Parking eye help!

Lfg91

Ive spent a little time changing the 'throw everything at 'em' letter which is in the advice post. should i mention that i logged on to try and pay within the 14 days but the charge was still at £90? Also, can i still leave in the paragraph about being a genuine customer even though i have presented no receipts?

Thanks in advance.

Nodding_Donkey

Uh-oh, best post a copy (with identifying details deleted) for people to look at. there is a reason for the 'throw everything at them' appeals.

And no, IMO saying you tried to pay makes it look as if you think the charge is justified.

ColliesCarer

I agree with Nodding Donkey - don't mention having tried to pay.

Re genuine customer paragraph - doesn't matter about no receipts but when you post it up as Nodding Donkey has advised - let us know whether the location of the car park was a retail park or a store such as Aldi?

Those paragraphs have more relevance if was just one store but can be adapted for a retail park too as many of the outlets on retail parks can get parking charges cancelled.

Lfg91

Okay, the PCN was from a singular shop - the co-op - and here is the appeal, its very long, basically just the sample, i havnt changed much, just the personal details. Thanks.

Dear POPLA Assessor,
Re: ParkingEye fake PCN, ref number[FONT=&quot] xxxxxxxxxx[/FONT]

I am the registered keeper of car **** *** and I wish to appeal arecent parking charge from ParkingEye. Notwithstanding that we were genuinecustomers of the principal (Co-op), I submit the points below to show that I amnot liable for the parking charge:

1) No genuine pre-estimate of loss
This car park is free and there is no provision for the purchasingof a ticket or any other means for paying for parking. There was no damage norobstruction caused so there can be no loss arising from the incident.ParkingEye notices allege 'breach of terms/failure to comply' and as such, thelandowner/occupier (not their agent) can only pursue liquidated damagesdirectly flowing from the parking event. Given that ParkingEye charge the samelump sum for a 15 minute overstay as they would for 150 minutes, and the samefixed charge applies to any alleged contravention (whether serious/damaging, ortrifling as in my case), it is clear there has been no regard paid toestablishing that this charge is a genuine pre-estimate of loss.

This charge from ParkingEye as a third party business agent is anunenforceable penalty. In Parking Eye v Smith, Manchester County CourtDecember 2011, the judge decided that the only amount the Operator couldlawfully claim was the amount that the driver should have paid into themachine. Anything else was deemed a penalty. And in my case this was a free carpark with no payment due whatsoever.

The Office of Fair Trading has stated to the BPA Ltd that a'parking charge' is not automatically recoverable simply because it is statedto 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 representa genuine pre-estimate of loss flowing from the parking event.

ParkingEye and POPLA will be familiar with the well-known case onwhether a sum is a genuine pre-estimate of loss or a penalty: DunlopPneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79.Indeed I expect ParkingEye might cite it. However, therein is the classicstatement, in the speech of Lord Dunedin, that a stipulation: “… will be heldto be a penalty if the sum stipulated for is extravagant and unconscionable inamount in comparison with the greatest loss which could conceivably be provedto have followed from the breach.'' There is a presumption... that it ispenalty when "a single lump sum is made payable by way of compensation, onthe occurrence of one or more or all of several events, some of which mayoccasion serious and others but trifling damage".

No doubt ParkingEye will send their usual well-known templatebluster attempting to assert some ''commercial justification'' but I refutetheir arguments. In a recent decision about a ParkingEye car park at Town QuaySouthampton, POPLA Assessor Marina Kapour did not accept ParkingEye's genericsubmission that the inclusion of costs which in reality amount to the generalbusiness costs incurred for the provision of their car park management servicesis commercially justified. ''The whole business model of an Operator in respectof a particular car park operation cannot of itself amount to commercialjustification. I find that the charge is not justified commercially and so mustbe shown to be a genuine pre-estimate of loss in order to be enforceableagainst the appellant.''

My case is the same and POPLA must be seen to be consistent ifsimilar arguments are raised by an appellant.

2) No standing or authority to pursue charges nor form contractswith drivers
ParkingEye do not own the land mentioned in their Notice to Keeperand have not provided any evidence that they are lawfully entitled to demandmoney from a driver or keeper. Even if a contract is shown to POPLA, I assertthat there are persuasive recent court decisions against ParkingEye whichestablish that a mere parking agent has no legal standing nor authority whichcould impact on visiting drivers.

In ParkingEye v Sharma, Case No. 3QT62646 in the BrentfordCounty Court 23/10/2013 District Judge Jenkins checked the ParkingEye contractand quickly picked out the contradiction between clause 3.7, where thelandowner appoints ParkingEye as their agent, and clause 22, where is statesthere is no agency relationship between ParkingEye and the landowner. The Judgedismissed the case on the grounds that the parking contract was a commercialmatter between the Operator and their agent, and didn’t create any contractualrelationship between ParkingEye and motorists who used the land. Thisdecision was followed by ParkingEye v Gardam, Case No.3QT60598 in theHigh Wycombe County Court 14/11/2013 where costs of £90 were awarded to theDefendant. District Judge Jones concurred completely with the persuasive viewin ParkingEye v Sharma that a parking operator has no standing to bringthe claim in their own name. My case is the same.

3) Flawed landowner contract and irregularities with any witnessstatement
Under the BPA CoP Section 7, a landowner contract must specificallyallow the Operator to pursue charges in their own name in the courts and grantthem the right to form contracts with drivers. I require ParkingEye to producea copy of the contract with the landowner as I believe it is not compliant withthe CoP and that it is the same flawed business agreement model as in Sharmaand Gardam.

If ParkingEye produce a 'witness statement' in lieu of thecontract then I will immediately counter that with evidence that these havebeen debunked in other recent court cases due to well-publicised and seriousdate/signature/factual irregularities. I do not expect it has escaped the POPLAAssessors' attention that ParkingEye witness statements have been robustly andpublicly discredited and are - arguably - not worth the paper they arephotocopied on. I suggest ParkingEye don't bother trying that in my case. Ifthey do, I contend that there is no proof whatsoever that the alleged signatoryhas ever seen the relevant contract terms, or, indeed is even an employee ofthe landowner, or signed it on the date shown. I contend, if such a witnessstatement is submitted instead of the landowner contract itself, that thisshould be disregarded as unreliable and not proving full BPA compliance norshowing sufficient detail to disprove the findings in Sharma andGardam.

Indeed I submit (and as I have raised the issue, ParkingEye mustnow disprove) that their Contract or User Agreement with the Co-op is likely tocontain a secret 'genuine customer exemption' clause which in fact exempts theCo-op customers like us from these spurious charges. Not only have ParkingEyenot allowed my initial appeal that the driver was a genuine Co-op customer, butat the outset, when they allege a contract was formed, (which is denied)ParkingEye failed to alert the driver to that secret clause. Which leads me tothe next point:

4) Breach of UTCCR 1999 and CPUTR 2008
I contend that a secret term which leaves a customer at a severedisadvantage as they are unaware of it, is a 'wholly unreasonable' contract termand a 'misleading omission' which is in breach of the Unfair Terms in ConsumerContracts Regulations 1999 and Consumer Protection from Unfair TradingRegulations (CPUTR) 2008. ParkingEye are taking unconscionable advantage ofmyself by demanding a 'charge' for alleged 'breach', holding me liable and yetnot informing the driver at the point of any alleged contract, about the secretexemption clause that I believe exists in their contract with the Co-op. Nordid they refer to it when rejecting my appeal which told them that we werecustomers in the store. Parking Eye as agents, have no lawful excuse to pursuethis wholly unfair and disproportionate charge when I believe their owncontract with the retailer specifically allows paying customers to be exempt. ParkingEye are seeking to impose punitive sanctions that are not required at all byany 'legitimate interest of the principal'.

CPUTR 2008 Part 2, Prohibitions
Misleading omissions
6(1) A commercial practice is a misleading omission if, in itsfactual 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 averageconsumer to take a transactional decision he would not have taken otherwise.

Office of Fair Trading 'Guidance for the Unfair Terms in ConsumerContracts Regulations 1999'
''It is unfair to impose disproportionate sanctions for breach ofcontract. A requirement to pay more in compensation for a breach than areasonable pre-estimate of the loss caused to the supplier is one kind ofexcessive penalty. Such a requirement will, in any case, normally be void tothe 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 significantimbalance in the parties' rights and obligations under the contract, to thedetriment of consumers.
5.1 Unfair terms are not enforceable against the consumer.
9.2 ...terms of whose existence and content the consumer has noadequate notice at the time of entering the contract may not be binding underthe general law, in any case, especially if they are onerous in character.''

If they refute this then Parking Eye must explain their positionto POPLA, produce the unredacted section of the contract and/or User Manual andshow how they consider they can override the express wishes of the principalwhen Parking Eye are mere agents. And explain how their secret 'exemptionclause' meets the test of fairness if they do not share it with the party theyhold liable. Such terms must be in the signage they are relying upon to haveformed the alleged contract at the outset.

5)The signage was not compliant with the BPACode of Practice so there was no valid contract formed between ParkingEye andthe driver
I[FONT=&quot] [/FONT]submit that thissignage failed to comply with the BPA Code of Practice section 18 and appendixB. The signs failed to properly warn/inform the driver of the terms and anyconsequences for breach. Further, because ParkingEye are a mere agent and placetheir signs so high, they have failed to establish the elements of a contract(consideration/offer and acceptance). Any alleged contract (denied in thiscase) 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 toolate. In breach of Appendix B (Mandatory Entrance Signs) ParkingEye have nosignage with full terms which could ever be readable at eye level, for a driverin moving traffic on arrival. The only signs are up on poles with the spycameras and were not read nor even seen by the occupants of the car, who werethere at the invitation of the Co-op, to shop and enjoy free parking asexpressly offered to customers in the principal's advertising and website.

6) ANPR Accuracy and breach ofthe BPA Code of Practice 21.3
This Operator is obliged to ensure their ANPR equipment ismaintained as described in paragraph 21.3 of the British Parking Association'sApproved Operator Scheme Code of Practice. I say that Parking Eye have failedto clearly inform drivers about the cameras and what the data will be used forand how it will be used and stored. I have also seen no evidence that they havecomplied with the other requirements in that section of the code.

In addition I question the entire reliability of the system. Irequire that ParkingEye present records as to the dates and times of when thecameras at this car park were checked, adjusted, calibrated, synchronised withthe timer which stamps the photos and generally maintained to ensure theaccuracy of the dates and times of any ANPR images. This is important becausethe entirety of the charge is founded on two images purporting to show myvehicle entering and exiting at specific times. It is vital that this Operatormust produce evidence in response and explain to POPLA how theirsystem differs (if at all) from the flawed ANPR system which was whollyresponsible for the court loss in ParkingEye v Fox-Jones on 8 Nov 2013.That case was dismissed when the judge said the evidence from ParkingEye wasfundamentally flawed because the synchronisation of the camera pictures withthe timer had been called into question and the operator could not rebut thepoint.

So, in addition to showing their maintenance records, I requireParkingEye to show evidence to rebut the following assertion. I suggest that inthe case of my vehicle being in this car park, a local camera took the imagebut a remote server added the time stamp. As the two are disconnected by theinternet and do not have a common "time synchronisation system",there is no proof that the time stamp added is actually the exact time of theimage. The operator appears to use WIFI which introduces a delay throughbuffering, so "live" is not really "live". Hence without asynchronised time stamp there is no evidence that the image is ever timestamped with an accurate time. Therefore I contend that this ANPR "evidence"from the cameras in this car park is just as unreliable and unsynchronised asthe evidence in the Fox-Jones case. As their whole charge rests upon two timedphotos, I put ParkingEye to strict proof to the contrary.

I request that my appeal is upheld and for POPLA to informParkingEye to cancel the PCN.

Yours faithfully,


THE REGISTERED KEEPER

ColliesCarer

I would suggest including your paragraph headings as a numbered list after your opening paragraph and before point 1/ so the asessor can see at a glance all the grounds your appeal will be covering.

Other than that I would say it looks good to go but just hold on for feedback from a few others too before submitting it.

Also have you complained to the Co-op? Some of their sites use a different parking operator CEL and I know the Co-op are cancelling charges being issued by them when they receive a customer complaint so it's worth a go.

When submitting your POPLA appeal you can do so on-line
Tick the 3 reasons - EXCEPT the car stolen one.
The text box has a character limit which your appeal is likely to exceed but you can attach your appeal as a file - word doc, pdf file etc
- so suggest you enter the first part of your appeal in the text box - say down to the end of the initial list of appeal points I suggested you insert and then put something like "The main body of my appeal has been attached as filename xxxxxxxxxx

You will then need to go to the submit evidence option to attach your file

Also make sure your POPLA verification code is on each page of your document and that pages are numbered (I would use the "Page 1 of x" type of format )

Lfg91

Thanks, seen as there are no replies i think i will go ahead and send it, as time is running out! i will make the changes you suggested, thankyou. And i will let you know the outcome. fingers crossed!

ColliesCarer

It'll be fine.
I know that getting the rejection of your initial appeal to the parking company worried you but that is actually the expected result.
Not many get cancelled following 1st appeal and if that happens it's always a bonus but the real intention is to hook a POPLA code so that the forum can help you to submit a winning appeal to POPLA - which you've now done or are about to do. So forget about it for now and focus on your studies.

You'll get an acknowledgement and a date when the assessor will review the appeal - probably in about 6 weeks time.

Lfg91

Just writing to say a great big thankyou to everyone who helped me out - heard back today the appeal is being allowed! will post in the results thread too.

Thanks again
Lauren

prosnap

Congratulations ... :beer:
Another win at POPLA to keep up the 100% win record with help from the forum.

Never in doubt!

ColliesCarer

Congratulations Lauren :T
Best wishes with your studies