Parking Overstay (Membury M4)

supertedgb

Hi All,

This morning I received a Penalty notice (from Parking Eye) for exceeding the 2 hours free at Membury Services. I was actually there for nearly 5 hours working on my laptop in Starbucks and had I realised I had to pay beyond 2 hours I would have done.

The penalty is £100 reduced to £60 on prompt payment - outrageous considering how much I spent on coffee and cake in Stabucks!

So, reading around forums and all sorts of other articles on the subject it basically says don't pay and they will (eventually) go away. An alternative approach is to offer them reasonable compensation, as final settlement - without prejudice. e.g. £10.

However, I think my situation might be different so wanted to know what people thought of this one.

The car is leased by my employer for me to drive. The PCN came through to the leasing company, who forwarded on to my company.

The leasing company have stated in their letter that if failure to pay results in potential legal action (which would be against them and not me or my company) then they will pay the escalated fine and pass on the fine to my employer.

So, if it was my car and I was dealing with Parking Eye directly then I would play hard-ball, but as there is a middle-man what's the best course of action? Has anyone been in this situation before?

Thanks very much.

Coupon-mad

No if it was your own car you would NOT play hard ball. Things have changed. PE sue people who ignore them. But we can beat them at appeal!

Here is the current advice so send an appeal online to PE like the versions shown, NOT talking about what happened or trying to excuse the 'overstay'. No admissions, just a challenge about signage and the fact they have made no loss.

http://forums.pepipoo.com/index.php?showtopic=83749&st=0&gopid=874216

HTH and make sure you come back when you get the POPLA code as that's a fine art (although my link there does show you what makes a winning POPLA appeal too!).


P.S. and have another look, this is NOT a 'penalty notice' at all. It's a Parking Charge, a rubbish bit of black & white paper with some pics on it!

Stroma

First off it's not a penalty/fine!!! But an invoice.

The leasing company has discharged their liability so parking eye cannot go back to them, now you need to take this from your employer so discharging their liability also.

You do this by sending an appeal to parking eye, you do this by saying you didn't see the signs, otherwise you would have paid, you were a customer of the services (supply copies of receipts) and you offer a without prejudice offer of £10 (if you want) towards the loss.

If they reject that ask them for a verification code to go to popla , we win 100% of the time there, so come back when they reject this.

martmonk

Removed as ^^^^^^ got there just before me

supertedgb

Thanks Coupon-mad and Stroma. I will follow that advice now.

Discharging the liability is a great idea, it means it's then down to me.

I will keep you updated - thanks again. Super quick responses too

Cheers

supertedgb

Hi,

A couple of questions before I appeal.

Researching the link that Coupon-mad posted, the general advice is to not admit you were the driver but to hide behind the title of 'registered keeper'. In my case I'm not the registered keeper, the leasing company is.

I'm keen to discharge liability from leasing company (which Stroma suggests has already been done) and from my company but should I admit to being the driver to do that, or is there another way?

Here's my draft appeal, admitting it was me, this okay?

Without prejudice:

I would like to appeal against the parking charge (PCN xxx) as I saw no signs detailing that the parking was limited to 2 hours with no charge. Had I seen any signs I would have promptly paid for exceeding this time limit.

I was a customer of Starbucks (receipts included) detailing the duration of my visit. I enclose a cheque for £10 as a means of final settlement. If you do not accept this, please provide me with my POPLA code.

Yours..


Thanks again !

Coupon-mad

I agree you can just reply as the driver as you want to be sure they never write to the leasing company again.

I would suggest:



[STRIKE]Without prejudice:[/STRIKE] {you do not need that, you would want to use this letter in court if need be!}

Dear Sir/Madam,

I would like to appeal against the parking charge (PCN xxx) as I saw no signs detailing that the parking was limited to 2 hours with no charge. I must therefore assert that your signage is unclear. [STRIKE] Had I seen any signs I would have promptly paid for exceeding this time limit.[/STRIKE]

I was a customer of Starbucks (receipts included) detailing the duration of my visit. Your charge is not related to any possible estimate of loss, however in the interests of resolving the matter without fuss, I enclose a cheque for £10 as a means of full and final settlement with no admission of any liability whatsoever.

If you do not accept this, please provide me with my POPLA code.

Yours..








Thanks again !

GermanKeeper

Do I understand it correctly that the PCN you recived is a notice to keeper, containing the name of the leasing company?

Perhaps you should mail your name and adress to the leasing company also and say that you were the driver. Then they are able to give Parking Eye the name of the driver, so that they will not be involved any more.

If you didn't do this then there could appear the following worst case scenario: PE ignores your appeal and sends a reminder to the leasing company. Then the leasing company pays the charge, and tries to pass the charge to your employer and then to you.
This trouble should be avoided.

Stroma

No sorry that should not be done IMO, once the lease company gives a serviceable name and address that is their end of liability, that is what their trade body the bvrla says should be done.

Going back to the lease company adds more complications of things going wrong, who would be this person be to the lease company?? Better for this person to handle it now, it can be done done via email to parking eye as well as snail mail with a proof of postage from the post office.

GermanKeeper

Perhaps there is a missunderstanding:

I suggested to contact the lease company additionally to contacting PE directly, not instead of contacting PE.

supertedgb

Hi Coupon-Mad and Stroma,


My appeal to PE was rejected. I now have a POPLA appeals form and a verification code.


Stroma suggested I come back here once I have this to ensure your 100% win rate is maintained. I have done a little research on here and found a few 'templates' for appeal and have drafted my response below.


Is appealing online the best course of action?


A couple of things to point out:


i) I am not the registered keeper (it's a lease car), but did effectively admit to being the driver in my original appeal.


ii) I did send a cheque (and receipts proving my custom and duration) for £10 (which, had I seen the signs, would have been the amount I would have paid on the day to 'overstay'). They have not cashed that cheque (yet?). I have made no reference to this in my draft response below - should I and where/how?


Here's my draft, ever so slightly changed to reflect my circumstances but broadly similar to one of the examples referenced.


Huge thanks in advance for all your help

---

I am the user of the vehicle related to the parking charge notice xxxxxx received. I have researched the matter and would like to point out the following:

UNCLEAR, INADEQUATE AND NON-COMPLIANT SIGNAGE

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, the parking space used or exists to any of the shops.

I contend that the signs and any core parking terms ParkingEye 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 and frequency) 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])


CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES

ParkingEye 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, ParkingEyehave 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 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.

I further contend that ParkingEye 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.


The Operator, either through the original correspondence, nor or reply to appeal make no reference to the recovery of monies for the Landlord at all.

NO CONTRACT WITH THE DRIVER

There is no contract between ParkingEye 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

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

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

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 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 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 40% by early payment that it is unreasonable to begin with.

UNLAWFUL PENALTY CHARGE

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 “PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.

SUMMARY

On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with basic contract law.