ParkingEye POPLA Appeal (for Review)

TheFlamingRed

Morning All,

I'll start with a little back story. The driver of the car went to Marriott Hotel, Waltham Abbey to pick up someone who was staying there, using their car park. As the person she was picking up was running late, she remained in a pay to stay (she believed it to be Pay and Display) carpark, but never once left the car or parked in a bay.

Of course, when she left the carpark, she noticed the ANPR cam, and received a PCN a few days ago. I remember some years ago, the course of action was to ignore it, but luckily, after google searches, found that (on someone's signature on an old forum link) that this was no longer the correct procedure. As such, I have sent ParkingEye an appeal as per the Newbie's template, had it predictably rejected and got a POPLA code sent to me yesterday.

I read that I should get it reviewed here. Lots of it is copied and pasted from others appeals from multiple people with sever edits. I'm mostly happy with it but this is the first one I have had to do so would like some advice. (something about point 3.3 feels incorrect, but I don't know why).

(Removed a bunch of information from the header)

[FONT=&quot]I am the keeper of this vehicle and this is my appeal.[/FONT]
[FONT=&quot]
On the above date, the quoted Parking Charge Notice was issued quoting “Not purchasing the appropriate parking time or by remaining at the car park for longer than permitted”. This charge has been contested directly with ParkingEye and rejected with a valid POPLA code. [/FONT]

[FONT=&quot]I contest the charge and request it is dismissed on the following grounds:
1. No genuine pre-estimate of loss
2. Lack of standing/authority from landowner to issue tickets or pursue charges in their own name at court
3. Signage non-compliant with the BPA Code of Practice and no contract formed with driver
4. Unfair terms
5. The ANPR System Usage
6. The ANPR system is unreliable and neither synchronised nor accurate[/FONT]

[FONT=&quot]1) NO GENUINE PRE-ESTIMATE OF LOSS
[/FONT][FONT=&quot]The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could possibly have been suffered by the Landowner or the Operator. ParkingEye must therefore be required to explain their 'charge' by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention. However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused so ParkingEye have no cause of action to pursue this charge. I specified in my original appeal that I would like to see a breakdown of the costs incurred by ParkingEye as a result of the alleged breach. ParkingEye have failed to provide this information, stating that the charge is in line with BPA guidelines and therefore “deemed reasonable”. This reply completely fails to demonstrate that the whole charge is a genuine pre-estimate of loss. The fact that the recommended maximum level in section 19.5 (“we would not expect this amount to be more than £100”) has not been exceeded merely means that the operator does not have to justify the amount in advance. In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge can “cannot be punitive or unreasonable”. I put it to ParkingEye to prove that a loss has occurred at the time that this charge was levied and ParkingEye 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, such that the charge is a genuine pre-estimate of loss. [/FONT]

[FONT=&quot]If ParkingEye claim that the charge is 'commercially justified' and cite 'ParkingEye v Beavis & Wardley', I put forth that such a claim is 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 that: [/FONT]

[FONT=&quot]''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.''[/FONT]

[FONT=&quot]My case is the same and Parking Eye’s contract with Marriott Hotels, Waltham Abbey 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, ParkingEye 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.[/FONT]

[FONT=&quot]2) LACK OF STANDING/AUTHORITY FROM LANDOWNER TO ISSUE TICKETS OR PURSUE CHARGES IN THEIR OWN NAME AT COURT
[/FONT][FONT=&quot]ParkingEye have no proprietary interest in the land concerned and have not responded to a request for a copy of the contract with the landowner in which authority to pursue outstanding parking charges is wset out in section 7.2 paragraph (f): “whether or not the landowner authorises you to take legal action to recover charges from drives charged for unauthorised parking” has not been addressed. In the absence of this evidence, I believe that ParkingEye do not have the legal capacity to enforce such a charge.[/FONT]

[FONT=&quot]I require the unredacted landowner contract including any payments made between the parties, names & dates & details of all terms included. I suspect ParkingEye are merely an employed site [/FONT][FONT=&quot]agent and this is nothing more than a commercial agreement between the two parties. There is nothing that could enable ParkingEye to impact upon visiting drivers in their own right, for their own profit. For the avoidance of doubt, I will not accept a mere “witness statement” or site agreements instead of the relevant contract, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent.. There would be no proof that the alleged signatory can act on behalf of the landowner or has ever seen the relevant contract. Also a letter or statement would fail to show any payments made between the parties, and would omit dates & details of all terms in the actual contract - and so would fail to rebut my appeal point about the Operator's lack of standing & assignment of any rights.[/FONT]

[FONT=&quot]3) SIGNAGE NON COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO CONTRACT FORMED WITH DRIVER[/FONT][FONT=&quot]
Upon receiving the Parking Charge Notice, I, as keeper of the vehicle, have since visited the site and argue the following :

3.1) I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B.. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because ParkingEye are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance). Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) ParkingEye have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival. The signs on entry are up on poles with the spy cameras attached and these cannot be read by a driver in their vehicle entering the car park. Stopping the vehicle before entering the car park to get out and read these is completely infeasible as this would cause an obstruction on a public highway and block the entrance to the car park. [/FONT]
[FONT=&quot]
3.2) A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. In this case, the driver did not see any sign, thus, there was no consideration/acceptance and no contract agreed between the parties.[/FONT]
[FONT=&quot]As a POPLA Assessor has said previously in an adjudication:[/FONT]
[FONT=&quot]“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”.[/FONT]
[FONT=&quot]ParkingEye 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.[/FONT]

[FONT=&quot]4) UNFAIR TERMS
[/FONT][FONT=&quot]The terms that the Operator is alleging create a contract, were not reasonable, not individually negotiated and caused a significant imbalance - to my potential detriment. Therefore, this charge is 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.’

Further, the charge contravenes The Unfair Terms in Consumer Contract Regulations 1999 :
Schedule 2 : Indicative and non-exhaustive list of terms which may be regarded as unfair”
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.”
5(1) ''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. (2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.''

From the Office of Fair Trading’s 'Guidance for the Unfair Terms in Consumer Contract Regulations 1999':
Group 5 : Financial penalties – paragraph 1(e) of Schedule 2:
5.1 “It is unfair to impose disproportionate sanctions for a breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law.”
Group 18(a): Allowing the supplier to impose unfair financial burdens
'18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However, as already noted, 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.
19.14 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...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.'

I contend the above describes the charge exactly as an 'unfair financial burden'. The charge is designed ostensibly to be a deterrent, but is in fact a disguised penalty, issued by a third party agent which is not the landowner and has no assignment of title. Such a charge would normally be restricted to the landowner themselves claiming for any damages or loss.[/FONT]
[FONT=&quot]
5) THE ANPR SYSTEM 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'
I say that Parking Eye have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. If there was such a sign at all, it was not prominent, since the driver (nor the keeper on a more recent visit) did not see it. Photographic evidence of the existence of this sign was not provided by ParkingEye on appeal (see #5). 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 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. [/FONT]

[FONT=&quot]6) THE ANPR SYSTEM IS UNRELIABLE AND NEITHER SYNCHRONISED NOR ACCURATE[/FONT]
[FONT=&quot]If ParkingEye's ANPR records are completely reliable (which I contest) then this Operator claims the car was parked for around 34 minutes. And yet their evidence shows no parking time or evidence that the car was even parked, merely photos of a car driving in and out which does not discount the possibility of a double visit that evening. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all and has not been shown to be synchronised to the pay and display machine clock nor even to relate to the same parking event that evening.

This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice and to have signs stating how the data will be stored/used. I have seen no evidence that they have complied with this section of the code (nor 21.1, 21.2 or 21.4) in terms of ANPR logs and maintenance and I put this Operator to strict proof of full ANPR compliance.

I question the entire reliability of the system. I require that ParkingEye present 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. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

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 and to show how these camera timings are synchronised with the pay and display machine.[/FONT]

[FONT=&quot]This concludes my appeal, I respectfully request that my appeal be upheld and the charge be dismissed if ParkingEye Ltd. fail to address and provide the necessary evidence as requested in the points highlighted above.[/FONT]

Umkomaas

3.3) The Parking Notice Charge received from ParkingEye 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 services amount owed £80 + VAT at 20% = £100. 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 charge. 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.

You need to have another go at your maths.

TheFlamingRed

Umkomaas wrote: »

You need to have another go at your maths.

Good Spot! I'm an idiot. Edited I did say something about 3.3 feels wrong

TheFlamingRed

Sorry for this double post, but I'm reading up on things and must ask:

Is 3.3, where I discuss Tax, still relevant at this date? This section is from an older claim and may no longer be valid. If so, please someone let me know so I can remove it if needed.

That... and is the rest of the appeal alright?

Umkomaas

TheFlamingRed wrote: »

Sorry for this double post, but I'm reading up on things and must ask:

Is 3.3, where I discuss Tax, still relevant at this date? This section is from an older claim and may no longer be valid. If so, please someone let me know so I can remove it if needed.

That... and is the rest of the appeal alright?

3.3 doesn't really add anything to your appeal.

PE don't claim that this is a contractual charge for service. Neither do they say it's a fine/penalty, but you can't conclude that because VAT isn't charged it is therefore a penalty (although we all know it is!), so by leaving this part out, your appeal won't be affected one way or the other. You've plenty of other stuff, particularly the PE slayer 'No GPEOL'.

They won't even contest this at POPLA if their performance over the past 3 months is anything to go by (they've failed to respond to forum assisted POPLA appeals, thereby handing out default wins for the motorists).

Guys_Dad

1. Was it on a Friday or Saturday by any chance? If so, get your friend to intervene on your behalf. Just checked the hotel web site. It says

PARKING

On-site parking, fee: 4 GBP daily
Friday/Saturday parking complimentary for hotel residents. Guests are still required to log their registration details

TheFlamingRed

@Umkamaas

Thank you fpr your time , I've removed 3.3 from the appeal on the grounds that it added nothing new. I have heard about ParkingEye not contesting at the POPLA stage. I find it odd that they bothered to reject the original appeal knowing appeal to them was very much, forum assisted, and will lose money by giving me the POPLA code to not even try to contest it.

@Guys Dad

Thank you for that info, however this incident didn't occur on those days. I did however send a nice complaint letter to the hotel

@All

If no one has anything further to add, I'll submit this appeal after a final proof read within the next couple of days. Thank you everyone for your advice.

TheFlamingRed

Well, Got the news the other day that the appeal was upheld, again a no contest from ParkingEye. Having lurked on the forums now for about 2 months, I can really appreciate how easy the process is, even if PE were to have sent in evidence. However, the reassurance of those that helped when I first arrived here is much appreciated.

I'll post the decision in the POPLA Decision thread, just for the sake of adding to the number (it was otherwise, not very exciting compared to some of the stories you get on here).

Thanks everyone!