Parking Eye Crown Wharf Walsall- help please

madame_sid

My husband stopped to visit to Starbucks here (on a business trip so not aware of the area) and didn't realise he needed a ticket. He was caught by the cameras and subsequently received a PCN from Parking Eye which we appealed on the basis of no genuine pre-estimate of loss. Unsurprisingly it was rejected! Parking Eye have sent a long letter listing lots of cases where the no genuine pre-estimate of loss argument has not been successful. They give a list of 'every court hearing where the issue of genuine pre-estimate of loss has been raised since POPLA has been in place' and state that 'as you can see no Judge has ruled against ParkingEye in this matter'

Is this a load of rubbish and just a scare tactic? Do you think we have a chance at POPLA?

Redx

read this and read all the replies and comments, including my last one https://forums.moneysavingexpert.com/discussion/4840459

now read and follow the NEWBIES - READ THIS FIRST sticky thread at the top of the forum

then use the links inside that newbies thread to formulate your popla appeal, then post it on here (redact personal info etc) for checking before sending in to popla (28 day deadline with popla , so asap)

if its worded correctly, it always wins at popla - no question

see here for proof, and work backwards

https://forums.moneysavingexpert.com/discussion/4488337

Coupon-mad

Everyone here wins at POPLA against PE with certain words, as linked in the 'NEWBIES read this first' thread. We also have it on good authority that more than one court case was won by defendants in December on the basis there was 'no genuine pre-estimate of loss'.

You will win, just read the guidance already in the sticky threads at the top of this forum (and complain to Starbucks too).

madame_sid

Thanks guys, feel lots better having read these…. will get the POPLA appeal written and post here for review:)

madame_sid

Hi

I've drafted my POPLA appeal based on the various templates on here…. please could someone have a look and let me know what you think?


On XXXXX I received a Parking Charge Notice from Parking Eye. This occurred after my vehicle entered and exited the Crown Wharf Shopping Park car park in Walsall on XXXXXX. According to PE’s ANPR camera, the vehicle was present within the car park for 30 minutes, between the hours of xxxxxx and xxxxxx. Parking Eye claim that the vehicle's driver owes them £85 (reduced to £50 if early payment is made) for not purchasing a Pay and Display ticket or the appropriate parking time on the date of the parking event.

I subsequently appealed this charge with PE, who sent me a letter rejecting my appeal on xxxxxx. I wish to further appeal this charge with POPLA. Here are the reasons that I think you should cancel it

1. Parking Eye’s legal capacity to enforce/issue Parking Charge Notices.

In their correspondence with me, Parking Eye have not produced any evidence to show that they have any proprietary interest in the Crown Wharf car park in Walsall. 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 kindly request that you check whether Parking Eye can 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 Parking Eye are entitled to pursue these matters through the issue of Parking Charge Notices 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, then the most appropriate offence of the ‘alleged incident ‘ would be of civil trespass. If this was the case, the remedy would be to award damages to Parking Eye. Given that there was no damage to the car park, the car park was not full at the time of the incident and Parking Eye do not own the car park, I suggest that there was no loss to Parking Eye at all.

3. Unlawful Penalty Charge

Parking Eye alleges a breach of contract. However, without any demonstrable loss or damage, it is clear 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).

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

The Parking Charge Notice records the duration of stay at 30 minutes, whilst the tariff set by the operator for a 1 hour stay is just £1. Excel is asking for a charge of £85. This far exceeds the cost to the landowner for the time my car was present within the boundary of the car park. The charge cannot be construed as anything but a punitive penalty.

Following my appeal to Parking Eye, they did not adequately address this issue.

To justify this charge, Parking Eye must supply a full breakdown of the costs they have suffered as a result of my car being present within the boundary of the car park for the duration of the stay. This breakdown must add up to £85. Normal expenditure that Parking Eye 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 Parking Eye would suffer irrespective of the car being present within the 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 Parking Eye when POPLA has considered similar cases.

Parking Eye issued a usual well-known template letter, attempting to assert a''commercial justification'' for the charge but I refute their arguments. In a recent decision about a Parking Eye car park at Town Quay Southampton, POPLA Assessor Marina Kapour did not accept Parking Eye'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.

Therefore, this £85 charge does not represent a genuine loss resulting from a breach of the alleged parking contract. In other words, should no breach 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 Parking Eye. It is, therefore, punitive and contravenes the Unfair Contract Terms Act 1997.

In Parking Eye v Smith, Manchester County Court December 2011, the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty.

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.

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.


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

I also contend that Parking Eye 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 Parking Eye 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 a ‘contract with the motorist’ however, I assert that there is no contract between Parking Eye and the driver.

I challenge the Operator to provide strict and robust proof that a contract existed between Parking Eye 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.


Any comments would be great! Thanks

madame_sid

Bump.......!

nigelbb

That's more than enough but you need to proof read & double check everything where you have obviously done a cut & paste e.g.

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

The Parking Charge Notice records the duration of stay at 30 minutes, whilst the tariff set by the operator for a 1 hour stay is just £1. Excel is asking for a charge of £85.

madame_sid

Oops, well spotted! Thanks

ronaldo7

madame_sid wrote: »

Oops, well spotted! Thanks

Hey madame_sid, I've found myself in a similar situation to yourself, just wondering how you got on with the appeal at POPLA?

Umkomaas

ronaldo7 wrote: »

Hey madame_sid, I've found myself in a similar situation to yourself, just wondering how you got on with the appeal at POPLA?

Last recorded date on this forum 1/3/14 - not likely to get a reply to your question. Try a PM to the OP.