ParkingEye POPLA appeal draft

cjy4726

Hi
I received a PCN from ParkingEye re a free retail carpark with time limit of 2 hours, PCN shows 2 hrs 15 mins. I appealed to them (rejected as expected) and am now appealing to POPLA. I have drafted the below from suggestions on the forums, comments and advice would be appreciated before I submit it.

Many thanks



Re: Parking Eye PCN, reference code xxxxxxxxxx
POPLA Code:

I am the registered keeper of vehicle registration XXXXXX and I contend that I am not liable for the alleged parking charge. I wish to appeal against the notice on the following grounds:

• The Charge is not a genuine pre-estimate of loss
• Lack of signage - no contract with driver
• Lack of standing/authority from landowner
• ANPR Accuracy
• Unreasonable/Unfair Terms

1) The Charge is not a genuine pre-estimate of loss

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

The car park is provided “free” to all genuine customers. The car was parked in such a way as to cause absolutely no damage or obstruction and therefore no loss arose from this incident.

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. Overheads 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.



2) Lack of signage - no contract with driver

The cark park does not have adequate entrance signs in breach of the British Parking Association Code of Practice section 18.2. There is only one sign by the entrance of the car park which is placed high up on a pole on the left hand side of the entrance, on a curved road. This would make the sign unlikely to be seen by a driver entering the car park.



Also, due to their high position, overall small size and the completely illegible size of the small print, I believe that the signs and any core parking terms the operator are relying upon were too small 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; there was no consideration/acceptance and no contract agreed between the parties.



3) Lack of standing/authority from landowner

Parking Eye has no title in this land and no British Parking Association compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

British Parking Association Code of Practice paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Parking Eye to strict proof of the contract terms with the actual landowner (not a lessee or agent). Parking Eye 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 Parking Eye are entitled to pursue these charges in their own right.

I require Parking Eye 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 British Parking Association 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 British Parking Association 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) 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.


5) Unreasonable/Unfair Terms

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

A sign of terms placed too high to read, is far from 'transparent'.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(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." Furthermore, Regulation 5(1) states that: "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".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "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.”

I contend it is wholly unreasonable to rely on illegible signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.


I therefore respectfully request that my appeal is upheld and the charge is dismissed

Dee140157

I would put this into the GPEOL , but apart from that it looks good:

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.''

cjy4726

I have added the above (that section was a bit brief when I looked back at it!) and have copied it all below. Am I good to go now?


Many thanks











Re: Parking Eye PCN, reference code xxxxxxxxxx
POPLA Code:

I am the registered keeper of vehicle registration XXXXXX and I contend that I am not liable for the alleged parking charge. I wish to appeal against the notice on the following grounds:

• The Charge is not a genuine pre-estimate of loss
• Lack of signage - no contract with driver
• Lack of standing/authority from landowner
• ANPR Accuracy
• Unreasonable/Unfair Terms

1) The Charge is not a genuine pre-estimate of loss

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

The car park is provided “free” to all genuine customers. The car was parked in such a way as to cause absolutely no damage or obstruction and therefore no loss arose from this incident.

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. Overheads 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.


This charge cannot be considered as '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 - no contract with driver

The cark park does not have adequate entrance signs in breach of the British Parking Association Code of Practice section 18.2. There is only one sign by the entrance of the car park which is placed high up on a pole on the left hand side of the entrance, on a curved road. This would make the sign unlikely to be seen by a driver entering the car park.





Also, due to their high position, overall small size and the completely illegible size of the small print, I believe that the signs and any core parking terms the operator are relying upon were too small 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; there was no consideration/acceptance and no contract agreed between the parties.





3) Lack of standing/authority from landowner

Parking Eye has no title in this land and no British Parking Association compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

British Parking Association Code of Practice paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Parking Eye to strict proof of the contract terms with the actual landowner (not a lessee or agent). Parking Eye 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 Parking Eye are entitled to pursue these charges in their own right.



I require Parking Eye 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 British Parking Association 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 British Parking Association 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) 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.






5) Unreasonable/Unfair Terms

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

A sign of terms placed too high to read, is far from 'transparent'.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(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." Furthermore, Regulation 5(1) states that: "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".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "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.”

I contend it is wholly unreasonable to rely on illegible signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.


I therefore respectfully request that my appeal is upheld and the charge is dismissed.

Redx

I think you should also add the info listed in posts #17 and #19 here

https://forums.moneysavingexpert.com/discussion/5022279

ie:- the 15 minutes may not have been parking but entering , finding a space , and exiting the car park

if PE lost in court over this for a longer period , then use it

cjy4726

Thanks again, I have added the below in the final section of my letter. Any further suggestions before I submit it? All assistance is appreciated to get this right!!

Finally I note the operator's contention that the vehicle ‘remained at the car park for longer than the stay authorised…’. Being in the car park is not parking, and it is perfectly conceivable that for 15 minutes or more while the vehicle was ‘in the car-park’ the driver was looking for and driving to a parking space, and later leaving the parking space and exiting the car park. The operator has adduced no evidence that the vehicle was actually parked for a duration exceeding 2 hours. I refer you to case 3JD08399 in the Altrincham County Court where District Judge Hayes ruled that driving around looking for a space is not parking.

Dee140157

The only thing I might do is make the final point your first but then with all that you should win. Get it sent off.

cjy4726

Hi Dee140157


Sorry, do you mean move the whole of section 5 (unreasonable/unfair terms) to be the first point, or just the last bit I was advised to add (about not actually being parked for over 2 hours)?


Thanks

Dee140157

The not being parked over 2 hours bit.

This is a personal choice as it will probably win on no GPEOL, it it is always the hope that if a different point is the first point, then an assessor may actually decide to adjudicate on that one as the winning point instead of GPEOL. Trying to get different adjudications at POPLA is one of the things we aim for occasionally with single point appeals. (I am NOT suggesting that here).

This is more whimsy than anything legal, so don't worry about it and go ahead with appeal.

cjy4726

Thanks


I can see your point and I will simply put that section as a general intro to my letter then go into the main points. Worth a try and can't see it doing any harm. Thanks for all your help, I will get it sent off! Fingers crossed, will update the result on here when I have news!

cjy4726

I will make this my opener:-




I am the registered keeper of vehicle registration XXXXXX and I contend that I am not liable for the alleged parking charge. I wish to appeal against the notice on the following grounds:


The car park in question is a free car park with a 2 hour time limit, attached to a retail park. Firstly I note the operator's contention that the vehicle ‘remained at the car park for longer than the stay authorised…’. Being in the car park is not parking, and it is perfectly conceivable that for 15 minutes or more while the vehicle was ‘in the car-park’ the driver was looking for and driving to a parking space, and later leaving the parking space and exiting the car park. This car park exits onto a busy traffic light controlled junction and I am aware from personal experience that it can be difficult to get out onto the road, particularly on a weekend, and a queue can form to leave the car park. The operator has adduced no evidence that the vehicle was actually parked for a duration exceeding 2 hours. I refer you to case 3JD08399 in the Altrincham County Court where District Judge Hayes ruled that driving around looking for a space is not parking.


My appeal is also based on the below:-

• The Charge is not a genuine pre-estimate of loss
• Lack of signage - no contract with driver
• Lack of standing/authority from landowner
• ANPR Accuracy
• Unreasonable/Unfair Terms

cjy4726

Hi


I have just had the result of my POPLA appeal and I won!!


The appeal was upheld because the operator failed to produce any evidence at all. The ticket has now been cancelled.


Thanks to everybody who offered help and advice on here!