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Appreciate proof read of POPLA appeal letter please
Galaxy.crazy
Posts: 7 Forumite
Hi, I've just drafted the POPLA letter. I've mainly copied sections from the template letters and tweaked slightly to suit myself. Tbh I don't understand most of the legal talk so I'm hoping that it's ok! I'd really appreciate it if someone could have a quick read and tell me if it's ok!
I am the registered keeper and I wish to appeal a recent parking charge from ParkingEye. I submit the points below to show that I am not liable for the parking charge:
1) 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. ******is it worth saying I never left the car as I waited with children while my husband attended an out of hours doctors appointment, there weren't any signs where I parked or any visible pay and display ,machines****
2)No genuine pre-estimate of loss
This car park costs £1.20 an hour, which means the charge for parking would have totalled £2.40. The amount parking Eye are demanding payment for greatly exceeds this amount and is obviously a penalty rather than a genuine pre estimate of loss. The car park was empty on this day, as it was a Sunday, so there was no obstruction or damage caused and no loss arising from the incident. by the use of this car park. 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, in this case £2.40. Anything else was deemed a penalty.
3)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.
4) 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.
5) 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 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.
Based upon this evidence I request my appeal to be upheld and POPLA to inform ParkingEye to cancel the PCN.
Yours faithfully
Registered Keeper
I am the registered keeper and I wish to appeal a recent parking charge from ParkingEye. I submit the points below to show that I am not liable for the parking charge:
1) 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. ******is it worth saying I never left the car as I waited with children while my husband attended an out of hours doctors appointment, there weren't any signs where I parked or any visible pay and display ,machines****
2)No genuine pre-estimate of loss
This car park costs £1.20 an hour, which means the charge for parking would have totalled £2.40. The amount parking Eye are demanding payment for greatly exceeds this amount and is obviously a penalty rather than a genuine pre estimate of loss. The car park was empty on this day, as it was a Sunday, so there was no obstruction or damage caused and no loss arising from the incident. by the use of this car park. 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, in this case £2.40. Anything else was deemed a penalty.
3)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.
4) 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.
5) 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 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.
Based upon this evidence I request my appeal to be upheld and POPLA to inform ParkingEye to cancel the PCN.
Yours faithfully
Registered Keeper
0
Comments
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I would add numbered bullet points below the first paragraph but above all the main appeal points, for clarity
there seem to be some questions in your appeal above, questions that you would not be asking in a popla appeal - like the one where somebody is waiting in the car, not relevant as the car is still stationary on private land so has passed the in and out anpr cameras (not spy cameras)******is it worth saying I never left the car as I waited with children while my husband attended an out of hours doctors appointment, there weren't any signs where I parked or any visible pay and display ,machines****
I suggest you check the appeal carefully as you are making statements and asking popla to make sure PE are answering any points on signage or contracts or losses (if they actually put any evidence forward at all)0 -
Thanks Redx, Il remove the part about waiting in the car, I wasn't sure it was relevant so thanks for clarifying.
When you say check it carefully do you think I am better off omitting some of it? My main issues were the lack of signage and the amount of the charge but I wasn't sure if that would be enough to win a POPLA appeal? Thanks again!0 -
what you think is not relevant
you put appeal points to popla that you want them to clarify and adjudicate on
its PE`s job to prove they comply with all points, not your job to prove their case for them
they sent the invoice (not fine) , so you are querying the validity of this invoice in legal terms to a set of trained solicitors or adjudicators, its their job to decide if PE are complying with all aspects dependent on the case put forward by the claimant
in uk law , you dont have to prove innocence as you are deemed "innocent until proven guilty" , but the claimant has to prove their case or face dismissal , so if they are claiming against an invoice, they have to prove all the aspects that you raise are invalid or not relevant, but if you do not raise them popla wont do it for you as they only act on what is in front of them
the point being that if you raise 6 appeal points, PE have to prove each and every one of them or your appeal is allowed - in general terms they fail on one or more counts, but you only need to win one count to have your appeal allowed
if you raised no issues, then PE would win by default0 -
It's just a matter of you being sure that stuff like this is correct for 'your' car park:
'This car park costs £1.20 an hour, which means the charge for parking would have totalled £2.40. '
Because we don't know whether you've copied & pasted from another POPLA appeal where those words were not yours, not relevant to you. You would be surprised what we see some newbies copy & paste then expect us to pick the errors out and proof read it somehow when we don't know the car park. Such as people who leave in 'it's a free car park' when it's not, or vice versa. If that bit is your wording then great, looks fine.
You will win - PE will throw in the towel as they recognise our appeals.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Coupon-mad wrote: »It's just a matter of you being sure that stuff like this is correct for 'your' car park:
'This car park costs £1.20 an hour, which means the charge for parking would have totalled £2.40. '
Because we don't know whether you've copied & pasted from another POPLA appeal where those words were not yours, not relevant to you. You would be surprised what we see some newbies copy & paste then expect us to pick the errors out and proof read it somehow when we don't know the car park. Such as people who leave in 'it's a free car park' when it's not, or vice versa. If that bit is your wording then great, looks fine.
You will win - PE will throw in the towel as they recognise our appeals.
They are my words, i had a look on the NHS website for the place the charge was issued and got the correct parking charge. But the rest is copied off the link that said "throw everything at them" The main problem I had was that I wasn't quite sure of the legal terms used in the reasons for allowing the appeal. So I didn't want to put in a load of info when it wasn't relevant or necessary. Its been a life saver finding all this info re parking eye, I sent my initial appeal letter before finding this thread so made a few errors on it. I hope POPLA throw it out, really cant afford to fork out £100 or what ever it is to PE!
All the people helping out on here are brilliant too, its nice people take the time to offer their expertise on it! Thanks
0 -
what you think is not relevant
you put appeal points to popla that you want them to clarify and adjudicate on
its PE`s job to prove they comply with all points, not your job to prove their case for them
they sent the invoice (not fine) , so you are querying the validity of this invoice in legal terms to a set of trained solicitors or adjudicators, its their job to decide if PE are complying with all aspects dependent on the case put forward by the claimant
in uk law , you dont have to prove innocence as you are deemed "innocent until proven guilty" , but the claimant has to prove their case or face dismissal , so if they are claiming against an invoice, they have to prove all the aspects that you raise are invalid or not relevant, but if you do not raise them popla wont do it for you as they only act on what is in front of them
the point being that if you raise 6 appeal points, PE have to prove each and every one of them or your appeal is allowed - in general terms they fail on one or more counts, but you only need to win one count to have your appeal allowed
if you raised no issues, then PE would win by default
Thanks for the help, I went back through it and deleted what I thought was not relevant to me. Submitted today!0 -
Hi Galaxy crazy,
I'm answering on your original thread as it's best to keep all the info in one place
You'll get an email acknowledgement from London councils that you've submitted an appeal very shortly. Followed by an email from POPLA within a few days with a date (probably about 6 weeks hence) for when your appeal will be assessed.0
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