Popla final draft

heff05

Could people please confirm the following POPLA appeal contains everything it should?
Or if I should add more and that the layout is correct?



Dear POPLA Assessor,

Re: ParkingEye Parking Charge Notice xxxxxxxxxx, POPLARef: xxxxxxxx



I am the registered keeper and I wish to appeal a recentparking charge from ParkingEye. I submit the points below to show that I am notliable for the parking charge:



1) No genuine pre-estimate of loss

There was no damage nor obstruction caused so there can beno loss arising from the incident. ParkingEye notices allege 'breach ofterms/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 theywould for 150 minutes, and the same fixed charge applies to any allegedcontravention (whether serious/damaging, or trifling as in my case), it isclear there has been no regard paid to establishing that this charge is agenuine pre-estimate of loss.



This charge from ParkingEye as a third party business agentis an unenforceable 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.



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-knowncase on whether 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 in amountin comparison with the greatest loss which could conceivably be proved to havefollowed from the breach.'' There is a presumption... that it is penalty when"a single lump sum is made payable by way of compensation, on theoccurrence of one or more or all of several events, some of which may occasionserious and others but trifling damage".



No doubt ParkingEye will send their usual well-knowntemplate bluster attempting to assert some ''commercial justification'' but Irefute their arguments. In a recent decision about a ParkingEye car park atTown Quay Southampton, POPLA Assessor Marina Kapour did not accept ParkingEye'sgeneric submission that the inclusion of costs which in reality amount to thegeneral business costs incurred for the provision of their car park managementservices is commercially justified. ''The whole business model of an Operatorin respect of a particular car park operation cannot of itself amount tocommercial justification. I find that the charge is not justified commerciallyand so must be shown to be a genuine pre-estimate of loss in order to beenforceable against the appellant.''



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



2) No standing or authority to pursue charges nor formcontracts with drivers

ParkingEye do not own the land mentioned in their Notice toKeeper and have not provided any evidence that they are lawfully entitled todemand money from a driver or keeper. Even if a contract is shown to POPLA, Iassert that there are persuasive recent court decisions against ParkingEyewhich establish that a mere parking agent has no legal standing nor authoritywhich 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. This decisionwas followed by ParkingEye v Gardam, Case No.3QT60598 in the High WycombeCounty Court 14/11/2013 where costs of £90 were awarded to the Defendant.District Judge Jones concurred completely with the persuasive view in ParkingEyev Sharma that a parking operator has no standing to bring the claim in theirown name. My case is the same.



3) Flawed landowner contract and irregularities with anywitness statement

Under the BPA CoPSection 7, a landowner contract must specifically allow the Operator to pursuecharges in their own name in the courts and grant them the right to formcontracts with drivers. I require ParkingEye to produce a copy of the contractwith the landowner as I believe it is not compliant with the CoP and that it isthe same flawed business agreement model as 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 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 and Gardam.



4)The signage was not compliant with the BPA Code ofPractice so there was no valid contract formed between ParkingEye and thedriver

I 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.



5) ANPR Accuracy and breach of the BPA Code of Practice 21.3

This Operator isobliged to ensure their ANPR equipment is maintained as described in paragraph21.3 of the British Parking Association's Approved Operator Scheme Code ofPractice. I say that Parking Eye have failed to clearly inform drivers aboutthe cameras and what the data will be used for and how it will be used andstored. I have also seen no evidence that they have complied with the otherrequirements 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 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 their system differs(if at all) from the flawed ANPR system which was wholly responsible for thecourt loss recently inParkingEye v Fox-Jones on 8 Nov 2013. That case wasdismissed when the judge said the evidence from ParkingEye was fundamentally flawedbecause the synchronisation of the camera pictures with the timer had beencalled into question and the operator could not rebut the point.



So, in addition to showing their maintenance records, Irequire ParkingEye to show evidence to rebut the following assertion. I suggestthat in the case of my vehicle being in this car park, a local camera took theimage but a remote server added the time stamp. As the two are disconnected bythe 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 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

ColliesCarer

Looks fine to me.
Only thing I might suggest is creating a numbered list of your challenge point headings and insert it after the end of your opening paragraph and before the body of point 1/ - as it makes it clearer to the assessor right at the start what points you are raising.

In POPLA’s on-line appeal system there is a text box to submit the appeal - some have had trouble with a character limit on this plus it tends to lose all formatting and just ends up as one large block of text, however you can attach files.

So you enter the first part of your appeal (say down to the end of the numbered list or end of point 1 ) then add something like "The main body of my appeal has been submitted as file <filename>.

Then go to the submit evidence option and attach your file.

Boult22

I'd make sure all the word spacing is correct and no words are 'joined up'.......just for the purposes of legibility. Otherwise looks OK :-)

heff05

it's gone...

will let you know how i get on