MET Parking Services Ticket

Dee140157

So remember you want the main paragraphs
POPLA appeals basics
1. No genuine pre-estimate of loss (GPEOL)
2. Signage
3. No Contract with landowner to pursue charges on their own name at court
4. ANPR accuracy

Possibly also UNfair terms and conditions

As it is a MET PCN there are three MET template appeals. Just use one of the postal PCN ones as the basis for your appeal.

Kayne

Been a bit delayed in sorting this out as I ended up breaking my arm 2 days after my last post and being right handed and having that arm in plaster has made it more difficult to get on the computer. Here is my appeal draft:

Dear Popla,

POPLA CODE xxxxxxxxxx

As the registered keeper of the vehicle, registration number xxxx xxxx, I wish to appeal against the parking charge issued by MET Parking Services.

My appeal is based on the following grounds.

1. No breach of contract and no genuine pre-estimate of loss.

2. Contract with the landowner – no locus standi.

3. Lack of photographic evidence and unreliable, unsynchronised and non-compliant ANPR system.

4. Unclear and non-compliant signage, forming no contract with drivers.

To expand on these points:

1. No breach of contract and no genuine pre-estimate of loss

MET Parking Services state in their letter of rejection that the parking charge represents a claim for liquidated damages. Accordingly, the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable under contract law. The estimate must be based upon loss flowing from a breach of the parking terms.

I require MET to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. MET cannot lawfully include their operational day to day running costs (e.g. provision of signs, ANPR and parking enforcement) in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement ' would still remain the same.

According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the landowner does not impose a parking fee for the area in question, there is no loss to MET nor the landowner. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.''

Nor is the charge 'commercially justified'. If MET Parking Services cite 'ParkingEye v Beavis & Wardley' 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' latest effort at a loss statement - their latest attempt to get around POPLA and likely to be broadly similar to any effort made by their sister firm, Excel - 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”.

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.''

My case is the same and MET contracts are nothing like ParkingEye's contract in the Beavis case anyway, where Parking Eye paid £1000 per week for what was in effect a 'fishing licence' to catch victims and where the Operator made out they were the principal. In my case, MET are merely agents at best, with a bare contractor's licence to put up signage and 'issue tickets' and they are known to be paid by their client so they have no standing nor loss to claim in their own right anyway. Of course money changing hands will affect any calculations of so-called 'loss' and is one of several reasons why I will require the landowner contract in full (unredacted) as per point #2.

2. Contract with landowner - no locus standi

MET do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that MET has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow MET to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between MET and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 (Transcript linked):

In that case the Judge found that, as the Operator did not own any title in the car park: 'The decision to determine whether it is damages for breach...or a penalty...is really not for these Claimants but...for the owners. We have a rather bizarre situation where the Claimants make no money apparently from those who comply with the terms...and make their profit from those who are in breach of their contract. Well that cannot be right, that is nonsense. So I am satisfied that...the Claimants are the wrong Claimants. They have not satisfied this court that they have suffered any loss...if anything, they make a profit from the breach.'

I challenge this Operator to rebut my assertion that their business model is the same 'nonsense', and is unenforceable. MET cannot build their whole business model around profiting from those they consider to be in breach of a sign, on land where they have no locus standi, and then try to paint that profit as a perpetual loss.

3. Lack of photographic evidence and unreliable, unsynchronised, non-compliant ANPR system.

I call into question the reliability and compliance of the ANPR system because MET are relying on two pictures of a vehicle. The first picture shows a car and number plate of my car apparently entering the site. The second picture shows a car but with no number plate visible, hence it cannot be demonstrated that this is the same car exiting the same site. The registration plate is shown separately with no time attached to that image.

So I require the Operator to present records which prove:

- the Manufacturers' stated % reliability of the exact ANPR system used here.

- 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.

The Operator must 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 by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

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 accurately, and this is in addition to the missing time/location/number-plate evidence from the second photo. Therefore I contend that this ANPR "evidence" from this Operator in this car park is just as unreliable as the ParkingEye system in the Fox-Jones case and I put MET to strict proof to the contrary.

In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:
''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.
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''

At this location, there are merely a couple of secret small cameras up high on a pole. No signs at the car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here.

Unless the Operator can show documentary evidence otherwise, then this BPA Cop breach would also point to a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary.

4. Unclear and non-compliant signage, forming no contract with drivers.

No consideration/acceptance flowed to and from both parties, so there was no contract formed. This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not 'customers' of MET Parking Services and not expecting to read a contract when they park at an a McDonalds restaurant. It would be necessary for any signs in the car park to be so prominent that the terms must have been seen/accepted by the driver.

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.'

The signs there now are certainly not 'startling'. The signs there are few and far between. The restrictions were not obvious and nor were the terms drawn to the driver's attention - and certainly not the risk of any hefty 'charge'.

The driver says that he doesn't even recall seeing any notices in the car park on at the entrance to it - without that, there is no contract at all. This is not a transparent contract and is a disguised penalty. Terms must be clear otherwise under the doctrine of contra proferentem, the interpretation that favours the consumer applies.

Based on the above arguments, I therefore respectfully request that my appeal is upheld and the charge dismissed.

The_Deep

Have you seen this?

http://www.dailymail.co.uk/news/article-2716193/Rail-commuters-hit-40-000-bogus-parking-fines-Pirates-accused-demanding-money-commuters-using-wrong-law.html

Met and MacDonalds are both mentioned.

Kayne

Thanks The Deep. I wonder if I can use that to my advantage

Umkomaas

Very well put together appeal, especially with a broken arm - extra brownie points for you!

Three comments from me:

1.

I require sight of a full copy of the actual unredacted, contemporaneous, signed and dated site agreement/contract with the landowner

2. Italicise the Judge's comments you've quoted from the PE v Clarke case.

3. It's not clear at what time of day/night your parking incident took place, but if it was at night, then I'd suggest putting in some comment in the signage section about readability of signs without specific illumination. You wouldn't be agreeing to/signing any form of (alleged) legal contract in the dark, so why this one?

Then it's good to go.

Kayne

Right my appeal is currently in with POPLA but when I did the code check on parkingcowboys it says I should complain to the BPA as my code was issued before my rejection. Do I start this complaints procedure now or do I wait until I get a response from POPLA?

Is there anything else or anyone else I should be submitting complaints to?

Only just remembered to come on and post about it as I've been distracted

Umkomaas

Do it now, strike while the iron is hot. By how much in advance was the date?

Don't forget, your POPLA deadline is absolute - no extension for whatever reason; miss it and you lose the one golden opportunity to stamp on this.

Kayne

Hi Umkomaas

It was only by a day but a breach is still a breach right?

POPLA appeal is in progress so all good on that front. Now I just want to pick apart the failings of MET so I can launch good complaints with the BPA and DVLA.

Umkomaas

For sure, a breach is a breach, and PPCs allow no leeway where a motorist might be in breach, so every reason to ask the BPA to deal with MET in the same uncompromising way in which MET are dealing with you.

What's sauce for the goose .........!

Kayne

Due to be heard on 23rd Sept and got my decision today. Appeal used as above in this thread. MET didnt bother to fight at all.

09 October 2014
(Appellant)
-v-
MET Parking Services Ltd (Operator)

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

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.

09 October 2014

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