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POPLA Appeal - ParkingEye Leyland
DavieT123
Posts: 6 Forumite
Hi all,
I'm aware I'm probably the 2,000,000th person to ask this but I wondered if someone could skim over my POPLA appeal and double check it for me. I have taken parts of the successful appeals I have seen across the forum and added parts of my own to make it relevant - in my eyes this seems like the logical way of guaranteeing success. The parking charge was for an overstay of 16 minutes at a free car park in Leyland. Thanks!
Dear POPLA
Address
My Details
PCN No.
Issued.
Reg.
Today’s Date
Re: ParkingEye PCN, verification code xxxxxxxxxx
I am the registered keeper and I wish to appeal a recent parking charge from ParkingEye. I submit the points below to show that I am not liable for the parking charge:
1) No genuine pre-estimate of loss
The car park in question (Churchill Way Retail Park, Leyland) is free to use and there is no provision for purchasing a ticket. Therefore the charge is a penalty and not a genuine pre-estimate of loss. The £100 charge asked for far exceeds the cost to the landowner who would have received £0.00 from any vehicles parked.
For this charge to be justified a full breakdown of the costs Parking Eye has suffered as a result of the car being parked at the car park is required and should add up to £100. Normal expenditure the company incurs to carry on their business (e.g. provision of parking, parking enforcement or signage erection) should not be included in the breakdown, as these operational costs would have been suffered irrespective of the car being parked at that car park. Given that ParkingEye charge the same lump sum for a 16 minute overstay as they would for 100 minutes, and the same fixed charge applies to any alleged contravention (whether serious/damaging or neither in my case), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.
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. And in my case this was a free car 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 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 an appellant raises similar arguments.
2) No standing or authority to neither pursue charges nor form contracts with drivers
The registered keeper does not believe that Parking Eye has demonstrated a proprietary interest in the land, because they have no legal possession which would give Parking Eye any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, Parking Eye's lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge.
The registered keeper believes there is no contract with the landowner/occupier that entitles them to levy these charges and therefore has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to Parking eye. The registered keeper expects Parking Eye to prove that they are not in breach of section 7.1 of the BPA code.
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 it 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.
3) 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 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.
4) The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver
Following receipt of the charge, I have personally visited the site in question. I believe the signs and any core parking terms that the parking company is relying upon were too high and too small for any driver to see, read or understand when driving into this car park, especially at night time with no independent lighting in place specifically for the signage. 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.
The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding.
The idea that any driver would accept these terms knowingly is perverse and beyond credibility.
5) ANPR Accuracy and breach of the BPA Code of Practice 21.3
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. 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 their 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
I'm aware I'm probably the 2,000,000th person to ask this but I wondered if someone could skim over my POPLA appeal and double check it for me. I have taken parts of the successful appeals I have seen across the forum and added parts of my own to make it relevant - in my eyes this seems like the logical way of guaranteeing success. The parking charge was for an overstay of 16 minutes at a free car park in Leyland. Thanks!
Dear POPLA
Address
My Details
PCN No.
Issued.
Reg.
Today’s Date
Re: ParkingEye PCN, verification code xxxxxxxxxx
I am the registered keeper and I wish to appeal a recent parking charge from ParkingEye. I submit the points below to show that I am not liable for the parking charge:
1) No genuine pre-estimate of loss
The car park in question (Churchill Way Retail Park, Leyland) is free to use and there is no provision for purchasing a ticket. Therefore the charge is a penalty and not a genuine pre-estimate of loss. The £100 charge asked for far exceeds the cost to the landowner who would have received £0.00 from any vehicles parked.
For this charge to be justified a full breakdown of the costs Parking Eye has suffered as a result of the car being parked at the car park is required and should add up to £100. Normal expenditure the company incurs to carry on their business (e.g. provision of parking, parking enforcement or signage erection) should not be included in the breakdown, as these operational costs would have been suffered irrespective of the car being parked at that car park. Given that ParkingEye charge the same lump sum for a 16 minute overstay as they would for 100 minutes, and the same fixed charge applies to any alleged contravention (whether serious/damaging or neither in my case), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.
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. And in my case this was a free car 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 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 an appellant raises similar arguments.
2) No standing or authority to neither pursue charges nor form contracts with drivers
The registered keeper does not believe that Parking Eye has demonstrated a proprietary interest in the land, because they have no legal possession which would give Parking Eye any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, Parking Eye's lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge.
The registered keeper believes there is no contract with the landowner/occupier that entitles them to levy these charges and therefore has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to Parking eye. The registered keeper expects Parking Eye to prove that they are not in breach of section 7.1 of the BPA code.
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 it 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.
3) 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 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.
4) The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver
Following receipt of the charge, I have personally visited the site in question. I believe the signs and any core parking terms that the parking company is relying upon were too high and too small for any driver to see, read or understand when driving into this car park, especially at night time with no independent lighting in place specifically for the signage. 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.
The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding.
The idea that any driver would accept these terms knowingly is perverse and beyond credibility.
5) ANPR Accuracy and breach of the BPA Code of Practice 21.3
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. 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 their 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
0
Comments
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Certainly very thorough. Looks like all the main points are addressed.
I'd be tempted to list the headings at the start of the letter - just sets out the 5 points you are going into detail on. Also make sure the POPLA reference number is printed on each page.
Well done on researching the site and putting this together.0 -
I think I would add a link to the Judgment in PE v Clarke and a quote from the Judge into the '2) No standing or authority' point! Like in this version I wrote for someone about MET:
https://forums.moneysavingexpert.com/discussion/comment/64527275#Comment_64527275
PE won't like to see a reminder of that Judgment and it makes your point rather well to attach the actual transcript link as evidence!
Tick 3 out of 4 appeal boxes for POPLA (just not the stolen car one) and send it online.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
That reads well. I agree with both suggestions, that you list the headings at the start and a suitable quote from PE v Clarke. (I think para.9 holds the most telling observation).
On a side note, I'm amazed that PE feel the need to employ ANPR at this location. You could walk from their offices and patrol the car park on foot!My very sincere apologies for those hoping to request off-board assistance but I am now so inundated with requests that in order to do justice to those "already in the system" I am no longer accepting PM's and am unlikely to do so for the foreseeable future (August 2016).
For those seeking more detailed advice and guidance regarding small claims cases arising from private parking issues I recommend that you visit the Private Parking forum on PePiPoo.com0 -
+1 FOR THE ABOVE ADVICE GIVEN IN POINTS 2 AND 3
BUT THIS PART:For this charge to be justified a full breakdown of the costs Parking Eye has suffered as a result of the car being parked at the car park is required and should add up to £100.
Delete the part in red - not required for obvious reasons I won't mention.0 -
That's great, I shall make said amendments and get it sent off then! Cheers everyone
Edit: I'm a little unsure of where to fit it in point 2.. I think it reads quite well as it is. Would you say this is an essential addition? I have listed the points I will be making in bullets at the beginning and removed the 'add up to £100 part' so far.0 -
If you mean where to add the PE v Clarke transcript, I would add it as we want POPLA to be familiar with it and it rubs PE's noses in it!
So maybe add it at the end of point 2 like this and reduce the blurb about the Sharma and Gardam cases where there is no transcript attached?
In ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013 District Judge Jenkins 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. 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.
So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between ParkingEye and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 (Transcript linked): http://nebula.wsimg.com/71a4eb1b5de25e5c60b4d5cacfed6b40?AccessKeyId=4CB8F 2392A09CF228A46&disposition=0&alloworigin=1
In that case the Judge found that, as the Operator did not own any title in the car park: 'The decision to determine whether it is damages for breach...or a penalty...is really not for these Claimants but...for the owners. We have a rather bizarre situation where the Claimants make no money apparently from those who comply with the terms...and make their profit from those who are in breach of their contract. Well that cannot be right, that is nonsense. So I am satisfied that...the Claimants are the wrong Claimants. They have not satisfied this court that they have suffered any loss...if anything, they make a profit from the breach.'
ParkingEye cannot build their whole business model around profiting from those they consider to be in breach of a sign, on land where they have no locus standi, and then try to paint that profit as a perpetual loss.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Amended and sent. Thanks for the tips and fingers crossed - these thieves must be stopped!0
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If you are posting it - make sure the verification code is on all pages and stapled together - get a free certificate of posting too.
If submitting online - you will receive an automatic response back - very often your appeal will be all merged together. (It is unknown if POPLA receive it this way or just a glitch in confirming)
To overcome this problem simply email POPLA using the same code - explaining that this has occurred and then upload your appeal as a word document is best. (When I submitted by PDF POPLA could not read it - even though their system states they accept files that way - it was accepted in word)
It is also better to resubmit as sometimes lines go missing!
You will also receive a confirmation date of when to expect the appeal to be heard and you should receive a lovely fat 40/50 page document from Parking Eye to wade through - you can make further representations at this stage - look out for their explanation of GPEOL.0
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