My POLPA Letter - please comment

discusdude

Hi, following my earlier post on this forum, see my letter to the POLPA about car park penalty notice in Hawshead Car Park,
I have contacted the Lake District Park Authority and they were not much help and are currently unwilling to help me, which is a shame as it does not put them in a good light either, but that's there choice! I think a lot answers comes from Parking Eye losing all of the car Park contacts wit LDPA once they currently run out.
So here is my letter:

Dear POPLAAssessor,
Re:ParkingEye fake PCN, verification code xxxxxxxxxx

Iam the registered keeper and I wish to appeal a recent parking charge fromParkingEye. The driver of the vehicle did park in the car park, but on entry tothe car park there were no signs to tell the driver that it was a car park ranby Parking Eye. The driver drovestraight into the blue badge parking area to check the signs to see if therewas any notice of parking charges, and as there was not any notices around theyparked up and went to check the signs elsewhere in the car park. The signs were very unclear and the driverand the passenger both decided that the signs indicated that there would be nocharge. As the registered keeper I didapply to the Lake District Authority for a parking permit for their one hourfree parking. The application wasemailed and an automatic response was received, but heard nothing else washeard so it seemed that all was in order, and the driver was aware they had onehour. The driver and passenger stayedfor a total of 41 minutes and have received a fine of £100 (that is £2.43 perminute).

1)No genuine pre-estimate of loss
Therewas no damage nor obstruction caused so there can be no loss arising from theincident. ParkingEye notices allege 'breach of terms/failure to comply' and assuch, the landowner/occupier (not their agent) can only pursue liquidateddamages directly flowing from the parking event. Given that ParkingEye chargethe same lump sum for a 15 minute overstay as they would for 150 minutes, andthe same fixed charge applies to any alleged contravention (whetherserious/damaging, or trifling as in my case), it is clear there has been noregard paid to establishing that this charge is a genuine pre-estimate of loss.Due to the time of year and the time of day, the car park was very quiet andthere was no evidence that anyone would have a genuine estimate of loss as aresult of where the vehicle was parked.

Thischarge from ParkingEye as a third party business agent is an unenforceablepenalty. In Parking Eye v Smith, Manchester County Court December 2011,the judge decided that the only amount the Operator could lawfully claim wasthe amount that the driver should have paid into the machine. Anything else wasdeemed a penalty.
TheOffice of Fair Trading has stated to the BPA Ltd that a 'parking charge' is notautomatically recoverable simply because it is stated to be a parking charge,as it cannot be used to state a loss where none exists. And the BPA Code ofPractice states that a charge for breach must wholly represent a genuinepre-estimate of loss flowing from the parking event.
ParkingEyeand POPLA will be familiar with the well-known case on whether a sum is agenuine pre-estimate of loss or a penalty: Dunlop Pneumatic Tyre CompanyLimited v New Garage and Motor Company [1915] AC 79. Indeed I expectParkingEye might cite it. However, therein is the classic statement, in thespeech of Lord Dunedin, that a stipulation: “… will be held to be a penalty ifthe sum stipulated for is extravagant and unconscionable in amount incomparison 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".
Nodoubt ParkingEye will send their usual well-known template bluster attemptingto assert some ''commercial justification'' but I refute their arguments. In a recentdecision about a ParkingEye car park at Town Quay Southampton, POPLA AssessorMarina Kapour did not accept ParkingEye's generic submission that the inclusionof costs which in reality amount to the general business costs incurred for theprovision of their car park management services is commercially justified.''The whole business model of an Operator in respect of a particular car parkoperation cannot of itself amount to commercial justification. I find that thecharge is not justified commercially and so must be shown to be a genuinepre-estimate of loss in order to be enforceable against the appellant.' Mycase is the same and POPLA must be seen to be consistent if similar argumentsare raised by an appellant.

2)No standing or authority to pursue charges nor form contracts with drivers
ParkingEyedo not own the land mentioned in their Notice to Keeper and have not providedany evidence that they are lawfully entitled to demand money from a driver orkeeper. Even if a contract is shown to POPLA, I assert that there arepersuasive recent court decisions against ParkingEye which establish that amere parking agent has no legal standing nor authority which could impact onvisiting drivers.

InParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court23/10/2013 District Judge Jenkins checked the ParkingEye contract and quicklypicked out the contradiction between clause 3.7, where the landowner appointsParkingEye as their agent, and clause 22, where is states there is no agencyrelationship between ParkingEye and the landowner. The Judge dismissed the caseon the grounds that the parking contract was a commercial matter between theOperator and their agent, and didn’t create any contractual relationshipbetween ParkingEye and motorists who used the land. This decision wasfollowed 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 intheir own name. My case is the same.

3)Flawed landowner contract and irregularities with any witness statement
Under the BPA CoP Section 7, alandowner contract must specifically allow the Operator to pursue charges intheir own name in the courts and grant them the right to form contracts withdrivers. I require ParkingEye to produce a current copy of the contract withthe landowner as I believe it is not compliant with the CoP and that it is thesame flawed business agreement model as in Sharma and Gardam.

IfParkingEye produce a 'witness statement' in lieu of the contract then I willimmediately counter that with evidence that these have been debunked in otherrecent court cases due to well-publicised and serious date/signature/factualirregularities. I do not expect it has escaped the POPLA Assessors' attentionthat ParkingEye witness statements have been robustly and publicly discreditedand are - arguably - not worth the paper they are photocopied on. I suggestParkingEye don't bother trying that in my case. If they do, I contend thatthere is no proof whatsoever that the alleged signatory has ever seen therelevant contract terms, or, indeed is even an employee of the landowner, orsigned it on the date shown. I contend, if such a witness statement issubmitted 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.
4) The signage was not compliant with the BPA Code of Practice sothere was no valid contract formed between ParkingEye and the driver
Isubmit thatthis signage failed to comply with the BPA Code of Practice section 18 andappendix B. The signs failed to properly warn/inform the driver of the terms. Further, because ParkingEye are a mere agentand place their signs away from the disabled parking area, they have failed toestablish the elements of a contract (consideration/offer and acceptance). Anyalleged contract (denied in this case) could only be formed at the entrance tothe premises, prior to parking. On entering the car park there were confusingsigns in very small print which did not explain the apparent charges for bluebadge holders.
Since I first received the penalty notice, I at myown expenses went back to the car park in question (nearly a 200 mile roundtrip) to take a photo as evidence that the signs were unclear, positioned wrongly for all users and to show that therewere no notices in the disabled parking area (which is situated away from themain car park) that there was a fee (even with a LDPA permit) but Parking Eyehas since lost the contact with the owner of the car park and the new signs that wereinstalled 3 days before going to take photos are a lot more clear.


I have included a map of the car park explaining where I parked and where the onlysigns were (that as previously stated were unclear).


I request that my appeal is upheld andfor POPLA to inform ParkingEye to cancel the PCN.

Yours faithfully,
THEREGISTERED KEEPER

bod1467

Please delete the above and post it in your original thread about this same matter.

https://forums.moneysavingexpert.com/discussion/4969148

discusdude

sorry don't know how to delete it?? can you explain please.