Parking Eye PCN at Morrisons

trinidadone

thanks for mentioning the additional information regarding a screen shot. I think I will send second class by post




ANYONE AND EVERYONE IS WELCOME TO COMMENT, ASK QUESTIONS ABOUT ANY PARKING ISSUES ON MY THREAD. WE ARE ALL HERE TO HELP EACH OTHER

Coupon-mad

I favour the online appeal because they cannot deny receiving it.

trinidadone

well that would be my fav option, however, i don't know how i wouold prove i had sent it

Dee140157

I actually used the belt and braces approach and did both on my PCN appeal!

Ok I lost the cost of an envelope and a second class stamp, but it cost them £27 to go to POPLA!

Umkomaas

I think you might be over-concerning yourself about this. Whilst PE can be accused of many things, there's no pattern of 'not receiving appeals' which might suggest them playing fast and loose in this context.

Just send it off and take a screen capture.

But if you want to send snail mail, do that in parallel and get a free certificate of posting from your post office. You've more than enough 'proof' then - if ever you should need it.

trinidadone

ok, I have sent my appeal using there online form. It was difficult at first, as they form as a max word limit, which the appeal exceded, but I used the "attachment as evidence" box, and refered the company to the attachment.

The box states, the company acknowledges all appeals, so i included my email address.

I am expecting the appeal to be rejected, and the company claims they will respond with "fourteen days" I was also informed the charge will not increase.

Now I just need to sit and wait

trinidadone

I am sure I am jumping the gun somewhat, but I have also drafted my appeal letter to POPLA once my letter to Parking Eye is rejected. Heres the following:

POPLA Verification Code:
Vehicle Registration:
Parking Company:
PCN Ref:
Alleged Contravention Date and Time:
Date of Notice:
Parking Charge Amount:
Car Park:

Dear POPLA Assessor,

I'm the registered keeper of the vehicle above and I am appealing against the parking charge above, I believe I am not liable for the parking charge on the grounds stated below, I would ask that all points are taken into consideration.

1. Non genuine pre-estimate of loss
2. No contract between driver/Inadequate signage
3. Flawed contract with landowner/Authority to issue PCN's
4. Unlawful penalty charge
5. Business rates
6. ANPR accuracy
7. ANPR usage
8. Proof of planning consent for 2 hour parking allowed and ANPR system

1. Non genuine pre-estimate of loss - The Amount of £100.00 demanded by ParkingEye is not a genuine pre-estimate of loss. The estimate must be based upon loss following from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of retail revenue at a shopping centre. As this is a free car park and there can be no losses incurred from onsite parking charges or retail revenue. I request ParkingEye to provide a full breakdown of how these costs are calculated, all these costs must represent a loss resulting from the alleged breach and the pre-estimate of loss must add up to the exact amount demanded of £100.00

As in previous cases the parking company as included day to day running costs of the business (for example Wages, Uniforms, Signage erection, Installation of ANPR cameras, Office Costs, Maintenance Costs) these would of occurred had there been a breach or not and therefore may not be included in this pre-estimate of loss. I am also aware that ParkingEye may not include the POPLA fee in a pre-estimate of loss.

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.

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.

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.'' My case is the same and POPLA must be seen to be consistent if similar arguments are raised by an appellant.

Furthermore, I attach a letter from ParkingEye in correspondence with another case, that admits that their estimate of cost in each case is actually £53, including operating costs, and this that the charge they are seeking to impose in my case has a considerable element of profit as well as operating costs incorporated. By their own admission, therefore, It can not, be a true pre-estimate of loss.

It would therefore follow that this charge is Punitive and a Penalty, and has an element of profit included that are not allowed to be imposed by parking companies.

2. No contract between driver/Inadequate signage - Following the receipt of the charge, I have personally visited the site in question, and the signage at this car park especially at the entrance is inadequate for numerous reasons. The signage at entrance of the car park has no lighting and doesn't have a reflective background and, this makes it possible for drivers to enter the car park with out seeing the signs thus no contract can be formed between the driver and ParkingEye. The entrance sign is also situated on the passenger side of the road on a standard right hand UK car and is situated around 6-8ft high on a pole, this makes it difficult for drivers to see or read from inside the car regardless of which side of the road the car park is entered from. All these reasons make it possible for drivers to enter the car park without seeing the signage upon entering especially at night.

Under Appendix B Entrance signs of the BPA Code of Practice it states 'Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual. Dark-coloured areas do not need to be reflective.'

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 Assessor 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. The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

3. Flawed contract with landowner/Authority to issue PCN's - ParkingEye do not own this car park and are merely agents of the landowner or legal occupier. In their notice and rejection letters ParkingEye have provided me with no evidence that they are lawfully entitled to demand money from a driver or keeper. I put ParkingEye to strict proof to POPLA that they have the proper legal authorisation from the landowner to contract with drivers and to enforce charges in their own name as creditor in the courts for breach of contract. I demand ParkingEye produce to POPLA the contemporaneous and unredacted contract between the landowner and the ParkingEye.

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.

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.

The BPA code of practice contains the following:

7 Written authorisation of the landowner
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges, through the courts if necessary.

4. Unlawful penalty charge - Since there is no demonstrable loss or damage yet a breach of contract as 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. ParkingEye could state the letter as a invoice or request for monies, yet they choose to word it as a 'Charge Notice' in an attempt for it to be deemed as a official parking fine such as the ones issued by Police and local authorities.

5. Business rates - As the car park is being used for the purpose of running a business by ParkingEye, which is entirely separate from any other business the car park services, and generates revenue and profit for ParkingEye, I do not believe that ParkingEye has declared the running of their business venture at this location to the Local Valuation Office and Local Authority for the purpose of the payment of Business Rates.

I put ParkingEye to strict proof that they have so registered the business they are operating at (Car Park Name)car park with the Valuation Office and to provide proof that Business Rates are being paid to the Local Authority, or to provide proof or explanation of their exemption from such Business Rates.

6. ANPR accuracy - Under paragraph 21.3 of the BPA Code of Practice, it requires parking companies to make sure ANPR equipment is maintained and in correct working order. I require ParkingEye to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. This is important as the parking charge issued is founded entirety on 2 photos of my vehicle entering the car park and leaving the car park at specific times. It is vital that parking eye 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 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.

7. ANPR usage - Under paragraph 21.1 of the BPA Code of Practice it states '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'

ParkingEye fail to operate the system in a 'reasonable, consistent and transparent manner'. As ParkingEye place signs too high to see on arrival, there is no opportunity for drivers in moving traffic at the entrance to be 'informed that this technology is in use and what the Operator will use the data captured by ANPR cameras for'. I contend that as well as being unreliable, this is a non-compliant ANPR system being merely a secret high-up spy camera - far from 'transparent' - unreasonably 'farming' the data from moving vehicles at the entrance & exit and neither 'managing, enforcing nor controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any parking event at all.

8. Proof of planning consent for 1 hour parking allowed and ANPR system - It as been known that some parking companies to not have the necessary planning permissions/consent from the local authorities for the parking time limit and installation of ANPR cameras. SoI put ParkingEye to strict proof to provide evidence that they have the necessary planning permissions/consent from the local authorities to operate this car park on a 1 hour time limit and for the installation of the ANPR cameras that are used on this site.


This concludes my appeal, I respectfully request that my appeal be upheld and the charge be dismissed if ParkingEye fail to address and provide the necessary evidence as requested in the points highlighted above.


Yours Faithfully,


The invoice was based on a free 2 hour carpark, overstaying by 43 minutes. I welcome comments please?????

Also, I am intending to contact Morrisons, as I did shop there on the day in question, but need some advise as to what to say to the sore?????

Dee140157

I think this is an older template you have used, since the business rates aren't included as a point these days.

There are newer appeals linked to here
https://forums.moneysavingexpert.com/discussion/comment/62180281#Comment_62180281

Chose one of the PE ones and adapt again.

And just blooming complain to Morrison's that as a customer, you are horrified that you are being treated this way. Tell the to cancel the PVN or you will consider taking your custom elsewhere ( although not perhaps to Aldi as they are even worse with parking charge notices it seems! )

Umkomaas

Sorry, can't trawl through another 'War and Peace' POPLA appeal today, but from a skim read you need to ditch points 5 and 8 as POPLA has no interest in these. Old points that have had no 'bites' ever since they were first included in POPLA appeals around 12 months ago - which does suggest that there are more contemporary appeals around in the system for you to use.

trinidadone

I pasted and edited this template, used by someone else on here, only a few days ago, comments / suggestions welcome: (I have made small changes)

Dear POPLA Assessor,

Re ********* parking charge notice ********
POPLA ref **********

I am the registered keeper and I wish to appeal this charge on the following grounds:

1. No Genuine Pre Estimate of Loss
2. Contract with Landowner
3. Misleading Signage



1. a) The Charge is not a contractual fee – it is a disguised breach
Parking Eye has attempted to avoid the necessity of having to justify a pre estimate of loss by stating that this is a contractually agreed fee on their signage. However on both the Parking Charge Notice and the rejection letter to my appeal Parking Eye states respectively that the charge is for “being in contravention of” and "breaching" the terms and conditions of parking. In addition, the wording on their sign also states that "unauthorised parking may result in your vehicle being issued with a parking charge notice".

The charge must be either for damages or a fee paid for parking (consideration) it cannot be for both and in order for it to be consideration, it would have to mean that permission to park without a permit was given providing a fee was paid. Clearly permission to "park in breach" cannot be granted and I therefore submit that it is clear that the amount sought is for parking in breach and that the amount represents liquidated damages which is compensation agreed in advance.

I would like to highlight a similar appeal against CPM where POPLA assessor Marina Kapour found that:

"The charge must either be one for damages as submitted by the Appellant, or consideration - the price paid for the parking as submitted by the Operator. In order for the charge to be consideration, the parking charge must be paid in return for something, here permission to park beyond the permitted stay. In other words, the sign must permit the motorist to park beyond the maximum stay, provided he or she pays the charge. Clearly, permission to park 'in breach' is not granted, and so the parking charge cannot be a contractual price. Instead, it is clear that the charge is in fact a sum sought as damages, and therefore must be a genuine pre estimate of the loss which may be caused by the parking breach. I find it seems clear that the signs in this car park do not give permission to park in return for the parking charge and so it cannot be consideration".

I would also highlight POPLA appeal reference 9663053967 where an initially refused appeal against the same Operator who again, made the same attempt to describe the charge as a contractually agreed fee on their signage was allowed by the Lead Adjudicator. It was found that the charge was a penalty and as such was not a genuine pre estimate of loss. I contend that the same applies in my case, and POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee but is a disguised breach and must be shown to be a genuine pre estimate of loss to be enforceable.

b) The Charge is Not a Genuine Pre Estimate of Loss
The charge of £100 is being sought for an alleged breach of the parking terms namely “parking 2 hours and 43 minutes” consequently I contend, and the BPA code of practice states, that a charge for breach must be based on the genuine pre estimate of loss.

The Office of Fair Trading has stated to the BPA 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.

On the day in question there was neither damage nor obstruction caused (nor is any being alleged) and I therefore contend there was no loss caused to either the Operator, or the landowner, by any alleged breach.

In the case of Dunlop Pneumatic Tyre co v New Garage Motor co (1915), Lord Dunedin stated 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" and "there is an assumption 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".

As the charge in this case is the same lump sum whether the vehicle is parked for 10 minutes or for 24 hours and the same amount is charged for any alleged contravention, it is clear that this is punitive and that no consideration has been given to calculating a genuine pre estimate of loss in this case.

I therefore require Parking Eye to submit a full breakdown of their genuine pre estimate of loss to show how this loss was calculated in this particular parking area and for this particular alleged breach. Operational business costs cannot possibly flow as a direct result of any breach as the operator would be in the same position whether or not any breaches occur.

I would also refer them to the Unfair Terms in Consumer Contract Regulations, where it states that parking charges for breach on private land must not exceed the cost to the Landowner during the time the Motorist is parked there and remind them that the amount in this case is nothing.

The operator will no doubt state that loss was incurred as a result of the appeals process after the parking charge notice was issued but in order for this to represent a genuine pre estimate of loss, they must first show that they incurred an initial loss as a direct result of the alleged breach.

This initial loss is fundamental and without it, costs incurred subsequently cannot be reasonably claimed to have been caused by the breach and as I have stated earlier - there was no initial loss.

Christopher Adamson stated in a POPLA appeal against VCS Ltd 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. In this case it is clear that the dominant purpose of the charge is to deter parking for longer than the time paid for. Accordingly, I am not satisfied that the charge can be commercially justified".

In another recently upheld POPLA appeal, Marina Kapour did not accept a submission by the operator that the inclusion of costs which were made up of general business costs was commercially justified. She said:

"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".

The same applies in my case, and POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and can neither be commercially justified or proved to be a genuine pre estimate of loss and I respectfully request that my appeal be upheld and the charge dismissed.

2. Contract with Landowner
The Operator does not own the land in question and have provided no evidence that they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary nor agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I require that they provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).

In order to comply with the BPA code of practice, this contract must specifically grant the Operator the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons:

a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract or that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practice to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.

b) In POPLA case 1771073004, it was ruled that a witness statement was 'not valid evidence'. If the Operator provides a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.

Even if a basic contract is produced that mentions parking charge notices, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.

I would remind Parking Eye of their obligation to provide the Appellant with a copy of any evidence provided to POPLA as requested sent with sufficient time for consideration and rebuttal.

3. Misleading Signs
Terms are only imported into a contract if they are clear and so prominent that the party 'must' have known of it and agreed. The terms are misleading, with wording that dresses up the charge as a 'contractual' fee. It is not; see point 1 a).


There was no agreement to pay. No consideration/acceptance flowed - so no contract exists.


The sign and the Parking Charge Notice are ambiguous and contradictory. On the Parking Charge Notice the sum is stated as a 'contravention' for 'breaching the terms and conditions' yet the sign misleadingly alleges a 'contractual' sum. If so, there would be a payment mechanism and a VAT invoice. There is none. This is not a transparent contract and is a disguised penalty. Terms must be clear otherwise under the doctrine of contra proferentem, the interpretation that favours the consumer applies.


In conclusion, I request that my appeal be upheld and the charge dismissed.