Parking Eye fine - Chelmsford

Coupon-mad

Crys5806 wrote: »

Yep, got my proof of postage I will also submit my appeal online to be doubley safe.
Oh, i thought the advice was to not send any receipts/evidence at this stage? If it will help my chances then i will get it photocopied at work at the weekend to send off as evidence

Nope the NEWBIES thread gives you a template but just above it, I do say 'send copies of receipts if you have them if it's a Supermarket or Retail Park' (or words to that effect!). You'd be surprised. PE do cancel when they see receipts so it would be silly not to take a phone picture on close up of receipts if over £30 from that day, and email them as a follow-up, to:

[EMAIL="enforcement@parkingeye.co.uk"]enforcement@parkingeye.co.uk[/EMAIL]


HTH

Redx

Crys5806 wrote: »

Yep, got my proof of postage I will also submit my appeal online to be doubley safe.

Oh, i thought the advice was to not send any receipts/evidence at this stage?

If it will help my chances then i will get it photocopied at work at the weekend to send off as evidence

so you didnt read the PE appeal I posted about and won then ?

ie:- this one from november 2013 relating to a relative parking there earlier

https://forums.moneysavingexpert.com/discussion/4827711

and yes the receipts were over £30 in total from a few shops on there

Crys5806

My 1 receipt does not total £30, and the other eceipts i had went in the recycling before i received the parking fine, as they were paid for with cash so no need to be burned as no personal info on. I submitted by appeal online as well with a copy of the receipt and explained that i did have others. I havent heard back from the online appeal yet, however i have today received 2 letters through the post rejecting my appeal.
However, they have not provided a Popla Ref. theres a section on it at the top of the letter that says POPLA Ref: and then theres nothing after it. Should i write to them again requesting it??

Coupon-mad

Yes, or email enforcement@parkingeye.co.uk as it's cheaper!

Crys5806

great thank you. i will email them and await my code. ill then use the checker for my deadline and get my next appeal ready to share on here before sending off

Crys5806

ok, got to be honest, this is getting all abit confusing. I'm reading through the POPLA appeal templates on the sticky thread and also oher PE popla appeals and finding it hard to select what bits are relevant to my appeal. As in this case you've said that PE pay the landowner fishing rights, and also have some kind of contract with them for the priveledge - does this mean the 2nd point in all appeals ive seen needs to be worded differently for mine?

ColliesCarer

Hi Crys,

If by 2nd point you mean no authority/legal standing then yes it will need to be worded differently, to standard types of appeals, for Riverside because of the "fishing licence". And the no GPEOL point will also need to take the Cambridge case into account.

But don't worry about that for now - the forum members will help you amend the points to suit that car park.

Here's one that was specifically written (before the result of the Cambridge case) for P E/Riverside Chelmsford but it should only need a small amount of editing/updating to be suitable for your appeal

https://forums.moneysavingexpert.com/discussion/comment/65394808#Comment_65394808

Amend the not a genuine pre estimate of loss point in the above appeal to include the most recent reference to PE v Beavis and the commercial justification argument by Chris Adamson by replacing this paragraph

No doubt ParkingEye will send their usual well-known template bluster attempting to assert some ''commercial justification'' but I refute their arguments. In a recent decision about a ParkingEye car park at Town Quay Southampton, POPLA Assessor Marina Kapour did not accept ParkingEye's generic submission that the inclusion of costs which in reality amount to the general business costs incurred for the provision of their car park management services is commercially justified. ''The whole business model of an Operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre-estimate of loss in order to be enforceable against the appellant.''

with this

Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) 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.''

Check the rest to make sure it's relevant to you - then post your draft here on your thread for help refining it.

Also re: the POPLA code - with their rejection letters P Eye usually send a POPLA appeal form - have they sent you one? If so check the bottom left hand corner of that as usually it has the POPLA 10 digit verification code in quite small font.

Crys5806

Thank you for that, that was really helpful. Been trying to see if there were any others for the same place that i parked.
Have checked the POPLA form i got from PE and nope, no POPLA code. there's a section that says verification code right at the bottom left, and they've left it blank. have emailed them so will give them a couple of days then get on their case again.

ok, so i have done my first draft...i just need some guidance on how to reword the section on authority to persue charges - as we know they jave a fishing licence. And also, i think i should change the section on signage slightly, as there is a big sign as you drive in, but most of the wording is quite small, and without stopping to read the whole thing (which would mean holding up all incoming traffic for about 15minutes) there is no way a driver can fully read and understand everything included on that sign.

Dear POPLA Assessor,
PCN Reference Number:
POPLA Reference Number:

As the registered keeper I wish my appeal to be considered on the following grounds.

1) No genuine pre-estimate of loss.

This car park is free and there is no provision for the purchasing of a ticket or any other means for paying for parking. There was no damage nor obstruction caused, so there can be no loss arising from the incident. ParkingEye notices allege 'breach of terms/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 they would for 150 minutes, and the same fixed charge applies to any alleged contravention (whether serious/damaging, or trifling as in my case), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.

This charge from ParkingEye as a third party business agent is an unenforceable penalty. In Parking Eye v Smith, Manchester County Court December 2011, the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty. And in my case this was a free car park with no payment due whatsoever.

The Office of Fair Trading has stated to the BPA Ltd that a 'parking charge' is not automatically 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 of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.

ParkingEye and POPLA will be familiar with the well-known case on whether a sum is a genuine pre-estimate of loss or a penalty: Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79. Indeed I expect ParkingEye might cite it. However, therein is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach.'' There is a presumption... that it is penalty when "a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) 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.

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

ParkingEye do not own the land mentioned in their Notice to Keeper and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. Even if a contract is shown to POPLA, I assert that there are persuasive recent court decisions against ParkingEye which establish that a mere parking agent has no legal standing nor authority which could impact on visiting drivers.

In ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013 District Judge Jenkins checked the ParkingEye contract and quickly picked out the contradiction between clause 3.7, where the landowner appoints ParkingEye as their agent, and clause 22, where is states there is no agency relationship between ParkingEye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between ParkingEye and motorists who used the land. This decision was followed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the Defendant. District Judge Jones concurred completely with the persuasive view in ParkingEye v Sharma that a parking operator has no standing to bring the claim in their own name. My case is the same.

3) Flawed landowner contract and irregularities with any witness statement.

Under the BPA CoP Section 7, a landowner contract must specifically allow the Operator to pursue charges in their own name in the courts and grant them the right to form contracts with drivers. I require ParkingEye to produce a copy of the contract with the landowner as I believe it is not compliant with the CoP and that it is the same flawed business agreement model as in Sharma and Gardam.!

If ParkingEye produce a 'witness statement' in lieu of the contract then I will immediately counter that with evidence that these have been debunked in other recent court cases due to well-publicised and serious date/signature/factual irregularities. I do not expect it has escaped the POPLA Assessors' attention that ParkingEye witness statements have been robustly and publicly discredited and are - arguably - not worth the paper they are photocopied on. I suggest ParkingEye don't bother trying that in my case. If they do, I contend that there is no proof whatsoever that the alleged signatory has ever seen the relevant contract terms, or, indeed is even an employee of the landowner, or signed it on the date shown. I contend, if such a witness statement is submitted instead of the landowner contract itself, that this should be disregarded as unreliable and not proving full BPA compliance nor showing sufficient detail to disprove the findings in Sharma and Gardam.



Indeed I submit (and as I have raised the issue, ParkingEye must now disprove) that their Contract or User Agreement with Riverside Retail Park is likely to contain a secret 'genuine customer exemption' clause which in fact exempts Riverside Retail Park customers like us from these spurious charges. Not only have ParkingEye not allowed my initial appeal that the driver and passenger were genuine customers, but at the outset, when they allege a contract was formed, (which is denied) ParkingEye failed to alert the driver to that secret clause. Which leads me to the next point:
 
4) Breach of UTCCR 1999 and CPUTR 2008

I contend that a secret term which leaves a customer at a severe disadvantage as they are unaware of it, is a 'wholly unreasonable' contract term and a 'misleading omission' which is in breach of the Unfair Terms in Consumer Contracts Regulations 1999 and Consumer Protection from Unfair Trading Regulations (CPUTR) 2008. ParkingEye are taking unconscionable advantage of myself by demanding a 'charge' for alleged 'breach', holding me liable and yet not informing the driver at the point of any alleged contract, about the secret exemption clause that I believe exists in their contract with Riverside Retail Park. Nor did they refer to it when rejecting my appeal which told them that we were customers who were delayed only by shopping in their stores, and to which I have a receipt as proof and have supplied to them. Parking Eye as agents, have no lawful excuse to pursue this wholly unfair and disproportionate charge when I believe their own contract with the retailer specifically allows paying customers to be exempt. Parking Eye are seeking to impose punitive sanctions that are not required at all by any 'legitimate interest of the principal'.

CPUTR 2008 Part 2, Prohibitions
Misleading omissions
6(1) A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—!

(a)the commercial practice omits material information,!
(b)the commercial practice hides material information,

and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.!

Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999'
''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''
Test of fairness
''A term is unfair if:
Contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.
5.1 Unfair terms are not enforceable against the consumer.
9.2 ...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''

If they refute this then Parking Eye must explain their position to POPLA, produce the unredacted section of the contract and/or User Manual and show how they consider they can override the express wishes of the principal when Parking Eye are mere agents. And explain how their secret 'exemption clause' meets the test of fairness if they do not share it with the party they hold liable. Such terms must be in the signage they are relying upon to have formed the alleged contract at the outset.

 
5) The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between ParkingEye and the driver.

I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because ParkingEye are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance). Any alleged contract (denied in this case) 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 too late. In breach of Appendix B (Mandatory Entrance Signs) ParkingEye have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival. The only signs are up on poles with the spy cameras and were not read nor even seen by the occupants of the car, who were there at the invitation of Riverside Retail Park, to shop and enjoy free parking as expressly offered to customers in the principal's advertising and website.

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

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 say that ParkingEye 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. I have also seen no evidence that they have complied with the other requirements 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 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 November 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.!

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

Yours faithfully,

THE REGISTERED KEEPER
6th July 2014

Umkomaas

Suggest a bullet point list of your appeal headers at the opening of your submission to allow the adjudicator to see you've got the key points covered and allow them to home in on the point(s) that will shift your appeal across their desk soonest.

The volume they deal with suggests to me they won't have the time to be agonising over obtuse points of law when they can be pointed to obvious and unequivocal winners.

If you've not already done so (doesn't always show when copy and pasting to the forum) embolden your appeal headers above each appeal paragraph/section.

HTH

Coupon-mad

That's a good appeal. I would only suggest that you add a bullet point list towards the top so it's easy for the Assessor, and also I would just cover the fact that this charge is not exempt for the test of fairness (just in case PE try to argue it's a core price term that might be exempt):

'...And explain how their secret 'exemption clause' meets the test of fairness if they do not share it with the party they hold liable. Such terms must be in the signage they are relying upon to have formed the alleged contract at the outset. A significant 'misleading omission' renders the charge unrecoverable. It was admitted in Cambridge in the Beavis case by ParkingEye that the predominant purpose of their charges is as a deterrent and the charge was found to be a penalty, so it cannot be exempt from the test of fairness. '