My ParkingEye PCN Challenge

Stroma

ianyoung82 wrote: »

However, I have noticed that ParkinEye do put on their PCNs;
"ParkingEye will only accept and respond to appeals in English"

Do they really say that? What happens if you don't speak English I wonder lol? And if this ever went to court the Welsh Language Act gave people the right to speak that language in court, so they would have to pay for a translator or find someone to represent them in Welsh if the need arised

Kite2010

You never know, the Parking Spy spies might be watching this thread and your appeal might be accepted LOL

ianyoung82

[FONT=&quot]POPLA Code: xxxxxxxxx[/FONT][FONT=&quot]
[/FONT][FONT=&quot]Vehicle Reg: xxxxxxxxxxx[/FONT][FONT=&quot]
[/FONT][FONT=&quot]PPC: ParkingEye Ltd. [/FONT][FONT=&quot]
[/FONT][FONT=&quot]PCN Ref: xxxxxxxxx[/FONT][FONT=&quot]
[/FONT][FONT=&quot]Alleged Contravention Date & Time: xx xxxx 2013, xx:xx to xx:xx[/FONT][FONT=&quot]
[/FONT][FONT=&quot]Date of PCN: xx xxxx 2013[/FONT][FONT=&quot]

[/FONT][FONT=&quot]On xx xx 2013 I was sent an invoice from ParkingEye Ltd. requiring payment of a charge of £85 for the alleged parking contravention.[/FONT]

[FONT=&quot]Firstly, I feel it is imperative to raise the following issue;[/FONT]

[FONT=&quot]I am simply making the presumption[/FONT] that this is a “Notice to Keeper”. I have no idea whatsoever, whether this is a “Notice to Keeper” according to either Paragraphs 6(1)(a) or 6(1)(b) Protection of Freedoms Act 2012, Schedule 4. (Hereby referred to as POFA 2012, Schedule 4)

There is no mention of the words “Notice to Keeper” anywhere on the document, and no referral is made to either of these Paragraphs 6(1)(a) or 6(1)(b).
There is also no mention of whether or not a “Notice to Driver” has previously been issued, therefore I cannot even form the presumption as to which paragraphs are being adhered to.

Clearly, this is an extremely important issue. Dependant on which Paragraph this presumed “Notice to Keeper” has been based, subsequently determines the requirements of the said notice under their relevant Paragraphs 8 or 9.

As a result, this omission of necessary information, means that I cannot form a fair and proper judgement that all requirements have been met on this Notice, as laid out in POFA 2012, Scheule 4.

I feel that this omission is deliberate and malicious. Under which paragraph this notice has been issued, should be a matter of fact! I should not have to make presumptions and as a result, this notice is null and void, unenforceable, and should be cancelled with immediate effect.

Ultimately, the absolute necessary requirements have not been met to satisfy Paragraph 4, POFA 2012 Schedule 4.


[FONT=&quot]I would also like to appeal this notice on the following grounds:[/FONT]
[FONT=&quot]
[/FONT][FONT=&quot]1 Failure to comply with the POCA 2012, Schedule 4, paragraph 8(2)(a) and 9(2)(a)[/FONT]

[FONT=&quot]As previously stated, there is no way of determining to which paragraph this document has to adhere to, which is unfair in itself.[/FONT]
[FONT=&quot]However, both Paragraphs 8(2)(a) and 9(2)(a) state that the following basic information must be provided on the notice:-[/FONT]

[FONT=&quot](2)The notice must—[/FONT]

[FONT=&quot](a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;[/FONT]

[FONT=&quot]I believe that the notice received is in breach of this Paragraph, with reference to notifying the keeper of the relevant land on which the vehicle was parked.[/FONT]

[FONT=&quot]The notice refers to the location as simply and irresponsibly, HOME BARGAINS TOWNNAME[/FONT]
[FONT=&quot]I do not believe that this is anywhere near sufficient information to satisfy the paragraph above. It does not allow the driver a fair and proper opportunity to visit the land and ensure that all necessary requirements have been met according to British Parking Association, Approved Operator Scheme Code of Practice.[/FONT]

[FONT=&quot]The driver nor the keeper, do not know what HOME BARGAINS TOWNNAME refers to.[/FONT]
[FONT=&quot]Again, having to make a presumption that it may refer to a business name, a search of the popular[/FONT][FONT=&quot] (Yellow Pages Online) for the search terms “HOME BARGAINS” “TOWNNAME” actually yields zero results.[/FONT]
[FONT=&quot]It has allowed me to establish that it is in fact a business, but the nearest to “TOWNNAME” is Liverpool L17 9PE, 23.2 miles away.[/FONT]

[FONT=&quot]Additionally, TOWNNAME is not only the name of a town, but also a county borough of COUNTYNAME. The notice makes no reference whatsoever, whether the HOME BARGAINS is located in TOWNNAME or COUNTYNAME.[/FONT]
[FONT=&quot]This subsequently leads to the following difficulties:-[/FONT]
[FONT=&quot]TOWNNAME is a large town with a population of over 40,000 just in the town centre itself. Extending this to COUNTYNAME and the population rises to over 130,000 and covers 50,500 hectares of space.[/FONT]
[FONT=&quot]With such a vast area, the driver still has no idea where HOME BARGAINS TOWNNAME refers to.[/FONT]

[FONT=&quot]Eventually, the following location was found:-[/FONT]
[FONT=&quot]Home Bargains,[/FONT]
[FONT=&quot]Xxxx[/FONT]
[FONT=&quot]Xxxxxx[/FONT]
[FONT=&quot]Xxxxxx[/FONT]

[FONT=&quot]Having visited this land, I am still unsure whether this is the land referred to in the notice, as there are 2 additional premises on the land – SIMPLY GYM and BLOCKBUSTERS.[/FONT]
[FONT=&quot]The car park is used for all three premises so from the information given on the notice, I cannot fairly and properly form the judgement that this is the correct land.[/FONT]

[FONT=&quot]This is all very confusing for myself and the driver.[/FONT]

[FONT=&quot]If the land has a formal address and post code, why has this not been posted on the notice in accordance with Paragraphs 8(2)(a) and 9(2)(a)?????[/FONT]
[FONT=&quot]I believe that this omission is deliberate and malicious. [/FONT]Notification of the land on which the vehicle was parked, should be a matter of fact! I should not have to make presumptions and as a result, this notice is null and void, unenforceable, and should be cancelled with immediate effect.

Ultimately, the absolute necessary requirements have not been met to satisfy Paragraph 4, POFA 2012 Schedule 4. ParkingEye Ltd have failed in their duty to notify the driver/keeper of the relevant land.


UNCLEAR, INADEQUATE AND NON-COMPLIANT SIGNAGE[FONT=&quot]

[/FONT]Due to their high position, overall small size and the barely legible size of the small print, the signs in this car park are very hard to read, understand and no notices at all are positioned near the entrance or exits to any of the shops/premises.

I contend that the signs and any core parking terms ParkingEye Ltd are relying upon were too small for any driver to see, read or understand. I request that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs on this land (wording, position, clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2])

The signage should meet all requirements under BPA AOS COP at the time of parking. Any evidence provided by ParkingEye Ltd re. signage should be checked for compliance on the day of parking, not the day of erection.

CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES[FONT=&quot]

[/FONT]ParkingEye Ltd. do not 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 Ltd. have 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 would also request that POPLA to please check whether ParkingEye Ltd. have provided a full copy of the actual contemporaneous, signed & dated contract with the landowner/occupier (not just a signed slip of paper saying it exists or someone has witnessed it) and check that it specifically enables this Operator to pursue parking charges in their own name and through the court system. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.

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 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 the Operator asserts, a contractual term. If they were a contractual term, the Operator 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 the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses, as set out above.

(PPC) also make reference in their appeal refusal of (date) to “seek to recover the monies owed to us” and makes no reference to the Landlord at all.[FONT=&quot]

[/FONT]I further contend that (PPC) have 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 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 CONTRACT WITH THE DRIVER[FONT=&quot]

[/FONT]There is no contract between ParkingEye Ltd. 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[FONT=&quot]

[/FONT]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[FONT=&quot]

[/FONT]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[FONT=&quot]

[/FONT]There was no parking charge levied, the car park is “free”. On the date of the claimed loss it was only at approximately 20% capacity and there was no physical damage caused. There can have been no loss arising from this incident. Neither can ParkingEye Ltd. lawfully include their operational day-to-day running costs in any 'loss' claimed. 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 of £xx.xx for all day parking. 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 xx% by early payment that it is unreasonable to begin with.

UNLAWFUL PENALTY CHARGE[FONT=&quot]

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

WELSH LANGUAGE PREJUDICE

ParkingEye Ltd is conducting this work in XXXXX, Wales. Through freedom of speech & language, and suppoted by The Welsh Language Act 1993, the use of Welsh is promoted throughout the country and now allowed, by freedom of choice, in any legal preceedings, both civil and criminal.
Essentially, the languages of English and Welsh are now treated equally by law and parliament.

The British Parking Association clearly supports its use, as they have made available online for anybody to access, a welsh version of the Codes of Practice. This is nice to see.
But surely they should be monitoring and supporting the use of the Welsh language, in cases where it’s members are conducting their business within Wales.

ParkingEye Ltd clearly states on the rear of the presumed “Notice to Keeper”;

“ParkingEye Ltd. will only accept and respond to appeals in English”.

I find this approach downright disgraceful in 2013. I find it to be discriminative, undermining and bullying. If they are conducting business in Wales and they are a member of the BPA who support the use of the Welsh language, then they should be making arrangements to respond to the relevant parties in the equally based Welsh language.

I feel this prejudice is unacceptable, a clear breach of the Codes of Practice in terms of fairness, race and equality, and not only should this “Notice to Keeper” be revoked with immediate effect, but further action taken against ParkingEye Ltd to prevent such dismissal of the Welsh people.


Yours,


XXXXX (<<<<<these are not kisses :-)

Coupon-mad

A few things to change:

'Failure to comply with the POCA 2012', = 'Failure to comply with the POFA 2012'

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

(cross that bit out because it was from an old appeal I wrote and it makes little clear sense!)

And have a look here and add the two POPLA quotes from the assessor into the right paragraphs (makes it very hard for another POPLA assessor to ignore!):

https://forums.moneysavingexpert.com/discussion/comment/63444090#Comment_63444090

See if you can make it shorter as well, I would say if you have plenty of time, sleep on it and have another look tomorrow and see if anyone else can add their advice over the weekend.

Bear in mind that will NOT fit in the restricted word-count submission box on POPLA online so you'd have to post it instead with a hard copy POPLA appeal form stapled to the front (ensure the 10 digit code is stated correctly at the top of every page). Do not try to attach it in the POPLA evidence box as a link (someone lost a POPLA appeal when POPLA lost the attachment and so the assessor never read their carefully-constructed long appeal at all).

ianyoung82

Coupon-Mad,

You're brilliant. Thanks for your help.
I've added the quotes, altered/edited it down and submitted it online.

The website allowed the length, and the confirmation email received has a full extract of the whole document so everything is fine.

I'll update with the result in due course.

ianyoung82

RESULT:- Found in my favour and notice cancelled.

Excellent result. Thanks everyone for your help and hard work.

ianyoung82

Grounds - Non pre-estimate of loss