Courtesy Car - Parking Eye Fine - Advise required please

bod1467

Just send them an email/letter along the lines of ...

Dear PE
Ref. PCN XXXXXX

Thank you for your letter dated XX/XX/2014 with my correct contact details. You must have derived these details from my appeal that I sent you on XX/XX/2014 (attached again for reference). I have nothing further to add to my appeal and I expect to receive your confirmation of cancellation of PCN, or rejection of my appeal with POPLA code, within 35 days of the date of my appeal.

Regards,

{Printed Name, not signed}

Seymour123

As it turns out the appeal rejection came through the door just this afternoon.

They have sent what I can only assume to be a standard rejection stating that "you have not provided sufficient evidence to show that you did not break the terms and conditions of the signage". They have also included some case law in support of their claims.

They have included a POPLA verification code with the letter so I guess this is the next stage.

In my circumstance of being the named driver what details should I send to POPLA?

Many thanks for all your help, and I hope that I can maintain the 100% win rate against ParkingEye!!

bod1467

Your POPLA appeal is no different really to any other PE case, except that you'd not bother with the POFA non-compliance angle.

Check out the NEWBIES thread - there are some PE POPLA appeal examples linked therein.

Coupon-mad

Please show us your draft appeal after you've read the ParkingEye examples in the hyperlink 'How to win at POPLA' in post #3 of the NEWBIES sticky thread.

Are you certain the new PCN isn't another different one?!

Seymour123

Hi guys,

Below is my appeal letter to POPLA, can you please give me your feedback. Please note I have adapted it from the Morrisons free car park one, please note that where I parked was NOT a free car park so does this still apply?

Also in the appeal which of boxes do i tick for "why am I appealing?"?

Here is my POPLA appeal:


Dear POPLA Assessor,

Re: ParkingEye fake PCN, verification code xxxxxxxxxx

I am the registered driver and I wish to appeal a recent parking charge from ParkingEye. I wish to submit the points below to show that I am not liable for the parking charge:

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.

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. 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 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 don't 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.

4) Breach of UTCCR 1999 and CPUTR 2008
I contend that a secret term which leaves a customer at a severe disadvantage as they are unaware of it, is a 'wholly unreasonable' contract term and a 'misleading omission' which is in breach of the Unfair Terms in Consumer Contracts Regulations 1999 and Consumer Protection from Unfair Trading Regulations (CPUTR) 2008. ParkingEye are taking unconscionable advantage of myself by demanding a 'charge' for alleged 'breach', holding me liable and yet not informing the driver at the point of any alleged contract. Parking Eye as agents, have no lawful excuse to pursue this wholly unfair and disproportionate charge. Parking Eye are seeking to impose punitive sanctions that are not required at all by any 'legitimate interest of the principal'.

CPUTR 2008 Part 2, Prohibitions
Misleading omissions
6(1) A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—

(a)the commercial practice omits material information,
(b)the commercial practice hides material information,

and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.

Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999'
''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''
Test of fairness
''A term is unfair if:
Contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.
5.1 Unfair terms are not enforceable against the consumer.
9.2 ...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''

If they refute this then Parking Eye must explain their position to POPLA, produce the unredacted section of the contract and/or User Manual and show how they consider they can override the express wishes of the principal when Parking Eye are mere agents. And explain how their secret 'exemption clause' meets the test of fairness if they do not share it with the party they hold liable. Such terms must be in the signage they are relying upon to have formed the alleged contract at the outset.

5)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, who were there at the invitation of Morrisons, to shop and enjoy free parking as expressly offered to customers in the principal's advertising and website.

6) 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 DRIVER

Coupon-mad

Looks perfectly OK at a quick glance - and we know when PE see that, from POPLA, they will send no evidence and will CANCEL!

Seymour123

Thank you so much for your help, I'm putting in the appeal now, one more questions though:

For this section which boxes should I tick?


Why are you appealing? (Please tick)

I was not improperly parked.

The parking charge (ticket) exceeded the appropriate amount.

The vehicle was stolen.

I am not liable for the parking charge.

Half_way

not liable, and exceeded the amount.
They really need to add something like
"the charge does not represent a genuine pre estimate of loss, or the charge is a penalty"

Seymour123

Thank you for your response.

The appeal is now in with POPLA so fingers crossed it all goes well. I shall keep you informed of the result!