ParkingEye Nonsense PCN

Swordfish1985

Hi All


I stopped to answer my phone in an empty car park for 16 minutes and have now had a PCN from ParkingEye Ltd.
I have sent my appeal to ParkingEye Directly and they have refused it. SO I set about checking google etc and found all this fantastic advice on here and I have harvested, and changed the applicable parts to show my details etc (Thanks for everyones templates )


Please can someone have a read through and let me know if its OK or ive missed anything etc

---

Dear POPLA
Reference: **********
I want to appeal this charge and have it cancelled. Here are the reasons that I think you should cancel it:

1. ParkingEye Ltd's legal capacity to enforce/issue Parking Charge Notices.

In their correspondence with me, ParkingEye have not produced any evidence to show that they have any proprietary interest in the ****** car park in ********. Nor have they provided any evidence that they are lawfully entitled to demand money from a driver or keeper. As it appears that they do not own the land, nor have any interest or assignment of title of the land in question, it is assumed that they are merely agents for the owner or legal occupier. I contend, therefore, that they do not have the necessary legal capacity to charge the driver of a vehicle for using the car park.

So, I require that ParkingEye Ltd provide a full, up-to date, signed and dated contract or agreement with the landowner . A signed witness statement stating that someone has seen a contract is not sufficient. The contract must state that ParkingEye Ltd are entitled to pursue these matters through the issue of PCNs and through the courts. This needs to be an actual copy and not simply a document which claims that such a contract or agreement exists.

2. Trespass

Without a contract, the most appropriate offence would be of civil trespass. If this was the case, the remedy would be to award damages to ParkingEye Ltd. Given that there was no damage to the car park, the car park was not full when my car entered or left and ParkingEye Ltd do not own the car park, I suggest that there was no loss to ParkingEye Ltd at all.

3. Unlawful Penalty Charge

ParkingEye Ltd alleges a breach of contract. However, without any demonstrable loss or damage, it can only remain a fact that this 'charge' is an attempt to dress up an unlawful penalty 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) OB Services v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .

On this basis, this 'charge' fails to meet the standards set out in paragraph 19 of the British Parking Association’s Code of Practice. It also fails to comply with the CPUTR 2008, the UTCCR 1999, the Equality Act 2010 and basic contract law.

4. The charge is a penalty and not a genuine pre-estimate of loss

The PCN records the duration of stay at 16 minutes, whilst the tariff set by the operator for a 1-2 hour stay is just £3. ParkingEye Ltd are asking for a charge of £100. This far exceeds the cost to the landowner for the time my car was parked there. The charge cannot be construed as anything but a punitive penalty.

Following my appeal directly to ParkingEye Ltd, they did not address this issue. They have not stated why they feel a £100 charge is an appropriate pre-estimate of loss. To justify this charge, I require that ParkingEye Ltd supply a full breakdown of the costs they have suffered as a result of the car being parked at the car park. This breakdown must add up to £100. Normal expenditure that ParkingEye Ltd incurs to carry on their business - their operational day-to-day running costs (e.g. provision of parking, parking enforcement, signage erection, salaries and office rent) must not be included in the breakdown; these are operational costs which ParkingEye Ltd would suffer irrespective of the car being parked at that car park.

I refer POPLA to the case of Vehicle Control Services Ltd vs Mr R Ibbotson (16th May 2012) which found that general business costs cannot constitute a loss. This has also has been held in a number of very recent compelling, and comparable, decisions against ParkingEye Ltd when POPLA has considered similar cases.

Therefore, this £100 charge does not represent a loss resulting from a breach of the alleged parking contract. In other words, were no breach to have happened, the cost of parking enforcement would still have been the same. This has been quoted by POPLA itself in adjudication. The amount of the “penalty” imposed is completely disproportionate to any alleged “loss” by ParkingEye Ltd. It is, therefore, punitive and contravenes the Unfair Contract Terms Act 1997.
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. As such, the charge that was levied is punitive and therefore void (i.e. unenforceable) against me.

I also refer the Adjudicator to the recent Appeal 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 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 Court ruling was "...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. This provides a means of payment at the point of supply, and a means to account to HMRC for the VAT element of the charge. No VAT is itemised on this PCN. 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.

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

I also contend that ParkingEye Ltd have failed to show me any evidence that the cameras used at this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR). I require POPLA to consider that particular section of the Code in its entirety, and decide whether ParkingEye Ltd has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence.

6. No contract with the driver

The Operator refers in their correspondence to “contractually agreed Terms and Conditions”, however, I assert that there is no contract between ParkingEye Ltd and the driver.
I challenge the Operator to provide strict and robust proof that a contract existed between ParkingEye Ltd and the driver on the day in question, which meets all the legal requirements of contract formation, such as a meeting of minds, agreement, certainty of terms etc. If not all of these requirements were satisfied, any contract would be deemed “unfair” in the Unfair Terms in Consumer Contracts Regulations 1999.


7. Unfair terms

Finally, I request that POPLA consider that 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".

Schedule 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"
Schedule 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"."
I present this to POPLA and await your decision

---

Is this good enough to send or do I need more recent examples etc??


Thanks for any help in advance!

Coupon-mad

That's a good start, nicely researched and it 'should' win.

If you want to beef it up and/or check you haven't missed any points then you could check the advice & examples here where some paragraphs have been re-written and beefed up recently:

https://forums.moneysavingexpert.com/discussion/comment/62180281#Comment_62180281

and the recent Court wins here which you could cite in the appropriate places:

http://forums.moneysavingexpert.com/showpost.php?p=62971894&postcount=65

HTH

spacey2012

Insert the point about VCS certification for the cameras and how London Councils are signed up to only accept verified Vehicle Certification scheme approved ANPR cameras.
POPLA is run by London Councils, they are either signed up for VCS or not, force them to address the point of parking Eye using a set of DIY cobbled together none data certificated ANPR systems using software that is not VCS approved for evidential purposes.
We need this point introducing.

4consumerrights

On this basis, this 'charge' fails to meet the standards set out in paragraph 19 of the British Parking Association’s Code of Practice. It also fails to comply with the CPUTR 2008, the UTCCR 1999, the Equality Act 2010 and basic contract law.

You need to delete the "Equality Act 2010" as from your post it does not apply in this case:

Here is another useful thread with recent victories and contains a link on last post to Parking Pranksters blog:

https://forums.moneysavingexpert.com/discussion/4820510


What about signage in your case?
Did they comply with BPA?
Grace period....

Also include planning permission for both the installation of the ANPR, the time restrictions applied and if business rates are being paid for the site.

Check out Guy's dads Popla appeals thread and read all of the comments too. https://forums.moneysavingexpert.com/discussion/4816165 - expand on the ANPR using wording from page 2 details.

Swordfish1985

Thanks for the replies guys


Please can you re-read (if you have time of course) and let me know if this meets the required points


Thanks again

---

Dear POPLA
Reference: **********
I want to appeal this charge and have it cancelled. Here are the reasons that Ithink you should cancel it:

1. ParkingEye Ltd's legal capacity to enforce/issue Parking Charge Notices.

In their correspondence with me, ParkingEye have not produced any evidence toshow that they have any proprietary interest in the ****** car park in********. Nor have they provided any evidence that they are lawfully entitledto demand money from a driver or keeper. As it appears that they do not own theland, nor have any interest or assignment of title of the land in question, itis assumed that they are merely agents for the owner or legal occupier. Icontend, therefore, that they do not have the necessary legal capacity tocharge the driver of a vehicle for using the car park.

So, I require that ParkingEye Ltd provide a full, up-to date, signed and datedcontract or agreement with the landowner. A signed witness statement statingthat someone has seen a contract is not sufficient. The contract must statethat ParkingEye Ltd are entitled to pursue these matters through the issue ofPCNs and through the courts. This needs to be an actual copy and not simply adocument which claims that such a contract or agreement exists. I draw yourattention to ParkingEye v Gradam Case No: 3QT6059.

2. Trespass

Without a contract, the most appropriate offence would be of civil trespass. Ifthis was the case, the remedy would be to award damages to ParkingEye Ltd.Given that there was no damage to the car park, the car park was not full whenmy car entered or left and ParkingEye Ltd do not own the car park, I suggestthat there was no loss to ParkingEye Ltd at all.

3. Unlawful Penalty Charge

ParkingEye Ltd alleges a breach of contract. However, without any demonstrableloss or damage, it can only remain a fact that this 'charge' is an attempt todress up an unlawful penalty to impersonate a parking ticket. This is similarto the decisions in several County Court cases such as Excel Parking Services vHetherington-Jakeman (2008) OB Services v Thurlow (review, February 2011),Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy(April 2012).

4. The charge is a penalty and not a genuine pre-estimate of loss

The PCN records the duration of stay at 16 minutes, whilst the tariff set bythe operator for a 1-2 hour stay is just £3. ParkingEye Ltd are asking for acharge of £100. This far exceeds the cost to the landowner for the time my carwas parked there. The charge cannot be construed as anything but a punitivepenalty.

Following my appeal directly to ParkingEye Ltd, they did not address thisissue. They have not stated why they feel a £100 charge is an appropriatepre-estimate of loss. To justify this charge, I require that ParkingEye Ltdsupply a full breakdown of the costs they have suffered as a result of the carbeing parked at the car park. This breakdown must add up to £100. Normalexpenditure that ParkingEye Ltd 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 Ltd would sufferirrespective of the car being parked at that car park.

I refer POPLA to the case of Vehicle Control Services Ltd vs Mr R Ibbotson(16th May 2012) which found that general business costs cannot constitute aloss. This has also has been held in a number of very recent compelling, andcomparable, decisions against ParkingEye Ltd when POPLA has considered similarcases.

Therefore, this £100 charge does not represent a loss resulting from a breachof the alleged parking contract. In other words, were no breach to havehappened, the cost of parking enforcement would still have been the same. Thishas been quoted by POPLA itself in adjudication. The amount of the “penalty”imposed is completely disproportionate to any alleged “loss” by ParkingEye Ltd.It is, therefore, punitive and contravenes the Unfair Contract Terms Act 1997.
I contend there can be no loss shown whatsoever; no pre-estimate (prior tostarting to 'charge for breaches' at this site) has been prepared or consideredin advance. As such, the charge that was levied is punitive and therefore void(i.e. unenforceable) against me.

I also refer the Adjudicator to the recent Appeal Court decision in the case ofVehicle Control Services (VCS) v HMRC (EWCA Civ 186 [2013]). This casedetermined 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 willnot be." The Court ruling was "...that the monies that VCS collectedfrom motorists by enforcement of parking charges were not consideration movingfrom the landowner in return for the supply of parking services." In otherwords, they are not, as the Operator asserts, a contractual term. If they werea contractual term, the Operator would have to provide a VAT invoice. Thisprovides a means of payment at the point of supply, and a means to account toHMRC for the VAT element of the charge. No VAT is itemised on this PCN. Itmust, therefore, be concluded that the Operator's charges are in fact damages,or penalties, for which the Operator must demonstrate his actual, orpre-estimated, losses, as set out above.

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

I also contend that ParkingEye Ltd have failed to show me any evidence that thecameras used at this car park comply with the requirements of the BPA Code ofPractice part 21 (ANPR). I require POPLA to consider that particular section ofthe Code in its entirety, and decide whether ParkingEye Ltd has shown proof ofcontemporaneous manual checks and full compliance with section 21 of the Code,in its evidence.

6. No contract with the driver

The Operator refers in their correspondence to “contractually agreed Terms andConditions”, however, I assert that there is no contract between ParkingEye Ltdand the driver.
I challenge the Operator to provide strict and robust proof that a contractexisted between ParkingEye Ltd and the driver on the day in question, whichmeets all the legal requirements of contract formation, such as a meeting ofminds, agreement, certainty of terms etc. If not all of these requirements weresatisfied, any contract would be deemed “unfair” in the Unfair Terms inConsumer Contracts Regulations 1999.


7. Unfair terms

Finally, I request that POPLA consider that the charge that was levied is an“unfair term” (and therefore not binding) pursuant to the Unfair Terms inConsumer Contracts Regulations 1999. In particular, Schedule 2 of thoseRegulations gives an indicative (and non-exhaustive) list of terms which may beregarded as unfair and includes at:

Schedule 2(1)(e) "Terms which have the object or effect of requiring anyconsumer who fails to fulfil his obligation to pay a disproportionately highsum in compensation".

Schedule 5(1) states that: "A contractual term which has not been individuallynegotiated shall be regarded as unfair if, contrary to the requirement of goodfaith, it causes a significant imbalance in the parties' rights and obligationsarising under the contract, to the detriment of the consumer"
Schedule 5(2) states: "A term shall always be regarded as not having beenindividually negotiated where it has been drafted in advance and the consumerhas therefore not been able to influence the substance of the term"

8. ANPR Accuracy

This Operator is obliged to ensure their ANPR equipment is maintained asdescribed in paragraph 21.3 of the British Parking Association's ApprovedOperator Scheme Code of Practice. I require the Operator to present records asto the dates and times of when the cameras at this car park were checked,adjusted, calibrated, synchronised with the timer which stamps the photos andgenerally maintained to ensure the accuracy of the dates and times of any ANPRimages. This is important because the entirety of the charge is founded on twoimages purporting to show my vehicle entering and exiting at specific times. Itis vital that this Operator must produce evidence in response to these pointsand explain to POPLA how their system differs (if at all) from the flawed ANPRsystem which was wholly responsible for the court loss by the Operator inParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judgesaid the evidence form the Operator was 'fundamentally flawed' as thesynchronisation of the camera pictures with the timer had been called intoquestion and the operator could not rebut the point.

So, in addition to showing their maintenance records, I require the Operator inthis case to show evidence to rebut this point: I suggest that in the case ofmy vehicle being in this car park, a local camera took the image but a remoteserver added the time stamp. As the two are disconnected by the internet and donot have a common "time synchronisation system", there is no proofthat the time stamp added is actually the exact time of the image. The operatorappears to use WIFI which introduces a delay through buffering, so"live" is not really "live". Hence without a synchronisedtime stamp there is no evidence that the image is ever time stamped with anaccurate time. Therefore I contend that this ANPR "evidence" fromthis Operator in this car park is just as unreliable as the ParkingEye systemand I put this Operator to strict proof to the contrary.

I present this to POPLA and await your decision

Swordfish1985

spacey2012 wrote: »

Insert the point about VCS certification for the cameras and how London Councils are signed up to only accept verified Vehicle Certification scheme approved ANPR cameras.
POPLA is run by London Councils, they are either signed up for VCS or not, force them to address the point of parking Eye using a set of DIY cobbled together none data certificated ANPR systems using software that is not VCS approved for evidential purposes.
We need this point introducing.

Am not sure this applies as this isn't in London and isn't council related?? Cheers

Coupon-mad

I do think the Fox-Jones case is enough to debunk their ANPR on its own in that section of your appeal anyway! I might just tweak this:

Therefore I contend that this ANPR "evidence" from this Operator in this car park is just as unreliable as the [STRIKE]ParkingEye[/STRIKE] system exposed in a similar set of circumstances in ParkingEye Ltd v Fox-Jones and I put this Operator to strict proof...

4consumerrights

In addition to the above comments just re-read the appeal again and make sure spaces are between all the words as quite a few just merge.

And to be really picky - consider altering the points into a logical order -

For example after
point 1 - detailing contract with landowner and right to pursue etc....... the second point could be "No contract with driver"
and
point 8 ANPR accuracy is a natural follow on to Point 5 ANPR section of BPA..........


*****************************

By the way - have you not yet complained to the landowner - this can be done in tandem read sticky thread: started by coupon : Successful complaints -- how to get parking charges cancelled:

https://forums.moneysavingexpert.com/discussion/4766249

Swordfish1985

Coupon-mad wrote: »

I do think the Fox-Jones case is enough to debunk their ANPR on its own in that section of your appeal anyway! I might just tweak this:

Therefore I contend that this ANPR "evidence" from this Operator in this car park is just as unreliable as the [STRIKE]ParkingEye[/STRIKE] system exposed in a similar set of circumstances in ParkingEye Ltd v Fox-Jones and I put this Operator to strict proof...

Sorry Coupon-mad, were do you mean to add this? Or do you mean you think I can remove a lot of info and replace with this please?


Thanks

spacey2012

VCS standards apply to all ANPR evidence used in court and is taken as the minimum standard of evidence admissible.
Parking companies get away with because nobody ever challenges it, or foolishly admits to been in the car park, building the parking scammers case for them.

Swordfish1985

Below is my amendment to section 5


Please can you confirm this makes sense please?




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




I also contend that ParkingEye Ltd have failed to show meany evidence that the cameras used at this car park comply with therequirements of the BPA Code of Practice part 21 (ANPR). I require POPLA toconsider that particular section of the Code in its entirety, and decidewhether ParkingEye Ltd has shown proof of contemporaneous manual checks andfull compliance with section 21 of the Code, in its evidence.


This Operator is obliged to ensure their ANPR equipmentis maintained as described in paragraph 21.3 of the British ParkingAssociation's Approved Operator Scheme Code of Practice. I require the Operatorto present records as to the dates and times of when the cameras at this carpark were checked, adjusted, calibrated, synchronised with the timer whichstamps the photos and generally maintained to ensure the accuracy of the datesand times of any ANPR images. This is important because the entirety of thecharge is founded on two images purporting to show my vehicle entering andexiting at specific times.





Therefore I contend that this ANPR "evidence"from this Operator in this car park is just as unreliable as the system exposedin a similar set of circumstances in ParkingEye Ltd v Fox-Jones and Iput this Operator to strict proof of planned and regular maintenance.



So, in addition to showing their maintenance records, I require the Operator inthis case to show evidence to rebut this point: I suggest that in the case ofmy vehicle being in this car park, a local camera took the image but a remoteserver added the time stamp. As the two are disconnected by the internet and donot have a common "time synchronisation system", there is no proofthat the time stamp added is actually the exact time of the image. The operatorappears to use WIFI which introduces a delay through buffering, so"live" is not really "live". Hence without a synchronisedtime stamp there is no evidence that the image is ever time stamped with anaccurate time. Therefore I contend that this ANPR "evidence" fromthis Operator in this car park is just as unreliable as the ParkingEye systemand I put this Operator to strict proof to the contrary.






Thanks all for all the help! Im hoping to get this sent in tonight