Parking Eye Ticket

mrum1129

Just looking at recent decisions from POPLA on the POPLA decisions thread.

I found one from an adjudicator that states:

"The parking charge must be an estimate of likely losses flowing from breach of
the contract in order to be enforceable. Where there is an initial loss caused
by the presence of an appellant’s vehicle in breach of the conditions (e.g.
loss of revenue from failure to purchase a Pay & Display ticket) this loss will be
recoverable. Any consequential loss incurred in pursuing that initial loss, such
as issuing the PCN and staff costs involved in responding to subsequent
representations, may also be recovered."

Can they reasonably assess that £100 is a consequential loss incurred due to issuing the PCN and staff costs involved?

tykesi

You've already been told that they cannot.

bod1467

http://parking-prankster.blogspot.co.uk/2014/03/parkingeye-lose-case-which-was-referred.html

POPLA ruled that as this was a free car park, no costs were incurred to the landowner as a result of any overstay.

Costs could include loss of revenue at a shopping centre. However, in this case either there was no loss of revenue, or ParkingEye declined to provide any evidence of such.

Therefore, any costs incurred in chasing up a debt of £0 are not consequential to any initial loss and so fall outside of any estimate of loss calculations.

mrum1129

I have sent off the first appeal letter today to P Eye. I am now awaiting their response.

bod1467 - I understand in that case that the car park in question was a free car park. I ask the question as the car park I was in was a pay & display.

Out of curiosity, it can be the case where no-one pays at a pay & display car park and the PPCs will always lose then?

bod1467

Apologies - I didn't notice P&D from your OP.

But the answer is, technically, Yes. The problem is that £100 (or even £60) "punishment" does not fit the "crime". And as a private parking ticket is simply an invoice (not a penalty or fine) then contract law takes precedence. Thus the PCN value becomes as unenforceable penalty, which is prohibited in consumer contract legislation.

ColliesCarer

P E doesn't lose if no-one pays at most of their P&D car parks, the landowner does because the business model they have set up is that more often than not the tariffs go to the landowner and only the charges claimed for breach of contract go to P E.

If no-one broke the rules they would be out of business and that is why the charges can't be justified because there is always an element of covering their general costs of doing business and profit. Neither of which are allowed in a GPEOL.

Damages for breach of contract must = loss arising from the breach or could reasonably have been incurred by the breach.
The aim is to return the parties to the position they would have been in if no breach occurred - so how can someone not paying lets say a £2 tariff possibly cause a loss of £100 to the PPC

mrum1129

ColliesCarer wrote: »

P E doesn't lose if no-one pays at most of their P&D car parks, the landowner does because the business model they have set up is that more often than not the tariffs go to the landowner and only the charges claimed for breach of contract go to P E.

If no-one broke the rules they would be out of business and that is why the charges can't be justified because there is always an element of covering their general costs of doing business and profit. Neither of which are allowed in a GPEOL.

Damages for breach of contract must = loss arising from the breach or could reasonably have been incurred by the breach.
The aim is to return the parties to the position they would have been in if no breach occurred - so how can someone not paying lets say a £2 tariff possibly cause a loss of £100 to the PPC

Ahh, understood. Thanks for this

mrum1129

Hi guys,

I have received my rejection from P-Eye and have got my POPLA code.

I have adapted a template shown below. Can someone please have a read (especially point 1) and give me feedback?

Thanks

Dear POPLA Assessor,
Re: ParkingEye PCN, verification code xxxxxxxxxx

I am the hirer/lesses and the usual keeper and I wish to appeal arecent parking charge from ParkingEye. Notwithstanding that we were genuinecustomers of the principal (Morrisons) I submit the points below to show that Iam 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 lossarising from the incident. ParkingEye notices allege 'breach of terms/failureto comply' and as such, the landowner/occupier (not their agent) can onlypursue liquidated damages directly flowing from the parking event. Given thatParkingEye charge the same lump sum for a 15 minute overstay as they would for150 minutes, and the same fixed charge applies to any alleged contravention (overstay,non-purchase of a ‘ £1 Pay & Display’ ticket as in my case), it is clearthere has been no regard paid to establishing that this charge is a genuinepre-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. In my case, the ‘Pay & Display’ticket cost is £1 for 2 hours parking. A £100 parking charge notice cannot be agenuine pre-estimate of loss and the excessive amount cannot be lawfullyclaimed as per Parking Eye v Smith, Manchester County Court December2011.

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 whollyrepresent a 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 Parking ChargeNotice and have not provided any evidence that they are lawfully entitled todemand money from a driver or keeper/hirer. Even if a contract is shown toPOPLA, I assert that there are persuasive recent court decisions againstParkingEye which establish that a mere parking agent has no legal standing norauthority which could 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 bring theclaim 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 mustspecifically allow the Operator to pursue charges in their own name in the courtsand grant them the right to form contracts with drivers. I require ParkingEyeto produce a copy of the contract with the landowner as I believe it is notcompliant with the CoP and that it is the same flawed business agreement modelas in Sharma and 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 witness statementis submitted instead of the landowner contract itself, that this should bedisregarded as unreliable and not proving full BPA compliance nor showingsufficient detail to disprove the findings in Sharma and Gardam.

Indeed I submit (and as I have raised the issue, ParkingEye mustnow disprove) that their Contract or User Agreement with Morrisons is likely tocontain a secret 'genuine customer exemption' clause which in fact exemptsMorrisons customers like us from these spurious charges. Not only have ParkingEyenot allowed my initial appeal that the driver and passenger were genuineMorrisons customers, but at 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 to the 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' contractterm and a 'misleading omission' which is in breach of the Unfair Terms inConsumer Contracts 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 yet notinforming the driver at the point of any alleged contract, about the secretexemption clause that I believe exists in their contract with Morrisons. Nordid they refer to it when rejecting my appeal which told them that we werecustomers who were delayed by illness in the store. Parking Eye as agents, haveno lawful excuse to pursue this wholly unfair and disproportionate charge whenI believe their own contract with the retailer specifically allows payingcustomers to be exempt. Parking Eye are seeking to impose punitive sanctionsthat 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 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 to theextent 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 submit that thissignage 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 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 Morrisons, 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 because theentirety of the charge is founded on two images purporting to show my vehicleentering and exiting at specific times. It is vital that this Operator mustproduce evidence in response and explain to POPLA how their system differs (if atall) from the flawed ANPR system which was wholly responsible for the courtloss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case wasdismissed when the judge said the evidence from ParkingEye was fundamentallyflawed because the synchronisation of the camera pictures with the timer hadbeen called into question and the operator could not rebut the point.

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 unreliableand unsynchronised as the evidence in the Fox-Jones case. As their whole chargerests upon two timed photos, 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 USUAL KEEPER/HIRER

ColliesCarer

As it was a P&D I would suggest altering the opening paragraphs of point 1/ as indicated in the quote box.

[STRIKE]There was no damage nor obstruction caused so there can be no lossarising from the incident.[/STRIKE] 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. There was no damage nor obstruction caused (nor is any alleged). 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 (overstay, non-purchase of a ‘ £1 Pay & Display’ ticket [STRIKE]as in my case[/STRIKE]), 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. [STRIKE]In my case[/STRIKE] At the location in question, the ‘Pay & Display’ticket cost is £1 for 2 hours parking. A £100 parking charge notice cannot be a genuine pre-estimate of loss and the excessive amount cannot be lawfully claimed as per Parking Eye v Smith, Manchester County Court December 2011.

Also just check this line in section 4 is accurate

"Nor did they refer to it when rejecting my appeal which told them that we were customers who were delayed by illness in the store."

Everything else is fine

mrum1129

Thanks, I will amend.

Shall I staple this to the paper form and send it out or do it through POPLA's online form?