Parking LBCCC - merits of making a 'without prejudice offer'

zzzLazyDaisy

ordinaryJoe wrote: »

PE have rejected my appeal, and have sent a POPLA appeal form with a verification code.

Strangely, they have addressed their correspondence to the RK rather than the driver, even though they were formally notified of the driver's name and address in earlier correspondence. Is that something I need to do something about, or should I just get on and use the POPLA code to make an appeal?

I am (unsurprisingly) unhappy with the reason PE have given for rejecting my appeal, which is exactly as follows:
It is still not clear to me whether this means that they think a ticket was not purchased (it was!) or whether they think there was not enough time on the ticket to cover the time the vehicle was parked (there was!).

It just means that, as a general rule, they don't read appeals, they just press the reject button!

Re writing to the RK there is another thread on here where they did exactly the same. This should form part of your appeal to POPLA as it is unclear who is supposes to be the appellant (since the code was provided to the RK, but they have already been notified of the driver's details and have sent a NtD to the driver, and the appeal to PPC was submitted by the driver, not the RK). From memory, in that case the POPLA appeal was sent in the names of BOTH RK and Driver.

There should also be a ROBUST complaint to BPA/DVLA since 1) they have no right to contact the RK as they have discharged their liability under POFA and 2) by corresponding with the RK about the driver's appeal, they have caused delay in the letter reaching the driver and have also breached the date protection act.

Am I right in remembering that you had to complain to BPA because they refused, initially, to allow the RK to name the driver? If so point that out in your letter to BPA - that this is the SECOND complaint that you have made concerning their insistence on dealing with the RK, despite the fact that the RK has already identified the driver.

But don't take your eye off the POPLA appeal, as the code is strictly time limited

Coupon-mad

Strangely, they have addressed their correspondence to the RK rather than the driver, even though they were formally notified of the driver's name and address in earlier correspondence. Is that something I need to do something about...

I can't find the case but there is one in the successful 'POPLA decisions' thread where PE did exactly the same.

We advised in that case, to complain to the BPA Ltd but also to just BOTH sign the POPLA appeal saying in the introduction:

' This is our POPLA appeal. Although the registered keeper has previously given the driver's name and address, for some reason this Operator has sent the appeal rejection to the Registered Keeper (a party who is not liable at all when the driver has been identified). This has confused matters as we can't tell who the POPLA code has been attributed to, so for clarity we have both signed the POPLA appeal below. '

ordinaryJoe

zzzLazyDaisy wrote: »

There should also be a ROBUST complaint to BPA/DVLA since 1) they have no right to contact the RK as they have discharged their liability under POFA and 2) by corresponding with the RK about the driver's appeal, they have caused delay in the letter reaching the driver and have also breached the date protection act.

I received a reply to my second formal complaint from Steve Clark. Perhaps unsurprisingly, he says
"Sending you the appeal rejection and POPLA code is clearly a mistake on behalf of Parking Eye – I don’t see it as a breach of the DPA."
I disagree - as I understand it, under the fifth principle of the Data Protection Act, organisations are not permitted to store personal data processed beyond what is "necessary" for the "purpose" or "purposes" of that processing. The ICO has clarified that point and said it would generally accept organisations' compliance with the fifth principle of the DPA as long as the organisations put unjustifiably held information "beyond use".

It seems clear to me that "beyond use" must, at the very least, mean that the organisation cannot, accidentally or otherwise, use that data once its processing purpose is over, which in this case is surely the point at which I discharged my liability as RK under POFA 2012 by providing the driver's details.

Is this an important point which I should pursue, or would it be best to forget about that and just concentrate on the POPLA appeal?

Thanks in anticipation again for all your help in this forum
Joe

Coupon-mad

Concentrate first on winning at POPLA.

Hopefully everything you need to know is now here:

https://forums.moneysavingexpert.com/discussion/4816822

HTH

ordinaryJoe

Especially, I think, Daisy, who twice advised me to send a robust formal complaint - the second of which has just resulted in PE cancelling the charge! The first I knew of this was when I received an email yesterday from "AOS" (aos@britishparking.co.uk) as follows

We have contacted Parking Eye Ltd in regards to your complaint and can confirm as follows. It appears that as the named driver and keeper of the vehicle had the same address with the same surname there has been some confusion. This was human error and their team has been re-briefed to ensure this does not happen again.
Please be aware that the parking charge notice has now been cancelled and confirmation letters have been sent to both the keeper and the driver.

We trust this has reached a satisfactory conclusion and therefore we consider the case closed.

Thank you for bringing this matter to our attention.

Kind regards,

AOS Investigations Team

I waited until the official notice from PE arrived in the post today before confirming this to you folks on the forum. As you might expect, the letter from PE is stunningly brief, with no hint of explanation, let alone any suggestion of an apology. It reads

Dear Sir /Madam,

We refer to the Parking Charge incurred on {date} at {time}, at Tower Road, Newquay car park.

We can confirm that this Charge has been cancelled and there is no outstanding payment due on this account.

Kind Regards

ParkingEye Team

So, many thanks again to all who helped. Unfortunately you can't post this on the POPLA wins page as, despite an elapsed time of over 4 months, it was never actually assessed by POPLA! Which in a way is a shame, as I had spent quite some time preparing my appeal. If anyone is interested and thinks it may be helpful to others, I'll be happy to post the draft appeal here for reference - just let me know. I was trying very hard in the appeal to force a win that wasn't on the basis of GPEOL - I think I had a good case based on flaws in their usage of ANPR data.

I'm not sure what was the actual trigger for PE to pull the plug on this charge, but it's possible that a potential breach of the DPA was a major contributor, despite Steve Clark's earlier comment.

Thanks again, I'm off for a celebratory drink now.:beer:
Joe

Umkomaas

I would think that the BPA did a bit of 'leaning' on them.

Still doesn't stop you pursuing the DPA line.

'Kind Regards' sticks in the craw a bit, doesn't it. There's no 'kindness' in the PE vocabulary.

The_Slithy_Tove

Good to see that PE have crawled back under the rock they came from.

Not good to see that the DVLA/BPA are willing to accept the deliberate lies of PE, and their continuing flagrant breaches of the law and BPA CoP.

Coupon-mad

If anyone is interested and thinks it may be helpful to others, I'll be happy to post the draft appeal here for reference - just let me know.

Yes please do copy it here as they do help others and we get LOADS of threads about Tower Road & Fistral at Newquay which PE are infesting at the moment.

Well done on your success at alast!

ordinaryJoe

As requested by Coupon-mad, below is the draft version of my POPLA appeal which is no longer required as the CHARGE HAS BEEN CANCELLED!
The first 2-3 points are the main ones that may differ from other appeals reviewed in this forum; the remainder are pretty much re-hashed/copied sections from other appeals on standard grounds that have previously been successful. Hope this is useful to someone!

Joe

APPEAL RE: ParkingEye PCN {number}, Tower Road, Newquay
CAR PARK {date}, VEHICLE REG: {removed}

I was the driver of the above vehicle at the time of the alleged incident and I am appealing against the above charge. I contend that I am not liable for the parking charge on the following grounds.

1. The vehicle was not improperly parked.

2. The ANPR-based procedures used by ParkingEye are flawed and not compliant with the BPA Code of Practice. In this case, they led to enforcement action that was unwarranted and incorrect.

3. The signage at the car park was inadequate and not compliant with the BPA Code of Practice. There can therefore have been no valid contract between the parking company and the driver.

4. Neither the parking company nor their client has proved that they have planning consent to charge motorists for any alleged contravention.

5. The parking company has no contract with the landowner that permits them to levy charges on motorists up to pursuit of these charges through the courts.

6. The amount demanded is not a genuine pre-estimate of loss.

Here are the detailed appeal points.

1. The vehicle was not improperly parked
I purchased a 3 hour ticket and returned to the vehicle within the time stated on the ticket, left the car park promptly and subsequently disposed of the ticket. ParkingEye have produced no evidence to contradict these facts. In these circumstances, "enforcement action" contravenes the BPA Code of Practice (Section A, Para 13.4 Grace periods). As no precise grace period has been mentioned, coupled with the incorrect use of the ANPR data (see point 2 below), ParkingEye have failed to prove beyond reasonable doubt that the vehicle was improperly parked. Furthermore, the inadequate signage (see point 3 below) does not advise retention of the ticket in case of a Parking Charge Notice issued after departure. I believed as I left the car park that I had complied with all the stated conditions and I therefore disposed of my ticket before the PCN was made known to me. ParkingEye have neither confirmed nor denied that I purchased a 3 hour ticket - they have issued a vague statement as follows: "Our records show that you did not purchase a valid Parking ticket or the appropriate parking time on the date of the parking event.".

2. Flawed ANPR procedures
I believe that the ANPR-based mechanism used by ParkingEye to base their claim that the vehicle was improperly parked is inadmissible as evidence, as the ANPR system appears to be independent of the ticketing system and does not conform to the BPA Code of Practice, which states (Section B, Para 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". I contend that printing a later time on the ticket issued by the ticket machine than the time recorded by the ANPR system on entry to the car park, and subsequently using the ANPR data as the basis to allege improper parking, is neither reasonable, consistent nor transparent. It is not outside the bounds of possibility that many minutes may have elapsed between the ANPR-recorded entry time and the actual purchase of the ticket - delays due to weather conditions, number of vehicles arriving / departing, incidents involving third parties, and queueing for the ticket machine are all likely occurrences in a public car park. Furthermore, ParkingEye have provided no proof that the time clocks on the ANPR system and the ticket machines were synchronised on the day in question, which casts further doubt on the validity of their data. The time printed on my ticket was the time that I took to be the moment that I should vacate the parking space in the car park - a time which could well have been earlier than the departure time recorded by the ANPR camera as the vehicle exited the car park. I contend that the 22 minutes which I believe ParkingEye are alleging as an "overstay" above the 3 hours that I paid for, could easily be accounted for in the above inconsistencies, along with a "Grace period" as required by the BPA Code of Practice. Unless ParkingEye can prove that the ANPR and ticket clocks were synchronised on the day in question, and can produce evidence that the time printed by the ticket machine for my vehicle was sufficiently close to the ANPR entry time as to make my "overstay" greater than a reasonable Grace period, I submit that you must uphold this appeal on these first two grounds alone.

3. Inadequate signage
The signage at the car park was not compliant with the BPA Code of Practice and therefore there was no valid contract between the parking company and the driver. Further to points 1 and 2 above, the signage does not clearly state how the ANPR data will be used, and specifically it does not state that the parking time begins at the time of entry to the car park and NOT at the time of purchase of the ticket.

I believe the signs and any core parking terms that the parking company 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 as they failed to comply with the BPA Code of Practice appendix B. I require the operator to provide photographic evidence that proves otherwise.

As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

4. No right to charge motorists for overstaying

Planning consent is required for car parks - conditions have to be met before permission is granted, as the car park provides a service to the community. To bring in time limits, charges and ANPR cameras, planning consent is required for this variation. I have no evidence that planning consent was obtained for this change and I put the parking company to strict proof to provide evidence that there is planning consent to cover the current parking conditions and chargeable regime in this car park.

5. No valid contract with landowner

It is widely known that some contracts between landowner and parking company have” limit clauses” that specify that parking companies are limited in the extent to which they may pursue motorists. One example from a case in the appeal court is Parking Eye –v- Somerfield Stores (2012) where Somerfield attempted to end the contract with Parking Eye as Parking Eye had exceeded the limit of action allowed under their contract.
In view of this, and the British Parking Association (BPA) Code of Practice section 7 that demands that valid contract with mandatory clauses specifying the extent of the parking company’s authority, I require the parking company to produce a copy of the contract with the landowner that shows POPLA that they do, indeed have such authority.

It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted, that it is accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory
is, indeed, authorised to act on behalf of the landowner ,has read and the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company

6. The amount demanded is not a genuine pre-estimate of loss

The wording on the signs appears to indicate that the parking charge represents damages for a breach of the parking contract - liquidated damages, in other words compensation agreed in advance. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss flowing from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of retail revenue at a shopping centre.

The parking company submitted that the charge is a genuine pre-estimate of the losses incurred in managing the parking location.
The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I require the parking company to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach.

For example, were no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included.

It would, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.

Furthermore, I attach a letter from Parking Eye in correspondence with another case, that admits that their estimate of cost in each case is actually £53, including operating costs, and thus that the charge they are seeking to impose in my case has a considerable element of profit as well as operating costs incorporated. By their own admission, therefore, it can not be a true pre-estimate of loss.

This concludes my appeal.

Coupon-mad

You would have won at POPLA too!