Parking Eye (thread split)

Redx

I would edit the above post and add the numbered bullet points just above the main body of the expanded headers, so the assessor can easily see all the numbered points and what they are about

4consumerrights

Good wording on the whole but you IMO you need to stress that

Point 1:-
parking eye provide calculations as to how they claim this charge represents a genuine pre-estimate of loss in this case.

and slightly alter the ending in point 2 (my case is the same) and point 3 to state that:

In view of the above, it is my contention that Parking Eye's contract is the same as these cases above. Parking Eye must supply the un-redacted contract with the landowner to counter these statements. The contract must prove that they do indeed have a proprietary interest in the land; the requisite legal standing to pursue parking charges through the courts in their own name and do not operate as an agent.

morsicatio

Hello all!

Thank you for all your feedback. I'm seriously amazed at how useful this community is and I am a little disheartened to think about all those unlucky souls that just end up paying these 'fines'.

I've made the suggested changes, and included them here in red, so they are easier to see. If there is any further amendments you feel should be made, please do let me know.

Cheers

Dear POPLA Assessor,
Re: ParkingEye PCN, verification code xxxxxxxxxx

I am the registered keeper and I wish to appeal a recent parking charge from ParkingEye. Notwithstanding that we were genuine patients of the principal (C&W Hospital, London), I submit the points below to show that I am not liable for the parking charge.

A summary of the main points raised throughout this appeal are listed below, for your convenience:

1) No genuine pre-estimate of loss
2) No standing or authority to pursue charges nor form contracts with drivers
3) Flawed landowner contract and irregularities with any witness statement
4)The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between ParkingEye and the driver
5)ANPR Accuracy and breach of the BPA Code of Practice 21.3

Please see below for details regarding the raised points:

1) No genuine pre-estimate of loss
There was no damage nor obstruction caused so there can 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 150 minutes, and the same fixed charge applies to any alleged contravention (whether serious/damaging, or trifling as in my case), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss. I request that should this invoice stand, ParkingEye be required to provide a quantitative breakdown of how the alleged sum is arrived at.

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.

2) 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. The parallel between the case where judgment has been passed, and my own situation, are clearly analogous.

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 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 does not 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.

ParkingEye has alleged a contract was formed, (which is denied). In view of the above, it is my contention that Parking Eye's contract is the same as these cases above. Parking Eye must supply the un-redacted contract with the landowner to counter these statements. The contract must prove that they do indeed have a proprietary interest in the land; the requisite legal standing to pursue parking charges through the courts in their own name and do not operate as an agent.

4)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. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. 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 the occupants of the car. Additionally and confusingly. The designated areas utilised the universal signange of disabled blue badge holders, which is (in my experience) without exception used to denote areas reserved for free parking, to patients/individuals who have a blue badge.

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

Coupon-mad

That will do the job nicely - make sure you submit it before your 28 days is up (check your expiry date using the Parking Cowboys POPLA code checker, linked in #3 of the NEWBIES sticky).

You will win soon - PE will give up now! And a template is GOOD if suitably adapted like you have!

morsicatio

Seriously, to everyone. Thank you so much for your advice. I will be sure to update here and the POPLA decisions page, too.

Going to submit now!

Cheers again:beer:

morsicatio

Sorry, quick question regarding the appeal process on POPLA website:

The form asks for name details, which I obviously have to give. Do I sign the letter with the same name and the title of "The Registered Keeper" or just sign it "The Registered Keeper"?

The webform also asks why you are appealing, with a series of tick boxes:

There are four options, and you can tick one or more. The options are:

1. I was not improperly parked
2. The vehicle was stolen.3. The parking charge (ticket) exceeded the appropriate amount.

4. I am not liable for the parking charge.
I am thinking I should tick all, with the exception of 2).

Is this correct, or are there some specifics regarding what should or should not be ticked?

Thanks again!

kirkbyinfurnesslad_2

Yes all but no 2

morsicatio

Nice one! Submitting now!

morsicatio

Hello again all!

I have now submitted and have received confirmation that a ruling will be made before the end of April. We await the final decision.

I have another similar situation, which is as follows:

Parked in a private car park as I thought it belonged to a nearby retailer. Confusingly, it doesn't, and is just private land. I have tried to find the owner of the land, but with no luck.

The site is managed by Excel Parking. I have been through the same process as before, and have now acquired a POPLA verification code.

What I would like to know is, considering I have already put an appeal into POPLA, would putting in another appeal jeopardise either or both appeals? Particularly where the thrust of the appeals is mostly quite similar.

Cheers in advance!

Redx

nope, just treat it as a new case, which is all they will do