Parking Eye - ANPR retail park

igmeister

Hi,

I'm a newbie looking for a bit of guidance please. I've just spent an hour or so reading through this forum and am optimistic that the parking charge invoice issued to my wife (as registered keeper) by ParkingEye does not need to be paid.

The facts:
- The driver parked in a retail park (Northern England) on 17th Dec in the evening and went to a nearby restaurant with friends
- Driver was unaware of the terms and conditions of the car park, assuming there was no time limit and/or charge at night
- A few days after Christmas keeper recieved the Parking Charge Notice, with photographs of the number plate, stating the car was parked for longer than the permitted 2 hours.
- The charge is £85, reduced to £50 for payment within 14 days
- Driver is over 18 and the car is not leased or hired.

If I have understood the process correctly, my wife as registered keeper (but not necessarily driver) must first make a 'soft appeal' to Parking Eye. She cannot resonably argue that the driver was using the retail park (no reciepts, most shops closed) so it may be best to cut straight to the GPEOL arguement:

My challenge is based on the assertion that your parking charge does not represent a genuine pre-estimate of loss to yourself or the landowner. In every case where a motorist has raised this issue, POPLA have accepted the appeal. You are therefore fully aware that there is no prospect of your charge being upheld. If you do reject the challenge and insist upon taking the matter further I must inform you that I may claim my expenses from you and my time at the court rate of £18 per hour. The expenses I may claim are not exhaustive but may include the cost of stamps, envelopes, travel expenses, legal fees, etc. By continuing to pursue me you agree to pay these costs when I prevail.

I could add in some arguements that it was dark and the signs were not easily read, and that the car park was largely empty - is this worthwhile?

I presume parking Eye will then reject my appeal and provide POPLA code, at which point she should repeat the appeal to them, and they will cancel the charge. Is this the most likely outcome?

I hope I have correctly understood the various nuggets of advice. Thanks in advance for the help.:)

Coupon-mad

igmeister wrote: »

If I have understood the process correctly, my wife as registered keeper (but not necessarily driver) must first make a 'soft appeal' to Parking Eye. She cannot resonably argue that the driver was using the retail park (no reciepts, most shops closed) so it may be best to cut straight to the GPEOL arguement:

My challenge is based on the assertion that your parking charge does not represent a genuine pre-estimate of loss to yourself or the landowner. In every case where a motorist has raised this issue, POPLA have accepted the appeal. You are therefore fully aware that there is no prospect of your charge being upheld. If you do reject the challenge and insist upon taking the matter further I must inform you that I may claim my expenses from you and my time at the court rate of £18 per hour. The expenses I may claim are not exhaustive but may include the cost of stamps, envelopes, travel expenses, legal fees, etc. By continuing to pursue me you agree to pay these costs when I prevail.

I could add in some arguements that it was dark and the signs were not easily read, and that the car park was largely empty - is this worthwhile?

Welcome to MSE!

Yes you've got the right idea and I would indeed start by saying it was dark and she has been back to check the signage, as she is only the registered keeper, and it's clear to her that the signs were not readable because they are high and not lit, and the car park was largely empty so there was no loss caused...then the bit in italics.

Send it online to ParkingEye asap so you know they have got it, and take a copy of your words before you submit it, as PE don't provide an acknowledgement that shows your words (easy to forget what you sent).

igmeister wrote: »

I presume parking Eye will then reject my appeal and provide POPLA code, at which point she should repeat the appeal to them, and they will cancel the charge. Is this the most likely outcome?

I hope I have correctly understood the various nuggets of advice. Thanks in advance for the help.:)

Winning at POPLA is about a little bit more than that; you'll need to use an example linked under 'How to win at POPLA' in the 'Newbies read this first' thread near the top of the forum. She will probably win on 'not a genuine pre-estimate of loss' at POPLA (everyone does at the mo!). But we encourage more than a couple of appeal points just to make sure, and another major one is that PE don't own the car park so have no authority, you require them to show POPLA their landowner contract, etc.

Big_Bad_Dad

Also, may your wife not let on any information concerning the driver; she should respond purely as keeper ultimately responsible for the task of investigation. Never volunteer sensitive information to the likes of Parking Eye.

igmeister

Hi,

Thanks for the guidance so far. Today my wife and I went to have a look at the car park. It was daylight, but the signs are mounted quite high on lamp posts and the text is quite small (especially the full T&Cs) so there could be an arguement there. There is a sign at the entrance and several dotted aorund the car park.

However, there is one other piece of info that may help the appeal - There is one way into the car park and one way out, and driver entered the car park via the exit (marked as no entry) to park in a bay very close to the exit. The driver thought this was ok as the car park and local roads were very quiet. There are no T&C signs facing the driver if you enter that way and this is why the driver did not see the time restriction. If the driver was not made aware of the time restriction, that person cannot be entering into a contract with the car park management company when parking there, right?

Do you think it is worth making this case in appeal to either Parking Eye, or POPLA, of both? It seems a good arguement to me but I would be slightly wary of admitting the driver entered via the exit through a 'no enrty' as this may open up other issues.

Any further advice would be appreciated.

Redx

dont try and get clever, it wont wash as the person parking is supposed to have read and complied with signs etc

but yes you can appeal on bad signage, but other items like no gpeol are stronger and win most appeals

also appeal as RK if this was a postal pcn, no giving away the driver details, like I did this , or SHE did that

you cannot appeal to popla UNLESS the ppc give you a popla code, so you soft appeal to the PPC at this stage

the newbies thread and the umkomaas walk through linked from it tell you all you need to know

everything is in that sticky thread , so please read it, and appeal in the timescales , dont lose your chance now or you may regret it

ps@- post #2 by CM already explained all this, as does here sticky thread , or its links

igmeister

I am just about to submit the soft appeal online to Parking Eye

A couple of queries:
1. I will save a soft copy, but would you advise me to also send a paper copy by registered mail in case it gets 'lost'
2. Do you advise to fill out all fields on appeal form? i.e. do they really need my phone number and email address as i'd rather not give it? (As I understand they correspond by letter anyway)
3. How long does it normally take to get a response/POPLA code?

Thanks

Redx

they wont sign for any mail , so any snail mail needs PROOF OF POSTING only from the PO

if you can do it by snail mail within the time left, then do so if you dont like their online terms

they have 35 days to respond

igmeister

Hi, we have appealed to Parking Eye and as predicted were rejected and provided with a POPLA code. I am now preparing the POPLA appeal.

After reading several examples linked to the newbies and 'POPLA decisions' threads, I opted to base it on Coupon-mad's 'chuck everything at them' example and have tailored to my case. I would appreciate it if one of the regulars could review it and offer feedback. I appreciate you must read loads of these so I have highlighted the bits that I have tailored which probably need the most scrutiny. Thanks in advance:


Operator:ParkingEye
PCN Reference: XXXXX
POPLA Reference: XXXXX
Vehicle Registration: XXXXX
Date of Event: XXXXX
Location: XXXX Retail Park, XXXXXX



Dear POPLA Assessor,

Re: ParkingEye PCN

I am the registered keeper and I wish to appeal a recent parkingcharge from ParkingEye. I submit the points below to show that I am not liablefor the parking charge:

1) No genuine pre-estimate of loss
ParkingEye notices allege 'breach of terms/failure to comply' and assuch, the landowner/occupier (not their agent) can only pursue liquidateddamages resulting directly from the parking event. At the time of the allegedbreach, the car park was largely empty as almost all the shops on the retailpark in question were closed. It cannot therefore be reasonably argued that the driver has caused any loss to the landownersor retailer by not complying with the terms and conditions of the car park.

ParkingEye have not supplied any evidence orbreakdown of any losses to show that it is a genuine pre-estimate of loss. Furthermore,ParkingEye charge the same lump sum for an overstay of a few minutes as theywould for an overstay of a few hours, and the same fixed charge applies to anyalleged contravention (whether serious/damaging, or trifling as in this case). Therefore, it is clear there has been noregard paid to establishing that this charge is a genuine pre-estimate of loss.

This charge from ParkingEye as a third party business agent is anunenforceable penalty. In Parking Eye v Smith, Manchester County CourtDecember 2011, the judge decided that the only amount the Operator couldlawfully claim was the amount that the driver should have paid into themachine. Anything else was deemed a penalty, and in this case this was a freecar 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 statedto 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 whollyrepresent a genuine pre-estimate of loss flowing from the parking event.

ParkingEye and POPLA will be familiar with the well-known case onwhether a sum is a genuine pre-estimate of loss or a penalty: DunlopPneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79.Indeed I expect ParkingEye might cite it. However, therein is the classicstatement, in the speech of Lord Dunedin, that a stipulation: “… will be heldto be a penalty if the sum stipulated for is extravagant and unconscionable inamount in comparison with the greatest loss which could conceivably be provedto have followed from the breach.'' There is a presumption... that it ispenalty when "a single lump sum is made payable by way of compensation, onthe occurrence of one or more or all of several events, some of which mayoccasion serious and others but trifling damage".



Nodoubt ParkingEye will send their usual well-known template bluster (should this be buster not bluster?) attemptingto assert some ''commercial justification'' but I refute their arguments. In arecent decision about a ParkingEye car park at Town Quay Southampton, POPLAAssessor Marina Kapour did not accept ParkingEye's generic submission that theinclusion of costs which in reality amount to the general business costsincurred for the provision of their car park management services iscommercially justified. ''The whole business model of an Operator in respect ofa particular car park operation cannot of itself amount to commercialjustification. I find that the charge is not justified commercially and so mustbe shown to be a genuine pre-estimate of loss in order to be enforceableagainst the appellant.''

Mycase is the same and POPLA must be seen to be consistent if similar argumentsare raised by an appellant.

2)No standing or authority to pursue charges nor form contracts with drivers
ParkingEyedo not own the land mentioned in their Notice to Keeper and have not providedany evidence that they are lawfully entitled to demand money from a driver orkeeper. Even if a contract is shown to POPLA, I assert that there arepersuasive recent court decisions against ParkingEye which establish that amere parking agent has no legal standing nor authority which could impact onvisiting drivers.

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

3)Flawed landowner contract and irregularities with any witness statement
Underthe BPA CoP Section 7, a landowner contract must specifically allow theOperator to pursue charges in their own name in the courts and grant them theright to form contracts with drivers. I require ParkingEye to produce a copy ofthe contract with the landowner as I believe it is not compliant with the CoPand that it is the same flawed business agreement model as in Sharma andGardam.

IfParkingEye produce a 'witness statement' in lieu of the contract then I willimmediately counter that with evidence that these have been debunked in otherrecent court cases due to well-publicised and serious date/signature/factualirregularities. I do not expect it has escaped the POPLA Assessors' attentionthat ParkingEye witness statements have been robustly and publicly discreditedand are - arguably - not worth the paper they are photocopied on. I suggestParkingEye don't bother trying that in my case. If they do, I contend thatthere is no proof whatsoever that the alleged signatory has ever seen therelevant contract terms, or, indeed is even an employee of the landowner, orsigned it on the date shown. I contend, if such a witness statement issubmitted instead of the landowner contract itself, that this should bedisregarded as unreliable and not proving full BPA compliance nor showing sufficientdetail to disprove the findings in Sharma and Gardam.

(Removedparagraphs on secret clause and breach of UTCCR 1999 and CPUTR 2008 as driverdoesn’t have evidence of custom with shops on retail park)


4)The signage was not compliant with the BPA Code ofPractice so there was no valid contract formed between ParkingEye and thedriver
I submitthat this signage failed to comply with the BPA Code of Practice section 18 andappendix B. The signs failed to properly warn/inform the driver of the termsand any consequences for breach. Further, because ParkingEye are a mere agentand place their signs so high, they have failed to establish the elements of acontract (consideration/offer and acceptance). Any alleged contract (denied inthis case) could only be formed at the entrance to the premises, prior toparking. It is not formed after the vehicle has already been parked, as this istoo late. In breach of Appendix B (Mandatory Entrance Signs) ParkingEye have nosignage with full terms which could ever be readable at eye level, for a driverin moving traffic on arrival. The only signs are up on poles with the spycameras and were not read nor even seen by the occupants of the car.

5) ANPRAccuracy and breach of the BPA Code of Practice 21.3
ThisOperator is obliged to ensure their ANPR equipment is maintained as describedin paragraph 21.3 of the British Parking Association's Approved Operator SchemeCode of Practice. I say that Parking Eye have failed to clearly inform driversabout the cameras and what the data will be used for and how it will be usedand stored. I have also seen no evidence that they have complied with the otherrequirements in that section of the code.

Inaddition I question the entire reliability of the system. I require thatParkingEye present records as to the dates and times of when the cameras atthis car park were checked, adjusted, calibrated, synchronised with the timerwhich stamps the photos and generally maintained to ensure the accuracy of thedates and times of any ANPR images. This is important because the entirety ofthe charge is founded on two images purporting to show my vehicle entering andexiting at specific times. It is vital that this Operator must produce evidencein response and explain to POPLA howtheir system differs (if at all) from the flawed ANPR system which was whollyresponsible for the court loss recently in ParkingEye v Fox-Jones on 8Nov 2013. That case was dismissed when the judge said the evidence fromParkingEye was fundamentally flawed because the synchronisation of the camerapictures with the timer had been called into question and the operator couldnot rebut the point.

So,in addition to showing their maintenance records, I require ParkingEye to showevidence to rebut the following assertion. I suggest that in the case of myvehicle 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" from thecameras in this car park is just as unreliable and unsynchronised as theevidence in the Fox-Jones case. As their whole charge rests upon two timedphotos, I put ParkingEye to strict proof to the contrary.

Basedon the above points I request that my appeal is allowed and for POPLA to informParkingEye to cancel the PCN.

Yoursfaithfully,

THEREGISTERED KEEPER

Coupon-mad

That's fine - looks like the usual winning words. And this bit should stay as 'bluster': (should this be buster not bluster?)

igmeister

Thanks coupon-mad.

Bluster, as in 'talk in a loud, aggressive, or indignant way with little effect'. How apt for PE:rotfl:, apologies for my ignorance!

Coupon-mad

You live and learn! I like the words 'Bluster' and 'Obfuscation' to describe PE letters!