ALDI & Parking Eye......again!

JAMEZ1080

Hi Everyone, a progress update from me.
Yesterday I received another letter, thanking me for my correspondence, however my recent appeal has been unsuccessful. No great surprise from what I have read in other cases. I used the official first letter of response from the newbies section on this site. I can scan in the letter tomorrow if it helps in writing the next stage of the appeal but for now some extracts.
They are quoting the case PE vs Barry Beavis and Martin Wardley). Plus lots of underlined FAQ's where the answer is always that I am in the wrong and must pay up (no surprise there!)
I also then have a POPLA form to complete for my appeal, I'd be very grateful for advice on this. I'm sure there may be another template to adapt to my circumstances?

Dee140157

Read the Newbie thread gain. Post 3 there are the magic words "How to win at POPLA". Click on this link and there are at least 3 PE appeals, including one that rebuts Beavis!

Come back when you have drafted your appeal for checking.

JAMEZ1080

This is mostly a copy and paste from another previously successful appeal on similar circumstances to my own. I would appreciate any advice, add's or omits.
Thanks.

Dear POPLA Assessor,

I am the registered keep of the vehicle xxxxxxx and am writing to contest the parking charge notice xxxxxx received.

I am appealing against the parking charge above as 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. Non genuine pre-estimate of loss - The amount demanded by ParkingEye is not a genuine pre-estimate of loss. The estimate must be based upon loss following from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of retail revenue at a shopping centre. I request ParkingEye to provide a full breakdown of how these costs are calculated, all these costs must represent a loss resulting from the alleged breach and the pre-estimate of loss must add up to the exact amount demanded.

As in previous cases the parking company has included day to day running costs of the business (for example Wages, Uniforms, Signage erection, Installation of ANPR cameras, Office Costs, Maintenance Costs) these would of occurred had there been a breach or not and therefore may not be included in this pre-estimate of loss. I am also aware that ParkingEye may not include the POPLA fee in a pre-estimate of loss.

Given that ParkingEye charge the same lump sum for a 11 minute overstay as they would for 150 minutes, and the same fixed charge applies to any alleged contravention (whether serious/damaging, or trifling as in my case), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.

The Office of Fair Trading has stated to the BPA Ltd 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. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.

No doubt ParkingEye will attempt to assert a ''commercial justification'' but I refute their arguments. In a recent decision about a ParkingEye car park at Town Quay Southampton, POPLA Assessor Marina Kapour did not accept ParkingEye's generic submission that the inclusion of costs which in reality amount to the general business costs incurred for the provision of their car park management services is commercially justified. ''The whole business model of an Operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre-estimate of loss in order to be enforceable against the appellant.'' My case is the same and POPLA must be seen to be consistent if similar arguments are raised by an appellant.

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 became “over-excited” about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis), 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.''

It would therefore follow that this charge is Punitive and a Penalty, and has an element of profit included that are not allowed to be imposed by parking companies.

2. No contract between driver/Inadequate signage - I believe that the signage at this car park, is inadequate for numerous reasons. The signage of the car park makes it possible for drivers to enter the car park without seeing the signs thus no contract can be formed between the driver and ParkingEye. The signs within the car park are difficult for drivers to see or read from inside the car regardless of which side of the road the car park is entered from. 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.

As a POPLA Assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA Assessor would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding. The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

In my appeal to Parking Eye I stated “if alleging 'contractual fee' I require that you now send me a VAT invoice and explain the daily rate for parking and service provided for the fee. Failure to provide this VAT invoice now that I have requested it, will be considered evidence that this was not in fact a genuine offer to park for a fee and is merely a penalty which is not recoverable in contract law”.

3. Flawed contract with landowner/Authority to issue PCN's - ParkingEye do not own this car park and are merely agents of the landowner or legal occupier. In their notice and rejection letters ParkingEye have provided me with no evidence that they are lawfully entitled to demand money from a driver or keeper. I put ParkingEye to strict proof to POPLA that they have the proper legal authorisation from the landowner to contract with drivers and to enforce charges in their own name as creditor in the courts for breach of contract. I demand ParkingEye produce to POPLA the contract between the landowner and the ParkingEye.

In ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013 District Judge Jenkins checked the ParkingEye contract and quickly picked out the contradiction between clause 3.7, where the landowner appoints ParkingEye as their agent, and clause 22, where is states there is no agency relationship between ParkingEye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between ParkingEye and motorists who used the land. This decision was followed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the Defendant. District Judge Jones concurred completely with the persuasive view in ParkingEye v Sharma that a parking Operator has no standing to bring the claim in their own name. My case is the same.

If ParkingEye produce a 'witness statement' in lieu of the contract then I will immediately counter that with evidence that these have been rejected in other recent court cases due to well-publicised and serious date/signature/factual irregularities. I do not expect it has escaped the POPLA Assessors' attention that ParkingEye witness statements have been robustly and publicly discredited and are - arguably - not worth the paper they are photocopied on. I suggest ParkingEye don't bother trying that in my case. If they do, I contend that there is no proof whatsoever that the alleged signatory has ever seen the relevant contract terms, or, indeed is even an employee of the landowner, or signed it on the date shown. I contend, if such a witness statement is submitted instead of the landowner contract itself, that this should be disregarded as unreliable and not proving full BPA compliance nor showing sufficient detail to disprove the findings in Sharma and Gardam.

The BPA code of practice contains the following:

“7. Written authorisation of the landowner
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges, through the courts if necessary.”

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

5. The ticket I received from Parking Eye had no reference to VAT shown on it. If it was an invoice for payment of a service contract, it must show VAT details on it, i.e., for parking charges amount owed £50 + VAT at 20% = £60. Since there is no mention of VAT it must therefore be presumed to be nil or zero rated which would be the applicable rate for a fine or penalty, which of course is non-compliant to the BPA Code of Practice itself which states that the use of fine or penalty may not be used. That doesn't legitimise the use of a more convenient term though. If the amount demanded were a contractual charge then it fails the test for that based entirely upon the wording on the ticket. It MUST show the VAT details of the company in accordance with the BPA Code of Practice, and it does not, therefore cannot be a breach of an alleged contractual arrangement.

6. ANPR accuracy - 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 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 v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the Operator could not rebut the point.

So, in addition to showing their maintenance records, I require ParkingEye to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The Operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from the cameras in this car park is just as unreliable and unsynchronised as the evidence in the Fox-Jones case. As their whole charge rests upon two timed photos, I put ParkingEye to strict proof to the contrary.

7. ANPR usage - Under paragraph 21.1 of the BPA Code of Practice it states '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 difficult 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.

8. Proof of planning consent for operating car park on specified time limit and ANPR system - It has been known that some parking companies do not have the necessary planning permissions/consent from the local authorities for the parking time limit and installation of ANPR cameras. I put ParkingEye to provide evidence that they have the necessary planning permissions/consent from the local authorities to operate this car park on a time limit and for the installation of the ANPR cameras that are used on this site.

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

Redx

looks ok to me, apart from one small addition

I would add a numbered bullet point menu just before the main appeal points, so they can easily see all the headers at a glance

this will probably end up as a PSDSU in about 7 weeks time

Dee140157

As Redx says, with the addition of a bullet point summary at beginning, this is good to go.,

JAMEZ1080

Thanks everyone for your help, sending the POPLA appeal today. I will let you know once my I have a decision.
J

JAMEZ1080

Hi Everyone,
My appeal has been allowed today!!
The reason for the assessors decision was that PE did not supply any evidence. Another win, really happy!!
Thank you to everyone who helped me through this.
James

Redx

well done m8, another PSDSU win against PE