ParkingEye POPLA appeal

tadine

Please can I have some help with POPLA appeal as I'm not too legal minded. My friend and I had overstayed our welcome at a ParkingEye shopping centre car park, we were happily shopping and enjoyed a coffee break before we knew it's over the max stay period, although not too obvious to us at the time until I received a ParkingEye PCN and they had CCTV footage of my car entering and leaving, problem is I don't have any receipts from the shops as my friend were the shoppers and they were from oversea and had returned, I've been given a POPLA code, what's the best way to structure a POPLA appeal?

Guys_Dad

Read through the POPLA Decisions thread at the top of this forum to see the content and points that have won at POPLA.

Mitigation never wins - technical failures on the PPC wins, as you will see.

tadine

cheers Guys Dad, after reading through, I've draft the following:

[FONT=&quot]Dear POPLA adjudicator[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]POPLA appeal re ParkingEye ticket number xxxxxx POPLA code xxxxxx[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]As the registered keeper of this car I am not legally liable for the parking charge. In addition, the vehicle was not improperly parked. As such, the parking 'charge' notice (ticket) also exceeded the appropriate amount.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]No contract[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Parking Eye has not provided me with any evidence that it is lawfully entitled to demand money from the driver, since they do not own nor have any interest or assignment of title 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, or indeed to allege a breach of contract. I would require POPLA to check whether Parking Eye have provided a full copy of the actual site agreement/contract with the landowner/occupier (not just a signed slip of paper saying it exists) and check whether that contract specifically enables them to pursue parking charges in the courts, and whether that contract is compliant with the requirements set out in the BPA Code of Practice.[/FONT][FONT=&quot]

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

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.
On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA COP and also fails to comply with the CPUTR 2008, the UTCCR 1999, the Equality Act 2010 and basic contract law.



In addition I submit that the Operator has breached the BPA Code by not stating on their signs that automatic number plate recognition is being used at the site. I further contend that Parking Eye have failed to show any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR) and would require POPLA to consider that particular section of the Code in its entirety and decide whether the Operator has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence.

The Operator alleges that, on the date in question, the driver of the vehicle 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 party which is in the public domain, as having stated in 2013 that all their charges are based on 'breach of contract'. I believe this is also the basis upon which Parking Eye have told the DVLA that they have had 'reasonable cause' to continuously obtain data by a permanent EDI link. It is also clear from the following wording of the Notice to Keeper that they are alleging breach of contract rather than requesting payment of an agreed charge: "By remaining at the car park for longer than the stay authorised or without authorisation, in accordance with the terms and conditions set out in the signage, the Parking Charge is now payable to ParkingEye Ltd (as the Creditor)". 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 or damages in this particular car park for this particular 'contravention'.

If the pre-estimate of loss contains any of the following, then I contend that these are the costs of running a business and I requires the PPC to confirm to POPLA whether or not the pre-estimate of loss contains some or all elements of

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



Therefore, these 'charges' for an alleged 'breach' are in fact unlawful attempts at penalties, as was found in the case of Excel Parking Services v Hetherington-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 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 ask POPLA to direct ParkingEye to cancel this ticket.

Signed:

Dated:[/FONT]

Guys_Dad

OK, you are getting there.

On the pre-estimate of costs, you need to flesh that out.

Add that you do not believe that these are a genuine pre-estimate of costs and you require the PPC to provide what makes up these costs.

If you contend that they fail to follow BPA guidelines, then you need to quote the words on the BPA web site.

Also, have a look at this one http://forums.moneysavingexpert.com/showpost.php?p=62472201&postcount=32 Post #32

Never be ashamed of plagiarising other people's good work in circumstances such as this, but do change the words around a little so that the PPCs can't accuse you of using a template.

May I also compliment you on actually doing the research. Too many come on here and want it all done for them without putting in the effort. :beer:

tadine

Big thanks Guys Dad, I really do enjoy reading them, particularly Parking Prankster's (shame that's not my style of doing thing but still cheers me up no end). I do know I still need to change a bit more wording but how is this look to you?

As the registered keeper of this car I would like to point out that I am not legally liable for the parking charge. In addition, the vehicle was not improperly parked. As such, the parking 'charge' notice (ticket) also exceeded the appropriate amount. Parking Eye is requiring payment from the Registered Keeper under Schedule 4 of the Protection of Freedoms Act 2012. The keeper says they have not met all the conditions imposed by this Act and so there is no obligation or liability on them 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.

By making free parking available to prospective customers the owners and/or management of the retail centre 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 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.

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.

No contract

Parking Eye has not provided me with any evidence that it is lawfully entitled to demand money from the driver, since they do not own nor have any interest or assignment of title 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, or indeed to allege a breach of contract. I would require POPLA to check whether Parking Eye have provided a full copy of the actual site agreement/contract with the landowner/occupier (not just a signed slip of paper saying it exists) and check whether that contract specifically enables them to pursue parking charges in the courts, and whether that contract is compliant with the requirements set out in the BPA Code of Practice.

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

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.

On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA COP and also fails to comply with the CPUTR 2008, the UTCCR 1999, the Equality Act 2010 and basic contract law.

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



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 retail centre arising from the alleged overstay; accordingly the charge sought is an unenforceable contractual penalty.
The Operator alleges that, on the date in question, the driver of the vehicle 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 party which is in the public domain, as having stated in 2013 that all their charges are based on 'breach of contract'. I believe this is also the basis upon which Parking Eye have told the DVLA that they have had 'reasonable cause' to continuously obtain data by a permanent EDI link. It is also clear from the following wording of the Notice to Keeper that they are alleging breach of contract rather than requesting payment of an agreed charge: "By remaining at the car park for longer than the stay authorised or without authorisation, in accordance with the terms and conditions set out in the signage, the Parking Charge is now payable to Parking Eye Ltd (as the Creditor)". 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 or damages in this particular car park for this particular 'contravention'. I do not believe that the parking charge amount to a genuine pre-estimate costs and I require Parking Eye to provide what makes up these costs.


These 'charges' for an alleged 'breach' are in fact unlawful attempts at penalties, as was found in the case of Excel Parking Services v Hetherington-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 to refute this fact - however much evidence they may send to POPLA – and so this punitive charge is therefore unenforceable in law.

I respectfully ask POPLA to direct Parking Eye to cancel this ticket.

Coupon-mad

Signage at the entrance is IMHO, pretty much always too high and unreadable in PE car parks. BPA CoP - in the appendix about Entrance Signage - says (effectively) they must have full t&cs at a height & position that a driver can't fail to understand the terms when first arriving and without having to park first then get out of the car. Lord Denning clarified that 'prominent signage' point as essential to any such contract in Mendelssohn v Normand Ltd [1970] 1 QB177 as quoted here:

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

So if you haven't sent it yet add a paragraph about signs even if you had thought 'oh there are several signs so that must be OK'. NOPE. Always make the PPC have to produce maps and photos of the signs at a site (their response evidence could be wrong, as the in the Parking Prankster 'wrong car park map' case with Highview!).

Also I felt you need a few more headings because you have made some points which are sort of hidden within another headed section (such as your points about 'no pre-estimate of loss', 'no consideration so no contract capable of forming a contract with a driver' and 'ANPR camera requirements of BPA CoP' issue).

Nice POPLA appeal and good to see you write it yourself so it's clear you've researched and now understand the issues more than a lot of newbies!

:T

tadine

thanks Coupon-mad, that may be useful for the Court if ever get to that, had sent it without your additional points and got a POPLA decision date around Oct, will post the decision here once I have it.

tadine

Moneysavingexpert 1 : Parking Eye 0, just received decision today from POPLA, the appeal was allowed on the basis that the Operator has failed to prove that the parking charge amount was a genuine pre-estimate of loss. Thanks everyone for the help here, and Guys Dad, Coupon-mad's contribution.

4consumerrights

Well done Tadine & Co!:beer:

Yet Another Loss for Parking Eye - what a shame!:rotfl::rotfl: