Parking Eye POPLA APPEAL

Emmat123_2

Hello, first of all thank you so much for all the advice on here - especially coupon mad! I've done the first appeal to parking eye which has been rejected and now need to do the POPLA appeal. I have had a read through the suggested appeals on here but am not sure exactly how to adapt my reply.

I have received the ticket as I overstayed the 3 hour free parking limit at a retail park car park by 31 minutes. To me the 3 hour limit is ridiculous - there's tesco, next, sports direct, boots, m and s, Costa and Burger King - plenty of places to while away plenty more than 3 hours - anyway!!

What I am worried about is whether I do have grounds to appeal - in theory I did breach what the signs said - although previous to this I didn't even realise they were there!

I only have proof that I purchased something in boots on my advantage card but don't have any time references or anything.

I've read the POPLA APPEAL re the pay and display and it being underpaid by £1.50 which states that is not a great financial loss, should I just state that there has been no financial loss to the company?

Help much appreciated!!

Many thanks, Emma.

Umkomaas

You need to read post #3 of the NEWBIES sticky 'How to win at POPLA' and you will find mountains of information on exactly that, including how to handle a PE POPLA appeal.

Forget all the stuff about whether you think 3 hours is enough or not - you're barking up the wrong tree if these types of issues are going to consume you in dealing with this.

A decent, forum-assisted PE POPLA appeal is currently like shooting fish in a barrel as PE don't even defend it at POPLA, giving you a default win. So get reading, then drafting and let us see your go at this, where we can advise on any fine tuning.

Don't rush at this and copy and paste the first thing that 'looks good and all legal' - you need to make sure it fits with your parking event and you generally understand what you've 'written'.

However, be mindful that the POPLA deadline is rigid, miss that and you don't get a second chance and the likelihood is that PE will see you as weak and vulnerable and will serve court papers on you.

HTH

grant_uk

Emmat123 wrote: »

What I am worried about is whether I do have grounds to appeal - in theory I did breach what the signs said - although previous to this I didn't even realise they were there!

Simple answer, yes you do, because Parking Eye cannot justify the charges they try and sting you with, which is exactly what a well crafted appeal to POPLA using the information in the stickies at the top of this board will expose.

They are within their rights to ask for reasonable amounts to make up for any financial loss leading from parking infringements. They are not within their rights to take the absolute mickey.

Emmat123_2

[FONT=&quot]Thanks Umcommas - this is what I've come up with...I'm not sure whether I should really have seen the signs but I went to look yesterday and they are quite high up! [/FONT]

[FONT=&quot][/FONT]
[FONT=&quot]I've changed a pay and display response in the dark so hopefully it works for my case! (overstay of 30 mins in retail park car park)... Any advise very much appreciated, thank you so much!.[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]Re: ParkingEye PCN, reference code xxxxxxxxxx[/FONT]
[FONT=&quot]POPLA Code: [/FONT]

[FONT=&quot]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:[/FONT]

[FONT=&quot]1) No genuine pre-estimate of loss [/FONT]
[FONT=&quot]2) No standing or authority to pursue charges nor form contracts with drivers[/FONT]
[FONT=&quot]3) The signage was not clear so there was no valid contract formed[/FONT]
[FONT=&quot]4) The ANPR system is unreliable and neither synchronised nor accurate[/FONT]

[FONT=&quot]1) No genuine pre-estimate of loss[/FONT][FONT=&quot] [/FONT]
[FONT=&quot]This car park is a ‘free for shoppers’ car park with a maximum stay of 3 hours. My parking in the car park (which was only half full at the time) for an extra 30 minutes and 27 seconds cannot be classed as a genuine loss. [/FONT]
[FONT=&quot]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.[/FONT]
[FONT=&quot]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 potential loss of retail revenue at a shopping centre if another car was prevented from parking. However, this is not the case because the car park was half empty.[/FONT]

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

[FONT=&quot]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):[/FONT]

[FONT=&quot]The British Parking Association Code of Practice uses the word 'MUST':[/FONT]
[FONT=&quot]"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.'' [/FONT]

[FONT=&quot]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: [/FONT]

[FONT=&quot]''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”.[/FONT]

[FONT=&quot]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]2) No standing or authority to pursue charges nor form contracts with drivers[/FONT][FONT=&quot] [/FONT]

[FONT=&quot]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.[/FONT]

[FONT=&quot]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.[/FONT]

[FONT=&quot]3)The signage was not clear on entry to the car park so there was no valid contract formed between ParkingEye and the driver[/FONT]

[FONT=&quot][/FONT]
[FONT=&quot]The signage was not clear on entry to the car park. 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.[/FONT]
[FONT=&quot]There is no mention on the car park entrance sign that the site is “Managed By” ParkingEye, as is required in appendix 2 of the aforementioned Code of Practice.[/FONT]
[FONT=&quot]There is also no notification on the car park entrance sign that there is a ‘Free Period’ during which there is time allowed to park, read the terms and decide whether to enter into any contract or not, which is a requirement under Contract Law.[/FONT]
[FONT=&quot]The only signs are up on poles and were not seen by the occupants of the car. [/FONT]

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

[FONT=&quot]4) The ANPR system is unreliable and neither synchronised nor accurate[/FONT]

[FONT=&quot][/FONT]
[FONT=&quot]If ParkingEye's ANPR records are completely reliable (which I contest) then this Operator claims the car was parked for around 30 minutes more than the free parking period. And 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 if it is at the time of parking that the clock should start. The exit photo is not evidence of 'parking time' at all. [/FONT]

[FONT=&quot]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. If there was such a sign on entry at all then it was not 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.[/FONT]

[FONT=&quot]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. [/FONT]

[FONT=&quot]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 two camera timings are synchronised.[/FONT]

[FONT=&quot]I request that my appeal is allowed.[/FONT]

[FONT=&quot]Yours faithfully,[/FONT]

Umkomaas

Excellent first go - and it's almost there. I'd just tidy up the opening paragraph as follows:

This car park is a ‘free for shoppers’ car park, [STRIKE]with a maximum stay of 3 hours. My parking in the car park (which was only half full at the time) for an extra 30 minutes and 27 seconds cannot be classed as a genuine loss. [/STRIKE] and, as such, this Operator cannot demonstrate any initial quantifiable loss. The parking charge must be .............

I wouldn't discuss anything in the opening section about your 'overstay' - you don't want the Assessor's initial impression being that maybe PE has some sort of case here, so leave it out. If PE do submit any evidence (which they seem not to at the moment) then times etc will covered in that. It's not for you to do their job for them.

Emmat123_2

Thanks very much - fingers crossed!