Appealing NTK by PE

raptor

Finally got a reply from PE where they have sent a letter detailing why pre-estimate of loss is no longer important and commercial justification is what the judges use in court (citing Shelly 2013).

They have also sent a Popla code and guidance from Popla. however this guidance doesn't mention genuine pre-estimate of loss as a reason for appeal.

kirkbyinfurnesslad_2

GPEOL is definately a good reason to appeal

just tick "not liable for this charge"

raptor

kirkbyinfurnesslad wrote: »

GPEOL is definately a good reason to appeal

just tick "not liable for this charge"

excellent thanks

Umkomaas

raptor wrote: »

Finally got a reply from PE where they have sent a letter detailing why pre-estimate of loss is no longer important and commercial justification is what the judges use in court (citing Shelly 2013).

They have also sent a Popla code and guidance from Popla. however this guidance doesn't mention genuine pre-estimate of loss as a reason for appeal.

If GPEOL is no longer important, then why, in every single PE case referred to POPLA where it has been raised, has PE NEVER won one single appeal (now over 100 cases have been upheld against them)?

More BS from them.

Coupon-mad

raptor wrote: »

They have also sent a Popla code and guidance from Popla. however this guidance doesn't mention genuine pre-estimate of loss as a reason for appeal.

Of course it doesn't - the form was designed by the BPA!

http://parking-prankster.blogspot.co.uk/2013/05/secret-reasons-you-can-use-in-your.html

The above is the truth, you can appeal for any reason but mitigation is a waste of time. So use a ParkingEye template from the 'How to win at POPLA' hyperlink in post #3 of the NEWBIES FAQs sticky thread. You are on the home straight now.

raptor

Ive read through everyones responses but decided to go with the standard transcript but have used my own paragraph in point 1. Could someone confirm that its ok as i know my written english is not great:

Dear POPLA Assessor,

Re: ParkingEye PCN

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

1) The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between ParkingEye and the driver
2) No genuine pre-estimate of loss
3) No standing or authority to pursue charges nor form contracts with drivers
4) Flawed landowner contract and irregularities with any witness statement


1) The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between ParkingEye and the driver

I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B and therefore failed to properly warn/inform the driver of the terms and any consequences for breach.
According to parkingeye the event occurred on a Sunday 22/12/13 at 11.30pm. The driver was completely unaware that they had come into a pay and display car park. They were unable to see any signage as it is was late night and the signage was very poorly displayed with no reasonable lighting to bring to the driver’s attention that it is a pay and display car-park. The sign is displayed above the entrance to the car park at a height that makes it difficult/impossible to see when you turn straight into it. Furthermore there is no obvious signage at all to make drivers aware that the car park is in operation 24/7 as many pay and display car parks would not be in operation so late on a Sunday. If a car park is going to be active at unusual times then this should be clearly highlighted.
Further, because ParkingEye are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance). Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) ParkingEye have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival. The only signs are up on poles with the spy cameras and were not read nor even seen by any of the four occupants of the car.



2) No genuine pre-estimate of loss

This car park is free and there is no provision for the purchasing of a ticket or any other means for paying for parking. There was no damage nor can obstruction caused so there be no loss arising from the incident. ParkingEye notices allege 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. Given that ParkingEye charge the same lump sum for a 15 minute overstay as they would for not purchasing a ticket, and the same fixed charge applies to any alleged contravention (whether serious/damaging), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss. Furthermore the car park was nowhere near full capacity and therefore there would be no loss incurred at all by the car park owner.

This charge from ParkingEye as a third party business agent is an unenforceable penalty. 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.

The Office of Fair Trading has stated to the BPA Ltd that a 'parking charge' is not automatically recoverable simply because it is stated to 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 wholly represent a genuine pre-estimate of loss flowing from the parking event.

ParkingEye and POPLA will be familiar with the well-known case on whether a sum is a genuine pre-estimate of loss or a penalty: Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79. Indeed I expect ParkingEye might cite it. However, therein is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach.'' There is a presumption... that it is 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 damage".

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) No standing or authority to pursue charges nor form contracts with drivers

ParkingEye do not own the land mentioned in their Notice to Keeper and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. Even if a contract is shown to POPLA, I assert that there are persuasive recent court decisions against ParkingEye which establish that a mere parking agent has no legal standing nor authority which could impact on visiting drivers.

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


4) Flawed landowner contract and irregularities with any witness statement

Under the BPA CoP Section 7, a landowner contract must specifically allow the Operator to pursue charges in their own name in the courts and grant them the right to form contracts with drivers. I require ParkingEye to produce a copy of the contract with the landowner as I believe it is not compliant with the CoP and that it is the same flawed business agreement model as in Sharma and Gardam.

If ParkingEye produce a 'witness statement' in lieu of the contract then I will immediately counter that with evidence that these have been debunked in other recent court cases due to well-publicised and serious date/signature/factual irregularities. I do not expect it has escaped the POPLA Assessors' attention that ParkingEye witness statements have been robustly and publicly discredited and are - arguably - not worth the paper they are photocopied on. I suggest ParkingEye don't bother trying that in my case. If they do, I contend that there is no proof whatsoever that the alleged signatory has ever seen the relevant contract terms, or, indeed is even an employee of the landowner, or signed it on the date shown. I contend, if such a witness statement is submitted instead of the landowner contract itself, that this should be disregarded as unreliable and not proving full BPA compliance nor showing sufficient detail to disprove the findings in Sharma and Gardam.

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

Yours faithfully,

Coupon-mad

That looks great to me. The only thing I would add is if the PCN has pictures that support you point #1 and show the car shrouded in darkness at the entrance (apart from car headlights) then say so as a continuation of this sentence:

According to ParkingEye, the event occurred on a Sunday 22/12/13 at 11.30pm. Their photos prove that the car was shrouded in darkness on arrival and on exit and there was no visible lighting apart from the car's own headlights, which could not have illuminated ParkingEye's sign which is nine or ten feet up on a pole and unlit in its own right. There is no parking conditions sign in the driver's line of vision nor any sign, barrier or warning at a reasonable height to be picked out by headlights and I put the Operator to strict proof to the contrary seeing as their own photos support my assertion.

raptor

Coupon-mad wrote: »

That looks great to me. The only thing I would add is if the PCN has pictures that support you point #1 and show the car shrouded in darkness at the entrance (apart from car headlights) then say so as a continuation of this sentence:

According to ParkingEye, the event occurred on a Sunday 22/12/13 at 11.30pm. Their photos prove that the car was shrouded in darkness on arrival and on exit and there was no visible lighting apart from the car's own headlights, which could not have illuminated ParkingEye's sign which is nine or ten feet up on a pole and unlit in its own right. There is no parking conditions sign in the driver's line of vision nor any sign, barrier or warning at a reasonable height to be picked out by headlights and I put the Operator to strict proof to the contrary seeing as their own photos support my assertion.

Yes thats exactly right!

Thanks so much for that i'll add it in!

Regards

Raptor

raptor

changed my first paragraph:

1) The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between ParkingEye and the driver

I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B and therefore failed to properly warn/inform the driver of the terms and any consequences for breach.
According to ParkingEye, the event occurred on a Sunday 22/12/13 at 11.30pm. Their photos prove that the car was shrouded in darkness on arrival and on exit and there was no visible lighting apart from the car's own headlights, which could not have illuminated ParkingEye's sign which is nine or ten feet up on a pole and unlit in its own right. There is no parking conditions sign in the driver's line of vision nor any sign, barrier or warning at a reasonable height to be picked out by headlights and I put the Operator to strict proof to the contrary seeing as their own photos support my assertion!

Furthermore there is no obvious signage at all to make drivers aware that the car park is in operation 24 hours a day, 7 day a week as many pay and display car parks would not be in operation so late on a Sunday. I have found after speaking to the management of the venue I was attending that many other people have also parked without realising that they were in a pay and display car park. It is quite evident from the lack of signage that parking eye prey on drivers unknowingly parking in this car park.

Further, because ParkingEye are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance). Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) ParkingEye have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival. The only signs are up on poles with the spy cameras and were not read nor even seen by any of the four occupants of the car.

raptor

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.

Thanks guys. Another victory