Parking Eye - Should I Ignore?

wilsonf1

Coupon-mad wrote: »

Be careful what you copy & paste, I spotted that these (struck out below) bullet points aren't even relevant - but you need to re-read your appeal to make sure there's nothing else not applicable to a free car park!

Second attempt. Thanks for the great feedback. Hopefully this one fits the bill:

On the xx of June 2013, the registered keeper of car registration xxxxx was issued a PCN by Parking Eye Ltd for parking in the xxx Retail Park. There are a number of reasons why I would like to challenge this PCN:


1) No contract with the site that permits levying charges
The Parking Eye parking notice states that it has been served on behalf of the landowner (or vaguely states the land owners agent - without Parking Eye being able to specify who that is). However, I doubt that Parking Eye has the legal status and overriding right to pursue parking charge notices. I therefore require Parking Eye to supply to POPLA to review:

• A copy of the current signed site agreement or contract with the landowner/occupier of that site
• Contemporaneous photos of the actual signs on site taken from the view of the driver of a car where the car in question was parked.


Furthermore, I require that Parking Eye show POPLA proof that they have the right to charge and pursue motorists (including threats of debt recovery and court action).


2) Unclear signage for drivers
Parking Eye claims in its generic FAQ section that a contract is formed with the driver via the signage in the car park. I find that extremely questionable and would welcome Parking Eye being able to prove that every parking space in the car park has a clear and visible sign that meets the BPA code of practice. Furthermore, if there is a sign on the entrance to the car park, I would require that Parking Eye proves its legitimacy and whether this sign is easily readable to all drivers in a moving vehicle, particularly if the font size for all the included text isn't big or clear enough.


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 using the freely open car park without charge.


3) Inappropriate parking charge
The demand for a payment of £85 as noted within the Parking Charge is a punitive amount that has no relationship to the loss that would have been suffered by the Landowner. The BPA code of practice states:

19.5 If the parking charge that the driver is being asked to pay
is for a breach of contract or act of trespass, this charge
must be based on the genuine pre-estimate of loss that
you suffer.

19.6 If your parking charge is based upon a contractually
agreed sum, that charge cannot be punitive or
unreasonable.

I require Parking Eye to provide a detailed breakdown of how the amount of the 'charge' was arrived at. The PCN states that the registered keeper outstayed by 27 minutes at 9:50pm. Based on the fact that most of the retail outlets close at 8pm and the car park would be at the very least over 90% empty I cannot possibly see how Parking Eye are at an actual loss from this. This must be proved. I am also aware from court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimate losses and these are the only costs listed on the appeal rejection the registered keeper received in the post from Parking Eye.


4) The penalty charge is unlawful and therefore unenforceable
After establishing that there was no actual loss to the operator after Parking Eye used illegitimate 'pre-estimates of loss' reasons (according to the BPA's code of practice), it made me wonder if this charge is even enforceable.


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


5) No breach/trespass
As stated there was no actual loss to Parking Eye, the landowner or the landowners agent, therefore at most the allegation can only be a civil trespass. This is denied - and indeed the Parking Eye ticket did not mention trespass nor breach, so there is no charge applicable. However, for the avoidance of doubt, if Parking Eye do now try to allege that this is the nature of this 'charge' then the driver would be potentially only be liable for damages owed to the owner/occupier who may have suffered a loss. Since no ‘damage’ occurred in the car park and also given the fact that the car park was nowhere near full in the short time the car was on site (note the time from above), there was in fact no loss at all and this charge is purely a profiteering penalty, out of all proportion.


I can honestly see no grounds for this 'charge' and believe POPLA must inform Parking Eye to cancel the PCN.


Yours faithfully.
?????????????

Guys_Dad

Look, you are not a lawyer, so don't try to be clever. Why quote cases that, in all probability you don't know anything about? Unless, you do, of course. The vcs-v- ibbotson, although not a precedent, is more relavant as the judge in paras 22 onwards destroyed their claim about what constituted costs.

You need to keep it simple and to the point.

Just what does this bring to the argument

4) The penalty charge is unlawful and therefore unenforceable
After establishing that there was no actual loss to the operator after Parking Eye used illegitimate 'pre-estimates of loss' reasons (according to the BPA's code of practice), it made me wonder if this charge is even enforceable. (what does this actually mean?)


Private parking tickets unrelated to any genuine loss are unenforceable penalties, as was found in the Parking Eye v Smith 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. Sure it wasn't Sir Humphrey who wrote that?


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". ??????????


5) No breach/trespass
As stated there was no actual loss to Parking Eye, the landowner or the landowners agent, therefore at most the allegation can only be a civil trespass. This is denied - and indeed the Parking Eye ticket did not mention trespass nor breach, so there is no charge applicable. However, for the avoidance of doubt, if Parking Eye do now try to allege that this is the nature of this 'charge' then the driver would be potentially only be liable for damages owed to the owner/occupier who may have suffered a loss. Since no ‘damage’ occurred in the car park and also given the fact that the car park was nowhere near full in the short time the car was on site (note the time from above), there was in fact no loss at all and this charge is purely a profiteering penalty, out of all proportion.


You could leave this bit in, but I am sure that their standard claims are based on contract law rather than trespass.


Unclear signage - don't forget about being well lit for night, and the BPA approved colours.

But in general, a good appeal.

wilsonf1

OK I've scrapped point 4 - too much copying and pasting! I've put some real effort into the signage bit with some case specific points. Could you read the following to make sure I haven't slipped up in it?:

Parking Eye claims in its generic FAQ section that a contract is formed with the driver via the signage in the car park. I find that extremely questionable and would welcome Parking Eye being able to prove that every parking space in the car park has a clear and visible sign that meets the BPA code of practice.



Furthermore, Parking Eye placed their entrance sign on a tight corner which cannot be stopped on without blocking the traffic flow. The entrance sign appears on the wall of Staples and is actually positioned closer to the entrance of a staff car park than it is to the public car park. I challenge whether their signs are sufficiently positioned, sufficiently lit (especially based on the late entry time to the car park) and all conform to the BPA specification colours and font size.


Another real point of confusion relating to this car park is the fact that the entrance features a disused manned ticket office with the barrier long gone, giving the impression that the car park is now free open to the public.


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 using the freely open car park without charge.

Guys_Dad

Your bit "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 using the freely open car park without charge."

do you not mean "that a conscious decision was made by the driver to accept conditions that included the extortionate fixed amount for overstaying that the Operator is now demanding."

wilsonf1

Yes that makes much more sense! Did the rest look ok?

Guys_Dad

This was only the signage bit, yes? You still have the other points too, I trust.

Put it all together, remember to put in bold any time you require the PPC to do or produce anything, of require POPLA to do something (eg I put the PPC to strict proof that their contract with the landowner gives them PPC the right to pursue up to court action a motorist for these charges. and, in order to offer such proof, I require the PPC to produce a copy of the contract to POPLA)

wilsonf1

Yep it was just the signage bit. Other than that, I just removed the whole section 4 as it was wishy washy.

I will post this to POPLA so there is no trimming going on!

Thank you for your help mate! Fingers crossed eh....

I think the point 3 - Inappropriate parking charge is surely my best bet of winning this?

Umkomaas

OP - I can't see anything in your appeal that requires PE to prove the accuracy and supply the maintenance schedule of their ANPR camera system, otherwise how are you as the RK certain that the date and time they have superimposed on the photo of your car is precisely (the operative word) that referring to the date and time the driver accessed the car park and the amount of time the driver spent there?

wilsonf1

Umkomaas wrote: »

OP - I can't see anything in your appeal that requires PE to prove the accuracy and supply the maintenance schedule of their ANPR camera system, otherwise how are you as the RK certain that the date and time they have superimposed on the photo of your car is precisely (the operative word) that referring to the date and time the driver accessed the car park and the amount of time the driver spent there?

Thank you! This is a good point to add.

Umkomaas

wilsonf1 wrote: »

Thank you! This is a good point to add.

Well, here's the quote from the BPA CoP:

21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner.Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.

21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.

21.3 You must keep any ANPR equipment you use in your car parks in good working order.You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.The processes that you use to manage your ANPR system may be audited by our compliance team or our agents.

Plenty to go to town on here.

You're doing well OP :T