PCN - Parking Eye - Cambridge - Beehive Centre

bazster

It's just a bog-standard PE rejection letter and a PoPLA form, no need for anyone to try and download the 50Mb file!

Calhoon_2

Dee140157 wrote: »

Can you upload to tinypic instead and put I her with broken link for ease?

Sorry to be such a dummy, but how do I get a broken link..??

Redx

paste in the link, then change http to hxxp

Calhoon_2

Redx wrote: »

paste in the link, then change http to hxxp

Ok, here ya go then, here's a broken link to the images of the Rejection Letter & POPLA paperwork

hxxps://dl.dropboxusercontent.com/u/12889612/POPLA%20%26%20Reject%20Letter.zip

Any advice is appreciated.

Calhoon_2

Ok Peeps, so I’ve just finished cutting & pasting various bits a pieces to form my POPLA appeal.
Thanks to Coupon-mad & Parkingcowboys.co.uk for templates & help etc..

Just wondering if you could give it a once over & see me right before I send it.
Please feel free to edit or add certain paragraphs if need be, I already feel there’s not enough there to win on, so please help.
I’m a complete newb to this kind of thing and only have a few days to get my appeal in, so extra study time is not an option for me…Sorry.

To save any of you trawling through this thread to recap my situation, here’s a breakdown below :

• Vehicle, of which I’m the registered keeper, was parked for 5hours 12minutes in a 3 hour stay car park monitored by Parking Eye.

• Car park is part of a retail park.

• There are no receipts or bank statements for purchases made at the retail park on the day, cash purchases made but no receipts kept.

• Received a PCN from Parking Eye in the post with pictures of owned vehicle arriving & departing the car park.

• Appealed online to Parking Eye (see post #10 of this thread)

• Received an appeal Rejection Letter and paperwork to make a further appeal through POPLA.

Below is a broken link to a picture of Parking Eye’s signage at the location :
hxxp://tinypic.com/r/ehdr8n/8
I’m visiting the same car park later today so will attempt to get some better photos including a close up of the small print, should any of you want a look?


POPLA APPEAL LETTER:

Dear POPLA,
I am the registered keeper & this is my appeal:

1) The Charge is not a genuine pre-estimate of loss
Their sign states the charge is for “Failure to comply with the following” so this Operator (Parking Eye) must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because there can be no loss of potential income in a, half full, free car park.
Also the Operator has not met the keeper liability requirements, and therefore keeper liability does not apply. The Operator can therefore only pursue the driver. As the keeper of the vehicle, I decline, as is my right, to provide the name of the driver(s) at the time. As the parking company have neither named the driver(s) nor provided any evidence as to who the driver(s) were I submit I am not liable to any charge

This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

2) Lack of signage - no contract with driver
The signage in this car park is placed high up, approximately 6.5-7.5 feet, up most posts. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms.
The entrance sign is positioned at the exit of a busy roundabout, with such small print that it would make it a hazard to attempt to read the signage whilst driving & entering the car park.
I put Parking Eye to strict proof otherwise; as well as a site map they must show photos taken without a camera flash.
The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.

3) Unreasonable/Unfair Terms
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

An sign of terms placed to high to read, is far from 'transparent'.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, 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".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "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 contend it is wholly unreasonable to rely on poorly placed signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

I therefore respectfully request that my appeal is upheld and the charge is dismissed.

Redx

cant see the beavis or chris adamson section in there at all, so needs more work , check recent approved PE popla appeals for more wording , also no numbered bullet points in the introduction either

Calhoon_2

Redx wrote: »

cant see the beavis or chris adamson section in there at all, so needs more work , check recent approved PE popla appeals for more wording , also no numbered bullet points in the introduction either

Ok Redx & all, here’s the second draft.

I’ve now added a paragraph about the Beavis case.
Do I need to add a paragraph about the Chris Adamson case also? If so can you point me in the right direction, I had trouble finding something about it in the forum.

I’ve also added some stuff to the Lack of Signage section after gathering a few more photos today, they’ve also been added, see below.
There are also two new sections I’ve added entitled Improper Response to Initial Appeal & Misleading Information given on PCN & PCRN.


Again, please give this a once over if you don’t mind & help see me right before I send it.
Please feel free to edit or add certain paragraphs if need be, all help is greatly appreciated & respected.

Again, to save any of you trawling through this thread to recap my situation, here’s a breakdown below :

• Vehicle, of which I’m the registered keeper, was parked for 5hours 12minutes in a 3 hour stay car park monitored by Parking Eye.

• Car park is part of a retail park.

• There are no receipts or bank statements for purchases made at the retail park on the day, cash purchases made but no receipts kept.

• Received a PCN from Parking Eye in the post with pictures of owned vehicle arriving & departing the car park.

• Appealed online to Parking Eye (see post #10 of this thread)

• Received an appeal Rejection Letter and paperwork to make a further appeal through POPLA.

Below are broken links to pictures of Parking Eye’s signage, & lack of, at the location:
hxxp://tinypic.com/r/ehdr8n/8 (Sign)
hxxp://tinypic.com/r/f3rfh4/8 (Signs Small Print)
hxxp://tinypic.com/r/idy981/8 (7.9ft High Sign)
hxxp://tinypic.com/r/2u8x84p/8 (Panorama of Back Wall of Back Lot, No Signage)




POPLA APPEAL LETTER:

Dear POPLA,
I am the registered keeper & this is my appeal:

The Charge is not a genuine pre-estimate of loss
The Operators, Parking Eye, sign states the charge is for “Failure to comply with the following” so this Operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because there can be no loss of potential income in a, half full, free car park.
Also the Operator has not met the keeper liability requirements, and therefore keeper liability does not apply. The Operator can therefore only pursue the driver. As the keeper of the vehicle, I decline, as is my right, to provide the name of the driver(s) at the time. As the parking company have neither named the driver(s) nor provided any evidence as to who the driver(s) were I submit I am not liable to any charge

This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

Nor is the charge 'commercially justified'. As Parking Eye cited 'ParkingEye v Beavis & Wardley' in it’s appeal rejection letter, it's irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, POPLA Assessor Chris Adamson has stated in June 2014 upon seeing VCS’s latest effort at a loss statement – that:

''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, 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”.


Lack of signage - no contract with driver
The signage in this car park is placed high up & lacks in certain areas of the car park.
Signs are approximately 7.9 feet high up most posts, the top of the signs reaching as high as approximately 9.5ft.
A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms.
The entrance sign is positioned at the exit of a busy roundabout into the retail park, with such small print that it would make it a hazard to attempt to read the signage whilst driving, & entering the retail park at the same time.
In an effort to show a lack of signage, I have since taken, & included, a panorama shot of the back parking lot, near ‘PetsAtHome’ store, where all known drivers of said vehicle park when using this car parks facility’s, at all times, without fail.
As you can see from the shot there is ‘NO SIGNAGE’ down the posts and in fact the entire length of this stretch of the car park.

I put Parking Eye to strict proof otherwise; as well as a site map they must show photos taken without a camera flash.
The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.


Unreasonable/Unfair Terms
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

An sign of terms placed to high to read, is far from 'transparent'.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, 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".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "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.”


Improper Response to Initial Appeal
Furthermore, in my initial appeal to Parking Eye, I requested that under their Trade Body's current Code of Practice they must issue a rejection letter which, in order to answer my appeal fully, must include:

1. The legal basis of their charge, which is not clear (i.e. breach, trespass or contractual fee?). As keeper, I cannot be expected to guess the basis of their allegation.
2. Proof of their locus standi to offer contracts to drivers at this site and to bring a claim in their own right for this particular contravention. If they are not the landowner, I will need to see a copy of their contract, showing the restrictions, the charges, the dates and terms of business including any payments between themselves and their client and the definition of their status as agents or contractors and their assigned rights (if any). Such detail is necessary for me to make an informed decision. Failure to divulge their landowner contract (or heavily redacting it) will be deemed as withholding pertinent information and, of course, I will require it to be shown at independent appeal stage anyway.
3. A copy of the signage site map and close-up pictures of the signs in situ at the time, taken at a comparable time of day in similar light conditions.

None of these above points have been adhered to, instead a flippant statement at the bottom of my rejection letter, along with a FAQ sheet, reads : “We also note that a number of your queries are of a generic nature, a number of which we have seen before. Please see Parking Eye’s answers to Frequently Asked Questions below”

This is unacceptable. I have specifically asked for certain information with regards to this incident, and I expect those requests to be adhered to, & would expect that each appeal be answered in full and treated on a case by case basis, not brushed aside as “Generic” with “We’ve seen it all before” type statements. How wholly unprofessional, and may I go as far as saying illegal.
If I were to adopt the same attitude to this when I received the initial PCN I’m sure that Parking Eye would have the same response as I.


Misleading Information given on PCN & PCRN
I’d also like it noted that, with regards to the PCN & PCN Reminder (PCNR), I have an issue with the amounts & dates shown therein, & found it extremely confusing, when trying to interpret what it is I should & shouldn’t be doing, & at what times, due to the Operator providing misleading information.
Please see below & attached photo copies of the PCN & PCNR headers as proof.

PCN
Dated : 26/06/14
Received : 30/06/14
Amount : £85 to be paid by 24.07.14 (£50 if paid by 10/07/14)

PCN Reminder
Date : 05/07/14
Received : 11/07/14
Amount £85 to be paid by 23.07.14 (£50 if paid by 09/07/14)

This isn’t helped by the fact that the PCNR wasn’t received by myself until 11th July, that’s after the discounted price date offered on both the PCN & PCNR, who’s date for payment had now randomly moved from the 10th to the 9th July with no explanation.
Even if I were prepared to pay the ludicrous discounted price of £50, then it would appear that may have not actually have been possible, due to the goal posts, with regards to dates, being moved around willy-nilly during my consideration period.


I contend it is wholly unreasonable to rely on poorly placed signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

I therefore respectfully request that my appeal is upheld and the charge is dismissed.

Calhoon_2

Hi,
Can someone please have a look at my previous Post #28 - POPLA Appeal Draft 02 & tell me if that'll do as my POPLA appeal or if there is anything else I should add.

I'm in a bit of a rush as I only have until 12/08/14 to appeal, that's next Tuesday, & I'm a complete newb.

All help & assistance is greatly appreciated.

Many thanks... Calhoon.

Dee140157

I think you need to actually read and understand the copy and pasting in your appeal as you ask this question:

I’ve now added a paragraph about the Beavis case.
Do I need to add a paragraph about the Chris Adamson case also? If so can you point me in the right direction, I had trouble finding something about it in the forum.

Since it was an ANPR car park you need a clear ANPR paragraph
Also a paragraph about no standing authority.


Have another look at the PE templates linked to in post 3 of newbie thread.

I am not sure I would bother about the improper response section.

I would include the misleading PCNs as this is something a little bit different.

Calhoon_2

Dee140157 wrote: »

I think you need to actually read and understand the copy and pasting in your appeal as you ask this question:

Alright, I think this is it, hopefully my 3rd & final draft.

Thanks to Dee for the previous advice. I really was meloning out with all the legal jargon & had been overlooking stuff. I now understand that Chris Adamson was the POPLA assessor dealing with the Beavis case...LOL

So as suggested I've added a paragraph about ANPR, and No Standing Authority.
Dug through the PE templates, found Post#2 helpful on this page - Thanks Coupon-mad : hxxp://forums.moneysavingexpert.com/showthread.php?p=65745741#post65745741

Also I took out the Improper Response section..., me letting off steam a bit I think..Lol

I'd like to know if you think I should include any of these photo's in my appeal too. There's a Panoramic one showing lack of signage and one with a 6.3ft chap reaching for the sign half way up a lamp post.
hxxp://tinypic.com/r/idy981/8 (7.9ft High Sign)
hxxp://tinypic.com/r/2u8x84p/8 (Panorama of Back Wall of Back Lot, No Signage)

So please, if you or anyone out there don't mind, a couple of opinions would be lovely, could you please give it a once over and tell me I'm good to go, as I only have until next Tuesday, 12th Aug, to get this appeal in.

Many thanks in advance... Calhoon


POPLA APPEAL LETTER:

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


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

1: The Charge is not a genuine pre-estimate of loss
2: Lack of signage - no contract with driver
3 : Lack of standing/authority from landowner
4 : Unreasonable/Unfair Terms
5 : ANPR Accuracy
6 : Misleading Information given on PCN & PCRN


1: The Charge is not a genuine pre-estimate of loss
Firstly, it should be noted that this car park is a FREE car park.
Following the receipt of the charge, I have personally visited the site in question, The Operators, Parking Eye, sign states the charge is for “Failure to comply with the following” so this Operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because there can be no loss of potential income in a, half full, free car park.
Also the Operator has not met the keeper liability requirements, and therefore keeper liability does not apply. The Operator can therefore only pursue the driver. As the keeper of the vehicle, I decline, as is my right, to provide the name of the driver(s) at the time. As the parking company have neither named the driver(s) nor provided any evidence as to who the driver(s) were I submit I am not liable to any charge

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 Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breachmust 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):

Nor is the charge 'commercially justified'. As Parking Eye cited 'ParkingEye v Beavis & Wardley' in it’s appeal rejection letter, it's irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, POPLA Assessor Chris Adamson has stated in June 2014 upon seeing VCS’s latest effort at a loss statement – that:

''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, 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”.


2: Lack of signage - no contract with driver
Following the receipt of the charge, I have personally visited the site in question, and the signage in this car park is placed high up & lacks in certain areas of the car park.
Signs are approximately set at 7.9 feet high up most posts, the top of the signs reaching as high as approximately 9.5ft.
A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms.

Also, the entrance sign is positioned at the exit of a busy roundabout into the retail park, on the passenger side, with such small print that it would make it a hazard to attempt to read the signage whilst driving, & entering the retail park at the same time.

In an effort to show a lack of signage, I have since taken, & included, a panorama shot of the back parking lot, near ‘PetsAtHome’ store, where, at all times, without fail, all known drivers of said vehicle park when using this car parks facility’s.
As you can see from the shot there is ‘NO SIGNAGE’ on the lamp posts, and in fact the entire length of this stretch of the car park.
A keen eye will also notice the amount of empty bays in this quiet area of the free car park, as is always the case in this back lot.

I put Parking Eye to strict proof otherwise; as well as a site map they must show photos taken without a camera flash.
The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.

This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not 'customers' of Parking Eye and not expecting to read a contract when they park in an unmarked space. It would be necessary for any signs at the space to be so prominent that the terms must have been seen/accepted by the driver. That is not the case - there were not even any yellow lines to alert a person to read a sign on a corner wall, a sign which would otherwise be overlooked as perhaps, information about house/flat numbers, info about communal bins etc., general signs that one sees at any private housing estate (and does not stop to read).

No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal): 'The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.'


3: Lack of standing/authority from landowner
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.


4: Unreasonable/Unfair Terms
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

A lack of signs and a sign of terms placed to high to read, is far from 'transparent'.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, 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".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "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.”


5: ANPR Accuracy
If Parking Eye's ANPR records are completely reliable (which I contest) then this Operator claims the car was parked for around 2 hours 12 minutes more than the max time allowance of three hours. And yet their evidence shows no parking time, merely photos of a car driving in and out which does not discount the possibility of a double visit later that day, which is wholly possible as this retail park houses our local supermarket, located on the same street we live on. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic in a free car park, and the exit photo is not evidence of 'parking time' at all either.

Under paragraph 21.3 of the BPA Code of Practice, it requires parking companies to make sure ANPR equipment is maintained and in correct working order. I require ParkingEye Ltd. to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. This is important as the parking charge issued is founded entirety on 2 photos of my vehicle entering the car park and leaving the car park at specific times. It is vital that Parking Eye produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye Ltd. 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 Ltd. 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 Ltd. to strict proof to the contrary.

In addition, the BPA code of practice contains the following under section 21 Automatic number plate recognition (ANPR)

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.''

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


6: Misleading Information given on PCN & PCRN
I’d also like it noted that, with regards to the PCN & PCN Reminder (PCNR), I have an issue with the amounts & dates shown therein, & found it extremely confusing, when trying to interpret what it is I should & shouldn’t be doing, & at what times, due to the Operator providing misleading information.
Please see below & attached photo copies of the PCN & PCNR as proof.

PCN
Dated : 26/06/14
Received : 30/06/14
Amount : £85 to be paid by 24.07.14 (£50 if paid by 10/07/14)

PCN Reminder
Date : 05/07/14
Received : 11/07/14
Amount £85 to be paid by 23.07.14 (£50 if paid by 09/07/14)

This isn’t helped by the fact that the PCNR wasn’t received by myself until 11th July, that’s after the discounted price date offered on both the PCN & PCNR, who’s date for payment had now randomly moved from the 10th to the 9th July with no explanation.
Even if I were prepared to pay the ludicrous discounted price of £50, then it would appear that may have not actually have been possible, due to the goal posts, with regards to dates, being moved around willy-nilly during my consideration period.


I contend it is wholly unreasonable to rely on poorly placed signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

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

Yours Faithfully,