Parking Eye PCN

pogofish

bubbles1231 wrote: »

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

Just go to the top of the forum and click the big blue New Thread button.

softmachine

Please don't hi-jack my thread, Bubbles! I'm literally days away from submitting my POPLA appeal for which I need valuable feedback!!!

There are a billion other threads you could read first which will give you answers to many of these questions. To start a new thread you need to be on the main forums page, not within a specific forum, then look for the start thread icon (looks like the Post Reply icon you used here) on the left hand-side.

To maintain continuity of this thread I'm re-posting my draft appeal letter below:

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 ParkingCharge 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.

Umkomaas

Looks fine to me, although a bit difficult to read as there's been some word linking (I guess you've used Word to draft your appeal and copied and pasted into the forum?). A noted formatting conflict.

I'm not sure whether you might get the same problem if you are going to c&p it into the POPLA website, but if you are, it might be wise to also do a paper copy with your POPLA code on each page, the POPLA submission sheet as the first page, all stapled together (not paper clipped) and sent by snail mail, with free proof of posting from the PO.

In terms of your appeal, forgive me if this has been covered elsewhere in your thread, but why are you penning the appeal as 'the driver' not the 'Registered Keeper'?. You will need to change 'No Contract with the Driver' to '...with the Registered Keeper' if you change your opening statement to RK.

One further, and contemporary point to add to either the appeal point on 'Proprietary Position' or 'Contract with Registered Keeper' is this (kudos to Coupon-mad)

Parking Eye v Sharma is a compelling recent case:

ParkingEye v Sharma.
Case No. 3QT62646 in the: Brentford County Court 23/10/2013
Before: District Judge Jenkins.
The judge said that the contract was a commercial matter between PE and the landowner, and didn’t create any contractual relationship with motorists who used the car park.

softmachine

Many thanks, Umkomaas, and apologies for the word linking. It was indeed a word document and I will be supplying a paper document by snail-mail.

Umkomaas

softmachine wrote: »

Many thanks, Umkomaas, and apologies for the word linking. It was indeed a word document and I will be supplying a paper document by snail-mail.

Are you able to say why you're approaching this as 'the driver'?

softmachine

Naivety! I'm no expert at this, obviously, so I've appropriated winning points from other POPLA appeals where they fit my own case and this was the original wording. In my soft appeal to PE I referred to myself as the registered keeper so I'll make this consistent within my POPLA appeal as well. Thanks!

Umkomaas

softmachine wrote: »

Naivety! I'm no expert at this, obviously, so I've appropriated winning points from other POPLA appeals where they fit my own case and this was the original wording. In my soft appeal to PE I referred to myself as the registered keeper so I'll make this consistent within my POPLA appeal as well. Thanks!

Yep, keep it to RK.

Coupon-mad

Totally agree with Umkomaas. Change it all to 'the keeper' and also add in the Sharma case as a compelling decision, to the paragraph about 'No Evidence of ParkingEye’s Proprietary Position'.

softmachine

Many thanks!

Is there any supporting evidence I need to enclose with the letter? I have no receipt to offer as the car park was not part of a retail site and I have not gone down a signage route so have no photos either. Can't think of anything, but I don't want to miss a trick...!:D

Umkomaas

softmachine wrote: »

Many thanks!

Is there any supporting evidence I need to enclose with the letter? I have no receipt to offer as the car park was not part of a retail site and I have not gone down a signage route so have no photos either. Can't think of anything, but I don't want to miss a trick...!:D

You can indeed throw in a 'signage' appeal point. It's not for you to prove anything in this, that's for the PPC to do.

So you say that you do not believe that the signage meets the strict requirements of the BPA Code of Practice, especially as the driver didn't see the signs when they entered the car park, and you put PE to strict proof that they meet all the CoP requirements in this regard. Here is the CoP, have a look at Section 18 and Appendix B.

http://www.britishparking.co.uk/write/Documents/AOS/609_AOS_CoP_June_2013_update.pdf

HTH