POPLA Appeal Letter

lee.evo

here's the updated version

POPLA appeal re Parking Eye ticket number xxxxxxxxxx

I am the registered keeper and I wish to appeal a recent parking charge from ParkingEye.
I submit the points below to show that I am not liable for the parking charge:

1) No genuine pre-estimate of loss
2) No standing or authority to pursue charges nor form contracts with drivers
3) Signage
4) ANPR Accuracy

1. Genuine Pre-Estimate Of Loss

The Department for Transport guidelines state, in Section 16 Frequently Asked Questions, that:

"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver."

This was a free car park, and therefore no genuine pre-estimate of loss can be justified. I contest that the alleged 4 (four) minute overstay and subsequent £70 charge is not reasonable and is not a genuine pre-estimate of loss.

The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable and given that ParkingEye charge the same lump sum for a 4 minute overstay as they would for 4 hours, and the same fixed charge applies to any alleged contravention (whether serious/damaging or trifling), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss caused by this incident in this car park

It would, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.

POPLA Assessor Chris Adamson has stated in June 2014 that:

''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.

This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

I require the parking company to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach.

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

I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, ParkingEye must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. This has not been produced by the operator in their rejection statement so I have no proof that such a document is in existence. I contend that ParkingEye merely hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice.

I therefore put ParkingEye to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between ParkingEye and the landowner. This is required so that POPLA and myself can check that it allows this Operator to make contracts with drivers themselves and provides them with full authority to pursue charges, including a right to pursue them in court in their own name. Please note that a witness statement to the effect that a contract is in place will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.). In any case, ParkingEye's witness statements have been exposed as photocopy templates from clients who may well have no knowledge of any individual parking event and the signatory may never even have seen the contract.

3)The signage was not readable so there was no valid contract formed between ParkingEye and the driver
I believe that ParkingEye place their signs at a height that makes their terms illegible, the small print used is completely unreadable at ground level.. Any photos supplied by ParkingEye to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera & flash and the angle may well not show how high the signs are. As such, I require ParkingEye to state the height of each sign in their response, to show contemporaneous photo evidence of these signs with proof of compliance as laid down in the TSRGD 2002, the BPA Code of Practice and BSI Standards.

Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead.

As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding, rather than simply the nominal amount presumably due in a machine on site.


4) The ANPR system is unreliable and neither synchronised nor accurate
If ParkingEye's ANPR records are completely reliable (which I contest) then this Operator claims the car was parked for 4 (FOUR) minutes over the 60 minutes. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival and departure in moving traffic. The exit photo is not evidence of 'parking time' at all.
The BPA Code of Practice indicates at paragraph 13.4 that the Respondent should “allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. There is no evidence that the respondent can produce to indicate that my vehicle was parked for more than the arbitrary time limit they are relying upon and no breach of contract by the driver can be demonstrated by their evidence at all.

This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph
21.3 of the BPA Code of Practice and to have signs stating how the data will be stored/used. I say that Parking Eye have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. It was dark and if there was such a sign at all then it was neither lit nor prominent, since the driver did not see it. I have also seen no evidence that they have complied with the other requirements in that section of the code in terms of ANPR logs and maintenance and I put this Operator to strict proof of full ANPR compliance.


In addition I question the entire reliability of the system. I require that ParkingEye 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 and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because 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 ParkingEye to show evidence to rebut the following assertion. 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 the cameras in this car park is just as unreliable and unsynchronised as the evidence in the Fox-Jones case. As their whole charge rests upon two timed photos, I put ParkingEye to strict proof to the contrary and to show how these camera timings are synchronised with the pay and display machine.



I gratefully request that my appeal is allowed.

Yours sincerely

.

Redx

popla do not allow appeals on mitigation or breaches of the BPA CoP etc

they do not have to provide YOU with proof of anything , they DO have to prove it at popla or in court, but ONLY if YOU allege that they have failed in this regard and question each and every legal issue

it seems to ramble a lot and gpeol is hidden near the bottom etc

I would respectfully suggest you read a typical PE popla appeal and use a similar format, you only get one chance at this , so make sure your appeal in on legal grounds like not a gpeol , no contract and bad signage

you should also include the details of the altrincham case by ivor pecheque where driving round is not "parking" , so exiting the car park is also not parking so that case should be cited as a legal reason for the "overstay" (fistral beach one , blogged on parking pranksters website)

so any proper popla appeal is like this recent PE appeal here

https://forums.moneysavingexpert.com/discussion/4991100

you can also see how its all numbered with bullet points etc too

add any mitigation below those main appeal points

Coupon-mad

PE 'NTK's do use the word 'creditor' so that's a no-no. You should just copy/adapt a template like the example given by Redx in post #2 which is very recent one I wrote myself. If yours is a free car park then change the stuff about making a payment (£4.50/£6) and use instead the 'it was a free car park/no GPEOL as there's no obvious initial loss such as an unpaid tariff'' paragraph example from the 'chuck everything at 'em!' PE appeal you will find in the NEWBIES thread post #3.

lee.evo

I've updated the opening post... is it too wordy ? I've used a couple of templates to throw it together.

Coupon-mad

Not too wordy IMHO. It has the right words especially the new bit about debunking 'commercial justification' and kicking PE v Beavis into the long grass. Chris Adamson the POPLA Assessor ('popular assessor' as he says it like it is IMHO!) has helped with such a good summary we can quote. In fact you can now add to Chris Adamson's words that the POPLA decision you are quoting from is Code 9061194515.

lee.evo

Thank you C-M you've been a big help :beer: