Parking Eye PCN Notice, Tower Road Newquay

nigelbb

Coupon-mad wrote: »

Nigelbb I have just added your post to my links that I give to people who are working on a defence of a small claim from any PPC. That quote could very nicely serve to focus a judge's mind on a person's defence point about breach of UTCCR 1999 and CPUTR 2008.

The whole OFT document is worth looking at as it also links to another document that the OFT produced on "Calculating fair default charges in credit card contracts" as the OFT clearly see parallels & declare "our view of the law, which is in essence that default charge provisions are open to challenge on grounds of unfairness if they have the object of raising more in revenue than is reasonably expected to be necessary to recover certain limited administrative costs incurred by the credit card issuer." They set what they regard as a fair fee at £12 & were clearly giving a nod & a wink to the BPA Ltd that this is the level of penalty charge that they find acceptable for breaching parking regulations. http://www.oft.gov.uk/shared_oft/reports/financial_products/oft842.pdf

simon196

Have modified the section 2 on my draft appeal;
Could I again ask that someone sense checks this as I'm unsure that my interpretation makes perfect sense !!!
Thank you in advance of your kind help !

Dear POPLA adjudicator,

Vehicle registration number: xxxxxxxxxx
PCN number: xxxxxx/xxxxxx
Operator Name: PARKINGEYE
Verification Code: xxxxxxxxxx

This is my appeal to POPLA as the registered keeper of the vehicle above. Myhusband and I I have already appealed to Parking Eye, the parking operator ofthe Tower Road car park, who rejected our appeal due to insufficient evidencebeing provided. I have attached my appeal letter to them as summary andsupporting information in this POPLA appeal.

I am appealing on the following grounds:

1) POOR, UNCLEAR SIGNAGE. SIGNAGE NOT ADEQUATELY DISPLAYED AT THE SITE.

As described in my letter to Parking Eye(xx/09/2013), the signage on this car park is unclear in its intention.

Firstly no signage whatsoever is displayedat the entrance to this car park as required by BPA regulations.

The only signage that was evident waslocated in the main area of the car park and facing in the opposite directionof travel. This being the case the driver would have no opportunity to read thedetailed information contained in the, quite literally, ‘small print’ of thissign. (I have attached a photograph of sign displayed in the main area of thecar park). As you can see there is a huge amount of information for the driver toread and digest as they are ‘ushered past’ the sign by the parking attendant. Isuggest that it is impossible for anyone to be able to read, understand andcomply with this signage. I would also suggest that the signage is unfit forpurpose in this respect and as a result no contract had been knowingly enteredinto.

Furthermore, as mentioned in my letter toParking Eye, my 11 year old son purchased an ‘ALL DAY’ ticket on our behalf. Weassumed this to be quite literally ‘ALL DAY’ as indicated by the signage. Itwasn’t until we returned to our car that we noticed an expiry time of 22.00 onthe printed ticket which had been displayed in the window of our vehicle. Theproposed ‘ALL DAY’ times are actually mentioned on the signage but in muchsmaller font, which we had not seen as we were ‘ushered quickly ’ past the sign….I would question why the applicable times are printed in a smaller less visiblefont than the words ‘ALL DAY’. Again I believe that this is counterproductiveto the purpose of the sign and believe it to less obvious to the reader. In myunderstanding ‘ALL DAY’ means ‘all day’ i.e. 24Hrs and not only 8am – 10pm ? I suggest that it should be modified to ensurethat it can be easily read and understood by all users.

I would also like to point out that thesign also states ‘Parking Tariffs Apply 8am – 10pm’. We thus understood fromthis statement that from 10pm onwards parking charges do not apply. The signfurther mentions ‘No Parking Outside these Times’ which in our understanding ofthe wording is that there was no parking after 10.00 i.e.”no entry topark", particularly as the sign says "ALL DAY" in larger letterswith 8.00 a.m. - 10.00 p.m. in much smaller letters which as I pointed out areeasily missed by the reader.



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



It is my understanding that the parkingcharge, in this case £100, represents liquidated damages, which iscompensation, agreed in advance. This in turn means that our alleged breachshould represent the actual loss caused. The operator, Parking Eye, has made areference to the losses incurred, however, in this case, the justification oflosses incurred would appear to be on the basis of general operating costs ratherthan costs specifically caused as a result of overstaying the maximum permittedtime and not consequential to our alleged breach of the terms and conditions.

It appears that Parking Eye is attemptingto enforce this charge under paragraph B 19.5 of the BPA Code of Practice asthey suggest our mistake constituted a breach of contract. As such, they are requiredto validate this claim by providing POPLA with a detailed financial appraisalwhich clearly evidences the genuine pre-estimated amount of loss or damages inthis particular car park for this particular 'contravention'. I am unable tosee how our alleged actions would result in any ‘extra’ costs whatsoever toParking Eye or indeed the landowner in this respect.

Since the car park was actually ‘closed and no damage was caused, there canhave been no loss arising from this incident. Neither can Parking Eye lawfullyinclude their operational day-to-day running costs in any 'loss' claimed. I didrequest Parking Eye to provide this information in my recent letter to them,however I received no information in this regard included within their reply. Itherefore contend there can be no loss shown whatsoever; no pre-estimate (priorto starting to 'charge for breaches' at this site) has been prepared orconsidered in advance.




3) UNLAWFUL PENALTY CHARGE

Since there was no demonstrable loss/damage in this case, and yet a breach ofcontract has been alleged, it can only remain a fact that this 'charge' is anattempt at dressing up an unlawful penalty to impersonate a parking ticket.This is similar to the decisions in several County Court cases such as ExcelParking Services v Hetherington-Jakeman (2008) also OBServices v Thurlow(review, February 2011) and in the case of Parking Eye v Smith (ManchesterCounty Court December 2011).



4) CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICEAND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE TICKETS

Parking Eye do not own this car park and are acting merely as agents for theowner/occupier. In their Notice and in their rejection letter, Parking Eye havenot provided me with any evidence that they are lawfully entitled to issue aparking charge against a driver on this site, since they do not own nor haveany interest or assignment of title of the land in question.

I do not believe that Parking Eye, acting as the car park operator has thenecessary legal capacity to enter into a contract with a driver of a vehicleparking in the car park, or indeed the legal standing to allege a breach ofcontract (as evidenced in the Higher Court findings in VCS v HMRC 2012).

I respectfully request that POPLA confirm whether Parking Eye have provided afull copy of the actual contemporaneous, signed & dated contract in place withthe landowner/occupier (not just a signed slip of paper saying it exists) and ensurethat it specifically entitles Parking Eye as an operator to pursue parkingcharges in their own name in the court system.




5) ANPR SECTION OF THE BPA CODE OF PRACTICE

Parking Eye uses ANPR camera’s at the entrance/exit of the car park. Thecameras only
record the time that a vehicle enters the car park and when it leaves, they donot record the actual parking event nor the point at which the contract to parkis entered into.

The times of the actual ‘parking undercontract’ event in this case therefore differ significantly from the entry andexit times recorded by the ANPR cameras. Furthermore, the ANPR system takes noaccount of the regular problems in effecting a speedy departure.

In this particular case, upon returning toour vehicle and realising the expiry time printed on the pay-and-displayticket, we spent some considerable time attempting to try to understand what weshould do. We attempted to try to read the signage which was not illuminated,therefore making it even more difficult to read given that it was already quitedark. I would estimate that we spent in excess of 20 minutes reading anddeciphering the signage and debating what we needed to do. As previouslydescribed we concluded that we did not need to do anything further as weunderstood that the ‘Parking Tariff’ no longer applied as it was outside of thecharging times.

The BPA Ltd Code of Practice requires that parking operators can only rely onANPR evidence if it does so in a reasonable, consistent and transparent manner.Thus the Parking Eye has failed to do this in this instance.


Parking Eye’s claim for a parking charge for an alleged overstay based solelyof the entry and
exit times recorded by ANPR cameras is therefore fatally flawed and cannot berelied upon, on a balance of probabilities, to prove its case.

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



Furthermore I would also point out thatParking Eye have since written to my husband falsely accusing him of being thedriver of the vehicle on the particular day in question. Their letter datedxx/09/2013 and addressed to him, incorrectly states; “Your details have beenprovided by the registered keeper, naming you as the driver of the abovevehicle at the time of the parking event.” I as the registered keeper of thevehicle above I would like to point out have I have not provided any informationto Parking Eye naming my husband as the driver at this time. Again I haveincluded this letter as evidence in this appeal. I would suggest that thisfalse accusation further demonstrates the unrealistic assumptions and poorcustomer relations relating to Parking Eye Ltd

On the basis of all the points raised, this'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP andalso fails to comply with the CPUTR 2008 and basic contract law. It is unfairand punitive and, as such, I respectfully request that this appeal be allowed.


Yours sincerely

Coupon-mad

Looks good to me.

I would maybe remove this wording which was from one of my drafts from months ago as no-one seemed to understand this bit (and removing it makes no difference to the point made):

''no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.''

simon196

Coupon-mad wrote: »

Looks good to me.

I would maybe remove this wording which was from one of my drafts from months ago as no-one seemed to understand this bit (and removing it makes no difference to the point made):

''no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.''

Thanks Coupon-Mad once again for your advice.
I have removed the line as per your suggestion.....

Does the rest of my appeal make sense ?.....I've read it that many times whilst writing it that I'm starting to confuse myself.

Think I need a rest from it, but conscious that I need to get it done soon......!

Coupon-mad

Looks OK to me. You have the winning points we always rely upon.

simon196

Thanks once again Coupon-Mad.

Do you think it's good to go ? or should I wait for any further points ?........starting to panic a little now !!!

Think I'll leave it a little while and then have another read tomorrow before sending !

simon196

Hi,
Just thought I'd mention that I'd sent my appeal to POPLA.
They acknowledged receipt and said hearing date would be on or around 14th Nov.
Fingers crossed !

Coupon-mad

simon196 wrote: »

Hi,
Just thought I'd mention that I'd sent my appeal to POPLA.
They acknowledged receipt and said hearing date would be on or around 14th Nov.
Fingers crossed !

Good, and also it seems they have got their delay back to just one month now (was 3 months!).

simon196

Coupon-mad wrote: »

Good, and also it seems they have got their delay back to just one month now (was 3 months!).

Well the 14th (expected hearing date) came and went.....nothing via email from POPLA.
The 15th came and went.....again nothing.
On the 16th I received an email from POPLA Appeal Admin......my heart missed a beat as I read it.....

Basically it said that we had raised several issues in our representation, however there was only one issue on which the appeal was being allowed.

The email went on to say that the parking charge does not represent the operators loss and so is not enforceable and that the operator had not addressed this submission.

The assessor actually said " It appears to be the appellants case that the parking charge represents a sum for specified damages, in other words compensation agreed in advance. Accordingly the charge must represent a genuine pre-estimate of the loss caused by the alleged breach. The operator does not appear to dispute that the sum represents damages, and has not attempted to justify the charge as a genuine pre-estimate of loss."

He went on to say "Consequently, I have no evidence before me to refute the appellants submission that the parking charge is unenforceable......Accordingly I must allow the appeal !!!!"

Absolutely fantastic news....

I would just like to say a really huge thank you to all for your support, help and advice. I have to say that if it had not been for the great people on this forum, who gave up their own time to help me out in this case then I would probably have just gone ahead and paid the parking charge.

Thank you all once again !!!
Simon196
:T:T:T:T:T:T:T:T:T:T:T:T:T:T:T:T:T:T:T:T:T

Coupon-mad

Well done Simon, you have no idea how many ParkingEye have lost on that basis!

In fact we are keeping a list of cases to help others - so if you don't mind sending me a pm with the whole assessor's decision and case number (no name nor car reg of course) for future help, for people with small claims or POPLA appeals v ParkingEye, I would be most grateful.