Ticket in Fistral: machine took coin but didn't issue ticket

The_Deep

@The Deep - how is this debate helping the OP who parked at Fistral Beach?

Oops wrong thread.

ColliesCarer

@The Deep - thanks for deleting your post - suggest we both delete those after #31 to avoid disrupting the OP's thread

Guys_Dad

Whilst I appreciate the point that The Deep is making, we need to remember that thye vast majority of people on here are not waging a war against PPCs or really care how they get off the charge, as long as they do. Yes, I would like to see some non-GPEOL wins but for the OP, a win is a win.

Also, whereas I have no doubt of the truthfulness of the OP, just how would they prove this in a court or POPLA? If they can't prove it, then they would lose.

No, go with the standard GPEOL based appeal (plus the other points as well). A win is a win.

fviajero

Hi,

this is the POPLA appeal I plan to summit. Any comments are most appreciated. Waiting your "approval" to send it to POPLA. Thanks a lot.


Case details:
Parking: Fistral Beach car park (Newquay, Cornwall)
Date: March 2014 - day time
Car Park Management: ParkingEye
Alleged violation: use the parking for 1 hour 34 minutes without purchasing the appropriate parking time
Car owner discharge( real): the driver entered plate number and paid with coin, but the ticket machine didn't provide corresponding ticket
Note: at first appeal to Parking Eye, owner identified himself as driver


I have reused Siross case, removing reason "Keeper Liability Requirements and the Protection of Freedom Act" . I am not sure if reason 7 (Non BPA compliant signage) really applies for Fistral Beach park during day light, but in case of doubt, I think I can keep it.




POPLA REF XXXXXXXXXXXXXXXX

CAR REG XXXXXXXXXXXXXXXX

As the registered keeper of the car mentioned above I would like to appeal and have cancelled the parking charge notice issued by ParkingEye Ltd for a number of reasons outlined below:

1. ParkingEye Ltd has no contractual authority
2. The charge is punitive and not a genuine pre-estimate of loss
3. ANPR Accuracy and Compliance
4. No Contract was entered into between the Parking Eye and the Driver or Registered keeper
5. Unfair terms of contract
6. Without a contract
7. Non BPA compliant signage


1. ParkingEye Ltd has no contractual authority

In the notices they have sent me ParkingEye Ltd have not shown any evidence that they have any proprietary interest in the car park/land in question. Also they have not provided me with any evidence that they are lawfully entitled to demand money from either driver or keeper. It would seem that they do not own or have any interest or assignment of title in the land. I can only assume instead they are agents for the owner/legal occupier instead. I submit therefore that they do not have the necessary legal right to make the charge for a vehicle using the car park. I require ParkingEye Ltd to provide a full, up-to date and signed/dated contract with the landowner (a statement saying someone has seen the contract is not enough). The contract needs to state that ParkingEye Ltd are entitled to pursue matters such as these through the issue of Parking Charge Notices and in the courts in their own name. I clarify that this should be an actual copy and not just a document that claims a contract/agreement exists.

2. The charge is punitive and not a genuine pre-estimate of loss

Judging by the wording of the parking charge notice this is clearly an attempt to enforce this charge under paragraph B 19.5 of the BPA Code of Practice in which it states that this must be a genuine pre-estimate of the loss that may have incurred. ParkingEye Ltd claim that my car was in the car park for xxxx minutes, when the first hour is free of charge and the subsequence hour is 1 pound. They are asking for a charge of £100 for this penalty. This alone is far more than the cost to the landowner could have loss for the time my car was said to have parked there. The charge is clearly punitive and disproportionate to any alleged breach of contract.

Furthermore as the operator is clearly seeking to impose a penalty, it is their sole responsibility to provide a full breakdown as proof of the pre-estimated loss of £100. As of this point they have made no effort to provide me with a breakdown of the costs they allegedly incurred. To justify the charge of £100, I require ParkingEye Ltd to back up their decision by providing POPLA with a full and detailed financial breakdown of the pre-estimated costs they have suffered as a result of the charge in question. I would like to add that normal costs of running their business (their day to day costs like provision of parking, enforcement, signage, salaries, rent etc) must not be included in the breakdown as ParkingEye Ltd would need to pay these irrespective of this alleged charge. Parking enforcement costs cannot possibly represent any loss resulting from an alleged breach of contract, as these costs would need to be paid whether the breach had happened or not.

In addition, I attach a letter from ParkingEye Ltd in correspondence with another case, that admits that their estimate of cost in each case is actually £53, including operating costs, and this that the charge they are seeking to impose in my case has a considerable element of profit as well as operating costs incorporated. By their own admission, therefore, it cannot, be a true pre-estimate of loss

In summary not only is the £100 charge completely disproportionate meaning that it is punitive and is breaking the Unfair Contract Terms Act 1997, but there can be no loss shown at all as no pre-estimate charge has been put together making the charge unenforceable against me or the driver.



3. ANPR Accuracy and Compliance

I require ParkingEye Ltd to 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 ParkingEye Ltd must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from the Operator was 'fundamentally flawed' as 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 Ltd in this case to show evidence to rebut this point: 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 this Operator in this car park is just as unreliable as the ParkingEye system in the Fox-Jones case and I put this Operator to strict proof to the contrary.

In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:
''21 Automatic number plate recognition (ANPR)
21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''

At this location, there are merely a couple of secret small cameras up high on a pole. No signs at the car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here. [I plan to remove this text (in orange and smaller size) as it seems to me that doesn’t apply to Fistral Beach parking, because a board at the entrance indicates “WARNING – An Automatic Number Plate Recognition system is operating on site for the purpose of managing the car park. Please see further signage within the car park for full details. Fully to comply with the terms & conditions will results in a Parking Charge of 100 pounds”]

Unless the Operator can show documentary evidence otherwise, then this BPA Cop breach would also point to a failure to comply with the POFA 2012 (keeper liability requires strict compliance), a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary.

4. No Contract was entered into between the Parking Eye and the Driver or Registered keeper

Although I was not the driver I would like to point out that The signs at the car park in question are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. Parking Eye clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of contract. It is not appropriate for a car park such as this to have such a limited amount of signs and rely on drivers to look carefully for where and how the terms are displayed.
It is surely the responsibility of ParkingEye Ltd to make the terms of their contract far clearer so that drivers have no doubt whatsoever of any supposed contract they may be entering into. I require ParkingEye Ltd to provide evidence as to how clear the terms and conditions are and consider if the methods used are clear enough for this type of car park. I would specifically like them to look into how clear the signs are that inform drivers that ANPR cameras are in use on this site.

Furthermore a contract can only be considered to be entered into if enough evidence exists that it actually happened. For a contract to have been entered into the driver would have had to get out of the car, read the signs, fully interpret and understand them and then agree to them. None of which ever actually happened.

I request that ParkingEye Ltd provide concrete evidence that a contract existed between themselves and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific things including, agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed “unfair” under the Unfair Terms in Consumer Contract Regulations 1999.

5. Unfair terms of contract

Although there is no contract between Parking Eye and the driver (or myself), if there were then I would ask POPLA to consider this charge to be unfair and non-binding based on the Unfair Terms in Consumer Contracts Regulations 1999. There is a clear list of terms that apply. I have highlighted the following specifically as I believe they apply directly to this case:

2. (1) (e) 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.

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.

5. (2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

The Unfair Terms in Consumer Contracts Regulations 1999 was brought in to protect consumers from unfair contracts such as the one ParkingEye Ltd are suggesting. A company such as Parking Eye needs to actually prove that the driver saw, read and accepted the terms, which is impossible because this did not actually happen.

6. Without a contract

Without a contract it would seem the most appropriate offence would be a civil trespass. If this were the case, the appropriate award ParkingEye Ltd could seek would be damages. As there was no damage to car park there was no loss to them at all and therefore should be no charge.

7. Non BPA compliant signage

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 are relying upon were too high and too small for any driver to see, read or understand when driving into this car park.

The Operator needs to show evidence and signage map/photos on this point - specifically showing the height and lighting 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.

As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

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, rather than simply the nominal amount presumably due in a machine on site.

The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

I respectfully request that this parking charge notice appeal be allowed and await your decision.

ColliesCarer

Ola Fernando,

That looks excellent

Would agree with your plan to take out the orange text, but leave in the section on signage - makes more work for them when compiling th evidence pack

That's if they bother

They've been taking quite a kicking lately - take a look at recent posts about their losses for a good chuckle!

¡buena suerte!

Ivor_Pecheque

Interestingly, the signage stuff I included that I thought would impress the Judge. And the bit I didn't think of, did.

This 'aint about fairness, it's about the law. In our case it equated to the same thing. POPLA seems to win all the time on the points raised.

On the point of tickets, they sent us a "whitelist" which I think was meant to demonstrate that other people were able to pay at the time. Interestingly it shows that other people did not pay at the time. I don't think PE check things very well, they just send out all the stuff en masse. Loads of stuff was inaccurate, it was all a bit amateurish.
This wasthe whitelist sent by "Jonty Langham."

fviajero

I will go with those arguments then. Thanks.


I got the link to "letter from ParkingEye Ltd in correspondence with another case, that admits that their estimate of cost in each case is actually £53". I think I can't include a link in this mail, so if anyone needs it, please ask me directly.


Regards

Jim_AFCB

"4. No Contract was entered into between the Parking Eye and the Driver or Registered keeper

Although I was not the driver I would like to point out that The signs at the car park in question are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park."

If you have already told them you were the driver, you may want to change the start of Paragraph 4, as that bit may have passed you by.....

fviajero

Well noticed, Jim_AFCB, thanks! The truth is that I have that part strikethrough marked in my document, but with the copy/paste that formatting dissapeared.


But I feel much confident with the appeal knowing that you (and others in the forum) are checking my appeal at that level of attention.


Regarding the letter from ParkingEye where they state that "circa £53 covers ParkingEye costs", is that the one 11 page long dated on 28 October 2013? I need to double check, because in that letter there are many samples where PE won on court against the appeling reasons we are using in this forum...


Something else: I have seen an interesting "Freedom of Information Request" from Alex Shipp to DVLA, that I am not sure it is commented in this forum (strange, but searching for "Shipp" I don't get any result from 2014, and the letter is dated on 21 January 2014), so just in case I copy it below.


REQUEST:
Dear Driver and Vehicle Licensing Agency,

ParkingEye publish the following as their pre-estimate of loss
calculation.

"The average payment by motorists who have been issued with a
Parking Charge by ParkingEye is circa £63. 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's latest accounts (to 31-Aug-2012) shows that the entire
cost of running the business is £9,439,343. Although not all these
costs are allowable against parking charges, this can be used as a
useful upper limit. The number of parking charges issued by
parkingeye is:
total cost / cost per ticket = charges issued
£9,439,343 / £53 = 178,100

This is a maximum. If the total cost of issuing tickets is less
than £9,439,343, then the total number of charges issued will fall.

My questions are:

1) For ParkingEye's accounting period 1-Sep-2010 to 31-Aug-2011
inclusive how many registered keeper requests did ParkingEye make?

2) For ParkingEye's accounting period 1-Sep-2011 to 31-Aug-2012
inclusive how many registered keeper requests did ParkingEye make?

3) For ParkingEye's accounting period 1-Sep-2012 to 31-Aug-2013
inclusive how many registered keeper requests did ParkingEye make?

4) For the above periods, please also indicate where possible the
number of requests where the reply to ParkingEye would definitely
preclude the possibility of issuing a parking charge, for instance
because the vehicle was reported stolen or the registration number
did not exist.

5) If the data for (4) is not available, but any data or studies
is, which shows average number of keeper requests which result in
replies which preclude the possibility of issuing a parking charge,
please provide this instead, together with the period the data was
collected over.

Yours faithfully,

Alex Shipp


REPLY (selection of text)






　


Period
Volume of Electronic Registered Keeper Requests
[FONT=Arial,Arial][FONT=Arial,Arial][/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial]1 Sept 2010 – 31 August 2011 [/FONT][/FONT]
[FONT=Arial,Arial][FONT=Arial,Arial][/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial]439,973 [/FONT][/FONT]
[FONT=Arial,Arial][FONT=Arial,Arial][/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial]1 Sept 2011 – 31 August 2012 [/FONT][/FONT]
[FONT=Arial,Arial][FONT=Arial,Arial][/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial]629,181 [/FONT][/FONT]
[FONT=Arial,Arial][FONT=Arial,Arial][/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial]1 Sept 2012 – 31 August 2013 [/FONT][/FONT]
[FONT=Arial,Arial][FONT=Arial,Arial][/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial]720,090 [/FONT][/FONT]





　


The information requested in questions 4 and 5 is not held.

fviajero

Hi,

after some more readings in the forum, I have made 2 changes in NGPOL (marked in blue). I would really appreciate the final "go" from the forum before sending it - it must be today. Thanks a lot.


POPLA REF XXXXXXXXXXXXXXXX

CAR REG XXXXXXXXXXXXXXXX

As the registered keeper of the car mentioned above I would like to appeal and have cancelled the parking charge notice issued by ParkingEye Ltd for a number of reasons outlined below:

1. ParkingEye Ltd has no contractual authority
2. The charge is punitive and not a genuine pre-estimate of loss
3. ANPR Accuracy and Compliance
4. No Contract was entered into between the Parking Eye and the Driver or Registered keeper
5. Unfair terms of contract
6. Without a contract
7. Non BPA compliant signage


1. ParkingEye Ltd has no contractual authority

In the notices they have sent me ParkingEye Ltd have not shown any evidence that they have any proprietary interest in the car park/land in question. Also they have not provided me with any evidence that they are lawfully entitled to demand money from either driver or keeper. It would seem that they do not own or have any interest or assignment of title in the land. I can only assume instead they are agents for the owner/legal occupier instead. I submit therefore that they do not have the necessary legal right to make the charge for a vehicle using the car park. I require ParkingEye Ltd to provide a full, up-to date and signed/dated contract with the landowner (a statement saying someone has seen the contract is not enough). The contract needs to state that ParkingEye Ltd are entitled to pursue matters such as these through the issue of Parking Charge Notices and in the courts in their own name. I clarify that this should be an actual copy and not just a document that claims a contract/agreement exists.

2. The charge is punitive and not a genuine pre-estimate of loss

Judging by the wording of the parking charge notice this is clearly an attempt to enforce this charge under paragraph B 19.5 of the BPA Code of Practice in which it states that this must be a genuine pre-estimate of the loss that may have incurred. ParkingEye Ltd claim that my car was in the car park for xxxx minutes, when the first hour is free of charge and the subsequence hour is 1 pound. They are asking for a charge of £100 for this penalty. This alone is far more than the cost to the landowner could have loss for the time my car was said to have parked there. The charge is clearly punitive and disproportionate to any alleged breach of contract.

Furthermore as the operator is clearly seeking to impose a penalty, it is their sole responsibility to provide a full breakdown as proof of the pre-estimated loss of £100. As of this point they have made no effort to provide me with a breakdown of the costs they allegedly incurred. To justify the charge of £100, I require ParkingEye Ltd to back up their decision by providing POPLA with a full and detailed financial breakdown of the pre-estimated costs they have suffered as a result of the charge in question. I would like to add that normal costs of running their business (their day to day costs like provision of parking, enforcement, signage, salaries, rent etc) must not be included in the breakdown as ParkingEye Ltd would need to pay these irrespective of this alleged charge. Parking enforcement costs cannot possibly represent any loss resulting from an alleged breach of contract, as these costs would need to be paid whether the breach had happened or not.

In addition, in correspondence with another case ParkingEye Ltd admits that their estimate of cost in each case is actually £53, including operating costs, and this that the charge they are seeking to impose in my case has a considerable element of profit as well as operating costs incorporated. By their own admission, therefore, it cannot, be a true pre-estimate of loss. [I prefer not to attached such letter, just referer to it]

The operator might state that the charge is commercially justified, but as POPLA Assessor Shehla Pirwany has recently said about a similar case in the same parking site: “Although the operator has stated that the charge is commercially justified, the amount sought for a breach of the terms and conditions cannot be the entire source of their income and the charges must be loss based rather than profit based in order to amount to a genuine pre estimate of loss. It would appear that the courts have accepted commercial justification for a parking charge where the operator has substantiated the loss incurred, or the loss that might reasonably be incurred, by the breach however in this case as the costs sought by the operator are costs that would normally be incurred in their business, the amount sought is not a genuine pre estimate of loss and cannot be commercially justifiable”. [taken from Parker10 case]

In summary not only is the £100 charge completely disproportionate meaning that it is punitive and is breaking the Unfair Contract Terms Act 1997, but there can be no loss shown at all as no pre-estimate charge has been put together making the charge unenforceable against me or the driver.

3. ANPR Accuracy and Compliance

I require ParkingEye Ltd to 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 ParkingEye Ltd must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from the Operator was 'fundamentally flawed' as 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 Ltd in this case to show evidence to rebut this point: 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 this Operator in this car park is just as unreliable as the ParkingEye system in the Fox-Jones case and I put this Operator to strict proof to the contrary.

In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:
''21 Automatic number plate recognition (ANPR)
21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''

Unless the Operator can show documentary evidence otherwise, then this BPA Cop breach would also point to a failure to comply with the POFA 2012 (keeper liability requires strict compliance), a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary.

4. No Contract was entered into between the Parking Eye and the Driver or Registered keeper

The signs at the car park in question are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. Parking Eye clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of contract. It is not appropriate for a car park such as this to have such a limited amount of signs and rely on drivers to look carefully for where and how the terms are displayed.
It is surely the responsibility of ParkingEye Ltd to make the terms of their contract far clearer so that drivers have no doubt whatsoever of any supposed contract they may be entering into. I require ParkingEye Ltd to provide evidence as to how clear the terms and conditions are and consider if the methods used are clear enough for this type of car park. I would specifically like them to look into how clear the signs are that inform drivers that ANPR cameras are in use on this site.

Furthermore a contract can only be considered to be entered into if enough evidence exists that it actually happened. For a contract to have been entered into the driver would have had to get out of the car, read the signs, fully interpret and understand them and then agree to them. None of which ever actually happened.

I request that ParkingEye Ltd provide concrete evidence that a contract existed between themselves and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific things including, agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed “unfair” under the Unfair Terms in Consumer Contract Regulations 1999.

5. Unfair terms of contract

Although there is no contract between Parking Eye and the driver (or myself), if there were then I would ask POPLA to consider this charge to be unfair and non-binding based on the Unfair Terms in Consumer Contracts Regulations 1999. There is a clear list of terms that apply. I have highlighted the following specifically as I believe they apply directly to this case:

2. (1) (e) 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.

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.

5. (2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

The Unfair Terms in Consumer Contracts Regulations 1999 was brought in to protect consumers from unfair contracts such as the one ParkingEye Ltd are suggesting. A company such as Parking Eye needs to actually prove that the driver saw, read and accepted the terms, which is impossible because this did not actually happen.

6. Without a contract

Without a contract it would seem the most appropriate offence would be a civil trespass. If this were the case, the appropriate award ParkingEye Ltd could seek would be damages. As there was no damage to car park there was no loss to them at all and therefore should be no charge.

7. Non BPA compliant signage

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 are relying upon were too high and too small for any driver to see, read or understand when driving into this car park.

The Operator needs to show evidence and signage map/photos on this point - specifically showing the height and lighting 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.

As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

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, rather than simply the nominal amount presumably due in a machine on site.

The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

I respectfully request that this parking charge notice appeal be allowed and await your decision.