ParkingEye PCN at Portishead Quays Marina

mrsmoneybags_3

I'd like to thank the members of MSE community for advise & support fighting the PCN I received from ParkingEye back in January 2014.

I had originally written to the management company who lease the land where this car park is sited asking for clemency, without a favorable response. Plus drafted an appeal email to the operator Parkingeye which was also rejected, I have now won my appeal at POPLA.

I recently received an email from POPLA stating that due to the fact that the Operator (ParkingEye) has not produced a copy of the parking charge notice, nor any evidence to show a breach of the parking conditions occurred, nor any evidence that shows what the conditions of parking, in fact, were. The appeal was allowed.

Very happy MSE member.

4consumerrights

Well done Mrsmoneybags on your appeal - Parking Eye have frequently been not producing evidence lately.

Would you like to do the honours and list in POPLA wins for us.

mrsmoneybags_3

I am posting the redacted draft of my letter that won my POPLA appeal so that it might help others win theirs and give them encouragement that they can win!
Thanks to this site, it's member and Parking Cowboys for their encouragement, advice & templates and the BMA website which is full of useful information. http://www.britishparking.co.uk/

POPLA Verification Code: xxxxxxx
Vehicle Registration: xxxxx
Parking Company: ParkingEye
PCN Ref: xxxxxx
Car Park: Portishead Quays Marina
Alleged Contravention Date and Time:xxxxxx
Date of Notice: 2014
Parking Charge Amount: £100

Dear POPLA Assessor,

The vehicle above was recorded entering the Portishead Quays Marina on the xxxxx by APNR.
I'm the registered keeper of the vehicle and I am appealing against the parking charge above. I believe I am not liable for the parking charge on the grounds stated below. I would graciously ask that all points are taken into consideration when making your judgement.

1. Inadequate signage/ No contract between driver and the creditor
2. Non genuine pre-estimate of loss
3. Flawed contract with landowner/Authority to issue PCN's

1. Inadequate signage/No contract between driver and the creditor
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.
Following the receipt of the charge, I as the registered owner have personally visited the site in question, and the signage at this car park especially at the entrance is inadequate. The signage advertises/announces the management companies logo/banner, below in smaller writing (to small to read whist driving) the facilities are listed including car parking. The signage for the car parking does not state that it is pay & display car park or managed. It is therefore possible for drivers to enter the car park without seeing the signage upon entering or realizing it is a privately managed car park. It is especially difficult in adverse weather conditions, as when the in vehicle in question was parked. (Please see attached photographic images for signage at the entrance of the car park)
Under Appendix B 18.2 Entrance signs of the BPA Code of Practice it states:
Entrance Signs Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this.
It therefore follows that due to inadequate & insufficient signage that the contract between the driver & the creditor has not been established.

2. Non genuine pre-estimate of loss
My second point in case is that the parking charge is disproportionate and not a genuine pre-estimate of loss. I cite the Unfair Contract Terms Act 1997 (the 1997 Act) and the Unfair Terms in Consumer Contract Regulations 1999 (the 1999 Regulations). In particular, the parking charge rising from £60 to £100 after 14 days is an unfair term. In respect of the 1999 Regulations, I refer to Regulation 5(1):
A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer; and to Schedule 2 (Indicative and non-exhaustive list of terms which may be regarded as unfair), in particular, to what is Paragraph 1(e), that is: terms which have the object or effect of requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation.
I state that the amount of the charge is disproportionate to any alleged loss incurred and is punitive, contravening the 1977 Act.
The Act does set out a "reasonableness‟ test and provides that the requirement of reasonableness for the purposes of Part 1 of the Act (amendment of law for England and Wales and Northern Ireland) is that the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made.
Direct costs arising out of the presence of the vehicle in breach of the conditions of parking may be taken into consideration. The fee payable to the Driver and Vehicle Licensing Authority (DVLA) to obtain keeper details, where required, and the administrative expenses involved. So too would costs in preparing and sending notices. A parking fee lost from another vehicle that could have been properly parked in the space occupied would also appear to be such as loss. However, often there is no charge to park, as is the position in this present case. All of these sums, apart from staff costs, are likely in themselves to be fairly modest. For example, the relevant DVLA fee is currently £2.50 and the fee lost from another vehicle parking which is £1.00, if that, as the car park is primarily for the use of berth holders at the marina who have free access to this car park.
The Creditor (ParkingEye) in their correspondence relating to my appeal to the parking charge state:
The appellant has made submissions either stating or indicating that 'he' (I'm female!) does not believe that the Parking Charge amount is reasonable or a genuine pre-estimate of loss. ParkingEye should make it clear at this junction that the commonly held argument that the amount claimed for breach of contract should reflect the losses incurred by the breach (and if they do not they should be considered a penalty) is no longer the method adopted by Judges when deciding whether a charge is penalty or not.
ParkingEye would therefore argue that the charge (and the charge amount) is legally enforceable on the following three grounds a) that there is a strong commercial justification for the charge b) that there is ample case law to suggest that the value of such a Parking Charge is not punitive and C) this notwithstanding ParkingEye can still provide evidence that this charge us a genuine pre-estimate of costs. (Annex) for further evidence a sample if recent court hearings where judges have not found these charges to be either not a penalty or a genuine pre- estimate of loss. In every case the Judgement - for the full parking charge-was award to ParkingEye. This would further substantiate ParkingEye's firm belief that its Parking Charges, received for breach of contract, are legally enforceable and cannot be classed as a penalty.
They then go on to quote case:
ParkingEye Ltd. V Mr Shelley (2013) District Judge Dodd presiding.
I conclude with the recent POPLA case SBV (Appellant) v KMJ (Creditor) where adjudicator Henry Michael Greenslade judged in favour of the appellant SBV by allowing the appeal on grounds of he Appellant‟s case is that the parking charge is disproportionate and not a genuine pre-estimate of loss. The Appellant cites the Unfair Contract Terms Act 1997 (the 1997 Act) and the Unfair Terms in Consumer Contract Regulations 1999 (the 1999 Regulations). In particular, the parking charge rising from £40 to £70 after 14 days is, he submits, an unfair term.
Mr Henry Michael Greenslade went on to conclude:
Considering carefully all the evidence before me in this present case, I find the following: a. The vehicle was parked beyond the time permitted; b. A breach of the parking contract thereby occurred; c. The contract was not contrary to relevant statutory consumer
protection provisions; d. The parking charge has not increased since the issue of the PCN;
e. The parking charge sought is a sum by way of damages; f. The damages sought on this particular occasion do not substantially amount to a genuine pre-estimate of loss or fall within commercial justification.
Accordingly, the appeal must be allowed.

3. Flawed contract with landowner/Authority to issue PCN's
My third point in this case is that the creditor (ParkingEye) do not own this car park and are merely agents of the management company Quay Marinas, who themselves are tenants. (Site is leasehold, Information retrieved from land registry site)
In their notice and rejection letters ParkingEye have provided me with no evidence that they are lawfully entitled to demand money from a driver or keeper. I pacifically asked ParkingEye to provide me with the details of the landowner in my appeal to them, this they declined to acknowledge or provide. I put ParkingEye to strict proof to POPLA that they have the proper legal authorisation from the landowner to contract with drivers and to enforce charges in their own name as creditor for breach of contract. I demand ParkingEye produce to POPLA the contemporaneous and unredacted contract between the landowner and the creditor (ParkingEye).
In example I quote from Case No. 3QT62646 ParkingEye v Sharma,
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 BPA code of practice contains the following:
Under Appendix A 7 Written authorisation of the landowner
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges , through the courts if necessary.

This concludes my appeal and I respectfully request that my appeal be allowed.

Yours Faithfully,

bssmaa

Hi Folks
I too have received a fixed penalty notice for parking in this marina. My circumstances are different from the above since I regularly sail from this marina where I act as crew on one of the people who berths their boat in this marina.
Basically the marina allows the berth holders to have two cars who can park in the car park. I have parked under this arrangement for the last year but unknown to me the berth holder removed my cars registration from their system substituting it for another without telling me. He invited me to go sailing on the 6th of September and I arrived at the car park at 06:30 am for the race and left about 5:30pm in the evening. The stupid thing is that the streets were empty around the marina and had I been told that I was no longer eligible to park in the marina I cold have easily found parking elsewhere. The first I knew that there was a problem was when I received the fixed penalty notice.
So my argument is that I did not know that I was committing an office, I had parked there up to 1 month before without incident. Secondly that the fine is disproportionately high. Can someone advise as my appeal on these grounds has been rejected by parking eye and they sent me a popla form yesterday, with 14 days to appeal from the date on the letter. Guess what it arrived 7 days later leaving me only 7 days to get my appeal in. I'm not familiar with how these forums work, any advice appreciated to get this PCN cancelled would be great.
Thank you

mordac

I also had a run-in with Parking Eye at Portishead Marina. I went sailing as crew and paid for 5 hours of parking, but we got delayed and I overstayed by two hours. And of course I got a PCN a week later. I followed the old, mistaken advice to ignore their letters, only realising quite late that it is better to go through the POPLA appeal, when PE lose most of the time. To cut a long story short I sent them a letter at the very last precourt stage, when I'd received a letter from their debt recover company. In the letter I put them on notice that I would defend any court action, listing 5 or 6 reasons why I thought I would win - all of which are posted on this and other forums. Today I received a brief letter from them saying the PCN has been cancelled. Basically this company take things as a far as they can without actually having to defend a court case, because they invariably lose. They rely on people being intimidated and giving up, or ignoring it. They do win court cases - but only undefended ones. So my advice - go through the POPLA appeal, adding all the usual reasons you'll find in this forum, as well as your story. You will probably win. If you don't you inform them that you will defend any court action, using the same argumentation. They will cancel the PCN.

mordac

One more thing. Send a letter of complaint to the Marina manager. His email address is on the Quays Marina website. I did that. He wasn't much help, saying that Parking Eye has solved the problem they had with berth owners not being able to park. But if he starts to get too many complaints it may induce them to get rid of thse cowboys.

Coupon-mad

bssmaa wrote: »

Hi Folks
I too have received a fixed penalty notice for parking in this marina. My circumstances are different from the above since I regularly sail from this marina where I act as crew on one of the people who berths their boat in this marina.
Basically the marina allows the berth holders to have two cars who can park in the car park. I have parked under this arrangement for the last year but unknown to me the berth holder removed my cars registration from their system substituting it for another without telling me. He invited me to go sailing on the 6th of September and I arrived at the car park at 06:30 am for the race and left about 5:30pm in the evening. The stupid thing is that the streets were empty around the marina and had I been told that I was no longer eligible to park in the marina I cold have easily found parking elsewhere. The first I knew that there was a problem was when I received the fixed penalty notice.
So my argument is that I did not know that I was committing an office, I had parked there up to 1 month before without incident. Secondly that the fine is disproportionately high. Can someone advise as my appeal on these grounds has been rejected by parking eye and they sent me a popla form yesterday, with 14 days to appeal from the date on the letter. Guess what it arrived 7 days later leaving me only 7 days to get my appeal in.

I'm not familiar with how these forums work, any advice appreciated to get this PCN cancelled would be great.
Thank you

Yep use the 'Forum Jump' on this page and click GO.

Then read the Newbies thread near the top of the forum list page 1. Tells you how to appeal. Your argument is NOT this:

my argument is that I did not know that I was committing an offence

and it's NOT an offence. This is a private notorious company invoicing you - easily beaten on appeal. Not a fine. Don't write your own appeal, don't say who was driving!

jen2clark

Hi - we have just received a fine for parking at the back of Hall and Woodhouse having no idea that this area was covered by Parking Eye. How did you get on with your appeal. I know Martin would always recommend appealing but we're a little nervous in case it all goes wrong! Thank you.

BenefitMaster

4consumerrights wrote: »

Depending on the location here, this may fall out of the remit of POFA and relevant land for keeper liability. This is quite a big development at Portishead Marina Quays.

If the OP would care to pm me with the location, this can be explored further.

Already checked for byelaws :-)

http://www.bristol.gov.uk/sites/default/files/assets/documents/city-docks-byelaws.pdf

Byelaws 22 and 26 impose statutory restrictions on parking and leaving vehicles, this is therefore not relevant land.

POPLA appeal is therefore a slam-dunk.

Guys_Dad

BenefitMaster wrote: »

Already checked for byelaws :-)

http://www.bristol.gov.uk/sites/default/files/assets/documents/city-docks-byelaws.pdf

Byelaws 22 and 26 impose statutory restrictions on parking and leaving vehicles, this is therefore not relevant land.

POPLA appeal is therefore a slam-dunk.

Think you may have to expand this a little and explain on what grounds it is a slam dunk. (Yes, I know why but Jen2clark might not).

jen2clark - start your own thread and someone might tell you why, if yoiu are in doubt.