1st stage appeal to PPC. Edit 21/7/14:now onto POPLA Appeal

newbie26

My partner has received a fine from the infamous parking eye at the chelmsford riverside retail park.

We can show an online bank statement showing that she shopped at Matalan, however this shows a date of the 16th where as she was recorded on the 13th. Presumably it took the weekend for the transaction to go through? Is this worth including? And can I blank out her name on the statement and it still be valid? Can I just show a screen shot showing the Matalan payment?

Dee140157

First it's not a fine
Second complain to Matalan taking in your credit card receipt.
3rd appeal as per newbie thread. You can add 4th point about being a customer who spent money there if you wish. Send a redacted copy of the credit card statement. So no identifying information.

ColliesCarer

Firstly - it's not a fine - its a speculative invoice

Have a read of the NEWBIES thread (1st thread on main forum page) for information, advice and a 1st appeal template letter to use to send a first appeal off from the registered keeper to P E.

The forum has a formidable record in helping people get these cancelled if you follow the advice about how to appeal correctly.

Yes you could use a the blanked out statement showing the spend but would suggest you speak to Matalan first who may well be able to get this cancelled, however on retail parks the shops may only be tenants themselves and you would need to complain to the managing agents and/or landowners of that site.

Don't let complaining detract you from getting your appeal in on time though

Redx

the partner could have been the customer and be the RK, doesnt mean they were the driver lol

so THEY appeal as RK including the copies of the receipts, redacted of course, saying the full version will be given in a court of law same as if the PPC`s full unredacted version of the landowner contract is similarly produced

as stated, ideally get the landowner or retailer to cancel it, save any hassle

Coupon-mad

newbie26 wrote: »

My partner has received a fine from the infamous parking eye at the chelmsford riverside retail park.

We can show an online bank statement showing that she shopped at Matalan, however this shows a date of the 16th where as she was recorded on the 13th. Presumably it took the weekend for the transaction to go through? Is this worth including? And can I blank out her name on the statement and it still be valid? Can I just show a screen shot showing the Matalan payment?

Get yourselves back down there and ask the Matalan Manager to cancel the PE ticket for you sharpish. Or email Matalan Head Office and ask them to 'please step in and cancel this before I am sued' ... like Mr Beavis and Mr Wardley in the infamous case now dragging that retail park's name through the dirt and driving away customers who hear about it. Make sure they listen to you and do not brush away your comments - this car park is notorious and the retailers need to know why they are going to lose customers as people hear about the Court of Appeal case. Both were genuine customers who would have been OK if 'someone' hadn't reduced the parking hours from 3 down to 2 hours. Both were sued by PE as they didn't appeal and thought they could ignore it - but they were genuine customers so how a retail park thinks this is anywhere near OK, beggars belief!

Look at this from the sticky thread about successful complaints:

RIVERSIDE RETAIL PARK CHELMSFORD, MATALAN MANAGER & PARKING EYE - https://forums.moneysavingexpert.com/discussion/4874443

If you can get a decent conversation going with any Managers of ANY stores on site, please do ask them the questions I listed here in post #5 and tell us what you find out about who changed the 3 hours down to 2 hours and what the retailers think about it:

https://forums.moneysavingexpert.com/discussion/4874443

You MUST get this cancelled or win at POPLA. Don't be one of those posters who misses appeal deadlines, not with this notorious retail park which actually PAYS ParkingEye £1000 per WEEK, effectively for a licence to victimise their customers.

newbie26

Thank you for your help thus far, my girlfriend went in to complain to Matalan and apparently there is nothing they can do and they get this a lot, they did however provide details of the land owner. She did also try in Home Bargains but I understand they were less helpful and gave a pretty similar response.

In the mean time I sent the standard first stage letter with the inclusion of a paragraph regarding shopping at Matalan and a receipt.

They have now written back with what I assume to be a standard letter, I have uploaded it here, however it hasn't come out in great quality. They have also included a Popla appeals form with instructions (which I can also upload if it is any use)

My reply/appeal to popla would be as follows:

ParkingEye PCN, reference code xxxxx
POPLA Code: xxxxx

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) Flawed landowner contract and irregularities with any witness statement.

4) Breach of UTCCR 1999 and CPUTR 2008

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

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

7) Unreasonable & Unfair Contract Terms - a penalty that cannot be recovered



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”.
I would refer the assessor to the lead assessor's words from his 2014 annual report and expect that any attempt of a breakdown of supposed losses from the operator that contained costs that do not conform to Mr Greenslade's definition be ruled as extraneous. "However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."
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.

7) Unreasonable & Unfair Contract Terms - a penalty that cannot be recovered

The terms that the Operator in this case are alleging gave rise to a contract were not reasonable, not individually negotiated and caused a significant imbalance to my potential detriment. There is no contract between the Operator & motorist but even if POPLA believes there was likely to be a contract then it is unfair and not recoverable.

This charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says:
‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’

In the Unfair Terms in Consumer Contracts Regulations 1999:-
''5.—(1) 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.''

The Office of Fair Trading, Unfair Contract Terms Guidance:
Group 18(a): Allowing the supplier to impose unfair financial burdens
''18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However... a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.''

It has recently been found by a Senior Judge in the appeal court that CEL's signs are not clear and transparent and their charges represent a penalty which is not recoverable. This was in 21/02/2014 (original case at Watford court): 3YK50188 (AP476) CIVIL ENFORCEMENT v McCafferty on Appeal at Luton County Court. I contend that this charge is also not a recoverable sum.

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

Yours faithfully,


A lot of this has been taken from searching on this forum, and I will see if I can include any further paragraphs, any further help from other forum members would be greatly appreciated.

Once again thank you for the help so far.

Dee140157

Thorough and based on a similar appeal in another thread which was okayed by C-M so this should be good to go to.

newbie26

I have now edited the above appeal several times since originally posted, should the above be sufficient to win the appeal?

Umkomaas

You've got the GPEOL paragraph in, including the Beavis element which should be enough. The assessor won't want to go any further than that. Kitchen sink job, with a bit of the bathroom too.

A lot of this has been taken from searching on this forum, and I will see if I can include any further paragraphs, any further help from other forum members would be greatly appreciated.

And you want more paragraphs? :cool:

newbie26

Thank you, I will post up the out come

newbie26

Just a quick update, won the popla appeal, PE didnt even bother sending in any evidence.