believe POPLA should order that this unjustified charge is cancelled.


yours,

NAME

Spare_Me_A_Dime

Thank you so much coupon_mad. You've made my week. You're absolutely right, I should have posted it in my last thread but at the time I feared no-one would notice it back there. As you can probably tell, I've never even posted on any forum before and am still slightly unsure of how it all works.

Anyway, thanks again and I'll fire that off to POPLA asap and keep my fingers crossed.

Guys_Dad

Spare_Me_A_Dime wrote: »

Thank you so much coupon_mad. You've made my week. You're absolutely right, I should have posted it in my last thread but at the time I feared no-one would notice it back there. As you can probably tell, I've never even posted on any forum before and am still slightly unsure of how it all works.

Anyway, thanks again and I'll fire that off to POPLA asap and keep my fingers crossed.

Just don't open another thread when you come back, win or lose, will you?

And if this forum has been of help, please remember to come back too. It's only with results that regulars can see what is winning and losing. Good luck.