10 Minutes with ParkingEye to £100

Coupon-mad

We know they will reject that. We also know they are likely to give up, when they see your winning POPLA appeal. Silly isn't it?!

Oui

Coupon Mad, so far you've called it play for play. I have been presented with a "gesture of goodwill" giving me one last chance to pay the lower rate so long as it's within a fortnight and I don't do POPLA. But I remain frustrated with their system, so will be pursuing POPLA.

Please could people take a look at the below. it's quite lengthy, and I've adjusted points 1 and 4 the most:

I am the registered keeper of XXXXXX and I wish to appeal a recent parking charge from ParkingEye. I submit the points below to show that I am not liable for the parking charge:

1) No genuine pre-estimate of loss
2) Lack of signage
3) Lack of standing/authority from landowner
4) The ANPR system is unreliable and neither synchronised nor accurate


1) The amount being claimed is not a genuine pre-estimate of loss to your company or the landowner


Their sign states the charge is for 'not fully complying with the conditions' so this Operator must prove the charge to be a genuine pre-estimate of loss.

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.


In ParkingEye v Smith at Manchester County Court in 2011, claim number 1XJ81016, the original claim of £240 was deemed an unrecoverable penalty, unrelated to damages incurred and the only sum that could be recovered was deemed to be £15 (the amount of the pay and display fee for more than one visit). The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. As the PCN sum is massively inflated over the chargeable amount for a 10 minute duration (which itself should be covered within the “grace period” required under the BPA AOS Code of Practice, before a charge can be issued), I require ParkingEye to submit a breakdown of how this sum was calculated prior to the parking event, as being capable of directly flowing from a minor alleged breach.

The ParkingEye Notice to Keeper alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This might be, for example, a reasonable sum based purely upon the alleged lost parking revenue, or even loss of revenue from the pub the provider allegedly represents, if another car was prevented from parking. However, this is not the case because the occupant of the car was reading the signage, and on deciding not to accept the terms, left again. Therefore no contract was entered into; there can be no charge.

The Operator cannot reasonably claim a broad percentage of their entire business running costs as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks.
The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. ParkingEye cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some subsequently penned 'commercial justification' statement they may have devised afterwards (since this would not be a pre-estimate):

The British Parking Association Code of Practice uses the word 'MUST':
"19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.''

Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:

''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.

This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''


2) Lack of signage subverting the BPA Code of Practice


The operator fails to transparently identify its contractual terms or data usage rights on any signs leading into the land (and indeed were not identified by the driver).

Due to the operator’s signs’ high position, overall small size positioned after the turn into the operator’s land, as well as the barely legible typeface used, I believe that the signs and any core parking terms the operator are relying upon were too indistinguishable for any driver to see, read or understand.

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 driver did not see any sign on entering the car park; there was therefore no consideration/acceptance and no contract agreed between the parties.[FONT=&amp]
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3) Lack of standing/authority from landowner
[FONT=&amp]
[/FONT]ParkingEye has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.[FONT=&amp]

[/FONT]BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put ParkingEye to strict proof of the contract terms with the actual landowner (not a lessee or agent). ParkingEye have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that ParkingEye are entitled to pursue these charges in their own right.

I require ParkingEye to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, 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. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.



4) The ANPR is not maintained or in correct working order. Furthermore the system is not operated in a reasonable, consistent and transparent manner.

If ParkingEye's ANPR records are completely reliable (which I contest) then this Operator claims the car was inside the car park for around 10 minutes. 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 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 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. I have also seen no evidence that they have complied with the other requirements in that section of the code in terms of ANPR logs and maintenance and I put this Operator to strict proof of full ANPR compliance.

In addition 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 my 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.



To conclude, I request that my appeal stated on the grounds above be upheld and the charge dismissed.

Dee140157

All four main appeal points
Beavis
Not too long or short
I would send off quite happily.

Oui

Hi Dee, what's Beavis?

Thanks for the input. I'm fairly happy with it, but with the recent rejections starting to come through, I want it to be watertight.

Dee140157

I meant you had included Beavis so that was a positive comment.

The recent rejections bar on possible one are mostly people who haven't followed through properly. So eg one who claims to have used the points but never posted his appeal for checking.

Another is IPC which I don't know much about. So do not fret. PE haven't been turning up at POPLA appeals for a good few months now, so don't stress. Look in POPLA decision thread. I think almost every PE appeal is won on PSDSU

Umkomaas

Another example of a copy and paste, with little recognition or understanding of what's been put into an appeal.