Parking Eye POPLA appeal letter - need help

parknomore

Hi,
I recently got a PCN for Odeon, Leisure World, Southampton. I was entitled to free parking (being a Leisure World customer). I had correctly entered my Car Reg in the kiosks inside the Odeon Cinema as per instructions. Even then Parking Eye has sent a PCN. I appealed to Parking Eye with proof of cinema ticket purchase. The appeal was rejected and POPLA code issued.

I have gone through various forums including the NEWBIE and have drafted the following POPLA appeal letter. I'll be very grateful if some experts can review and provide feedback/ advise.

The word count is coming up quite high (more than 3000). Can you please advise if this will be accepted by POPLA online appeal. Is there any way I can cut it down - I am unable to judge which parts to cut down.

Also, specific to circumstances, I've picked up point 8 (Keeper Liability is not valid in this area) from this post by BenefitMaster and hope this applies in my case too since Leisure World is very near to Town Quay Southampton.

As a new user I am unable to include the link here. But you can find it using the title "Southampton Town Quay POPLA Appeal"


I also wanted to attach the PCN and appeal rejection letter but cannot work out how to do this. The Parking Eye has not mentioned any specific reason (e.g. genuine loss etc.) in their PCN or reject. All they mentioned is this was Pay and Display car park and breach of parking time and terms and conditions.

Thanks in advance for all your help.

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DRAFT POPLA APPEAL

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Dear POPLA Assessor,
Re: ParkingEye fake PCN, verification code xxxxxxxxxx

I am the registered keeper and I wish to appeal a recent parking charge from ParkingEye. Notwithstanding that the driver was a genuine customer of Odeon Cinema situated at the Leisure World, Southampton, 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) The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between ParkingEye and the driver
5) Unlawful Penalty Charge
6) ANPR Accuracy and breach of the BPA Code of Practice 21.3
7) Breach of BPA Code of Practice 18.11 recommending a period of grace when change of terms and conditions.
8) Keeper Liability is not valid in this area

1) No genuine pre-estimate of loss

This car park provides free parking for Leisure World, Southampton customers. The car park also provides free parking for everyone after 6 pm every day. The driver of the car was a genuine customer Leisure World, Southampton on the given day. As a proof for this, please find attached the copy of:

• Movie tickets purchased for a show at Odeon Cinema in Leisure World, Southampton for the date XXXX.
• Odeon Cinema confirmation email
• Credit Card statement showing Odeon booking transaction
• Odeon Premier club card transaction showing points awarded for this booking at Odeon Cinema.

ParkingEye Ltd claim that my car was in the car park without purchasing a valid parking ticket, or by exceeding the appropriate parking time on the day of the parking event. They are asking for a charge of £100 for this penalty. This alone is far more than the cost to the landowner could have lost for the time my car was said to have parked there. The charge is clearly punitive and disproportionate to any alleged breach of contract. And in my case the car park was supposed to be free anyway because I was a customer of Leisure World Southampton on that date.

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.

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 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.''

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.

The wording on the signs appears to indicate that the parking charge represents damages for a breach of the parking contract, in other words, compensation agreed in advance. Accordingly, the charge must be a genuine pre-estimate of loss in order to be enforceable. The estimate must be based upon loss following on from a breach of the parking terms.

I therefore ask that the POPLA assessor request Parking Eye Ltd to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach at the time.

Note:- the charges demanded by the operator as "genuine loss" are those allegedly incurred at the point of issuing the charge, and cannot include speculative future costs relating to internal appeal procedures or mounting a POPLA defence.

For example, where no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included.

I would like to add that normal costs of running their business (their day to day costs like provision of parking, enforcement, signage, salaries, rent etc) must not be included in the breakdown as ParkingEye Ltd would need to pay these irrespective of this alleged charge. Parking enforcement costs cannot possibly represent any loss resulting from an alleged breach of contract, as these costs would need to be paid whether the breach had happened or not.

ParkingEye and POPLA will be familiar with another 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".

I have no doubt that ParkingEye will respond with a response claiming 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 an appellant raises similar arguments.



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 (mentioned in point 2 above).

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.


Indeed I submit (and as I have raised the issue, ParkingEye must now disprove) that their Contract or User Agreement with Leisure World is likely to contain a 'genuine customer exemption' clause which in fact exempts Leisure World customers like us from these spurious charges. ParkingEye have not allowed my initial appeal that the driver and passenger were genuine Leisure World customers even though I submitted all the necessary proof in my initial appeal to Parking Eye.


4) 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 Odeon Cinema at Leisure World, Southampton to shop and enjoy free parking as expressly offered to customers in the principal's advertising and website.

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

5) Unlawful Penalty Charge

Since there is no demonstrable loss or damage yet a breach of contract has been alleged for a car park which is free for Leisure World customers, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. ParkingEye Ltd. could state the letter as an invoice or request for monies, yet they choose to word it as a 'Charge Notice' in an attempt for it to be deemed as an official parking fine such as the ones issued by Police and local authorities.


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 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. 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 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) Breach of the BPA Code of Practice 18.11

Where there is any change in the terms and conditions that materially affect the motorist then you should make these clear on your signage. Where such changes impose liability where none previously existed then you should consider a grace period to allow regular visitors to the site to adjust and familiarise themselves with the changes.

I ask Parking Eye to prove that they adhered to this code of practice.

8) Keeper Liability is not valid in this area


This car park area at Leisure World, Southampton, which is situated in the area of Town Quay, Southampton fails to meet the definition of 'relevant land' under the Protection of Freedoms Act 2012 (POFA) that might otherwise have enabled the Operator to pursue this matter with myself (the registered keeper).

Parking Eye has issued a defective Notice citing an Act which does not apply at this particular site, to attempt to claim an unenforceable charge from the keeper (myself). No keeper liability is likely to apply at all, due to the Associated British Ports' Southampton Harbour Byelaws 2003, which can be found at the URL (URL to be inserted here), taking precedence and rendering this land outwith POFA and outwith 'registered keeper liability'. I refer you to Schedule 4 section 3(1)(c) of the Protection of Freedoms Act, and Byelaw 39. I also refer you to the map at page 20 of the byelaws, evidencing that Leisure World, Southampton car park is an area to which the byelaws apply.

Schedule 4 of the POFA is quite clear on this:

3(1)In this Schedule “relevant land” means any land (including land above or below ground level) other than
(a)a highway maintainable at the public expense (within the meaning of section 329(1) of the Highways Act 1980);
(b)a parking place which is provided or controlled by a traffic authority;
(c)any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.

As Leisure World, Southampton car park is covered by bye-laws (statutory control) it clearly falls under 3(c) and is therefore exempt from POFA 2012.

For Parking Eye to claim in their standard letters that they have the right to 'registered keeper liability' under POFA when that right is simply not available on land specifically covered by local Byelaws, is a breach of the Consumer Protection from Unfair Trading Regulations 2008. If they contend otherwise then I expect them to provide POPLA with contemporaneous and compelling documentary evidence from the landowner/client in possession of this site, or maps showing where the Bylaws cease to apply in the Leisure World Southampton car park.

The byelaws make it very clear that the penalties for parking on the land designated is solely in the gift of the Criminal Courts and as such the operator have no standing whatsoever to enforce civil parking charges or parking systems. Additionally, the byelaws also make clear that the Port of Southampton to which they apply includes the Town Quay as shown on page 20.

Please note that nothing in my appeal prevents the operator from seeking to pursue the driver of the vehicle, though s/he is likely to have similar grounds to appeal. I will not be supplying the drivers details at any stage, as I am under no legal or moral obligation to do so.

Accordingly, I expect POPLA to take notice that the land in question is subject to Statutory Control and that as a result any notice to Keeper seeking to enforce Keeper Liability is invalid, and a nullity ab initio, and to cancel this AND ALL OTHER notices to keeper issued for this site.



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

Yours faithfully,


THE REGISTERED KEEPER

Dee140157

Pretty detailed. Well done for doing research on Southampton Quays.

I think, and another regular should confirm you can submit a brief list of points online saying you will attach details in a follow up email with evidence. You then email in the full appeal, making sure you use your P PCN and POPLA number.

But let someone else confirm this before you go ahead and do it.

parknomore

Thanks Dee140157 for your response.

Regarding your suggestion of posting brief summary of points in online appeal and following it up with email containing full details:

• There is an email address given in the reject letter from OP - enquiries@popla.org.uk. Is this the email address to be used?
  
• Do we have any references where someone else used this procedure (brief points online + detailed points in email) with success?
  
• If this can pose a risk, I'd rather just shorten my appeal to fit in within the word limit for online appeal. Is there anything I can remove to make it more concise?

Regarding more advice to shorten the appeal content

• Point #1: No genuine pre-estimate of loss. is the longest point in my appeal. From my research I understand that most of the appeals are upheld on this point, which is the reason I've included so much detail. Do I need to remove anything or all information I've included under this point is valid and required?

Appreciate some further inputs from you and other experienced soldiers on this fight against unfair parking operators.

Coupon-mad

2spicy recently wrote a POPLA appeal citing the code from the POPLA decision that BenefitMaster achieved about Town Quay:

https://forums.moneysavingexpert.com/discussion/comment/65741262#Comment_65741262

It's quite a bit shorter than yours so maybe go for a mix of the two? Or just print out and post the whole thing with a completed POPLA form securely stapled to the front and the verification code on the form and on every attached page, numbering the appeal pages '1 of 4', 2 of 4' etc. so POPLA Assessors know how many pages they should have:

https://docs.google.com/file/d/0B160FlN9Mss2ZFhqZnZqTzFIUUE/edit

After a quick skim-read of your draft, I would say you could prune/remove these sentences (BELOW):

''As a proof for this, please find attached the copy of:

• Movie tickets purchased for a show at Odeon Cinema in Leisure World, Southampton for the date XXXX.
• Odeon Cinema confirmation email
• Credit Card statement showing Odeon booking transaction
• Odeon Premier club card transaction showing points awarded for this booking at Odeon Cinema.''

''ParkingEye Ltd claim that my car was in the car park without purchasing a valid parking ticket, or by exceeding the appropriate parking time on the day of the parking event. They are asking for a charge of £100 for this penalty. This alone is far more than the cost to the landowner could have lost for the time my car was said to have parked there. The charge is clearly punitive and disproportionate to any alleged breach of contract. And in my case the car park was supposed to be free anyway because I was a customer of Leisure World Southampton on that date. ''

''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 wording on the signs appears to indicate that the parking charge represents damages for a breach of the parking contract, in other words, compensation agreed in advance. Accordingly, the charge must be a genuine pre-estimate of loss in order to be enforceable. The estimate must be based upon loss following on from a breach of the parking terms.

I therefore ask that the POPLA assessor request Parking Eye Ltd to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach at the time.

Note:- the charges demanded by the operator as "genuine loss" are those allegedly incurred at the point of issuing the charge, and cannot include speculative future costs relating to internal appeal procedures or mounting a POPLA defence.

For example, where no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included.

I would like to add that normal costs of running their business (their day to day costs like provision of parking, enforcement, signage, salaries, rent etc) must not be included in the breakdown as ParkingEye Ltd would need to pay these irrespective of this alleged charge. Parking enforcement costs cannot possibly represent any loss resulting from an alleged breach of contract, as these costs would need to be paid whether the breach had happened or not.''


All of the above are from the no GPEOL paragraphs but are generally repetition and stating the obvious. Then I would delete point 5 and move the other numbered points up:


''5) Unlawful Penalty Charge

Since there is no demonstrable loss or damage yet a breach of contract has been alleged for a car park which is free for Leisure World customers, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. ParkingEye Ltd. could state the letter as an invoice or request for monies, yet they choose to word it as a 'Charge Notice' in an attempt for it to be deemed as an official parking fine such as the ones issued by Police and local authorities.''

parknomore

Thanks Coupon-mad,

I've modified point 1 and removed point 5 as per your advice. Can you please do a quick read of my updated DRAFT and let me know if it looks ok now.

Also, I think I am confusing 3000 word limit for Parking Eye appeal with POPLA online word limit. Does anyone know what is the actual word limit for POPLA appeal? My word count is coming to 3115.

And is there any limit to attachments?

As always thanks very much for your inputs. I hope to win this appeal. I'd taken 5 days leave to be with my parents who are visiting me after 1 year and 2 of these days have been spent researching on this appeal. This is now a personal war for me. :mad::mad::mad:

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REVISED DRAFT POPLA APPEAL

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Dear POPLA Assessor,
Re: ParkingEye PCN, POPLA verification code xxxxxxxxxx

I am the registered keeper and I wish to appeal a recent parking charge from ParkingEye. Notwithstanding that the driver was a genuine customer of Leisure World, Southampton, 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) The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between ParkingEye and the driver
5) ANPR Accuracy and breach of the BPA Code of Practice 21.3
6) Keeper Liability is not valid in this area
7) Breach of BPA Code of Practice 18.11.

1) No genuine pre-estimate of loss

The signage at this car park states that this car park provides 4 hours free parking for Leisure World, Southampton customers and the parking is free after 18:00 hours every day.

In my case, the driver of the car was a genuine customer of Leisure World, Southampton on the given date and hence was eligible for the 4 hours free parking. I’ve attached necessary evidence for this, including a copy of the movie tickets purchased for Odeon Cinema in Leisure World, Southampton.

There was no damage nor obstruction caused so there can be no loss arising from the incident.
ParkingEye Ltd is asking for a charge of £100 for the parking penalty. This alone is far more than the cost to the landowner could have lost for the time my car was said to have parked there. The charge is clearly punitive and disproportionate to any alleged breach of contract.

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. 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 the driver was eligible for free parking with no payment due whatsoever.

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.''

ParkingEye and POPLA will be familiar with another 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".

I have no doubt that ParkingEye will respond with a response claiming 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 an appellant raises similar arguments.

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 (mentioned in point 2 above).

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.

Indeed I submit (and as I have raised the issue, ParkingEye must now disprove) that their Contract or User Agreement with Leisure World is likely to contain a 'genuine customer exemption' clause which in fact exempts Leisure World customers like us from these spurious charges. ParkingEye have not allowed my initial appeal that the driver and passenger were genuine Leisure World customers even though I submitted all the necessary proof in my initial appeal to Parking Eye.

4) 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 high up on poles and were not read nor even seen by the occupants of the car, who were there at the invitation of Odeon Cinema at Leisure World, Southampton to shop and enjoy free parking as expressly offered to customers in the principal's advertising and website.

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

5) 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 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. 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 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.

6) Keeper Liability is not valid in this area

This car park area at Leisure World, Southampton (situated in the area of Town Quay, Southampton) fails to meet the definition of 'relevant land' under the Protection of Freedoms Act 2012 (POFA) that might otherwise have enabled the Operator to pursue this matter with myself (the registered keeper).

Parking Eye has issued a defective Notice citing an Act which does not apply at this particular site, to attempt to claim an unenforceable charge from the keeper (myself). No keeper liability is likely to apply at all, due to the attached Associated British Ports' Southampton Harbour Byelaws 2003 (which can also be found at <URL>), taking precedence and rendering this land outwith POFA and outwith 'registered keeper liability'. I refer you to Schedule 4 section 3(1)(c) of the Protection of Freedoms Act, and Byelaw 39. I also refer you to the map at page 20 of the byelaws, evidencing that Leisure World, Southampton car park is an area to which the byelaws apply.

Schedule 4 of the POFA is quite clear on this:

3(1)In this Schedule “relevant land” means any land (including land above or below ground level) other than
(a)a highway maintainable at the public expense (within the meaning of section 329(1) of the Highways Act 1980);
(b)a parking place which is provided or controlled by a traffic authority;
(c)any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.

As Leisure World, Southampton car park is covered by bye-laws (statutory control) it clearly falls under 3(c) and is therefore exempt from POFA 2012.

For Parking Eye to claim in their standard letters that they have the right to 'registered keeper liability' under POFA when that right is simply not available on land specifically covered by local Byelaws, is a breach of the Consumer Protection from Unfair Trading Regulations 2008. If they contend otherwise then I expect them to provide POPLA with contemporaneous and compelling documentary evidence from the landowner/client in possession of this site, or maps showing where the Bylaws cease to apply in the Leisure World Southampton car park.

The byelaws make it very clear that the penalties for parking on the land designated is solely in the gift of the Criminal Courts and as such the operator have no standing whatsoever to enforce civil parking charges or parking systems.

Please note that nothing in my appeal prevents the operator from seeking to pursue the driver of the vehicle, though s/he is likely to have similar grounds to appeal. I will not be supplying the driver’s details at any stage, as I am under no legal or moral obligation to do so.

Accordingly, I expect POPLA to take notice that the land in question is subject to Statutory Control and that as a result any notice to Keeper seeking to enforce Keeper Liability is invalid, and a nullity ab initio, and to cancel this AND ALL OTHER notices to keeper issued for this site.

7) Breach of the BPA Code of Practice 18.11

Where there is any change in the terms and conditions that materially affect the motorist then you should make these clear on your signage. Where such changes impose liability where none previously existed then you should consider a grace period to allow regular visitors to the site to adjust and familiarise themselves with the changes.

I ask Parking Eye to prove that they adhered to this code of practice at Leisure World, Southampton.



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

Yours faithfully,


THE REGISTERED KEEPER








 

Coupon-mad

I skim-read but couldn't see the 'winning argument' POPLA code (Benefit Master's case) cited in point #6?

If it doesn't fit in the POPLA appeal box, post it instead, attached to a POPLA form securely stapled to the front & fully completed and stating the number of pages attached (all of them showing the POPLA code and your name at the top, every page).

https://docs.google.com/file/d/0B160FlN9Mss2ZFhqZnZqTzFIUUE/edit

HTH now do relax with your family, you will win this appeal!

parknomore

Thanks again. I added the winning argument' POPLA code and I have submitted the appeal online yesterday. There was no word limit to POPLA appeal and I received an email acknowledging my submission along with complete text of the POPLA appeal (minus the formatting).

I will post further updates when I hear back from POPLA.

One more crusader in this fight against unfair parking tickets.

parknomore

Good news. The appeal was allowed. Parking Eye didn't even bother to submit any evidence. I wish we could do something more to make them pay for wasting our precious time and causing unnecessary stress.

I just want to thank all experts here for their suggestions and support. It was very helpful in forming a successful appeal.

Redx

well done m8, chalk one more up for you and benefitmaster

please post the PPC and assessor decision in here https://forums.moneysavingexpert.com/discussion/4488337 for posterity

as you say , another PSDSU