Parking Eye - Aldi

Stonker

Imeant at what point DO PE have to pay? - They have to pay £15 ot something? Do they only pay that once it the POPLA appeal is actually carried out?

I.e, if the PCN is cancelled before the Appeal, do they not have to pay?

Stonker

OK, here is my draft POPLAappeal:


Dear POPLA,

APPEAL RE: Parking Eye PCN number XXXXXXXX POPLA code XXXXXXXX
XXXXXXXX Car Park XXXXXXX, VEHICLE REG: XXXXXXXX

On the XXXXXXXXX Parking Eye issued a parking charge notice of £XXX because vehicle XXXXXXX was allegedly recorded on the automatic number plate recognition system as having stayed at the XXXXXXX car park in XXXXXX for X hours X minutes. This appeal is on the grounds that I am not liable for the parking charge, the vehicle was not improperly parked and the 'parking charge' exceeds any genuine pre-estimate of loss. I therefore appeal on the following points of law:

1. Discrimination under the Equality Act 2010
2. No genuine pre-estimate of loss
3. No evidence of parking time or sufficient detail of contravention
4. No grace period allowed
5. Unclear & non-compliant signage forming no contract with drivers
6. Parking Eye Ltd does not have authority or contract to issue these invoices
7. Unfair & unenforceable terms


1. Discrimination under the Equality Act 2010

Having been diagnosed with anxiety and depression and receiving medication and counselling in respect of the same, the appellant is entitled to an extended period of time to make purchasing decisions and complete their shopping. The issuing of this PCN must be considered discrimination under the Equality Act 2010. A Service Provider cannot lawfully just impose a 'blanket policy' like an arbitrary time limit then rely upon complaints like mine, to cancel charges on individual occasions.

2. No genuine pre-estimate of loss

The amount of the charge (£XX) is disproportionate to the loss incurred by Parking Eye Ltd and is punitive, contravening the Unfair Terms Act 1997. The Appellant also considers the charge to be a penalty because Parking Eye have alleged a breach of terms and conditions and yet have not quantified their alleged loss which cannot include business running costs (as found in Vehicle Control Services vs Mr R Ibbotson 16th of May 2012) only the costs resulting in overstaying in a free car park. The £XX charge is an unfair term and therefore not binding under the Unfair Terms in Consumer Contracts Regulations 1999. Schedule 2 gives and indicative but not exhaustive list of terms which may be regarded as unfair.

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'

Regulation 5 (1) says:

'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'

Regulation 5 (2) says:

'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'

This private parking ticket is unrelated to any genuine pre-estimate of loss are constitutes an unenforceable penalty. The amount claimed by Parking Eye is liquidated damages and, as such, the Operator may only charge a genuine pre-estimate of loss that arises from the alleged contravention in a free car park. Parking Eye have made no attempt to justify the cost of their ticket or to give any deatail of their claimed loss. When they have done this in other cases, they are well knows to have attempted to illegally include a basket of costs, including the cost of erecting site signage and the cost of membership of the BPA, DVLA charges, wages and uniforms. These are all operational costs of running their business. It was found in the case of Vehicle Control Services Ltd vs Mr R Ibbotson (16th May 2012) that general business costs cannot constitute a loss.

Parking Eye are on record from a letter to a third party which is in the public domain, as having stated in 2013 that all their charges are based on 'breach of contract'. In addition, I understand that Parking Eye have told the DVLA that they have had 'reasonable cause' to continuously obtain data by a permanent EDI link due to issuing tickets for 'breach of contract'.

Parking Eye 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 in this particular free car park for this particular 'contravention'.

This car park is free and there is no provision for the purchasing of a ticket or any other means for paying for parking. There was no damage nor obstruction caused. As a result there can be no loss arising from the incident. Parking Eye notices allege 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. Given that ParkingEye charge the same lump sum for a 15 minute overstay as they would for 150 minutes, and the same fixed charge applies to any alleged contravention (whether serious/damaging, or trifling as in my case), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.

This charge from ParkingEye as a third party business agent is an unenforceable penalty. In Parking Eye v Smith, Manchester County Court December 2011, the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty. And in my case this was a free car park with no payment due whatsoever.

The Office of Fair Trading has stated to the BPA Ltd that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.

ParkingEye and POPLA will be familiar with the well-known case on whether a sum is a genuine pre-estimate of loss or a penalty: Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79. Indeed I expect Parking Eye might cite it. However, therein is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach.'' There is a presumption... that it is penalty when "a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

No doubt Parking Eye will send their usual well-known template bluster attempting to assert some ''commercial justification'' but I refute their arguments. In a recent decision about a Parking Eye car park at Town Quay Southampton, POPLA Assessor Marina Kapour did not accept Parking Eye's generic submission that the inclusion of costs which in reality amount to the general business costs incurred for the provision of their car park management services is commercially justified. ''The whole business model of an Operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre-estimate of loss in order to be enforceable against the appellant.''

My case is the same and POPLA must be seen to be consistent if similar arguments are raised by an appellant.

3. No evidence of parking time or sufficient detail of contravention

Parking Eye Ltd are simply relying on pictures taken of a vehicle at first arrival and then when leaving. These pictures show no evidence at all of actual parking time or where the car was after driving in.

Parking Eye 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). POPLA must consider whether the Operator has shown documented evidence of contemporaneous manual checks of the cameras, clocks and related machinery in that particular car park. These maintenance checks are a requirement of section 21 of the Code.

I say that Parking Eye have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. I have also seen no evidence that they have complied with the other requirements in that section of the code.

Furthermore, Councils must only use ANPR evidence gathered by camera data systems approved directly by the Vehicle Certification Agency. I ask POPLA to consider whether it is reasonable to accept that the Operator’s camera fails to meet evidential standards that would be required for private parking notices that would be required for civil parking offences?

In addition I question the entire reliability of the system. I require that ParkingEye present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

In addition to showing their maintenance records, I require ParkingEye to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from the cameras in this car park is just as unreliable and unsynchronised as the evidence in the Fox-Jones case. As their whole charge rests upon two timed photos, I put ParkingEye to strict proof to the contrary.


..........................................

Stonker

Pt2....


4. No grace period allowed


Parking Eye Ltd are in breach of part 13 of the BPA Code of Practice:

‘13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go’.

‘13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action’.

The Operator’s photographs show the vehicle entered the car park at XX:XX and left at XX:XX. The driver believes to have been within a reasonable grace period both at the start and end of the parking event. Parking Eye Ltd should confirm what they consider the length of this period to be for a driver protected under the Equality Act 2010.

5. Unclear & non-compliant signage forming no contract with drivers


The appellant believes that the signs and any core parking terms Parking Eye are relying upon were unclear in all respects. This Operator needs to show POPLA their evidence and signage map/photos 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 insufficient signage do not alter the contract which must be shown in full at the entrance.
There are no low-positioned, clear signs on entry to this car park which would have communicated the terms & conditions of parking there to a seated driver in moving traffic. This is a breach of the BPA Code of Practice at Appendix B which sets out strict requirements for entrance signage, including ''The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead''.

The appellant believes that signs failed to properly and clearly warn/inform the driver of the terms in this car park and any consequences for breach, as was found in a comparable camera-reliant car park in the case of Excel Parking Services Ltd v Martin Cutts, 2011.

Parking Eye has a duty to make the terms so clear that they cannot be missed. To fail in this respect means that the elements of a contract have not been met. To suggest a breach of contract, Parking Eye also needs to prove that the driver actually saw, read and accepted the terms. No driver would knowingly accept these terms to pay this charge. The truth is that the driver did not see, understand nor accept the alleged terms. Parking Eye may claim that generic signage is displayed around the car park but this does not meet the BPA Code of Practice rules nor the requirements for consideration when forming an alleged contract.

Parking Eye needs to prove a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding, rather than utilise free parking as provided by this carpark.

In Mendelssohn v Normand Ltd [1970] 1 QB177 Lord Denning MR at 182 dealt with the question whether a term on a notice board at a car park might have been incorporated into a contract where it was not obvious as the driver came in but was obvious when paying for parking at the end, and where the plaintiff had parked often before. He said:
“He may have seen the notice, but he had never read it. Such a notice is not imported into the contract unless it is brought home to the party so prominently that he must be taken to have known of it and agreed with it.”

So in addition, because the signs fail to properly inform drivers of the full terms & conditions in a very prominent place at a low enough height at the entrance, the elements of a contract have not been met. Any alleged contract would be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late.

Parking Eye does not provide signage of sufficient written text size or at a suitable height to be read from the vehicle at the entrance or at any location on the premises. I suggest Parking Eye need clear signs and means for a driver to read the full terms and to make payment with a machine at the entrance to the car park if they wish to try to establish a contract requiring payment in exchange for a parking space here.

6. Parking Eye Ltd does not have authority or contract to issue these invoices

Parking Eye Ltd do not own this car park and are acting merely as agents for the owner/occupier. Parking Eye Ltd have not provided the Appellant with any evidence that it is lawfully entitled to demand money from the driver, since they do not own nor have any interest or assignment of the title of the land in question. The Appellant does not believe Parking Eye Ltd has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract (as evidenced in the Higher Court findings in VCS vs HMRC 2012). The Appellant puts Parking Eye Ltd to strict proof that they have the necessary authorisation at this location. This would be in the form of a signed and dated contract with the landowner/occupier specifically evidencing the ability of Parking Eye Ltd to pursue parking charges to the courts.

Parking Eye must provide documentary evidence in the form of a copy of the actual site agreement/contract with the landowner/occupier (not just a signed slip of paper saying it exists.

In POPLA case reference 1771073004 POPLA ruled that a witness statement was not valid. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement regarding contract documents between the operator and the landowner the alleged contract is a document which the operator could produce (if it exists). If the operator does not produce the actual contract but tries to rely on a witness statement then POPLA should be consistent and rule any such statement invalid). Specifically, to comply with the Code of Practice, the contract needs to specifically grant Parking Eye the right to pursue parking charges in the courts in their own name, as creditor.

ParkingEye do not own the land mentioned in their Notice to Keeper and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. Even if a contract is shown to POPLA, I assert that there are persuasive recent court decisions against ParkingEye which establish that a mere parking agent has no legal standing nor authority which could impact on visiting drivers.

In ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013 District Judge Jenkins checked the ParkingEye contract and quickly picked out the contradiction between clause 3.7, where the landowner appoints ParkingEye as their agent, and clause 22, where is states there is no agency relationship between ParkingEye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between ParkingEye and motorists who used the land. This decision was followed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the Defendant. District Judge Jones concurred completely with the persuasive view in ParkingEye v Sharma that a parking operator has no standing to bring the claim in their own name. My case is the same.


7. Unfair & unenforceable terms

The appellant believes that this charge is punitive and unfair, contravening the Unfair Contract Terms Act 1997. Furthermore, that Parking Eye is in breach of the Unfair Terms in Consumer Contracts Regulations 1999.

Schedule 2(1)(e) states: ‘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’.


Also, Regulation 5 states:

(1) ‘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.
(2) 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.’

Private parking tickets unrelated to any genuine loss are unenforceable penalties. Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, this 'charge' can only be an attempt at dressing up a penalty to impersonate a parking ticket, as was found in the case of Excel Parking Services v Hetherington-Jakeman (2008) also OBServices v Thurlow (review, February 2011), in Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012).

And from the Office of Fair Trading, Guidance re Unfair Contract Terms:
''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''



CONCLUSION

Since there was no demonstrable loss or 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; for example: 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 is either charging for losses or it is a penalty/fine.

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

The signage on site states that parking is limited to X hours with no return within X hours. There is no option to stay for longer by paying. This ‘Parking Charge’ therefore is clearly a penalty.

Although Parking Eye Ltd contends that the charge is a contractual term, the wording of the signage states ‘failure to comply with any of these conditions may result in your vehicle being issued with a parking charge notice.’ It is clear from this wording that the amount will only be sought in the event that the appellant is parked in breach of one of the terms listed on the signage and therefore the charge would appear to represent liquidated damages, which is compensation, agreed in advance; this means that the breach should represent the actual loss caused. The operator has failed to reference the loss incurred in this case and therefore there is no evidence to dispute the appellant’s claim that the charge is not a genuine pre estimate of the loss.



In considering the evidence in my appeal, I believe POPLA should order that this unjustified charge is cancelled.


Yours faithfully,

bod1467

Oh right. I think PE pay if the POPLA appeal is "heard" (reviewed) by POPLA. If it is cancelled prior to that then they don't pay anything. (£27 + VAT. Plus I believe the BPA also have to make a payment per appeal hearing).

Coupon-mad

POPLA appeal looks fine to submit, may as well do it anyway, even if PE write next week to say it is indeed cancelled...and they will inform you that 'there are no monies outstanding on this account'.

'What account?', everyone always wonders!

Stonker

OK, I'll check in the in the morning to see if I have a futher letter. If I enter the PCN number though on the PE site, it says '
No payment is due for this reference number.'

The letter I have from PE does go to considerable lengths though to say that gpeol is no longer the method adopted by judges when deciding whether the charge is a penalty or not and to list all the court cases where they have been successful. It doesn't say much about popla though.......

4consumerrights

tonker you have worked very hard on your appeal and it reads very well however this paragraph below I would not put in as it is a cut and paste job from successful appeals and is wording they use:

Although Parking Eye Ltd contends that the charge is a contractual term, the wording of the signage states ‘failure to comply with any of these conditions may result in your vehicle being issued with a parking charge notice.’ It is clear from this wording that the amount will only be sought in the event that the appellant is parked in breach of one of the terms listed on the signage and therefore the charge would appear to represent liquidated damages, which is compensation, agreed in advance; this means that the breach should represent the actual loss caused. The operator has failed to reference the loss incurred in this case and therefore there is no evidence to dispute the appellant’s claim that the charge is not a genuine pre estimate of the loss.

I would also consider adding another category - especially as this is Aldi and just to annoy PE to make them jump through another hoop:

PLANNING CONSENT FOR FREE PARKING AND INSTALLATION OF ANPR:

Parking Eye should provide proof that planning permission has been granted for xxxx hours and that they have consent for the installation of the ANPR.

I would also consider this as your last paragraph (to remind POPLA the law) regarding breach of Equality Act supplied by Coupon the core POPLA thread:

https://forums.moneysavingexpert.com/discussion/4816165

I would remind the POPLA assessor that POPLA is also a 'service provider' to the public and has the same duties under the Equality Act 2010 and the EA Code of Practice, which the Chief Adjudicator will no doubt be familiar with (employees, including all POPLA assessors, also need to be trained in this law and fully compliant). I contend it would be discrimination by POPLA if you do not uphold this appeal in view of the disability/no reasonable adjustment situation. The Assessor in this case, having read all the facts, is acting in the full knowledge of my disability need, the lack of reasonable adjustment made, and knowing of the consequences that will cause further detriment and harassment for me if you do not cancel this charge.

The letter I have from PE does go to considerable lengths though to say that gpeol is no longer the method adopted by judges when deciding whether the charge is a penalty or not and to list all the court cases where they have been successful. It doesn't say much about popla though.......

Parking Eye always send a load of tripe and lie ......

POPLA have upheld EVERY appeal where no GPEOL is raised for months now.

Check out also this thread: https://forums.moneysavingexpert.com/discussion/4851371

Have you checked your code yet? Because you could wait until a day or so before expiry before submitting in case the lovely Rachel at Aldi's has indeed instructed PE to cancel and you do receive confirmation.

Stonker

Thanks for that.

Yes I did realise that the section you first mention was from a successful conclusion but I thought I would put it in as it was true (I thought). Happt to remove it though.

I will give it until the middle of next week and if I haven't received a letter to confirm cancellation, I will submit it (after amendment)

Stonker

Apparently she has received a letter from PE confirming cancellation

Coupon-mad

Good news - and this was good practice for you for next time!