Parking Eye - POPLA Appeal advice sought!

markahoy

Having read through several of the forums here, I realise there is a load of info, so I'm asking for a bit of assistance, rather than to be spoon-fed!

I've looked at the thread posted by Custard Pie - "PoPLA evidence - What to submit" (sorry, can't seem to post this as a link), and it gives some excellent suggestions for the basis of an appeal...just wanted to check the opinion of those in the know as to whether there is anything else, given the specific circumstances (below), that I should consider including?

Details so far...

I recently received a Parking Charge Notice from Parking Eye, having overstayed my welcome in a 2 hour free car park, by less than 15 minutes.

Without wanting to give too much away...I was driving my wife's car, so the notice was addressed to her.

Having looked at advice on MSE forums, my wife (well I, really) replied to Parking Eye stating that "the keeper denies all liability to your company - it is an unlawful punitive charge, therefore a penalty". My letter gave no indication of who was driving at the time.

I requested they accept this, or provide a POPLA code.

They have now rejected this (as expected) with a fairly generic letter, and provided a POPLA code and appeal form.

They say they have rejected my appeal as 'you have not provided sufficient evidence to show that you did not break the terms and conditions on the signage'.

They go on to say that their charges are fair and reasonable, and are a genuine pre-estimate of loss, as they incur significant costs in managing the car park and ensuring that motorists comply with the stated T&Cs.

As far as the charges being a fair estimate of loss, I would argue that they weren't, as the car park (at a retail centre) was pretty much deserted when I arrived shortly after 6pm. By the time my free 2 hours ran out, all of the shops on the retail park had been closed for at least 15 minutes, so the shops couldn't possibly be losing any income by my remaining in the car park for another 15 minutes (and by that time the car park was around 95% empty).

There is also another council car park 200 yards away (as I now realise!) that is free after 6pm anyway - so how can £100 be considered reasonable for 15 minutes too long in the PE car park?

I know that there are other things to appeal on...wanting to see a full, signed copy of the contract between PE and the landowner, proof of calibration of the CCTV equipment, but I don't want to go into loads of spurious detail.

Any assistance would be most gratefully received!

Guys_Dad

You need to submit a POPLA appeal that will win.

The current 2 major winning points are (a) amount claimed is not a genuine preestimate of loss and (b) the PPC has no valid contract from the landowner that gives them authority to levy these charges on the motorist.

Please look at the POPLA Decisions stickt=y thread but concentrate on the last 3 or 4, ignoring the Prankster's test cases which he lost on purpose.

But in addition, if you were genuinely only less than 15 minutes over, you must look at the BPA code of practice on their web site where they have a section on Grace period. http://www.britishparking.co.uk/write/Documents/AOS/AOS_CoP_June_2013_update.pdf

Now PE have other sites that allow 15 minutes grace. I would do something slightly different this time.

I would fire a quick email off to PE saying that you are quite happy to go to POPLA with their code, but you notice that on other PE managed car parks they have a grace period of 15 minutes and would they prefer to cancel the charge rather than you going to POPLA with that as one of your appeal points as you were only x minutes over.

See what they say. Nothing lost, although you should only give them a couple of days to reply as you need to use your POPLA code within the requisite timescale.

markahoy

Thanks Guys Dad, I had hoped to concentrate on those two areas...

The issue of 'the amount claimed is not a genuine pre-estimate of loss' would seem (to my inexpert mind) to be even stronger in this case where all of the shops in the retail park were shut when the 2 hour free period ended (and the car park deserted!)

It would seem logical to suggest that they have lost nothing at all.

I'll have a look into the grace period wording in the BPA Code of Practice too...thanks!

Custard_Pie

markahoy wrote: »

Having read through several of the forums here, I realise there is a load of info, so I'm asking for a bit of assistance, rather than to be spoon-fed!

I've looked at the thread posted by Custard Pie - "PoPLA evidence - What to submit" (sorry, can't seem to post this as a link), and it gives some excellent suggestions for the basis of an appeal...just wanted to check the opinion of those in the know as to whether there is anything else, given the specific circumstances (below), that I should consider including?

Details so far...

I recently received a Parking Charge Notice from Parking Eye, having overstayed my welcome in a 2 hour free car park, by less than 15 minutes.

Without wanting to give too much away...I was driving my wife's car, so the notice was addressed to her.

Having looked at advice on MSE forums, my wife (well I, really) replied to Parking Eye stating that "the keeper denies all liability to your company - it is an unlawful punitive charge, therefore a penalty". My letter gave no indication of who was driving at the time.

I requested they accept this, or provide a POPLA code.

They have now rejected this (as expected) with a fairly generic letter, and provided a POPLA code and appeal form.

They say they have rejected my appeal as 'you have not provided sufficient evidence to show that you did not break the terms and conditions on the signage'.

They go on to say that their charges are fair and reasonable, and are a genuine pre-estimate of loss, as they incur significant costs in managing the car park and ensuring that motorists comply with the stated T&Cs.

As far as the charges being a fair estimate of loss, I would argue that they weren't, as the car park (at a retail centre) was pretty much deserted when I arrived shortly after 6pm. By the time my free 2 hours ran out, all of the shops on the retail park had been closed for at least 15 minutes, so the shops couldn't possibly be losing any income by my remaining in the car park for another 15 minutes (and by that time the car park was around 95% empty).

There is also another council car park 200 yards away (as I now realise!) that is free after 6pm anyway - so how can £100 be considered reasonable for 15 minutes too long in the PE car park?

I know that there are other things to appeal on...wanting to see a full, signed copy of the contract between PE and the landowner, proof of calibration of the CCTV equipment, but I don't want to go into loads of spurious detail.

Any assistance would be most gratefully received!

For an appeal to PE, the contents of the appeal don't have to be detailed as they will reject. For PoPLA, it's a case of going all in as per my appeal post in my signature. The more information provided, the better as it gives PoPLA less wriggle room when making a decision. Yes, currently Pre-estimate of loss and lack of authority to pursue a charge are clear winners at PoPLA, but does not mean by the time they hear yours that hasn't all changed again. By providing a full and complete list as evidence, an appeal stands more chance of winning.

Guys_Dad

Absolutely. The appeal to Parking Eye should be solely on Grace and save your big guns for POPLA.

markahoy

Apologies for the long post...but I have drafted my POPLA Appeal...would appreciate someone giving it the once-over before I submit!

Many thanks!

---

I am the driver of the vehicle related to the parking charge notice number xxxxxx received from ParkingEye.

The Parking Charge Notice relates to an overstay of only 14 minutes in a “2 Hours Free” car park at xxxxxxx Retail Park.

I have researched the matter, taken legal advice and would like to point out the following as my appeal against said charge:

GRACE PERIOD

The BPA Code of Practice states that the driver should be allowed a reasonable grace period, and I would contend that in this case, a period of 15 minutes grace would not be unreasonable. I am aware that ParkingEye have other car parks which do have a grace period of 15 minutes, so this would seem to be a period which they themselves deem to be reasonable.

The Penalty of £100 for an overstay of 14 minutes would seem to be going against the principle of allowing reasonable grace.

CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND/OR NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES

ParkingEye does not appear to own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, ParkingEye has not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.

I require ParkingEye to provide a full copy of the actual contemporaneous, signed & dated contract with the landowner.

Contracts are complicated things, so a witness statement signed by someone is not good enough, neither is a statement that a person has seen it. A copy of the original showing the points above is the only acceptable items as evidence that a contract exists and authorises ParkingEye the right, under contract to write numerous letters to an appellant chasing monies without taking them to Court, to pursue parking charges in their own name, to retain any monies received from appellants and to pursue them through to Court.

I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.

I do not believe that ParkingEye has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges. It was stated that: "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be." The ruling of the Court was that "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." In other words, they are not, as ParkingEye asserts, a contractual term. If they were a contractual term, ParkingEye would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that ParkingEye’s charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses, as set out above.

USE OF ANPR and DATA COLLATION

I further contend that ParkingEye has failed to show me 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 them to provide documented compliance to this section of the Code in its entirety.

This evidence must show documentary proof of contemporaneous manual checks, maintenance, calibration and full compliance with section 21 of the Code, in its evidence.

I also challenge ParkingEye to show that DPA registration (data collecting CCTV) is also complaint with legal and BPA requirements and demand that they demonstrate adherence.

NO CONTRACT WITH THE DRIVER

There is no contract between PCC and the driver, but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc, were not satisfied.

UNFAIR TERMS

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "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" and 5(2) states: "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."

UNREASONABLE

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS

There was no parking charge levied, the car park is “free” for 2 hours. On the date of the claimed loss it was only at roughly 15% capacity (3 of the 7 shops at the retail park had already closed by the time of my arrival) and there was no physical damage caused. Furthermore, by the time the 2 hours free parking had expired, all of the shops at the retail park had been closed for at least 15 minutes (some for several hours). There can have been no loss arising from my overstay of less than 15 minutes. Neither can ParkingEye lawfully include their operational day-to-day running costs in enforcing parking restrictions at the site (for example, by erecting signage and employing administration staff) in any 'loss' claimed. This does not represent a loss resulting from a breach of the alleged parking contract. In other words, were no breach to have occurred, the cost of parking enforcement would still have been the same. This has been quoted by PoPLA itself in adjucation.

I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.

The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges – as I later discovered, a council car park 200 yards away is free after 6pm, 7 days a week. This is all the more so for the additional charges which operator states accrues after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by 40% by early payment that it is unreasonable to begin with.

UNLAWFUL PENALTY CHARGE

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .

The operator is either charging for losses or it is a penalty/fine.

The operator could state the letter as an invoice or request for monies, but chooses to use the wording “PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.

SUMMARY

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 basic contract law.

markahoy

Apologies for bumping this to the top again, but I'm hoping to get my appeal posted either today or tomorrow, so any views on the appeal wording appreciated.

I'll make sure to keep the forum up to date with the outcome...fingers crossed!

Guys_Dad

markahoy wrote: »

Apologies for the long post...but I have drafted my POPLA Appeal...would appreciate someone giving it the once-over before I submit!

Many thanks!

---

I am the driver of the vehicle related to the parking charge notice number xxxxxx received from ParkingEye.

The Parking Charge Notice relates to an overstay of only 14 minutes in a “2 Hours Free” car park at xxxxxxx Retail Park.

I have researched the matter, taken legal advice and would like to point out the following as my appeal against said charge:

GRACE PERIOD

The BPA Code of Practice states that the driver should be allowed a reasonable grace period, and I would contend that in this case, a period of 15 minutes grace would not be unreasonable. I am aware that ParkingEye have other car parks which do have a grace period of 15 minutes, so this would seem to be a period which they themselves deem to be reasonable.

The Penalty of £100 for an overstay of 14 minutes would seem to be going against the principle of allowing reasonable grace.

CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND/OR NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES

ParkingEye does not appear to own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, ParkingEye has not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.

I require ParkingEye to provide a full copy of the actual contemporaneous, signed & dated contract with the landowner.

Contracts are complicated things, so a witness statement signed by someone is not good enough, neither is a statement that a person has seen it. A copy of the original showing the points above is the only acceptable items as evidence that a contract exists and authorises ParkingEye the right, under contract to write numerous letters to an appellant chasing monies without taking them to Court, to pursue parking charges in their own name, to retain any monies received from appellants and to pursue them through to Court.

I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.

I do not believe that ParkingEye has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges. It was stated that: "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be." The ruling of the Court was that "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." In other words, they are not, as ParkingEye asserts, a contractual term. If they were a contractual term, ParkingEye would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that ParkingEye’s charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses, as set out above.

USE OF ANPR and DATA COLLATION

I further contend that ParkingEye has failed to show me 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 them to provide documented compliance to this section of the Code in its entirety.

This evidence must show documentary proof of contemporaneous manual checks, maintenance, calibration and full compliance with section 21 of the Code, in its evidence.

I also challenge ParkingEye to show that DPA registration (data collecting CCTV) is also complaint with legal and BPA requirements and demand that they demonstrate adherence.

NO CONTRACT WITH THE DRIVER

There is no contract between PCC and the driver, but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc, were not satisfied.

UNFAIR TERMS

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "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" and 5(2) states: "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."

UNREASONABLE

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS

There was no parking charge levied, the car park is “free” for 2 hours. On the date of the claimed loss it was only at roughly 15% capacity (3 of the 7 shops at the retail park had already closed by the time of my arrival) and there was no physical damage caused. Furthermore, by the time the 2 hours free parking had expired, all of the shops at the retail park had been closed for at least 15 minutes (some for several hours). There can have been no loss arising from my overstay of less than 15 minutes. Neither can ParkingEye lawfully include their operational day-to-day running costs in enforcing parking restrictions at the site (for example, by erecting signage and employing administration staff) in any 'loss' claimed. This does not represent a loss resulting from a breach of the alleged parking contract. In other words, were no breach to have occurred, the cost of parking enforcement would still have been the same. This has been quoted by PoPLA itself in adjucation.

I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.

The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges – as I later discovered, a council car park 200 yards away is free after 6pm, 7 days a week. This is all the more so for the additional charges which operator states accrues after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by 40% by early payment that it is unreasonable to begin with.

UNLAWFUL PENALTY CHARGE

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .

The operator is either charging for losses or it is a penalty/fine.

The operator could state the letter as an invoice or request for monies, but chooses to use the wording “PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.

SUMMARY

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 basic contract law.

The bit in red won't get you anywhere with PE and would actually act against you as I think they may consider the grace argument on its own.

Save the red bit - it's quite good - for POPLA if needed.

Umkomaas

OP - the POPLA appeal looks good, but don't rush that through to POPLA (unless you're right up against their deadline), rather go with Guy's Dad's suggestion of tackling the grace period directly with PE.

As much as I despise the company, they do seem to have a degree of common sense when it comes to recognising the futility of pursuing a no-win situation (submission of store receipts being a classic example). It makes it easier with a nice clean confirmation of cancellation by getting it direct from PE.

Whilst it's satisfying to stuff them at POPLA, it is somewhat of a pyrrhic nature if you could have had it cancelled much earlier. And don't forget, a POPLA appeal submitted today won't have you getting a decision much this side of the New Year.

Keep POPLA up your sleeve should your GD's suggested approach fail - but do remember not to take our eye off the ball in terms of the POPLA 28-day deadline.

Coupon-mad

Why have you outed yourself as the driver? We normally advise all appeals to be written in the name of the registered keeper about 'the driver' in the third person. Your position (your wife's) is stronger as the registered keeper than yours is as the driver, due to POFA and the hoops a PPC has to jump through for 'registered keeper liability'.

Nice POPLA appeal - but if you haven't already said who was driving then don't do so now.

Scouse_Magic

If parkingeye state that "Their charges are reasonable and fair, and are a genuine pre estimate of loss".....Why do they do themselves out of that supposed loss by offering 50% discount for prompt payment??....and if no one used the retail park at all in a seven day period, Parkingeye's business running cost's will be exactly the same, so that blows their argument out.......

They also claim they errect signage which is incorporated into their estimate of loss.....How many paying vehicles will it take both in the last few years and the future before they consider it paid for.....

Id love a good day out it court with this lot :beer: