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POPLA appeal proof read please

This forum has been such a brilliant resource, thank everyone who has taken the time to give advice on here :T

Please could I request an expert eye or two to look over my POPLA appeal below before I submit it?

Blissfully unaware of the max stay at this carpark, the driver felt unwell during a shopping trip and sought refuge in Costa Coffee until they felt well enough to drive home. The max stay was exceeded by 20 mins.

Should I submit proof of purchase again like I did to PE, or does the barrage of words below suffice?

Thank you very much for taking the time to help,

Kind regards :)




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

I am the registered keeper and I wish to appeal a recent parkingcharge from ParkingEye. Notwithstanding that we were genuine customers of GuiseleyRetail Park for which the car park serves, the driver was taken ill andrequired a period of rest in the Costa Coffee outlet until they felt fit enoughto drive home. As that is meremitigation and ParkingEye have already ignored it, I submit the points below toshow that I am not 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. ParkingEyenotices 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 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 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 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 Guiseley Retail Park is likely tocontain a secret 'genuine customer exemption' clause which in fact exemptsGuiseley Retail Park customers like us from these spurious charges. Not only have ParkingEyenot allowed my initial appeal that the driver and passenger were genuineGuiseleyRetail Park 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 Guiseley RetailPark. Nor did they refer to it when rejecting my appeal which told them that wewere customers who were delayed by illness. Parking Eye as agents, have nolawful excuse to pursue this wholly unfair and disproportionate charge when Ibelieve their own contract with the retailers 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 signs exist at the entrance which carspass through from a busy roundabout and could not be read nor even seen by theoccupants of the car,

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 REGISTERED KEEPER


Comments

  • Stroma
    Stroma Posts: 7,971 Forumite
    Uniform Washer
    Just skim read it and its a winner, but remove the ' fake ' term from the appeal. It is a little long winded though
    When posting a parking issue on MSE do not reveal any information that may enable PPCs to identify you. They DO monitor the forum.
    We don't need the following to help you.
    Name, Address, PCN Number, Exact Date Of Incident, Date On Invoice, Reg Number, Vehicle Picture, The Time You Entered & Left Car Park, Or The Amount of Time You Overstayed.
    :beer: Anti Enforcement Hobbyist Member :beer:
  • Thank you Stroma.

    Is it too long winded? It's fundamentally a template from the Sticky section with specifics amended to fit my case.

    Will remove 'fake'.

    Appreciate your feedback :)
  • Stroma
    Stroma Posts: 7,971 Forumite
    Uniform Washer
    No it's okay , it's just they will accept the appeal on the gpeol in number one,but then as soon as the operator reads your appeal they won't show up
    When posting a parking issue on MSE do not reveal any information that may enable PPCs to identify you. They DO monitor the forum.
    We don't need the following to help you.
    Name, Address, PCN Number, Exact Date Of Incident, Date On Invoice, Reg Number, Vehicle Picture, The Time You Entered & Left Car Park, Or The Amount of Time You Overstayed.
    :beer: Anti Enforcement Hobbyist Member :beer:
  • Do I send off proof of purchase to POPLA too?
  • ColliesCarer
    ColliesCarer Posts: 1,593 Forumite
    No need to send proof of purchase - that would be classed as mitigation which POPLA explicitly excludes.

    I would suggest you put all the paragraph headings in as a numbered list after you introductory paragraph and before the body of point 1.

    If submitting on line to POPLA there is a character limit which your appeal is likely to exceed but you can attach files.

    In the text box for submitting the appeal include the text of the appeal down to say the end of the suggested numbered list or even to end of point 1 then type something like "The remaining body of my appeal has been submitted in file <filename> as it exceeds your character limit".

    Then select the evidence submission option and attach the file.

    Make sure each page of your appeal contains the POPLA code (say in a header or footer) and pages are numbered.

    If sending by post take to post office and request a free certificate of posting
  • Coupon-mad
    Coupon-mad Posts: 153,177 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    Stroma wrote: »
    It is a little long winded though


    It's a version of the 'ParkingEye - throw everything at 'em!' POPLA appeal! Long winded but thorough - and as you say, it will win.
    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 THREAD
  • Thanks ColliesCarer, made the changes you suggested. Somehow all that dribble did actually fit in the box - no character limits it appears.

    Thank you everyone - fingers crossed. Will post the result when I hear.

    Kind regards
    P
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