ParkingEye pretends not receiving my challenge letter

Umkomaas

esmerobbo wrote: »

Maybe PE should make it 8 pages the last containing all the POPLA loses which have disagreed with their estimations of loss!

They'll need more than one extra page to list that lot.

bod1467

Depends on font size used.

mn1999

Had a busy new year week, just got time to sort this POPLA letter.

17 Days remaining to the appeal deadline!

I am thinking of disputing their signs as one of my points in my appeal. But I am not sure if their signs are proper according to BPA's CoP.

There are TWO signs with different penalty charge.
1. Pick up/Drop off, 15 minutes free period, otherwise £90
2. Parking Tarriff display sign, otherwise £100

I stayed 20 minute according to their camera. PE demanded £100.

Their letter states:" By either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted, in accordance with the terms and conditions set out in the signage, the Parking Charge is now payable to ParkingEye Ltd (as the Creditor)."

It seems they did not bother to evaluate each individual case, just send you a standard letter.

Should I dispute this or ignore this and just get on with my other legal points?

Thanks in advance.

kirkbyinfurnesslad_2

Dnt worry about signage to much..u can add it. But stick to the winning points

Lazos

mn1999 wrote: »

Their letter states:" By either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted, in accordance with the terms and conditions set out in the signage, the Parking Charge is now payable to ParkingEye Ltd (as the Creditor)."

I have recieved a similar statement. This doesn't meet the requirement of POFA as the registered keeper can't possible pay a PCN if they don't know whether the driver didn't pay for the appriopriate time OR whether they remained in the car park for longer than permitted...You have No Keeper Liability here.

Along with plenty of other reasons of course...;)

Coupon-mad

Main winning reasons in POPLA appeals are 'no GPEOL' and 'not the landowner so no contract/authority/standing to make contracts with drivers nor to pursue the matter in the courts in their own name' as you'll see in the newbies thread link about how to win at POPLA.

Coupon-mad

mn1999 wrote: »

Their letter states:" By either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted, in accordance with the terms and conditions set out in the signage, the Parking Charge is now payable to ParkingEye Ltd (as the Creditor)."

It seems they did not bother to evaluate each individual case, just send you a standard letter.

Should I dispute this or ignore this and just get on with my other legal points?

As you will see from the example POPLA appeals in the newbies thread link, signage should also be one POPLA point; it's not for you to prove, it's for them to rebut that their signs aren't compliant.

And the point about the Notice to Keeper not clearly stating the 'contravention' can be used to attempt to argue that the NTK is not compliant with POFA2012 and is not clear and transparent, as required in the Unfair Terms in Consumer Contracts Regs 1999 and Unfair Contract Terms Act 1977. That's an 'arguable point' but not a set-in-stone winner at POPLA as we've never yet seen them have to decide about a well-argued 'unfair terms' case.

Worth including but with the 'usual winning' points as #1 and #2.

mn1999

Hi! Everyone. Finally, my appeal letter is drafted. Please help me to rectify any weak/wrong points.

The incident is regarding a several minutes overstay out of 15 minutes drop off/pick up time (my opinion, as it is what I did) but ParkingEye might claim it is none payment for parking, though it had not clarify this ambiguity.

The red lettered paragraph is my specific case, please let me know if they are necessary or undermine my argument.

Thanks in advance.

________________________________________________________


Dear POPLA Assessor,

APPEAL RE: ParkingEye CHARGE ******/******,*********
**Hotel car park: **/11/2013, VEHICLE REG: **** ***

I am the Registered Keeper of the above vehicle and I am appealing against the above mentioned charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.

1. The parking company has no contract with the landowner that permits them to levy charges on motorists up to pursuit of these charges through the courts.

2. The amount demanded is not a Genuine Pre-estimate of loss.

3. The signage at the car park was not compliant with the British Parking Association standards and there was no valid contract between the parking company and the driver.

4. ANPR Accuracy and Compliance

Here are the detailed appeal points.


1. Flawed landowner contract and irregularities with any witness statement

Section 7 of the BPA's Code of Practice states that private parking companies must have written authorisation from the landowner to carry out all aspects of management and enforcement on the site.

I do not believe that ParkingEye has the necessary legal capacity to enter into a contract with a registered keeper of a vehicle parking in the car park they do not own, or indeed the lawful status to allege a breach of contract in their name. Specifically, to comply with the Code of Practice, the contract needs to grant Parking Eye the right to pursue parking charges in the courts in their own name, as creditor. I require the parking company to produce a copy of the official contract with the landowner that shows POPLA that they do have such authority.


It is widely known that some contracts between landowner and parking company have ”authority limit clauses” that specify that parking companies are limited in the extent to which they may pursue motorists. One example from a case in the appeal court is Parking Eye –v- Somerfield Stores (2012) where Somerfield attempted to end the contract with Parking Eye as Parking Eye had exceeded the limit of action allowed under their contract.

It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted, that it is accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory is, indeed, authorised to act on behalf of the landowner, has read the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company

2. The parking charge is not a genuine pre-estimate of loss.

Section19.5 of the BPA's Code of Practice states that "if the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer".

The £100 charge asked for far exceeds the cost to the landowner, as the car park is free in the first 15 minutes for motorists to drop off/pick up hotel customers, afterwards it is £1/per hour. The car park had ample remaining capacity and no physical damage to the landowner was caused by this incident.

In the case of Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79, Lord Dunedin stated that a charge becomes a 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". Given that Parking Eye charge the same lump sum for a 5 minute overstay as they would for 150 minutes, and the same fixed charge applies to any alleged contravention (whether serious/damaging, or trifling), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss, therefore it is a penalty.

The Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999' state that ''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...''

It would, therefore, follow that these charges were punitive, have an element of profit included and are, as a result, unenforceable. In order to refute this, I require production of a breakdown of how this cost is calculated. By law this cost should be as a result of the alleged breach and not operational expenditure, which would have still been incurred were no breach to have occurred.

No doubt ParkingEye 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 ParkingEye car park at Town Quay Southampton, POPLA Assessor Marina Kapour did not accept ParkingEye'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) The signage at the car park was not compliant with the British Parking Association's Code of Practice (BPA) (section 18) and therefore there was no valid contract between the parking company and the registered keeper.

Following receipt of the charge, I have personally visited the site in question. There is, in fact, no sign at the main entrance to the hotel to warn/inform the driver of the terms in this hotel car park. Only after a driver had enter the hotel, they would see a sign on the wall of the hotel informing them of the drop off/pick up terms. Even this sign was not fit for purpose. It asked the driver to park in designated bays, however, there is no Drop off/Pick up bays at all on the road, only double yellow lines.

The sign on the other side of the entrance is positioned too high and the lettering is far too small to read from a car, especially when in moving traffic entering the car park.

Furthermore, these two signs are contradictory to each other. One sign demands £90 for “Failure to comply”, the other one requires £100. And it is obvious that even ParkingEye themselves are confused and not sure which sign to follow as their Parking Charge Notice said “By either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted, in accordance with the terms and conditions set out in the signage, the Parking Charge is now payable to ParkingEye Ltd (as the Creditor)." Despite my previous request, ParkingEye did not respond and clarify on which ground the charge is based.

The Operator needs to show evidence and signage map/photos on this point - 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 the ticket machines or on a ticket itself, do not alter the contract which must be shown in full at the entrance. I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park as they failed to comply with the BPA Code of Practice appendix B. I require the operator to provide photographic evidence that proves otherwise.

As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

Any alleged contract can only be formed at the entrance to the premises, prior to parking. Therefore, as defined by Unfair Terms in Consumer Contracts Regulations 1999, the requirements of forming a contract, for example a meeting of minds; agreement; certainty of terms, were not satisfied. The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

4. ANPR Accuracy and Compliance

This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. 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.

There are no signs at the car park that 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", therefore breaching the terms of the BPA. I have also seen no evidence that they have complied with the other requirements in that section of the code.

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 this 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.

So, 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.

I request that my appeal is upheld and for POPLA to inform ParkingEye to cancel the PCN.

Yours faithfully,

The Registered Keeper
Me

Coupon-mad

Looks OK to me! I am pleased to see your personal stamp on it, in terms of things like the two different amounts on the signs! The only things I would suggest is to change 'cost' to 'loss' both times in this phrase:

''It would, therefore, follow that these charges were punitive, have an element of profit included and are, as a result, unenforceable. In order to refute this, I require production of a breakdown of how this cost is calculated. By law this cost should be as a result of the alleged breach and not operational expenditure, which would have still been incurred were no breach to have occurred.''

...and I would mention the £90/£100 inconsistent signs in that paragraph about 'no genuine pre-estimate of loss' as well, stating that PE can't decide how much the 'loss' even is at this site - so clearly the charge cannot possibly represent any loss and is merely a made-up fixed charge, a disguised penalty.

mn1999

Thanks C-M for your lightening reply!

Changes made and an extra paragraph added.

Should I attach the TWO inconsistent signs to POPLA or just leave it for PE to do it?