parking eye monacho in canvy

londonmum2013

Dear POPLA,

I'm writing this to appeal a charge sent to me by ParkingEye Limited ('PE'). This occurred after my vehicle entered and exited a car park in ,the monacho in canvy on 04/08/2013. PE claim that the vehicle's driver owes them £100 (reduced tp 50 if early payment is made) for overstaying. I now want to set out why I'd like you to cancel this charge.


NO GRACE PERIOD - BREACH OF BPA CODE OF PRACTICE
The BPA Code of Practice indicates at paragraph 13.4 that the Operator should “allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.” And at 18.5 the Code says: ''If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.''

The signage in the car park provides no indication of the period of time it allows and this is unreasonable and an unfair contract term, especially as Parking Eye rely on pictures taken of a vehicle at first arrival and then when leaving (not showing any evidence at all of actual parking time). How can any driver make an informed decision here at this site? In a P&D car park the alleged 'contract' can only be made by clear signs on arrival (not the case here) or only after the driver has read the signs at the machine, paid and made a conscious decision to stay (did not happen and the driver left after realising payment would have been needed). To charge a driver for arriving and reading the signs, with no indication of that possibility on any signs and no way to drive out without being charged, is entrapment and an unfair term, therefore any alleged 'contract' would be unenforceable.

In reality, the driver believed it to be a free car park on arrival and the vehicle actually stopped/parked for less than 10 minutes which should certainly within any 'reasonable grace period' offered in any car park ostensibly 'run' by an AOS member firm. After getting the children ready to come to come out of the car, the driver realised it was a P&D car park (not clear from entrance signage, t&cs not seen from driver level at all). The driver then read a sign by a machine to see the costs and realised that they had no change. They looked for a change machine or shop where change could be obtained quickly but this would have caused undue delay and the driver was not willing to run the risk of getting a parking ticket. So they then put the children back in the car and drove out of the car park, unaware that cameras were recording entrance/exit and certainly not entering into any contract with Parking Eye.

No breach of contract by the driver can be demonstrated by their evidence at all because they have not shown any allowed Grace Period on the Notices nor in the reply to my appeal. And the entrance to this car park does not make it clear with any signage at driver level that it is a P&D car park. On that basis, the sum claimed fails to meet the standards set out in paragraph 19 of the BPA Code of Practice as well as breaching paragraph 13.4 and 18.5 on 'Grace Periods' and the Appendix on 'Entrance Signage'.



can i use this even if slightly different to my 1st appeal ?

Coupon-mad

Your POPLA appeal can and should be completely different from your first appeal - but I fear you have missed the point, that was ONLY one paragraph of what should be a long POPLA appeal!

I said 'as you can see from that link I gave you, there are details on 'what to include in a POPLA appeal' so make sure you include all those points, and you will need a 'no grace period' paragraph...'

londonmum2013

so hard to open an read all the links using a phone i will keep trying thank you coupon mad !

Coupon-mad

Surely you have some way of accessing those links on a PC somewhere? I can't write the appeal for you and if you just read, understand & copy from the links you'd have a much stronger draft POPLA appeal.

londonmum2013

thanks coupon mad i have been cut off the internet so phones the only way think i;ll just pay the 60 far less stressful thanks for all your help an info

Crabman

londonmum2013 wrote: »

thanks coupon mad i have been cut off the internet so phones the only way think i;ll just pay the 60 far less stressful thanks for all your help an info

Your local library has computers available for public use if you've had your internet cut off.

londonmum2013

any good to send ?


I'm writing this to appeal a charge sent to me by ParkingEye Limited ('PE'). This occurred after my vehicle entered and exited a car park in ,the monacho in canvy on 04/08/2013. PE claim that the vehicle's driver owes them £100 (reduced tp 50 if early payment is made) for overstaying. I now want to set out why I'd like you to cancel this charge.

In particular the fact that the sign at the entrance is very difficult to see as i didn't see any on approach It is also difficult to see any signs because to stop and read it would block the flow of traffic and pedestrians
once inside the car park you can read the sings but by then its to late you have entered !! seems very unfair

1 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.


2 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 ofExcel 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 GRACE PERIOD - BREACH OF BPA CODE OF PRACTICE
The BPA Code of Practice indicates at paragraph 13.4 that the Operator should “allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.” And at 18.5 the Code says: ''If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.''

The signage in the car park provides no indication of the period of time it allows and this is unreasonable and an unfair contract term, especially as Parking Eye rely on pictures taken of a vehicle at first arrival and then when leaving (not showing any evidence at all of actual parking time). How can any driver make an informed decision here at this site? In a P&D car park the alleged 'contract' can only be made by clear signs on arrival (not the case here) or only after the driver has read the signs at the machine, paid and made a conscious decision to stay (did not happen and the driver left after realising payment would have been needed). To charge a driver for arriving and reading the signs, with no indication of that possibility on any signs and no way to drive out without being charged, is entrapment and an unfair term, therefore any alleged 'contract' would be unenforceable.

In reality, the driver believed it to be a free car park on arrival and the vehicle actually stopped/parked for less than 15 minutes which should certainly within any 'reasonable grace period' offered in any car park ostensibly 'run' by an AOS member firm. After getting the children ready to come to come out of the car, the driver realised it was a P&D car park (not clear from entrance signage, t&cs not seen from driver level at all). The driver then read a sign by a machine to see the costs and realised that they had no change. They looked for a change machine or shop where change could be obtained quickly but this would have caused undue delay and the driver was not willing to run the risk of getting a parking ticket. So they then put the children back in the car and drove out of the car park, unaware that cameras were recording entrance/exit and certainly not entering into any contract with Parking Eye.

No breach of contract by the driver can be demonstrated by their evidence at all because they have not shown any allowed Grace Period on the Notices nor in the reply to my appeal. And the entrance to this car park does not make it clear with any signage at driver level that it is a P&D car park. On that basis, the sum claimed fails to meet the standards set out in paragraph 19 of the BPA Code of Practice as well as breaching paragraph 13.4 and 18.5 on 'Grace Periods' and the Appendix on 'Entrance Signage'.


NO GENUINE PRE-ESTIMATE OF LOSS
I believe that the amount of charge is disproportionate to the suggested loss incurred by Parking Eye.


SIGNAGE NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NOT FORMING A CONTRACT WITH A DRIVER
I believe the signs and any core parking terms Parking Eye are relying upon were unclear in all respects. This Operator needs to show POPLA their evidence and signage map/photos which they might contend meet all the requirements I have listed below.

There are no low-positioned, clear signs on entry to this car park which would have communicated the terms & conditions of parking there to a seated driver in moving traffic. This is a breach of the BPA Code of Practice at Appendix B which sets out strict requirements for entrance signage, including ''The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead'' and ''There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read...''



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 UTCCR 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.



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 an depression 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,

londonmum

londonmum2013

trying to get on /www.popla.org.uk/uploadevidence.htm an enter my popla ref number but its not working just getting the message Verification number invalid - please re-enter the code. If it is not recognised please contact the operator who issued you with the verification code.


been trying to call for the last 3 hurs an its engaged

Guys_Dad

Why not just post it with a certificate of posting? Make sure that you have the correct number and include the letter from the PPC with the POPLA code in to show that, if it is wrong, it's not YOUR mistake.

londonmum2013

wanted to email it as i'm not any good at putting pen to paper