Popla appeal - parking eye

Coupon-mad

Now you just need another paragraph about 'No keeper liability' due to omissions in the NTK (re paragraph 9 of Sch 4 of the POFA). So important that it could be moved to point #2.

abersochparking

Coupon-mad wrote: »

Now you just need another paragraph about 'No keeper liability' due to omissions in the NTK (re paragraph 9 of Sch 4 of the POFA). So important that it could be moved to point #2.

Thank's Coupon - looks like our posts crossed when I updated the second letter - I'll add it in now.

abersochparking

Right then I've amended the first two paras, I couldn't put in the stuff about what they say on the new pages as it's not them saying it - rather a local reporter.

I think I'm ready now!

1) No genuine pre-estimate of loss
2) No Keeper Liability
3) No standing or authority to pursue charges nor form contracts with drivers
4) The signage was not readable in the dark so there was no valid contract formed
5) The ANPR system is unreliable and neither synchronised nor accurate

1) No genuine pre-estimate of loss
This car park is Pay and Display. So the only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge - £2.50 at the most.

In ParkingEye v Smith at Manchester County Court in 2011, claim number 1XJ81016, the original claim of £240 was deemed an unrecoverable penalty, unrelated to damages incurred and the only sum that could be recovered was deemed to be £15 (the amount of the pay and display fee for more than one visit). The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. As the PCN sum is massively inflated over and above £1.50, I require ParkingEye to submit a breakdown of how this sum was calculated prior to the parking event, as being capable of directly flowing from a minor alleged breach.

The ParkingEye Notice to Keeper alleges '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. This might be, for example, a reasonable sum based purely upon the alleged lost parking revenue, or even loss of retail revenue at a shopping centre if another car was prevented from parking. However, this is not the case because the occupants of the car recall that the car park was mostly empty on arrival and almost empty when the driver left.

The Operator cannot reasonably claim a broad percentage of their entire business running costs as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. Given that ParkingEye charge the same lump sum for a 30 minute overstay as they would for 3 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.

The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. ParkingEye cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some subsequently penned 'commercial justification' statement they may have devised afterwards (since this would not be a pre-estimate):

The British Parking Association Code of Practice uses the word 'MUST':
"19.5 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.''

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.''

On looking at the landowners ‘facebook’ page link here:

https://www.facebook.com/photo.php?fbid=513727872071518&set=pb.399382763506030.-2207520000.1403701296.&type=3&theater

Screen grab below.

It clearly states that this ‘charge’ is indeed a fine. Confirming my assentation that this is no pre-estimate of loss.

2) No Keeper Liability

ParkingEye have failed to invoke keeper liability as the NTK omits wording required by paragraph 9 of Schedule 4 of the POFA 2012.

In particular there is no mention of how much the driver had paid or was required to pay.

Coupon-mad

I would cite exactly what's missing from the POFA 2012 statutory wording:

(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid, as at a time which is—
(i)specified in the notice; and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));


http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted


HTH

Redx

dont forget to add that any signage appears to breach the BPA CoP because it has the word FINE on it ( if I read that right yesterday ? , or is it just the landowner and maybe illegal paperwork ? )

abersochparking

thank you all - appeal upheld

Reasons for the Assessor’s Determination
It is the Appellant’s case that the parking charge notice was issued incorrectly.
The Operator has not produced a copy of the parking charge notice, nor any evidence to show a breach of the conditions of parking occurred, nor any evidence that shows what the conditions of parking, in fact, were.
Accordingly I have no option but to allow the appeal.
Shehla Pirwany
Assessor

Umkomaas

Well done abersoch - another PE PSDSU.

One could argue that as they have provided 'no evidence to show a breach of the conditions of parking occurred' they had no reasonable cause to request your details from the DVLA.

If you're feeling arsey enough, you could fire off a complaint to the DVLA about them releasing your private and personal data to a random organisation who had no reasonable cause to request it.

Complaint email address in post #6 of the NEWBIES sticky.

jamesefc

Just got the exact same ''fine' for Abersoch golf club PE parking. Did you send your parking machine tickets in with this letter ?

Dee140157

Jamesefc, please read the newbie thread which gives advice such as this. Then if you have any further questions start your own thread. You can use info in this one for your appeal of it helps, but we try to keep to the one PCN per thread rule!

jamesefc

Dee140157 wrote: »

Jamesefc, please read the newbie thread which gives advice such as this. Then if you have any further questions start your own thread. You can use info in this one for your appeal of it helps, but we try to keep to the one PCN per thread rule!

just wondering if he added the parking tickets her bought? Surely not worth starting a new thread? For me to ask this person who started this thread a question ? .