Parking Eye PCN @ Tesco

katepower

Thankyou so much for all your help, it really is appreciated

katepower

So...I appealed the newer PCN and received a letter yesterday (I have been away for a few days) yesterday, dated 23/07/2014, stating that I need to pay the fine and also containing a POPLA form if I wish to appeal...obviously I do! I have found the following template on the forums here and was wondering if it would be appropriate? I thought I would check before sending the form off.

It feels a bit weak as the template relies on overstaying by a short time, when I knew that I had overstayed by about 4 hours but did not believe there would actually be a penalty for me...Any tips on whether to alter the template, or to just give up and pay the fine altogether, would be greatly appreciated


Re: ParkingEye PCN, reference code xxxxxxxxxx
POPLA Code:

I am the registered keeper 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) No standing or authority to pursue charges nor form contracts with drivers
3) The signage was not readable in the dark so there was no valid contract formed
4) The ANPR system is unreliable and neither synchronised nor accurate

1) No genuine pre-estimate of loss
This car park is free to use and does not offer individuals the option to pay if they overstay the four hour mark. Therefore I do not believe that I have caused the business, nor parking eye any loss as there was never any initial charge for using the car park. Given that ParkingEye charge the same lump sum for a 30 minute overstay as they would for 3 hours, and the same fixed charge applies to any alleged contravention (whether serious/damaging or trifling), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss caused by this incident in this car park.

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 and above any losses that the car park at which I park would have made, 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 retail revenue at a shopping centre if another car was prevented from parking. However, this is not the case because the occupants of the car recall that the car park was approximately half full on arrival and almost empty when the driver left.

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) No standing or authority to pursue charges nor form contracts with drivers

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.

3)The signage was not readable so there was no valid contract formed between ParkingEye and the driver
The only signs are up on poles (away from the Pay & Display machine, which is not a 'sign' nor does it communicate full contractual terms & conditions). I believe that ParkingEye place their signs so high that terms would only be legible if a driver got out of a car and climbed a stepladder, to try to read them. Any photos supplied by ParkingEye to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera & flash and the angle may well not show how high the signs are. As such, I require ParkingEye to state the height of each sign in their response and to show contemporaneous photo evidence of these signs in the dark without the aid of flash photography.

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. This would include the signs being lit - and it can be seen from ParkingEye's own photos of an isolated numberplate in the dark, that the entrance (where signs must be clear) was in fact pitch black. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. The only charges the driver knew about were the small sums mentioned on the pay and display machine. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

4) The ANPR system is unreliable and neither synchronised nor accurate
If ParkingEye's ANPR records are completely reliable (which I contest); yet their evidence shows no parking time, merely photos of a car driving in and out. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic. The exit photo is not evidence of 'parking time' at all.

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. It was dark and if there was such a sign at all then it was neither lit nor prominent, since the driver did not see it. 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 information I have provided.

I request that my appeal is allowed.

Yours faithfully,




Mr xxxxxxxxxxx {registered keeper's name...}

katepower

Or would this template be too long for an online appeal, as this is what I was hoping to do?

Redx

dont know who told you this was a fine, as its actually an INVOICE requestion payment

as for a popla appeal , use one that tries to fit in with your case and adapt it in word or notepad

if copying onto here, copy from notepad

you can attach your popla appeal to your appeal online, so doesnt matter how large the attachment is 9so doesnt matter how long it is)

use the online page to put a precis and then say , SEE ATTACHED APPEAL DOCUMENT and then attach it

make sure your appeal is good to go before doing this, then tick all boxes except stolen

Dee140157

Was your parking event at night time? You refer to needing to see sign in the dark? Check your signage paragraph and see of there is anything to enhance it that is peculiar to your car park.


Otherwise the rest looks ok to me.

katepower

I've had a quick drive around the carpark (with signage that says no return within one hour - watch this space!) and there are signs at eye level, also saying they use anpr so those two reasons will have to go...just a bit concerned as my reasons for parking seem very flimsy on paper!

Redx

your reasons and what happened are irrelevant to your popla appeal

your popla appeal will be based on legal arguments, as shown in the link in post #3 of the NEWBIES sticky thread

the point about the signage is it has to be clear at night, not all in the dark etc - it also has to adhere to the BPA CoP , so best to leave them in and allege they fail the BPA CoP, meaning the PPC has to prove they pass the BPA CoP if ruled upon

not a gpeol generally wins anyway , or a PSDSU

Dee140157

And signs have to say clearly what ANPR will be used for.

Just check how you have worded and then it is good to go.

katepower

I received the good news from POPLA today that the appeal has been granted which means that I do not have to pay Parking eye. RESULT.

I would just like to say thankyou to all the forum users that helped me to put together my appeal, as well as to show other users that this company can be taken on and appeals against unfair parking tickets can be won.

Thankyou again

ezerscrooge

Super news. Well done.

Feels good doesn't it.