Parking eye charge with strange reply

jamie9090

Hi All,

My wife recently received a parking charge notice from Parking Eye for an overstay at a car park.

We appealed this using the standard template provided by the Parking Prankster (http://www.parking-prankster.com/parking-ticket.html). We have now received a letter from parking eye saying "in your correspondance you state that you were shopping at the store/site, but you will need to provide us with evidence/further evidence of purchases made..." then ask for receipts/bank statements.

We do happen to have a credit card statement that confirms a purchase but the letter just seems a little strange given that in the initial appeal we didn't even mention anything about shopping in store/site.

Is this just an attempt to get hold of the drivers name (from the credit card statement)? Or is it a standard response to all appeals that do not provide receipts?

Should we respond and provide a copy of the credit card statement with names and account details blanked out?

The other thing is that in the appeal we wrote:

"Any communication that does not either confirm cancellation or include a POPLA verification code shall be reported to the BPA as a breach of their Code of Practice - the BPA recently issued guidance to all members to remind them of this fact. Such communication may also be deemed harassment and pursued accordingly."

...and they have not included a POPLA code in this letter


I was going to respond with something along the lines of:

Dear Parking Eye,

Ref no: xxxxxxxx

Thank you for your letter dated xxxxxx in which you ask for evidence that I was shopping at xxxxxxxxxx. Whilst this was not the nature of my previous letter, the driver did shop at xxxxxxxx and I have attached a copy of a credit card statement to confirm this.

As per my previous correspondence I would be grateful if any future correspondence either confirms cancellation of this charge or includes a POPLA verification code.

Kind regards,

Does that sound ok?

The only other thing I can think is that we did contact the site manager to ask them to withdraw the charge (to no avail) and mentioned to them about having shopped on site so they could have passed info on to Parking Eye???

Any advice would be great!

Thanks very much

DW190

I would remove driver and just put "purchases were made"

Dee140157

Edited: gave mistaken advice and didn't want others to read incorrect info.

Umkomaas

Actually, PE will respond positively to the submission of a redacted bank/credit card statement showing purchases from the store in question (personal experience when helping someone off-forum). Obviously make sure your name and address is shown (for authentication purposes), but redact any purchases not connected with this charge and certainly the bank/cc account number.

The magic figure appears to be £30 or more. Whether you've spent that much or not, still try the redacted statement, and see how you get on.

Keep us posted if successful; come back for more advice if you're not.

bazster

Wot Umkomaas said.

Proof of purchase by a named individual is not proof of who was driving, so it's not an issue. I am rarely in a shop unless accompanied by SWMBO (She Who Must Be Obeyed), we both drive both of our four-wheeled vehicles (the two-wheeled collection is solely my preserve), and for anything previous to yesterday we'd struggle to remember who was driving at the time.

Stroma

Was it at an Aldi ? They have a secret clause there around spending £30 , if you haven't spent that amount do to worry about it, they cannot hold you to clause that's not on their signs

Redx

PE definitely cancel some pcn,s when purchase receipts by (somebody in the car) are mentioned , proof of a receipt does not prove that they are the driver , some accounts are in joint names as are mine and my wifes cards and either of us can drive "our" car

I helped a relative do this and all they did was scan the receipts (the evidence) and reply to say these purchases were made on site by occupants of the vehicle , PE cancelled the pcn by return email - job done

so yes if you have receipts , scan them and submit them (keep the originals)

nothing ventured - nothing gained

why demand a popla code if a scan and send can get a cancellation , leave the popla request for if they reject your scanned receipts

jamie9090

Thanks for all of the advice ... I submitted the credit card statement as suggested but unfortunately they have still rejected the appeal ... possibly because there was only a small purchase by credit card.

I now need to appeal to POPLA so will have a look into this!

jamie9090

I have very slightly adapted the most comprehensive appeal that I could find on here ... does this look ok or is there anything else that I should add:

Dear Sir/Madam,

POPLA Ref: xxxxxxxxxxx
Parking Charge Notice: xxxxxxxxxxxxx

As the registered keeper of this vehicle I received a Parking Charge Notice from ParkingEye.

I have researched the matter and contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered:

1. Unclear, Inadequate and Non-Compliant Signage

2. Signage not compliant with Motorway Service Station Requirements

3. Contract with the Landowner is not Compliant with the BPA code of Practice and No LegalStatus to Offer Parking or Enforce Charges

4. No Contract with the Driver

5. Unfair Terms

6. ANPR Accuracy

7. No Breach of Contract and No Genuine Pre-Estimate of Loss

Below are the detailed appealpoints.

UNCLEAR,INADEQUATE AND NON-COMPLIANT SIGNAGE

Due to their high position, overall small size and the barely legible size of the small print, the signs in this car park are very hard to read, understand and no notices at all are positioned near the entrance, the parking space usedor exits to any of the shops.

I contend that the signs and any core parking terms ParkingEye are relying upon were too small for any driver to see, read or understand. I request that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs on this land (wording, position, clarity and frequency) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]

SIGNAGE NON-COMPLIANT WITH MOTORWAY SERVICE STATION REQUIREMENTS
This was a Motorway Services Area. Operators of Motorway Services Areas (MSAs)and their agents must comply with the requirements of Government Policy. These provisions are reflected in the Traffic Signs Agreement into which they enter with the Highways Agency. The Highways Agency, on behalf of the Department for Transport (DfT), published a policy on the provision of roadside facilities onits network. That policy is 'DfT Circular 01/2008: Policy on Service Areas and other Roadside Facilities on Motorways and All-purpose Trunk Roads in England'.

The policy states that “B19. At all types of site, where a charge is to believed for parking beyond the mandatory two free hours, the charging regime must be clearly displayed within both the parking areas and the amenity building.”

The compliance of the MSA with the above policy is disputed and I therefore require ParkingEye to prove that such clearly displayed signage exists within the amenity building(s) at the car park in question. It is not enough to prove that such signage exists within the car park itself.

Furthermore the policy states “All signing of roadside facilities and signing arrangements within sites must comply with the current Traffic Signs Regulations and General Directions and any other guidance as may be issued from time to time by the Department for Transport or the Highways Agency. Approval must be sought from the Highways Agency’s signs specialist for the use of all non-prescribed signs.”

I require ParkingEye to show proof to the POPLA adjudicator that the DFT/Highways Agency has granted special authorisation for ParkingEye's traffic signs in this particular MSA to be exempt from this policy requirement. It will not be acceptable for ParkingEye to claim that these particular signs are in ParkingEye's own opinion not 'traffic signs' when these signs have not been erected or positioned to direct pedestrians but instead act to provide information to vehicle users who may never leave their vehicles.

CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODEOF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES

ParkingEye do not own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, ParkingEye have not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.

It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted, that it is accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory is, indeed, authorised to act on behalf of the landowner, has read and the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company

I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS)v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges. It was stated that:"If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be." The ruling of the Court was that "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses, asset out above.

The Operator, either through the original correspondence, nor reply to appeal make no reference to the recovery of monies for the Landlord at all.

NO CONTRACT WITH THE DRIVER

There is no contract between ParkingEye and the driver, but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc. were not satisfied.

UNFAIR TERMS

The charge that was levied is an unfair term (and therefore not binding)pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer" and 5(2) states: "A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term."

ANPR ACCURACY
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 require the Operator to 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 to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as 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 the Operator in this case to show evidence to rebut this point: 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 this Operator in this car park is just as unreliable as the ParkingEye system and I put this Operator to strict proof to the contrary.


NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS

There was no parking charge levied, the car park is “free”. On the date of the claimed loss it was only at approximately 20% capacity and there was no physical damage caused. There can have been no loss arising from this incident. Neither can ParkingEye lawfully include their operational day-to-day running costs in any 'loss' claimed. I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.

The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges for all day parking. This is all the more so for the additional charges which operator states accrues after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by 40% by early payment that it is unreasonable to begin with.

UNLAWFUL PENALTY CHARGE

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow(review, February 2011), Parking Eye v Smith (Manchester County Court December2011) and UKCPS v Murphy (April 2012) .

The operator could state the letter as an invoice or request for monies, but chooses to use the wording “PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.


For the reasons outlined I respectfully request that the appeal is upheld and the charge dismissed.

Kind regards

xxxxxxxxxxxxxxxxx

Thanks again for all the help!!

jamie9090

Many thanks to supertedgb for the template! https://forums.moneysavingexpert.com/discussion/comment/64391091#Comment_64391091

Stroma

jamie9090 wrote: »

Thanks for all of the advice ... I submitted the credit card statement as suggested but unfortunately they have still rejected the appeal ... possibly because there was only a small purchase by credit card.

I now need to appeal to POPLA so will have a look into this!

Can you tell us what they said on the rejection? These secret clauses will never be allowed in a court