POPLA appeal - Is it ready for sending?

SouthYorkshireKid

Hi Guys,

I took the advice previously given and compared my Popla to previous "winners" -Can you add anymore improvements or is it now ready to send

Dear POPLA Assessor
r.e. Appeal of Parking Eye Charge – PCN:
POPLA ref -

I am the registered keeper of the vehicle in question and I would like to appeal the recent parking charge. Below are a list of points which show I am not liable for this parking charge.
1. The Charge is not a genuine pre-estimate of loss
2. No authority to neither pursue charges to the registered keeper nor form a contract
3. The car park has little or no lighting therefore making the signs unreadable, therefore not forming a contract between the driver and Parking eye.
4. There is no evidence of a grace period nor observation period.
5. No proof provided that the “entry” and “exit” photo were made in the same journey and that the ANPR system is calibrated, synchronised and accurate

1) The Charge is not a genuine pre-estimate of loss
• Parking Eye has not proven this is a genuine pre-estimate of loss.
• Only the landowner/occupier can pursue liquidated damages.
• DFT Guidelines and BPA Code of Practice have not been followed.
• Timing of the charge was at a point where no person or business would have been affected

Despite Parking Eye stating in the original appeal letter that this “is no longer a method adopted by Judges when deciding on a charge” I do not believe the amount charged is an amount which suffices the charge which was quoted. Their sign states the charge is for not fully complying with the conditions' so Parking Eye must prove the charge to be a genuine pre-estimate of loss.

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 (the driver at the time has confirmed the car park was entirely empty) of which on this occasion there would have been none due to the charge timing being 5 hours after closing times and another 10+ until the shopping centre re-opened. The centre closes at 8:00pm, therefore there was no part of the area open at this time nor was there anyone or any business which would have been affected by the alleged breach. The maximum amount that would have been outstanding would have been the “up to 1 hour charge” which is the lowest possible fee.

Added to this Parking Eye made reference to certain cases and decisions by saying this point would not withstand, many of which are challenged below;

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.''

2) No authority to neither pursue charges to the registered keeper nor form a contract
• Parking Eye have not shown they have authority to pursue charges
• Parking Eye have not shown they have or ever had ownership of the land

Through my research I have found absolutely no evidence of ownership of this land, therefore have no rights to make a binding contract with drivers for breaches in the car park under the company name. Due to no title Parking Eye must have the right from the owners of the land (Priory Group) to pursue these charges including court level. I was not supplied with this information despite asking in my original appeal therefore have no reasons to believe it exists. To my knowledge Parking Eye hold nothing more than a licence to supply (none conforming) signage and post out their “charge tickets”. A commercial site agent of the landowner has no true authority or standing to themselves, which would meet the requirements relating to section 7 of the BPA Code of Practice.

Therefore for the second time I require Parking Eye to provide both the assessor and myself with a non edited, fully signed original copy of the contract between Parking Eye and Priory Shopping centre so that it can proved to both of us to prove the charging company with drivers and/or registered keepers and also the right for them to pursue these charges in court in the name of Parking Eye. Please note that a witness statement to the effect that a contract is in place will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.). In any case, ParkingEye's witness statements have been exposed as photocopy templates from clients who may well have no knowledge of any individual parking event and the signatory may never even have seen the contract.

3) The car park has little or no lighting therefore making the signs unreadable, therefore not forming a contract between the driver and Parking eye.
• Signs do not comply with the BPA code of practice
• Minimal lighting in the car park made signs invisible and unreadable

Reviewing the signs in daylight, all signs are up on poles with terms and conditions entirely invisible from ground level. Due to little lighting and in most areas no lighting was entirely invisible in twilight darkness. As stated in the earlier sentence the signs are high and the terms so small that it would require a ladder or scaling of the pole and had a light of some fashion (torch, phone) to be able to read and understand these conditions. I would argue that any photos supplied by Parking Eye will be in daylight or with added aids, such as flash cameras or additional lighting without a true angle to show the height of signs and the darkness surrounding the signage. I request that Parking Eye supply photos taken at the time of the charge (to allow for the same level of darkness) without any extra camera aids.

Signs which are unreadable breach the terms of Appendix B of the BPA Code of Practice which clearly states terms on entrance signage must be clearly visible without the driver having to turn vision away from the road ahead. This would require signs to be lit to allow visibility, adding to this the entrance is a blind bend, it clearly shows on the license plate photos that it is pitch black with only the car lights visible. Due to the signage being invisible this lead the driver to believe that any charges which may have been implemented wouldn’t have been running at one am on a weekend with no shops open and pubs closing. None of Parking Eyes extortionate charges were prominent. The requirements of a contract; consideration between the two arties in question, offers, acceptance and fairness and transparency of terms in good will, were not adhered too.

4) There is no evidence of a grace period nor observation period.
• The car park is built around a through road
• No grace period is stated
• No observation period is stated

When reviewed in daylight the signage has no visible indication of either period which is required by the BPA Code of Practice Section 13. The only notes on the sign are the “Up to 1 hour” charge. This would suggest that anyone who enters the car park whether it is seconds, minutes or hours are liable to this charge, giving drivers no time to decide on whether they are to agree to the signage rules and park up or move their car. This also relates to section 14 which states it must be made clear what activities are allowed and which are unauthorised. The car park is built around a through road which is used by all traffic types and deliveries, which by not clearly stating the boundaries upon which Parking Eye issue there fines any car which uses the route through the car park is “liable” to a charge. Parking Eye can not legally choose who they do and don’t charge at their discression therefore I would argue they should be able to supply clear proof of the above terms, failing that they should supply reasonable proof that all vehicles who have been in the car park whether as a parked vehicle or a vehicle passing through has received the same charges and if not the reasons as to why.

5) No proof provided that the “entry” and “exit” photo were made in the same journey and that the ANPR system is calibrated, synchronised and accurate.
• Parking Eye have failed to prove the photos were taken on the same trip
• No proof has been provided that the cameras are properly calibrated

The vehicle in question made multiple entries and exits through the car park on the night the charge is applied to. As previously stated there is no alternate way through the town than through the car park, it is essentially a through road. Parking Eye will need to provide proof of which they didn’t in the original charge letter that the 2 times were indeed on the same journey and not of the earliest entry and latest exit. The ANPR has to be reliable, to prove that the car was in the car park for the full period of time the charge is applied too. However on the letter there is nothing other than an entrance image and an exit image, this does not significantly prove that the 2 pictures relate to the same visit. Further to this the entrance and exit pictures are not pictures of the car being parked up, thus not proving there is a synchronisation to the parking metres and the cameras.

Parking Eye is required to ensure their ANPR system is maintained to match the description of point 21.3 of the BPA code and have the signs clearly state how the data is stored and used. Parking Eye have failed to inform how the data is both used and stored and due to the darkness this was not prominent for the driver at the time to see this I have been supplied with no evidence that Parking Eye have fully complied with all requirements in the section of the code in terms of ANPR compliance.

I question full reliability of the system and ask that Parking Eye to provide unquestionable proof of when all cameras at the car park were checked, synced, adjusted and calibrated with the timer which applies stamps to the photos and proof that they have been maintained to ensure precise accuracy of time and date on the ANPR images. This is of upmost important and the whole validility of this charge is based up on 2 photos which have no proven link entering and exiting 2 points at different times. It is vital that Parking Eye 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.

Therefore in addition to showing logs and maintenance records Parking Eye must provide evidence to rebut the following assertion. 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 which have no proven link, I put Parking Eye to strict proof to the contrary and to show how these camera timings are synchronised with the pay and display machine.

After reviewing the above points I request that my appeal is upheld and for POPLA to inform Parking Eye to cancel the Parking charge notice

Yours sincerely

Thanks for all the help so far :j

Coupon-mad

Yep looks great, just saw a few typos (the word 'too' instead of 'to' ended your point #3 and 'arties' instead of 'parties' and 'one am' looked wrong, should be 1 a.m.). I think that end bit of point #3 could be extended to conclude that point better:

Due to the signage being invisible this lead the driver to believe that any charges which may have been implemented wouldn’t have been running at 1 a.m. with no shops open and pubs closing. None of Parking Eye's extortionate charges were prominent. The requirements of a contract; consideration between the two parties in question, offer, acceptance and fairness and transparency of terms in good faith, were not in existence. There was no contract capable of being formed in the dark car park in these conditions and if the Operator's evidence merely shows photos of the signs in daylight or with a flash, this will certainly not rebut my assertion.

SouthYorkshireKid

Thank you Coupon-mad, i'll go through and tweek the last few bits as per your advice :beer:

I'll let you know how it gets on

SouthYorkshireKid

The Operator issued parking charge notice number .....
arising out of a presence on private land, of a vehicle with registration
mark *******.

The Appellant appealed against liability for the parking charge.
The Assessor has considered the evidence of both parties and has
determined that the appeal be allowed.
The Assessor’s reasons are as set out.

The Operator should now cancel the parking charge notice forthwith.6061694080

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

Thanks for the help guys, looks like they didn't even bother trying to contest. I'll be making sure I send it to the snobby woman who runs the site i received it on who claimed "no point in appealing this site wins all it's appeals" :T:T:T

Dee140157

Well done.
Can you pop this decision over on the POPLA decisions thread please. (Link on Crabman's sticky at top of forum. )
And yes do let the snobby woman know of your success!