ParkingEye 10 minutes overstay Ormskirk Two Saints retail Park

ColliesCarer

They made about £4.5million pre tax profit in financial year ending 31/8/12 on a turnover of about £14 million and are projecting about £8.1 million for 2013/2014.

PE also applied for nearly 3/4 million keeper details from the DVLA last year - they top the league for the most applications ( total for PPC's is about 2 million)

So yes a lot of people do just get scared and pay up.

A lot of people don't even know they can appeal and are scared of missing out on the "early bird" discount or being taken to court.

So spread the word - the more of us who challenge these scammers and the more people who know they can be challenged if they ever get one of their fake PCN's the better.

playgoer

Hi, ColliesCarer, I followed a link to find all the above - makes sense. Lordazathoth -would it be OK to make use of your template to submit my own appeal online to PE? (And do I also need to follow up with a hard copy?) The reason I was a bit thrown by the PE website was that they - cunningly - used arguments picked off this/ other forums to unsettle potential appealers, and it worked! I did read all the Newbie stuff, but just put that together with the PE website and felt it didn't apply - but I can see that your advice and that of others is in fact applicable to me, too. And you do all know what you're doing! Interesting to see how many people have pointed out that the signage on these sites is always too high to be read by preoccupied drivers entering and looking for a space - that's not an accident!

trisontana

One thing you will notice about PE's website is that they haven't updated their "latest news" since last September when they were boasting about all their court wins. This could be because that since then then have been losing cases. Funny that!

ColliesCarer

Hi Playgoer,

Glad to see you've decided to fight back.
I will copy your post onto your own thread so we can respond to your there

lordazathoth

playgoer wrote: »

Hi, ColliesCarer, I followed a link to find all the above - makes sense. Lordazathoth -would it be OK to make use of your template to submit my own appeal online to PE? (And do I also need to follow up with a hard copy?) The reason I was a bit thrown by the PE website was that they - cunningly - used arguments picked off this/ other forums to unsettle potential appealers, and it worked! I did read all the Newbie stuff, but just put that together with the PE website and felt it didn't apply - but I can see that your advice and that of others is in fact applicable to me, too. And you do all know what you're doing! Interesting to see how many people have pointed out that the signage on these sites is always too high to be read by preoccupied drivers entering and looking for a space - that's not an accident!

yes no worries mate

DidsburyDave

I had a fine for a very similar offence on the same car park, it was overturned by POPLA after parking eye failed to give any evidence!

bod1467

DidsburyDave wrote: »

I had a fine

No you didn't.

lordazathoth

That's it I just received a letter from ParkingEye in which they are rejecting my appeal.
It looks like the only point they are focusing on the pre estimate of loss and commercial justification. There is also a list of previous cases.. al lost...quite scary really. I am startin to thin that I should pay. Here is the letter...for those brave enough



Thank you for your correspondence in relation to the Parking Charge incurred on 27February 2014 at13'.12, at Two Saints Retail Park car park.
We are writing to advise you that your recent appeal has been unsuccessful. This is because you have not provided sufficient evidence to show that you did not break the terms and conditions on the signage.
Precstimate of Loss and Commercial Justification
The Appellant has made submissions either stating or indicating that he does not believe that the Parking Charge amount is reasonable and/or a genuine pre-estimate of loss. ParkingEye should
make it clear at this juncture that the commonly held legal 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 a penalty or not. Recently, Judges have found the commercial justification argument to bemore persuasive. This legal precedent essentially creates a third category for judging such
charges, a charge for contractual breach does not necessarily need to be a pre-estimate of loss to be enforceable in law. There is much court authority to support this argument and as stated above
is commonly held by the Courts as the method in which a contractual charge should be considered either a penalty, a preestimate of loss or enforceable on the basis of their being a commercial justification for the charge.
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 is a genuine preestimate of loss. We have also attached (Annex) for further evidence a sample of recent court hearings where Judges have not found these charges to be either not a penalty or a genuine preestimate of loss. ln every case the Judgment - for the full parking charge - was awarded to
ParkingEye. This would further substantiate ParkingEye's firm belief that its Parking Charges,
levied for breach of contract, are legally enforceable and cannot be classed as a penalty
a) ln ParkingEye Ltd v Mr Shelley (2013), District Judge Dodd adhered to the finding of Lord Justice Colman in Lordsvale Finance v Bank o'fZambia [1996] Q8752, which states, "whether a provision is to be teated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate
the innocent party for breach...deduced by compaing the amount that would be payable on breach with the loss that might be sustained if breach occured'.
This follows the traditional definition of Lord Dunedin in the case of Dunlop in 1915.
However, at 7639 and following it continues, "the juisdiction in relation to penalty c/auses is concerned not pimaily with the enforcement of inoffensive liquidated damages c/auses but rather with protection against the effect of penalty c/auses. There would therefore seem to be no reason in principle why a contractual provison the effect of which was to increase the consideration payable under an executory contract upon the happening of a default should be struck down as a penalty if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant pupose was not to deter the other party from breach."
This description was approved by Lord Justice Manse in the case of Cine Bes Filmcilik Ve Yapimcilik & Anor. v United lnternational Pictures & Ors [2003] EWCA Civ 1669 in which he stated, "l have also have found valuable Colman J's further obseruation in Lordsvale at pp.763g-764a, which indicate that a dichotomy between a genuine pre-estimate of damages and a penalty does not necessaily cover all the possibilities. There are clauses which may operate on breach, but which fall into neither category, and they may be commercially perfectly justifiable ;'
District Judge Dodd found that, on a balance of probabilities, it was more likely that the dominant purpose of the charges was to provide for regulation of the car park area. He also stated that it was not common for the courts to find a penalty within a contract. He stated that a breakdown of loss was not required, as the contract was formed on its own terms.
ln Cavendish Square Holdings v El Makdessi (2012) it was stated,
"l am not persuaded that Clause 5.6 rs a penalty clause, the onus being upon the
Defendant:
i) lt serves a commercial purpose.
li) I am not satisfied that its purpose is to defer.
However, the reality is that, in the modem approach to the concept of penalty discussed above, there is no longer the need for the dichotomy between liquidated damages and genuine pre-estimate of /loss, and so the relevant questions seem to me to be simply:-
i) Was there a commercial justification?'
ParkingEye firmly believes that its charges are fair and reasonable. There is commercial justification for the charges, which means that the charges cannot be considered penalties (see E-Nik v Dept for Communities (2012) and Cadogan Petroleum Holdings Ltd v Global Process Systems LLC (2013)). Private management of car paks is commercially necessary for landholders. They have a right to manage their private land as they see fit and allow motorists to use this land for parking under certain terms and conditions. The contracts, and its clauses, are necessary to prevent abuse of private land. This is commercially necessary as the landholder needs to manage their land in order to ensure that their business can run successfully. The terms and conditions of parking on private land are set out in consultation and conjunction with the landholder, and it is the obligation of the motorist to comply with these when they park in the car park. ParkingEye does not believe that the terms, set out by the landholder, are unfair. However, if the appellant believed them to be, they should not have parked in the car park.
b) In relation to the value of the Parking Charge. ParkingEye maintains that its charges are fair and reasonable. Furthermore, ParkingEye firmly believes that its Parking Charges are not punitive or a penalty. A charge of f75 pounds was found by HHJ Hegarty QC in the case of ParkingEye V Somerfield Stores (2011) to be a reasonable charge and not a penalty, by which the motorist would be contractually bound.
"l conclude that any motoist using the car park would be contractually bound to pay the charge of f75 if he exceeded the specified time limit and a demand for payment was made up on him. Whilst he might aryue that the charge in question amounted to a penalty and was thercfore inecoverable, I think he would probably fail in that contention." (HHJ Hegarty QC ParkingEye v Somerfield Stores (2011))
The case of Combined Parking Solutions v Mr Stephen James Thomas (2008) provides further evidence that a Parking Charge of a ceftain value - in this case one that begins at f60 and rises to f85 and f135 respectively - can be considered fair and reasonable.
District Judge Ackroyd found that these amounts could not be considered as a penalty.
Nor could he find that it was a disproportionately high sum in compensation. This was upheld by Judge John Robins who ruled that a Parking Charge of f135 was not
unreasonable, being in line with the BPA Code of Practice. lnstead he found that it escalated in accordance with the warnings given and constituted a reasonable charge.
(Combined Parking Solutions v Blackburn [October 2007]).
lndeed last October after significant pressure from Government and motoring/consumer organisations, the BPA reduced the maximum recommended charge for that a motorist should be expected to pay for a breach of the parking contract or for an act of trespass
from f150 to 100. Despite the BPA being unable, due to prevailing OFT legislation, to fix prices at this level, the actions of the Association were welcomed by all stakeholders. ln this instance the charge being levied is within the recommendations set out within Clause 19 of the BPA Code of Practice.
As per the above the figure of f 100, therefore, has been endorsed as a reasonable upper level of charging across the industry and both the Parking Charge amounts and the reduction of 40% for early payment within 14 days were prescribed and approved by the British Parking Association in consultation with the Office of Fair Trade in 2012.
ParkingEye have instructed a Banister to give his opinion on the matter of pre-estimate of loss. He has stated that, "fhe burden of proving that the fixed charge amounted to a penalty would be upon the motorist," that ParkingEye should, "document clealy an attempt to pre-estimafe fhe /oss occasioned," and that, "The courts have recognised that this can be'rcugh and ready' and will not be defeated because it is not absolutely accurate. lt may
a/so be possib/e to achieve a globalfigure acrcss fhe busrness." This then is what we provide here.
This was supported ln Mayhook v National Car Parks and Fuller (2012). Here the Judge stated, "l do not find that this ls a penalty. I think rT rs NCP doing its best in a very difficult field genuinely to pre-estimafe /oss."
It must therefore be noted that this is a very difficult industry in which to determine a completely accurate pre-estimate of loss. This will depend both on the losses to ParkingEye, and on the potential losses to the landholder, which will vary depending on the time of day, the day of the week and even upon the weather.
We have calculated the outstanding Parking Charge amount as a genuine pre-estimate of loss as we incur significant costs in managing this car park to ensure motorists comply with the stated terms and conditions and to follow up any breaches of these. These costs include (but are not restricted to);
Erection and maintenance of the site signage, installation, monitoring and maintenance of the Automatic Number Plate Recognition systems, employment of office-based administrative staff, membership and other fees required to manage the business effectively including those paid to the BPA, DVLA and lCO, general costs including
stationery, postage etc.
This sum, and the calculations which have been made in setting it, has been approved and agreed by the landholder. This sum was also clearly laid out on the signage at the site and, by remaining on site, we contend that the motorist has accepted all of the prevailing terms and conditions of that contract, including the charges for breach of contract.
Furthermore, there is commercial justification for the charges, and the charges were approved and prescribed by the British Parking Association and the Department for Transport in 2012.
Private car park management is necessary. lt prevents abuse of private land and there is a great deal of commercial justification for private car park management as it helps to combat this abuse and also ensures a reasonable turnover of vehicles in the car park in order to ensure that the optimum amount of motorists can visit a site. lf ParkingEye could
not make a profit, and operate as a business, it would not be able to provide this commercially justifiable and necessary service to landholders.
Here, ParkingEye has focused on its losses, although, as noted above, there are also significant losses incurred by the landholder.
The average payment by motorists who have been issued with a Parking Charge by ParkingEye is circa f63. Circa 84% of this payment (circa €53) covers ParkingEye's costs.
This information has been taken from ParkingEye's company accounts and are publicly available.
ParkingEye is required to offer a 40o/o reduction to motorists for early payment within 14 days. Therefore, this reduced amount needs to be greater than or equal to €53 in order for ParkingEye to operate as a business. Therefore, the upper amount of the charge needed to be at the level outlined below. Furthermore, the amount of €100 was approved and prescribed by the British Parking Association in consultation with the Department for Transport in 2012. Therefore, the full amount of the Parking Charge, which is an enforceable charge levied for breach of contract, is 8100. The reduced amount for early payment is 860.
ParkingEye accepts payment of the reduced amount at many stages of its appeal process, including when a motorist who has appealed to ParkingEye is given the opportunity of appealing to the Parking On Private Land Appeals (POPLA) service, lt is only if a motorist ignores all ParkingEye correspondence, or loses an appeal at POPI-A, that the charge will
be increased to the higher amount, At this stage, PakingEye will have incurred further
costs, and this increase is in line with BPA regulations and the terms and conditions set out
on the signage.
Annex
The below cases are not a full list of all ParkingEye's court hearings, they are however every court
hearing where the issue of genuine pre-estimate of loss has been raised since POPLA has been inplace. As you can see no Judge has ruled against ParkingEye on this matter

Dee140157

I have just received the same letter of rejection. It is clearly the same and seems to address only the GPEOL issue and the generic nature of the appeal.

In my case there was amongst the template appeal a more unique reference to this:
4) Furthermore according to the BPA Code of Practice,

18.11 Where there is any change in the terms and conditions that materially affects the motorist then you should make these clear on your signage.Where such changes impose liability where none previously existed then you should consider a grace period to allow regular visitors to the site to adjust and familiarise themselves with the changes.

Interestingly enough this particular point is NOT covered in their rejection of my appeal.

It seems to me they have drafted a scary standard letter to send out to all appeals, hoping or frighten us from going to POPLA.

It is not going to put me off going to appeal and I shall shortly be posting on my own thread for help with that shortly. I may ewe borrow your POPLA template though if I may as a basis for my own appeal.

ColliesCarer

Good for you Dee

@Lordazathoth

lordazathoth wrote: »

That's it I just received a letter from ParkingEye in which they are rejecting my appeal.
It looks like the only point they are focusing on the pre estimate of loss and commercial justification. There is also a list of previous cases.. al lost...quite scary really. I am startin to thin that I should pay. Here is the letter...for those brave enough

Yep that's just their standard load of codswallop !

Yeah and is it a list of about 11 cases they claim they won?

Doesn't tell you about the well over 100 POPLA cases they lost on no GPEOL alone though does it?

And if you'd like to see a list of court cases they lost take a look at this
http://parking-prankster.com/court-cases.html

some very interesting reading on Parking Pranskters blog too.

So come on gird those loins and get cracking on your POPLA appeal