Parking Eye - PCN

Coupon-mad

Good (that you complained to the BPA again!). Not good that this appears to be an unusable code, dated 23rd Sept 2013. Do you know what I would do as well?

I would work on your POPLA appeal and post it up here first for comments (find templates in post #3 of the NEWBIES FAQs sticky thread). If you have not got a response from the BPA within a week, send your POPLA appeal by post with a POPLA form downloaded from the BPA website, along with a copy of the letter which claims this is a regenerated code, and a copy of the BPA's email stating that it is a fresh code. And a covering letter explaining why you have been told you can use this 'regenerated' code by the BPA and the Operator even though to your untrained eye it looks like one from September!

The code won't work online but you can certainly attempt a posted POPLA appeal to get a foot in the door in case this isn't sorted out quickly.

Redx

I am now beginning to believe that these parking companies are all avidly vying for the latest prankster award for NUMPTY OF THE YEAR, as nobody with any sense would be able to come up with all these idiotic and chaotic "mistakes"

and they say you cant get the staff any more !! (pay peanuts , you get monkeys) , I am sure an elephant or a dolphin could do better than this !

ie:- time travelling codes, codes with a P on the end , 2013 codes in 2014 , PE and JAS reissuing out of date popla codes to the BPA for members with current claims outstanding !

makes you wonder if they check "the sun" tv guide for last september to see whats on telly tonight

baron3000

Hi everyone.

This is the POPLA appeal letter I am going to send off. Any feedback on it before I send it would be appreciated. I have also included a picture (please copy and paste the dropbox link below but add https at the beginning, sorry i can't post links and attachments just yet) of the main sign in the car park, as there is some small writing at the bottom which are the terms and conditions, and I wouldn't want it to conflict with anything I have wrote in my appeal letter.

Many thanks.

/dl.dropboxusercontent.com/u/23232110/IMG_0084.JPG


POPLA REF XXXXXXXXXXXXXXXX
CAR REG XXXX XXX

Dear POPLA Adjudicator,

Although I am no longer the registered keeper of the car mentioned above, I was the registered keeper at the time the Parking Charge Notice issued by ParkingEye Ltd. I contend that I am not liable for the charge on the following grounds and would ask that they are all considered.

1. The amount demanded is not a Genuine Pre-estimate of loss.
2. ParkingEye Ltd has no contractual authority
3. ANPR Accuracy and Compliance
4a. No contract was entered into between the ParkingEye Ltd and the Driver/Registered keeper
4b. Consequences of having no contract
4c. Unfair terms of “contract”

1) The amount demanded is not a Genuine Pre-estimate of loss

The wording on the signs appears to indicate that the parking charge represents damages for a breach of the parking contract - liquidated damages, in other words compensation agreed in advance. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss flowing from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of retail revenue at a shopping centre.

ParkingEye Ltd will claim that the charge is a genuine pre-estimate of the losses incurred in managing the parking location.
However, the entirety of the parking charge must be a genuine pre-estimate of loss in order for it to be enforceable. I therefore require the parking company to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach.

For example, were no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, maintenance of ANPR Cameras, uniforms, office costs) would still have been the same and, therefore, may not be included. This has been ruled in Court and previous POPLA adjudications and my case is of a very similar nature to these previous rulings.

ParkingEye Ltd claim that my car was in the car park for 24 minutes. The tariff to park for 1 hour is only £1.15 and parking for 6 hours is £6.90. Therefore, the fact they are asking for a charge of £100 is far more than the landowner could have lost for the time my car was said to have parked there.

It would, therefore, follow that these charges were punitive, have a large element of profit included and are not allowed to be imposed by parking companies.

2) ParkingEye Ltd has no contractual authority

The correspondance that ParkingEye Ltd have sent do not show any evidence that they have any proprietary interest in the car park/land in question. Also they have not provided me with any evidence that they are lawfully entitled to demand money from either driver or keeper. Therefore, I can only assume instead they are agents for the owner/legal occupier instead.

I submit therefore that they do not have the necessary legal right to make the charge for a vehicle using the car park. I require ParkingEye Ltd to provide a full, up-to date and signed/dated contract with the landowner (a statement saying someone has seen the contract is not enough). The contract needs to state that ParkingEye Ltd are entitled to pursue matters such as these through the issue of Parking Charge Notices and in the courts in their own name. I clarify that this should be an actual copy and not just a document that claims a contract/agreement exists.

3) ANPR Accuracy and Compliance

I require ParkingEye Ltd to 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 ParkingEye Ltd must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

So, in addition to showing their maintenance records, I require ParkingEye Ltd in this case to show evidence to rebut this point: 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 this Operator in this car park is just as unreliable as the ParkingEye system in the Fox-Jones case and I put this Operator to strict proof to the contrary.
In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:
''21 Automatic number plate recognition (ANPR)

21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.

21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.

21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.

21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:

• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''

At this location, the direction in which I entered the car meant that the driver would struggle to see any signs which clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here. Unless the Operator can show documentary evidence otherwise, then this BPA Cop breach would also point to a failure to comply with the POFA 2012 (keeper liability requires strict compliance), a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary.

4a) No Contract was entered into between the Parking Eye and the Driver/Registered keeper

The signs at the car park in question are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. ParkingEye Ltd clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are. As a result, this makes it far too easy for people to unwittingly fall outside the terms of contract. It is surely the responsibility of ParkingEye Ltd to make the terms of their contract far clearer so that drivers have no doubt whatsoever of any supposed contract they may be entering into. I require ParkingEye Ltd to provide evidence as to how clear the terms and conditions are and consider if the methods used are clear enough for this type of car park. I would specifically like them to look into how clear the signs are that inform drivers that ANPR cameras are in use on this site.

Furthermore a contract can only be considered to be entered into if enough evidence exists that it actually happened. For a contract to have been entered into the driver would have had to get out of the car, read the signs, fully interpret and understand them and then agree to them. None of which ever actually happened. The idea that any driver would accept these terms knowingly is perverse and beyond credibility.
I request that ParkingEye Ltd provide concrete evidence that a contract existed between themselves and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific things including, agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed “unfair” under the Unfair Terms in Consumer Contract Regulations 1999.

4b. Consequences of having no contract

Without a contract it would seem the most appropriate offence would be a civil trespass. If this were the case, the appropriate award ParkingEye Ltd could seek would be damages. As there was no damage to car park there was no loss to them at all and therefore should be no charge.

4c. Unfair terms of “contract”

Although there is no contract between Parking Eye and the driver (or myself), as made clear in reasons 4a. and 4b, if there were a contract then I would ask POPLA to consider this charge to be unfair and non-binding based on the Unfair Terms in Consumer Contracts Regulations 1999. There is a clear list of terms that apply. I have highlighted the following specifically as I believe they apply directly to this case:

2. (1) (e) Terms which have the object or effect of requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation.

5. (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.

5. (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.

The Unfair Terms in Consumer Contracts Regulations 1999 was brought in to protect consumers from unfair contracts such as the one ParkingEye Ltd are suggesting. A company such as Parking Eye needs to actually prove that the driver saw, read and accepted the terms, which is impossible because this did not actually happen.

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.
This concludes my appeal and I therefore respectfully request that my appeal is upheld and the charge dismissed.
Yours faithfully,

Coupon-mad

That will do the job! PE are dropping cases at POPLA now rather than other to provide evidence - in many cases.

baron3000

Hi, I have received a response back from POPLA regarding my appeal and I am pleased to say the appeal was a success!

Please see the following response:

20 March 2014

Reference ********* always quote in any communication with POPLA

(Appellant) -v-
ParkingEye Ltd (Operator)

The Operator issued parking charge notice number ******/******arising out of a presence on private land, of a vehicle with registration mark ********.

The Appellant appealed against liability for the parking charge. The Assessor has considered the evidence of both parties and has
determined that the appeal be allowed.

The Assessor’s reasons are as set out.

The Operator should now cancel the parking charge notice forthwith.

Reasons for the Assessor’s Determination

It is the Appellant’s case that the parking charge notice was issued incorrectly.

The Operator has not produced a copy of the parking charge notice, nor any evidence to show a breach of the conditions of parking occurred, nor any evidence that shows what the conditions of parking, in fact, were.

Accordingly I have no option but to allow the appeal.

************
Assessor

Coupon-mad

Well done - PE did indeed throw in the towel.

nigelbb

Yes, excellent especially considering the rigmarole that you had to go through. Well done for your persistence.

baron3000

Thanks to everyone for all the help and support provided here!

Good luck to anyone else having issues with PE and hope this thread will help them too.