Parking Eye Overstay - I won at POPLA

WTNinja

I've just posted to the POPLA decisions thread, but thought I would open a separate thread to say thanks to all who have posted useful info, compiled the sticky threads etc.

Parking Eye sent a £100 charge for a 17 minute overstay in the St. Martin's Precinct car park in Caversham.

My POPLA submission was a 3 page Frankenstein's monster built from the template defences here and on Parking Prankster, LegalBeagles, Pepipoo etc, with some extra bits added to cover the specific circumstances of this unusual car park which is split into two with the other half managed by Waitrose (with £25 overstay charge). Turns out I could probably have just used a one liner "Not a GPEOL", but it doesn't hurt to be thorough!

My initial instinct was just to pay, the money is not a big deal, but on reading these forums, seeing the misery these companies inflict upon people and the underhand tactics they use, I have become a true anti-PPC zealot, hell bent on their destruction.

Well anti-£100-charge-for-17-minute-overstay-PPCs. Had the charge been, say £10, maybe even £20, I would probably think it was reasonable, and could probably be justified as a GPEOL. Had the company erected barriers and made me pay a couple of quid for parking - a business model that doesn't rely on issuing charges - I would have happily paid. To those parking companies reading this, this is how you get out of your current predicament: climb out of the gutter and act like civilized people instead of muggers.

It seems to me that the real enemy is probably the BPA. By providing a veneer of regulation and respectability, they allow PPCs to get hold of DVLA data. But by failing to enforce their code of practice, the parking companies can run riot with impunity. They provide a convenient way for the DVLA to deny responsibility and continue selling our data to people with a proven track record of misusing it.

I am going to be complaining to the DVLA, BPA, POPLA, my MP and anyone else I can think of.

Umkomaas

Great result WTNinja ....... and a great post, especially your analysis of the BPA's role.

lee.evo

Great result WTninja,

I too am fighting a 4 minute overstay, any chance you'd be kind enough to post or pm me a copy of the letter you sent.

Thanks,lee.

fil_cad

The BPA, DVLA, PE, and other PPCs are all in it together, its one inhouse money sucking scam, the BPA motto is raising standards, more like raising cash! roll on the day when they all cease to exist.

WTNinja

lee.evo wrote: »

Great result WTninja,

I too am fighting a 4 minute overstay, any chance you'd be kind enough to post or pm me a copy of the letter you sent.

Thanks,lee.

Obviously check it all applies - there is some stuff specific to the car park in question:

Dear POPLA adjudicator

POPLA Reference XXXXXXX
Incident date XXXXXXX
Car registration XXXXXXX
PCN Number XXXXXXX
Operator Name PARKINGEYE

I appeal against the decision of Parking Eye Ltd because they have failed to follow the BPA code of practice and attempted to impose a penalty charge for either breach of contract or trespass.

Lack of authority

The operator does not appear to 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, the operator has 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.

I require the operator to provide a full copy of the actual contemporaneous, signed & dated contract with the landowner.

Contracts are complicated things, so a witness statement signed by someone is not good enough, neither is a statement that a person has seen it. A copy of the original, showing the points above, is the only acceptable item as evidence that a contract exists and authorises the Operator the right, under contract, to write numerous letters to an appellant chasing monies without taking them to Court, to pursue parking charges in their own name, to retain any monies received from appellants and to pursue them through to Court.

I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.

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 stated, "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. I assert 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, as set out above.

7.1 of the BPA code of practice makes it a requirement that Parking Eye either own the land, or have the written authorisation of the land owner to enable them to operate on the land. I, as registered keeper, put Parking Eye to strict proof that a valid contract exists that enables them to act in this manner on behalf of the landowner. It is not an onerous task to produce the contract as section 8.1 of the code means it has to be available at all times.

Not genuine pre-estimate of loss

19.5 of the BPA code of practice states, “If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer,”

There was no parking charge levied, the car park is “free”. There can have been no loss arising from this incident. Neither can Parking Eye lawfully include their operational day-to-day running costs in enforcing parking restrictions at the site in any 'loss' claimed.

In their appeal refusal of XXXXXXXX they claim costs of £53, though an itemized breakdown is not provided. They do list some of the things this charge includes: "erection and maintenance of the site signage, installation, monitoring and maintenance of the Automatic Number Plate Recognition systems, employment of office-based administrative staff, membership and other fees required to manage the business effectively, general costs including stationery, postage etc." All of the items listed are just the day to day costs of running their company. This does not represent a loss resulting from a breach of the alleged parking contract. In other words, were no breach to have occurred, the cost of parking enforcement would still have been the same. This has been quoted by PoPLA itself in adjudication.

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. 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.

These costs do not flow directly from the alleged breach and therefore do not qualify for consideration in the pre-estimate.

Even taken at face value, the £53 comes far short of the £100 charge they are claiming.

It is therefore clear that there is a large element of profit in the charge and thus it cannot be considered a genuine estimate of *loss*.

Also of interest is that the car park in question is carved in two, with one part operated by ParkingEye, and the other by Waitrose. Of note is that the Waitrose car park signage specifies a £25 charge for overstaying the allowed time. It is hard to see how ParkingEye can justify 4 times as much.

Whilst I appreciate that each case must be judged on its own merits, it may be of assistance to refer to previous POPLA appeals which have been upheld on the grounds that ParkingEye’s charges are not a genuine pre-estimate of loss. I have included an appendix with the relevant dates and codes. I believe there are many more similar cases, but I have only listed those where I know the codes.

Unclear and inadequate signage

Given the unusual situation of the two adjacent car parks, you would think that extra effort would be made to ensure no confusion occurred. In fact it is hard to tell which car park you are in. There are two places where you can go from one car park to the other. One has no signage whatsoever, and the other has one sign with writing far too small to be read from a moving vehicle. The sign is also on a high pole, and set back from the stopping position indicated by the road markings; in the normal course of driving where you pause to give way, the sign is behind you.

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. 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."

Use of ANPR

The BPA code of practice contains the following:
''21 Automatic number plate recognition (ANPR)
21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.''

The signs have a small icon which presumably represents a camera (though looks nothing like the ANPR cameras installed) and the words "Car park monitored by ANPR systems" in very small writing. Even assuming a motorist saw this, and managed to read it, it says nothing about what the data captured will be used for, and I can't believe many people even know what the acronym ANPR stands for. ParkingEye are in clear breach of the code of practice.

Veracity of ANPR data

Since ParkingEye's entire evidence consists of two timed photographs, the accuracy of this evidence is paramount. I asked ParkingEye to show evidence of what checks are in place to ensure the accuracy, synchronicity and security of these readings, but they ignored this and sent a stock rejection letter.

Parking Eye have failed to show me any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR) and would require POPLA to consider that particular section of the Code in its entirety and decide whether the Operator has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence. I, as registered keeper, contend that these cameras and their operation do not meet the standards laid down in the BPA code of practice.

I would contend that this appeal should be allowed for these reasons.



Regards

XXXXXX
Registered keeper 

Appendix A: POPLA appeals upheld
 Verdict date	POPLA code	Operator	Reason
11 July 2013	6060803020	ParkingEye	Not genuine pre-estimate of loss
18 July2013	6061093017	ParkingEye	Not genuine pre-estimate of loss
27July2013	6061363007	ParkingEye	Not genuine pre-estimate of loss
6 Aug 2013	6061163154	ParkingEye	Not genuine pre-estimate of loss
30 Aug 2013	6061413853	ParkingEye	Not genuine pre-estimate of loss
3 Sep2013	6061433594	ParkingEye	Not genuine pre-estimate of loss
23 Sep 2013	6061723060	ParkingEye	Not genuine pre-estimate of loss
9 Oct 2013	6061003012	ParkingEye	Not genuine pre-estimate of loss
10 Oct 2013	6062073007	ParkingEye	Not genuine pre-estimate of loss

Benjo816

HI Please help,

I received a parking charge for £85 on in March which I ignored as I believed it was a scam. It was for an over stay by 1 hour.

The signage had been covered in gaffa tape so I assumed it was no longer in use.

Anyway, I now have a county court form through and it's asking me for £160 and for my defense.

Can I use the same defense as written below? I have to write my defense online on the government website, moneyclaim gov uk

I'm really stressed out about this whole process. I now have 10 days left to appeal against this and submit my defense to the court.

Any help would be gratefully received.

thanks

PS, I'm replying on this thread as I cannot see where to post new 'Posts'

WTNinja wrote: »

Obviously check it all applies - there is some stuff specific to the car park in question:

Dear POPLA adjudicator

POPLA Reference XXXXXXX
Incident date XXXXXXX
Car registration XXXXXXX
PCN Number XXXXXXX
Operator Name PARKINGEYE

I appeal against the decision of Parking Eye Ltd because they have failed to follow the BPA code of practice and attempted to impose a penalty charge for either breach of contract or trespass.

Lack of authority

The operator does not appear to 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, the operator has 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.

I require the operator to provide a full copy of the actual contemporaneous, signed & dated contract with the landowner.

Contracts are complicated things, so a witness statement signed by someone is not good enough, neither is a statement that a person has seen it. A copy of the original, showing the points above, is the only acceptable item as evidence that a contract exists and authorises the Operator the right, under contract, to write numerous letters to an appellant chasing monies without taking them to Court, to pursue parking charges in their own name, to retain any monies received from appellants and to pursue them through to Court.

I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.

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 stated, "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. I assert 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, as set out above.

7.1 of the BPA code of practice makes it a requirement that Parking Eye either own the land, or have the written authorisation of the land owner to enable them to operate on the land. I, as registered keeper, put Parking Eye to strict proof that a valid contract exists that enables them to act in this manner on behalf of the landowner. It is not an onerous task to produce the contract as section 8.1 of the code means it has to be available at all times.

Not genuine pre-estimate of loss

19.5 of the BPA code of practice states, “If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer,”

There was no parking charge levied, the car park is “free”. There can have been no loss arising from this incident. Neither can Parking Eye lawfully include their operational day-to-day running costs in enforcing parking restrictions at the site in any 'loss' claimed.

In their appeal refusal of XXXXXXXX they claim costs of £53, though an itemized breakdown is not provided. They do list some of the things this charge includes: "erection and maintenance of the site signage, installation, monitoring and maintenance of the Automatic Number Plate Recognition systems, employment of office-based administrative staff, membership and other fees required to manage the business effectively, general costs including stationery, postage etc." All of the items listed are just the day to day costs of running their company. This does not represent a loss resulting from a breach of the alleged parking contract. In other words, were no breach to have occurred, the cost of parking enforcement would still have been the same. This has been quoted by PoPLA itself in adjudication.

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. 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.

These costs do not flow directly from the alleged breach and therefore do not qualify for consideration in the pre-estimate.

Even taken at face value, the £53 comes far short of the £100 charge they are claiming.

It is therefore clear that there is a large element of profit in the charge and thus it cannot be considered a genuine estimate of *loss*.

Also of interest is that the car park in question is carved in two, with one part operated by ParkingEye, and the other by Waitrose. Of note is that the Waitrose car park signage specifies a £25 charge for overstaying the allowed time. It is hard to see how ParkingEye can justify 4 times as much.

Whilst I appreciate that each case must be judged on its own merits, it may be of assistance to refer to previous POPLA appeals which have been upheld on the grounds that ParkingEye’s charges are not a genuine pre-estimate of loss. I have included an appendix with the relevant dates and codes. I believe there are many more similar cases, but I have only listed those where I know the codes.

Unclear and inadequate signage

Given the unusual situation of the two adjacent car parks, you would think that extra effort would be made to ensure no confusion occurred. In fact it is hard to tell which car park you are in. There are two places where you can go from one car park to the other. One has no signage whatsoever, and the other has one sign with writing far too small to be read from a moving vehicle. The sign is also on a high pole, and set back from the stopping position indicated by the road markings; in the normal course of driving where you pause to give way, the sign is behind you.

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. 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."

Use of ANPR

The BPA code of practice contains the following:
''21 Automatic number plate recognition (ANPR)
21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.''

The signs have a small icon which presumably represents a camera (though looks nothing like the ANPR cameras installed) and the words "Car park monitored by ANPR systems" in very small writing. Even assuming a motorist saw this, and managed to read it, it says nothing about what the data captured will be used for, and I can't believe many people even know what the acronym ANPR stands for. ParkingEye are in clear breach of the code of practice.

Veracity of ANPR data

Since ParkingEye's entire evidence consists of two timed photographs, the accuracy of this evidence is paramount. I asked ParkingEye to show evidence of what checks are in place to ensure the accuracy, synchronicity and security of these readings, but they ignored this and sent a stock rejection letter.

Parking Eye have failed to show me any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR) and would require POPLA to consider that particular section of the Code in its entirety and decide whether the Operator has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence. I, as registered keeper, contend that these cameras and their operation do not meet the standards laid down in the BPA code of practice.

I would contend that this appeal should be allowed for these reasons.



Regards

XXXXXX
Registered keeper 

Appendix A: POPLA appeals upheld
 Verdict date	POPLA code	Operator	Reason
11 July 2013	6060803020	ParkingEye	Not genuine pre-estimate of loss
18 July2013	6061093017	ParkingEye	Not genuine pre-estimate of loss
27July2013	6061363007	ParkingEye	Not genuine pre-estimate of loss
6 Aug 2013	6061163154	ParkingEye	Not genuine pre-estimate of loss
30 Aug 2013	6061413853	ParkingEye	Not genuine pre-estimate of loss
3 Sep2013	6061433594	ParkingEye	Not genuine pre-estimate of loss
23 Sep 2013	6061723060	ParkingEye	Not genuine pre-estimate of loss
9 Oct 2013	6061003012	ParkingEye	Not genuine pre-estimate of loss
10 Oct 2013	6062073007	ParkingEye	Not genuine pre-estimate of loss

Nodding_Donkey

WTNinja wrote: »

I am going to be complaining to the DVLA, BPA, POPLA, my MP and anyone else I can think of.

Well done, and please post in this thread https://forums.moneysavingexpert.com/discussion/4973883 when you complain to the BPA

nnishant

Thanks for the template post WTNinja :beer:

I have used that template and written to POPLA. The parking fine was issued by ParkinEye for overstaying by 20 minutes. Hope it works.

trisontana

I hope you didn't call it a "fine"

beastonalilo

Thanks for this
My daughter is fighting Parking Eye at St. Martin's Precinct car park for a 10 minute overstay but she never received the information on POPLA or rejection of her appeal so she now has a court date. She wrote back to them asking for a new POPLA number as she never received anything about it and Parking Eye just ignored the letter. Not sure how she stands with her not receiving the POPLA info? Anyone know anything?
Hopefully with your information it will assist her in court!

pappa_golf

start a new thread , you will get more help


parking eye - no POPLa - court (suggested heading)