County Court Claim - Hearing Stayed

bartos1976

Evening all, can I get your advise & input in to the following letter I have drafted to the Judge?


FTAO District Judge (Name)

Re: CLAIM NUMBER XXXXXXX

Thank you for your response to my letter ordering a stay of the above hearing. I thought it courteous to send you a reply outlining my plans on receipt of your response.

Firstly I must point out that adjudication under the POPLA scheme might take a little more than a month but I will write back to you closer to the at the end of the month to provide you with an update and estimate for completion at POPLA.

Since receiving your letter I have made contact with Parking Eye by email and received a response from them indicating they will shortly issue me with a POPLA verification code enabling me to lodge an appeal with POPLA. I have enclosed copies of both e-mails for your records.

Once again thank you for your time and consideration, I will write to you with an update soon.

Respectfully Submitted



First Name / Surname

SevenTowers

As you have a court case being stayed pending the outcome of your appeal, I would make a request to POPLA that your case be treated as special and fast-tracked to conform with the court set deadlines.

bartos1976

Yeah good idea, would i just include that at the beginning of my defence?

Letter read OK for the judge though?

Coupon-mad

Yes and yes!

And as for the POPLA appeal, that is not a 'defence' - slip of the keyboard finger I assume?! You no longer have to 'defend' - you have your get-out-of-jail-free card and you are back to square one 'appeal'! So use the latest POPLA appeal example for Parking Eye (post #3 links in the NEWBIES thread), the one with the reference to PE v Beavis and debunking of the commercial justification argument by Chris Adamson. You could amend the start to tell POPLA this is a case where the small claims court has ordered the parties to resolve the matter with POPLA so can they please fast-track it.

bartos1976

So the rejection arrived today with my POPLA code, unsurprisingly the mention the case of PE vs Beaver. Anyway, guess that doesn't actually matter.

The is the POPLA appeal I am going to submit once it gets approval from some of you guys. Yes I still have another 25 days left to submit my appeal but I'd like to get it in sharpish to improve the chances of this being completed within the 1 month stay ordered by my judge.

Re: ParkingEye PCN, reference code xxxxxxxxxx
POPLA Code:

I am the registered keeper and I wish to appeal a recent parking charge from ParkingEye. This POPLA appeal is based on the order of Judge xxxx in relation to small claim xxxxxxx. I respectfully ask that this is fast tracked due to the circumstances and timescales for adjudication at POPLA set by the district judge (1 month stay).

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) The signage was not readable in the dark so there was no valid contract formed
4) The ANPR system is unreliable and neither synchronised nor accurate

1) No genuine pre-estimate of loss
This car park is Pay and Display and because of inadequate signage no payment was made. Having received the Notice in the post I checked the signage in daylight and it seems that parking would have cost £1.50 an hour so the only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge = £3.00.

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 £3.00, 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 almost empty on arrival and the same when the driver left. Furthermore this car park is not a retail car park and does not serve shoppers.

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 made over 600,000 (629,181) keeper requests to the DVLA in their 2011/12 financial year and their accounts show the total cost of running the entire business to be £9.4 million. This limits the average cost per ticket to a maximum of £9.4m/600,000, or approximately £16. The figures for 2012/13 are over 700,000 (720,090) and £12.6 million, giving a maximum cost per ticket of approximately £18. As not every cost of running the business is attributable to processing tickets, the average cost must be even less. Thus the parking charge cannot be a genuine pre-estimate of loss.

2) No standing or authority to pursue charges nor form contracts with drivers

I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, ParkingEye must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. This has not been produced by the operator in their rejection statement so I have no proof that such a document is in existence. I contend that ParkingEye merely hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice.

I therefore put ParkingEye to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between ParkingEye and the landowner. This is required so that POPLA and myself can check that it allows this Operator to make contracts with drivers themselves and provides them with full authority to pursue charges, including a right to pursue them in court in their own name. 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 signage was not readable in the dark so there was no valid contract formed between ParkingEye and the driver

Having returned to the car park in daylight the only signs are on walls at the back of the car park, I parked at the front. The only pay & display machine is also placed inappropriately, it would be better served at the front so it can be seen on leaving the car park. Any upright signs were shrouded in darkness and were not seen by the occupants of the car. I believe that ParkingEye place their signs so high that terms would only be legible if a driver got out of a car and climbed a stepladder, holding a torch, to try to read them. Any photos supplied by ParkingEye to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera & flash and the angle may well not show how high the signs are. As such, I require ParkingEye to state the height of each sign in their response and to show contemporaneous photo evidence of these signs in the dark without the aid of flash photography.

Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. This would include the signs being lit - and it can be seen from ParkingEye's own photos of an isolated numberplate in the dark, that the entrance (where signs must be clear) was in fact pitch black. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

4) The ANPR system is unreliable and neither synchronised nor accurate

The BPA CoP contains the following:
21.1 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.''

Parking Eye fail to operate the system in a 'reasonable, consistent and transparent manner'. They do have some signs but these are too high to see on arrival and are not compliant with BPA paragraph 21.1. 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 recording any parking event at all. This operator has no evidence about the length of the parking period.

I require Parking Eye to present to POPLA in their evidence, 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 the vehicle entering and exiting at specific times. I know that such data and evidence of maintenance of the ANPR system and clock has to be supplied to the BPA for audits so it is not unreasonable to require sight of these ANPR records. I believe the images are not reliable and the timings are inaccurate.

In order to rebut my point about non-compliance with BPA paragraph 21.1, I put Parking Eye to strict proof in the form of photographic evidence of any low, readable signage at this site, which provides a clear 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'.

5. Unreasonable/Unfair Contract Terms.

Parking Eye don't conform to the guidance on the Unfair Terms in Consumer Contracts Regulations (UTCCRs) 1999. This is also available on the OFT website as oft311.pdf.

The guidance includes the following advice:

“The Regulations apply a test of fairness to all standard terms (terms that have not been individually negotiated) in contracts used by businesses with consumers, subject to certain exceptions. The main exemption is for terms that set the price or describe the main subject matter of the contract (usually known as 'core terms') provided they are in plain and intelligible language. The Regulations thus apply to what is commonly called 'the small print' of standard form consumer contracts”.

“The Regulations are concerned with the intention and effects of terms, not just their mechanism. If a term has the effect of an unfair penalty, it will be regarded as such, and not as a 'core term'. Therefore a penalty cannot be made fair by transforming it into a provision requiring payment of a fee for exercising a contractual option”.

“The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term, or which purports to define what the consumer is buying, will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term”.

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

I also draw the Assessor’s attention to The OFT ‘Unfair Contract Terms Guidance’:
Group 18(a): Allowing the supplier to impose unfair financial burdens
‘'18.1.3 ...transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.’’

Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".

I contend it is wholly unreasonable to rely on unlit signs in an attempt to profit by charging a disproportionate sum where minimum loss has been caused by a car spending a little over an hour in a pay and display car park when that car park is empty. Contrary to the requirement of good faith, this charge caused a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer (myself) which renders the terms unenforceable. It's clearly a penalty and there is no case law to make such a charge commercially justifiable against a consumer of lesser bargaining power. By contrast, there is plenty of case law to support the UTCCRs and UCT Act evidence that points to this charge being a penalty, and penalty clauses are unrecoverable in consumer contracts.

In the case of Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79, there 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”. Further in support of my contention that this charge is a penalty, is the finding of Colman J in Lordsvale Finance Plc -v- Bank of Zambia [1996] QB 752 which was that “whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provisions was to deter a party from breaking the contract or to compensate the innocent party for the breach [...] deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred”.

In summary, Parking Eye are attempting to enforce a punitive charge for an alleged infringement which they have no reliable means of proving ever took place at the times stated, not having observed nor shown evidence of the parking period at all. I respectfully request therefore, that my appeal is upheld and the charge is dismissed.

Yours faithfully,




Mr xxxxxxxxxxx {registered keeper's name...}

Umkomaas

You need to get the following in, as POPLA has, so far, ignored the Wardle/Beavis judgment in favour of higher court judgments on contract law.

Neither is this charge 'commercially justified'. In answer to that proposition from ParkingEye, citing the small claims decision in their case v Wardle and Beavis (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.''

bartos1976

Already in there

Umkomaas

bartos1976 wrote: »

Already in there

It wasn't there when I read it, ..... was it? Did you put it in with your 2.14pm edit?

I'm not losing the plot!

bartos1976

Umkomaas wrote: »

It wasn't there when I read it, ..... was it? Did you put it in with your 2.14pm edit?

I'm not losing the plot!

No, the 2.14 edit was simply request for fast track

All ok though?

Coupon-mad

Yep it is looking good, the only error being a typo (should be POPLA):

'timescales for adjudication at POLA set by the district judge (1 month stay).'

If you want to add an 'unfair/unreasonable contract terms' paragraph there is one in this example I wrote earlier except make sure anything you borrow says ParkingEye and of course, don't use the first few lines from that point #5 about 'sorry to bust your bubble, Care Parking' for obvious reasons!

https://forums.moneysavingexpert.com/discussion/comment/65951653#Comment_65951653

and you will see that one has some extra points in the 'unclear signage' and 'ANPR' paragraphs that you may want to plagiarise for your own appeal, even if just adding an extra couple of lines Yours is looking good anyway but we want you to win this now so the stronger points the better.