POPLA appeal of ParkingEye ticket at MSA

eviesmum30

Here is my POPLA appeal letter - it's for a ticket at a motorway services. Comments please, thanks!

"I am the registered keep of the vehicle xxxxxxx and am writing to contest the parking charge notice xxxxxx received. I have researched the matter and contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered:

1. Unclear, Inadequate and Non-Compliant Signage

2. Signage not compliant with Motorway Service Station Requirements

3. Contract with the Landowner is not Compliant with the BPA code of Practice and No Legal Status to Offer Parking or Enforce Charges

4. No Contract with the Driver

5. Unfair Terms

6. ANPR Accuracy

7. No Breach of Contract and No Genuine Pre-Estimate of Loss

Below are the detailed appeal points.

UNCLEAR, INADEQUATE AND NON-COMPLIANT SIGNAGE

Due to their high position, overall small size and the barely legible small print, the signs in this car park are very hard to read and understand. There were no obvious signs positioned near the entrance, the parking space used or exits to any of the shops.

I contend that the signs and any core parking terms ParkingEye are relying upon were too small for any driver to see, read or understand. I request that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs on this land (wording, position, clarity and frequency) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]

SIGNAGE NON-COMPLIANT WITH MOTORWAY SERVICE STATION REQUIREMENTS

This was a Motorway Services Area. Operators of Motorway Services Areas (MSAs) and their agents must comply with the requirements of Government Policy. These provisions are reflected in the Traffic Signs Agreement into which they enter with the Highways Agency. The Highways Agency, on behalf of the Department for Transport (DfT), published a policy on the provision of roadside facilities on its network. That policy is 'DfT Circular 01/2008: Policy on Service Areas and other Roadside Facilities on Motorways and All-purpose Trunk Roads in England'.

The policy states that “B19. At all types of site, where a charge is to be levied for parking beyond the mandatory two free hours, the charging regime must be clearly displayed within both the parking areas and the amenity building.”

The compliance of the MSA with the above policy is disputed and I therefore require ParkingEye to prove that such clearly displayed signage exists within the amenity
building at the car park in question. It is not enough to prove that such signage exists within the car park itself.

Furthermore the policy states “All signing of roadside facilities and signing arrangements within sites must comply with the current Traffic Signs Regulations and General Directions and any other guidance as may be issued from time to time by the Department for Transport or the Highways Agency. Approval must be sought from the
Highways Agency’s signs specialist for the use of all non-prescribed signs.”

I require ParkingEye to show proof to the POPLA adjudicator that the DFT/Highways Agency has granted special authorisation for ParkingEye's traffic signs in this particular MSA to be exempt from this policy requirement. It will not be acceptable for Parking Eye to claim that these particular signs are in ParkingEye's own opinion not 'traffic signs' when these signs have not been erected or positioned to direct pedestrians but instead act to provide information to vehicle users who may never leave their vehicles.

CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODEOF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES

ParkingEye do not own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, ParkingEye have not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.

It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted, that it is accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory is, indeed, authorised to act on behalf of the landowner, has read and the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company

I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS)v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges. It was stated that: "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be." The ruling of the Court was that "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses, as set out above.

The Operator, either through the original correspondence, nor in reply to my appeal, makes no reference to the recovery of monies for the Landlord at all.

NO CONTRACT WITH THE DRIVER

There is no contract between ParkingEye and the driver. Even if there was a contract, it was unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999, and the requirements of forming a contract, such as a meeting of minds, agreement, certainty of terms, etc. were not satisfied.

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. In particular, 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" and 5(2) states: "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."

ANPR ACCURACY

This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to 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 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 by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from the Operator was 'fundamentally flawed' as 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 the Operator in this case to show evidence to rebut this point: 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 the ANPR "evidence" from this Operator in this car park is unreliable and I put to this Operator to prove to the contrary.


NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS

There was no parking charge levied, the car park is “free”. On the date of the claimed loss, early on a Sunday morning, it was approximately at less than 5% capacity and there was no physical damage caused. There can have been no loss arising from this incident, and in fact the businesses served by this car park gained by the car’s occupants visiting them. Neither can ParkingEye lawfully include their operational day-to-day running costs in any 'loss' claimed. I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.

The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract: a mere xx minutes over the “free 2 hours” and accrued by a need to change a baby’s nappy before recommencing a journey. Nor does it even equate to local council charges for all day parking. This is all the more so for the additional charges which the operator states accrues after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by 40% by early payment that it is unreasonable to begin with.

UNLAWFUL PENALTY CHARGE

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as ExcelParking Services v Hetherington-Jakeman (2008), also OB Services v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December2011) and UKCPS v Murphy (April 2012) .

The operator could state the letter as an invoice or request for monies, but chooses to use the wording “PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.

SUMMARY

On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with basic contract law, and should therefore be overturned."

Thanks for your help with this

The_Deep

Lovely! You do know I hope that PE will blank you at Popla?

Dee140157

Just one minor thing, you have 8 main paragraphs, but 7 sub headings. Unlawful penalty charge missing.
Also I would be inclined to make life easier for the assessor and make No GPEOL your first point. I would suggest since PE that you put a rebuttal of Beavis in your. No GPEOL. But other that that it is just about ready to go.

eviesmum30

Thanks for the advice Here's my updated draft... Any more comments or is it ok to submit now?

Dear POPLA Assessor,
I am the registered keep of the vehicle xxxxx and am writing to contest the parking charge notice xxxxxxxxx received. I have researched the matter and contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered:

1. No Breach of Contract and No Genuine Pre-Estimate of Loss
2. Unlawful Penalty Charge
3. Unclear, Inadequate and Non-Compliant Signage
4. Signage not compliant with Motorway Service Station Requirements

5. Contract with the Landowner is not Compliant with the BPA code of Practice and No Legal Status to Offer Parking or Enforce Charges

6. No Contract with the Driver

7. Unfair Terms

8. ANPR Accuracy

Below are the detailed appeal points.

NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS

There was no parking charge levied, the car park is “free”. On the date of the claimed loss, early on a Sunday morning, it was only approximately at less than 5% capacity and there was no physical damage caused. There can have been no loss arising from this incident, and in fact the businesses served by this car park benefitted by the car’s occupant visiting them. Neither can ParkingEye lawfully include their operational day-to-day running costs in any 'loss' claimed. I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance. ParkingEye are therefore required to provide evidence of costs that justify such an exorbitant parking charge.

The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract, a mere xx minutes over the “free 2 hours” and accrued by a need to change a baby’s nappy before recommencing a journey. Nor does it even equate to local council charges for all day parking. I would question that if a charge can be discounted by 40% by early payment that it is unreasonable to begin with.
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.

UNLAWFUL PENALTY CHARGE

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as ExcelParking Services v Hetherington-Jakeman (2008), also OB Services v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December2011) and UKCPS v Murphy (April 2012) .

The operator could state the letter as an invoice or request for monies, but chooses to use the wording “PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.

UNCLEAR, INADEQUATE AND NON-COMPLIANT SIGNAGE

Due to their high position, overall small size and the barely legible small print, the signs in this car park are very hard to read and understand. There were no obvious signs positioned near the entrance, the parking space used or exits to any of the shops.

I contend that the signs and any core parking terms ParkingEye are relying upon were too small for any driver to see, read or understand. I request that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs on this land (wording, position, clarity and frequency) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]

SIGNAGE NON-COMPLIANT WITH MOTORWAY SERVICE STATION REQUIREMENTS

This was a Motorway Services Area. Operators of Motorway Services Areas (MSAs) and their agents must comply with the requirements of Government Policy. These provisions are reflected in the Traffic Signs Agreement into which they enter with the Highways Agency. The Highways Agency, on behalf of the Department for Transport (DfT), published a policy on the provision of roadside facilities on its network. That policy is 'DfT Circular 01/2008: Policy on Service Areas and other Roadside Facilities on Motorways and All-purpose Trunk Roads in England'.

The policy states that “B19. At all types of site, where a charge is to be levied for parking beyond the mandatory two free hours, the charging regime must be clearly displayed within both the parking areas and the amenity building.”

The compliance of the MSA with the above policy is disputed and I therefore require ParkingEye to prove that such clearly displayed signage exists within the amenity
building at the car park in question. It is not enough to prove that such signage exists within the car park itself.

Furthermore the policy states “All signing of roadside facilities and signing arrangements within sites must comply with the current Traffic Signs Regulations and General Directions and any other guidance as may be issued from time to time by the Department for Transport or the Highways Agency. Approval must be sought from the
Highways Agency’s signs specialist for the use of all non-prescribed signs.”

I require ParkingEye to show proof to the POPLA adjudicator that the DFT/Highways Agency has granted special authorisation for ParkingEye's traffic signs in this particular MSA to be exempt from this policy requirement. It will not be acceptable for Parking Eye to claim that these particular signs are in ParkingEye's own opinion not 'traffic signs' when these signs have not been erected or positioned to direct pedestrians but instead act to provide information to vehicle users who may never leave their vehicles.

CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODEOF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES

ParkingEye do not own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, ParkingEye have not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.

It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted, that it is accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory is, indeed, authorised to act on behalf of the landowner, has read and the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company

I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS)v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges. It was stated that: "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be." The ruling of the Court was that "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses, as set out above.

ParkingEye, either through the original correspondence, nor in reply to my appeal, makes no reference to the recovery of monies for the Landlord at all.

NO CONTRACT WITH THE DRIVER

There is no contract between ParkingEye and the driver. Even if there was a contract, it was unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999, and the requirements of forming a contract, such as a meeting of minds, agreement, certainty of terms, etc. were not satisfied.

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. In particular, 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" and 5(2) states: "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."

ANPR ACCURACY

This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require ParkingEye to 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 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 by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from the Operator was 'fundamentally flawed' as 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 the Operator in this case to show evidence to rebut this point: 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 the ANPR "evidence" from this Operator in this car park is unreliable and I put to this Operator to prove to the contrary.

SUMMARY

On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with basic contract law, and should therefore be overturned.

Thanks for your help

Redx

looks good but I cannot see the BEAVIS case rebuttal in there as advised be Dee, so I would also include it

otherwise it seems good to go to me

Dee140157

Some of this may already be in your first paragraph, but Beavis rebuttal is this:

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.''

Umkomaas

Also you need to number your appeal point headers, to correspond with your numbered bullet-point list.

eviesmum30

Thanks for all your help, POPLA appeal now gone in with changes as advised. Will keep you posted. Fingers crossed

eviesmum30

Thanks everyone - the appeal was successful. ParkingEye didn't submit any evidence. Thanks for all your help.

Northlakes

PE not submitting any rebuttal to POPLA says everything!


Well done poster and all helpers.