Parking Eye PCN

Stroma

You are doing this mostly on mitigation, it will fail! Please read the popla decisions thread for why appeals to popla win, you need to he more in depth in the right areas

softmachine

That's why I'm asking for advice, Stroma!

I've already read many of the cases on the POPLA decisions thread but don't understand what the 'right areas' are for my case or what the 'more depth' you refer to is needed to win my case.

What I posted above wasn't a draft POPLA appeal, it was my rejected appeal letter to Parking Eye so the forum experts were aware of the details of my case and could provide me with some much needed guidance.

I've had lots of helpful guidance and support on this forum up until the point of my PE appeal rejection with promises of 'we will win 100%' but now I'm being told my appeal is based on mitigation and will therefore fail! I'd be really grateful for some draft or skeleton appeal to follow to hang my case around.

Stroma

Okay here is an appeal by coupon , extract what you need and change the name to your parking company. Obviously don't use what is not relevant. I cannot edit this as I'm on my phone

Dear POPLA adjudicator,

POPLA appeal re UKPC charge (POPLA code xxxxxxxxxx)

I am writing on as the driver of this car (already admitted) who is not liable for the parking charge for several reasons, not least that to uphold it would constitute disability discrimination. In addition, the vehicle was not improperly parked and the parking 'charge' notice was nothing but a penalty and exceeded the appropriate amount.

SUMMARY OF MY LEGAL RIGHT TO USE THE DISABLED PARKING BAY
The situation is that I went to collect an injured relative from hospital and collected a ticket from the machine as I drove in, which was duly validated by the Hospital (see copy attached).

I am 80 years old and unable to walk any distance due to a recent knee replacement operation; I have a genuine long-term chronic mobility problem but no Blue Badge at present. I appealed against the Parking Charge but UKPC have rejected it and in doing so they have breached UK disability law. This 'charge' cannot be upheld by POPLA as it breaches the applicable primary law. UKPC have cited in their reply an early POPLA case from over 6 months ago which is (in my view) flawed, where the adjudicator found that a contractual term could actually break the Equality Act 2010 (EA). I say that is not the case legally and in any case, POPLA cannot consider that other POPLA case because it sets no precedent, nor was it a decision made in court.

Each case is separate and this is a different case in a different car park so POPLA must consider these facts:


BREACH OF STATUTE, NAMELY THE EQUALITY ACT 2010 AND THE EHRC 'CODE OF PRACTICE ON SERVICES, PUBLIC FUNCTIONS AND ASSOCIATIONS' (Chapter 5 Indirect Discrimination) WHICH BECAME LAW ON 6TH APRIL 2011

The Operator and Hospital are service-providers who are relying on unenforceable terms which purport to create an inflexible contractual term 'requiring' disabled people to display a Council (on-street only) Blue Badge in order to use a disabled bay. In fact, the Blue Badge scheme does not even lawfully apply in private car parks - as is shown in the Blue Badge booklet and on the Government website. Companies such as UKPC might choose to mention the Badge on their signs but they cannot legally rely on it in isolation as the only indicator of disability need.

The EA takes precedence over any 'contractual' terms and a blanket term to display a Blue Badge is specifically an 'unenforceable term' as defined in the EA. It is an example of a blanket policy which seeks to limit the provision of the disabled bays to 'badge-display only' and thereby causes disadvantage to other people who have certain protected characteristics (which I do, on disability grounds).

''EQUALITY ACT 2010
142(1) Unenforceable terms
A term of a contract is unenforceable against a person in so far as it constitutes, promotes or provides for treatment of that or another person that is of a description prohibited by this Act.
144(1) A term of a contract is unenforceable by a person in whose favour it would operate in so far as it purports to exclude or limit a provision of or made under this Act.

29 Provision of services
(1) A person (a “service-provider”) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.

(2) A service-provider (A) must not, in providing the service, discriminate against a person (B)—
(a)as to the terms on which A provides the service to B;
(b)by terminating the provision of the service to B;
©by subjecting B to any other detriment.

(3) A service-provider must not, in relation to the provision of the service, harass—
(a)a person requiring the service, or
(b)a person to whom the service-provider provides the service.

(4) A service-provider must not victimise a person requiring the service by not providing the person with the service.

(5) A service-provider (A) must not, in providing the service, victimise a person (B)—
(a)as to the terms on which A provides the service to B; ''


Any term that UKPC may have on their signs to the effect 'Blue Badges only' is null and void if the effect is to deny a disabled person the statutory right to use a reasonable adjustment without penalty. This term unlawfully limits the disabled bay provision and UKPC have subjected me to 'detriment' and harassment.

The unenforceable term requiring all disabled people in those bays to show a Blue Badge may be the result of an ill-conceived attempt to ostensibly comply with the EA in order to convince the Hospital that UKPC follow it. Indeed, it appears to be based on private parking industry-wide misconceptions about disability law. But as it specifically says in the EA, ignorance of disability law is no defence for breach and I say that UKPC have shown no regard for the EA nor for the EHRC Statutory 'Code of Practice on Services, Public Functions and Associations'.

This parking charge issued as a result of an unenforceable term has created indirect disability discrimination and as such, it is a breach of the EA. It is also a breach of the statutory EHRC Statutory 'Code of Practice on Services, Public Functions and Associations' (Chapter 5 Indirect Discrimination) which became law on 6 April 2011:

''5.4 What does the Act say?
Indirect discrimination may occur when a service provider applies an apparently neutral provision, criterion or practice which puts persons sharing a protected characteristic at a particular disadvantage.''


OTHER POINTS OF APPEAL AGAINST THIS CHARGE

UNCLEAR AND NON-COMPLIANT SIGNAGE
It is a specific requirement of the BPA Code of Practice paragraph B(18.9) that there must be very clear terms & conditions signage at a height where a disabled driver could have read them when actually parking in a disabled bay - indeed without even needing to get out of the car.

But in fact no such signs with full terms are visible at these disabled bays, only the discriminatory/misleading 'Blue Badge only' sign. I say that the signs in that car park do not comply with the BPA Code of Practice requirements 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).

CONTRACT WITH LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO STATUS TO OFFER PARKING OR ENFORCE TICKETS
UKPC do not own this car park and are acting merely as agents for the Hospital. UKPC has not provided me with any evidence that it is lawfully entitled to offer parking spaces, allege breach of contract or enforce parking charges (as evidenced in the Higher Court findings in VCS v HMRC 2012). UKPC has no proprietary interest or assignment of title of the land in question.

I require UKPC to provide a full copy of the contemporaneous, signed & dated contract with the landowner (not just a signed slip of paper from someone at the Hospital) because even if one exists, I say it does not specifically enable UKPC to pursue parking charges in the courts. This would not be compliant with the requirements set out in the BPA Code of Practice.

NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS
UKPC 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 or damages in this particular car park for this particular 'contravention'.

UKPC have not shown a breakdown of their alleged 'loss' - which cannot include their operational day-to-day running costs. No claim for loss for a 'breach of terms' can possibly apply to a disabled driver needing and using a 'reasonable adjustment' provision which is directly already provided by the Hospital. Since I obtained a ticket and duly had it validated in the Hospital, there can have been no loss arising from this incident and the only elements of a contract I agreed to were between myself and the Hospital alone. This parking space cannot somehow have been offered again - on more restrictive limited and discriminatory terms - by a mere agent, UKPC.

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. This was the case in several compelling and comparable Court decisions such as UKCPS v Murphy April 2012 (a case involving a disabled bay and no Blue Badge, where the 'Parking Charge' was found to be a penalty). Also Excel Parking Services v Hetherington-Jakeman (2008) also OBServices v Thurlow (review, February 2011) and in Parking Eye v Smith (Manchester County Court December 2011).

This transparently punitive charge by UKPC is therefore unenforceable.

SUMMARY AND CONCLUSION
I ask that this appeal be allowed and respectfully request POPLA consider the disability protection aspects of the EA in all future cases whether or not the appellant knows to raise it as an issue, as I have done here. A disabled person does not have to raise the Equality Act by name to be protected by its provisions and POPLA has stated that it will consider all applicable laws when making their decisions.

The EA and the EHRC Code of Practice I have referred to is statutory disability legislation which renders any parking contract term null and void if the effect is to deny a protected motorist or passenger their rights (whether it be the right to use a disabled bay unharassed or the right to be allowed an extension on any arbitrary time limit for their visit).

POPLA must surely now order the Operator to cancel this fake PCN. I believe that failure to do so could even leave POPLA exposed to a claim for disability discrimination because the facts of this case and the effect of the EA is unequivocal.


Signed: {your Dad's name}

Dated:

softmachine

Thanks so much Stroma!!!
I shall get onto this right away...

Stroma

Once you got what you need please post up what you have to appeal with before you submit it

softmachine

Hi All Forum Experts,

This what I have so far for my POPLA appeal:


Re: POPLAappeal UKPC charge (POPLA code xxxxxxxxxx)

Vehicle Registration: XXXXXXX



Dear POPLAAdjudicator,


I am writing as the driver of above named vehicle who is not liable for the UKPCcharge for the following reasons.

I write to you to appeal Parking Charge issued by ParkingEye on thefollowing grounds:

1. Not a Genuine Pre-estimate of Loss

2. No Evidence of ParkingEye’sProprietary Position
3. Trespass
4. Unlawful Penalty Charge
5. Unfair Terms

6.ANPR section of the BPA Code of Practice/Use of ANPR and data collection
7. No contract with the driver

1. Not a Genuine pre-estimate of loss

The ‘time in car park’ as statedon the PCN is said to be 38 minutes. For this ParkingEye asks for payment of£100. A payment which far exceeds the cost to the landowner for the time thevehicle car was present. The charge cannot be construed as anything but apunitive penalty. During the time spent in the car park, the vehicle was notparked in a bay and was therefore preventing no other vehicle from parking.

Following my appeal directly toParkingEye, they did not address this issue - for to justify this charge Irequire ParkingEye to supply a full breakdown of the costs they have sufferedas a result of the car being present in the car park and not occupying a bay. This breakdown must add up to £100. Normalexpenditure that ParkingEye incurs to carry on their business - theiroperational day-to-day running costs (e.g. provision of parking,parkingenforcement, signage erection, salaries and office rent) must not be includedin the breakdown; these are operational costs which ParkingEye would sufferirrespective of the car being parked at that car park. I refer POPLA to thecase of Vehicle Control Services Ltd vs Mr R Ibbotson (16th May 2012) whichfound that general business costs cannot constitute a loss.

This £100 charge does not represent a lossresulting from a breach of the alleged parkingcontract. In other words, were no breachto have happened, the cost of parking enforcementwould still have been the same. This has been quoted by POPLA itself inadjudication. The amount of the “penalty” imposed is completelydisproportionate to any alleged “loss” by ParkingEye. It is, therefore,punitive and contravenes the Unfair Contract Terms Act 1997. I contend therecan be no loss shown whatsoever; the car park was by no means at capacity andno pre-estimate (prior to starting to 'charge for breaches' at this site) hasbeen prepared or considered in advance. As such, the charge that was levied ispunitive and therefore void (i.e. unenforceable) against me.

I also refer the Adjudicator to the recentAppeal Court decision in the case of Vehicle Control Services (VCS) v HMRC(EWCA Civ 186 [2013]). This case determined the actual nature of Private Parking Charges. It was stated that, "If those chargesare consideration for a supply of goods or services, they will be subject toVAT. If, on the other hand, they are damages they will not be." The Courtruling was "...that the monies that VCS collected from motorists byenforcement of parking charges were notconsideration moving from the landowner in return for the supply of parking services." In other words, they are not, asthe Operator asserts, a contractual term. If they were a contractual term, theOperator would have to provide a VAT invoice. This provides a means of paymentat the point of supply, and a means to account to HMRC for the VAT element ofthe charge. No VAT is itemised on this PCN. It must, therefore, be concludedthat the Operator's charges are in fact damages, or penalties, for which theOperator must demonstrate his actual, or pre-estimated, losses, as set outabove.


2. No Evidence of ParkingEye’sProprietary Position

In their correspondence with me, ParkingEyehave failed to produce any evidence to show that they have any proprietaryinterest in the car park at XXXXXXX. Nor have they provided any evidence thatthey are lawfully entitled to demand money from a driver or keeper. As itappears that they do not own the land, nor have any interest or assignment oftitle of the land in question, it is assumed that they are merely agents forthe owner or legal occupier. I contend, therefore, that they do not have thenecessary legal capacity to charge the driver of a vehicle for using the carpark.

As previously requested I require thatParkingEye provide copy of any contracts giving them authority to issue legalproceedings as agent on behalf of the landholder - as well as providing thename and serviceable address of the landowner in order that I contact themdirectly in order to address any conflict with the information provided. Asigned witness statement stating that someone has seen a contract is insufficient,as is a document which simply claims that such a contract of agreement exists.




3. Trespass



Without acontract, the most appropriate offence would be of civil trespass. If this wasthe case, the remedy would be to award damages to Excel. Given that there wasno damage to the car park, the car park was not full when my car entered orleft and Excel do not own the car park, I suggest that there was no loss toExcel at all.




4. Unlawful Penalty Charge

ParkingEye alleges a breach of contract.However, without any demonstrable loss or damage, it can only remain a factthat this 'charge' is an attempt to dress up an unlawful penalty to impersonatea parking ticket. I refer you to thedecisions in the County Court case of Excel ParkingServices v Hetherington-Jakeman (2008), OB Services v Thurlow (review, February2011), ParkingEye v Smith (Manchester CountyCourt December 2011) and UKCPS v Murphy (April 2012). On this basis, whatParkingEye considers a charge fails to comply with the CPUTR 2008, the UTCCR1999, the Equality Act 2010 and basic contract law.

In the instance of no enforceable contractbeing in place, the most appropriate offence to have been committed would bethat of civil trespass. If this is the case, the remedy would be to awarddamages to the rightful party. Given that ParkingEye do not actually own thecar park, that there was no damage to the car park and that the car park wasnot full when the vehicle entered or left it is logical to conclude that therewas no loss to ParkingEye as a result of these actions.


5. Unfair terms

The charge that was levied is an unfair term andis therefore not binding pursuant to the Unfair Terms in Consumer ContractsRegulations 1999. In particular, Schedule 2 of those Regulations gives anindicative list of terms regarded as unfair:

Schedule 2(1)(e) "Terms which have theobject or effect of requiring any consumer who fails to fulfil his obligationto pay a disproportionately high sum in compensation".

Schedule 5(1) states that: "A contractualterm which has not been individually negotiated shall be regarded as unfair if,contrary to the requirement of good faith, it causes a significant imbalance inthe parties' rights and obligations arising under the contract, to thedetriment of the consumer"

Schedule 5(2) states: "A term shallalways be regarded as not having been individually negotiated where it has beendrafted in advance and the consumer has therefore not been able to influencethe substance of the term"."





6.ANPR section of the BPA Code of Practice/Use of ANPR and data collection

I also contend that ParkingEye havefailed to show me any evidence that the cameras used at this car park complywith the requirements of the BPA Code of Practice part 21 (ANPR). I requirePOPLA to consider that particular section of the Code in its entirety, anddecide whether Excel has shown proof of contemporaneous manual checks and fullcompliance with section 21 of the Code, in its evidence.


7. No contract with the driver

The Operator refers in theircorrespondence to “contractually agreed Terms and Conditions”, however, Iassert that there is no contract between ParkingEye and the driver.

I challenge the Operator to providestrict and robust proof that a contract existed between Parking Eye and thedriver on the day in question, which meets all the legal requirements ofcontract formation, such as a meeting of minds, agreement, certainty of termsetc. If not all of these requirements were satisfied, any contract would bedeemed “unfair” in the Unfair Terms in Consumer Contracts Regulations 1999.

trisontana

Just to reassure you regarding pre-estimate of loss, PE have lost at least 40 POPLA appeals since April because they can't prove any loss.

bubbles1231

sorry to add this onto a reply but i am not too sure how to add a post as new to the site

hi folks can anyone help me with some advice. read the forum but confused and feel distraught

i received the first private eye parking fine for 85.00 but if paid within 14 days would be 50.00 it took them four weeks to send out my fine from the date that i had overstayed on the shopping outlet park. the reminder came ten days later. ( i have been away on hols during this period and come home to both of the fines

my friends and i have been shopping on a local retail outlet for a couple of years now and never , never noticed any signage saying that you have to pay for parking after four hours. we have all spent times longer than four hours in the past ie when you have lunch and numerous coffees with friend etc. i have been to the shopping site today and they are all over the car park as you drive in and on every parking row at least 25 of them bright yellow signage . there is no way anyone could have missed them when parking on the site. but after speaking to my friends none of us have ever noticed these.

apparently if you know you are going to stay over four hours you can go the the central office, enter your registration and you can stay for up to six hours. i did not even know that you could do this on the site

can anyone tell me if i have to pay this type of fine, are they legal ?

bubbles1231

sorry to add this onto a reply but i am not too sure how to add a post as new to the site

hi folks can anyone help me with some advice. read the forum but confused and feel distraught

i received the first private eye parking fine for 85.00 but if paid within 14 days would be 50.00 it took them four weeks to send out my fine from the date that i had overstayed on the shopping outlet park. the reminder came ten days later. ( i have been away on hols during this period and come home to both of the fines

my friends and i have been shopping on a local retail outlet for a couple of years now and never , never noticed any signage saying that you have to pay for parking after four hours. we have all spent times longer than four hours in the past ie when you have lunch and numerous coffees with friend etc. i have been to the shopping site today and they are all over the car park as you drive in and on every parking row at least 25 of them bright yellow signage . there is no way anyone could have missed them when parking on the site. but after speaking to my friends none of us have ever noticed these.

apparently if you know you are going to stay over four hours you can go the the central office, enter your registration and you can stay for up to six hours. i did not even know that you could do this on the site

can anyone tell me if i have to pay this type of fine, are they legal ?

jeanraffio

you NEED to start a new thread - hijacking other leads to no help and confuses the original threads starter who also needs help (like yourself).

go to the main page http://forums.moneysavingexpert.com/forumdisplay.php?f=163 and look for the big blue button in the top left that says New Thread.