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Popla appeal
naf123
Posts: 1,711 Forumite
Hi, I would appreciate if anyone can confirm this appeal to popla would be sufficient
(background - had to take baby girl to A&E at night in a deserted hospital car park and no state of mind to read signs and I am deaf cannot phone and park!! and cant see machines at night and I cannot delay time when taking baby to A&E) anyway later I found out its £3 an hour parking and I was there for like 2.5 hours.) So I did appeal using coupon-mad short template for Parking Eye. Parking eye responded quoting the parking eye and beavis & wardly court case plus a whole waffle including "we notice your queries are of a generic nature"
SO, I intend to appeal to POPLA like this - please confirm if its OK for someone like me who didn't pay... (all changes to template on this forum in red to make it easier!) MANY THANKS!!
My Appeal is
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) Signage & nightime
4) ANPR Accuracy
1) No genuine pre-estimate of loss
This car park is Pay and Display. There was no damage nor obstruction caused so there can be no loss arising from the incident. The Car Park was empty at the time we arrived and empty when we left. ParkingEye notices allege '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. Given that ParkingEye charge the same lump sum for a 30 minute overstay as they would for 1 hours, and the same fixed charge applies to any alleged contravention (whether serious/damaging), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.
The wording on the signs appears to indicate that the parking charge represents damages for a breach of the parking contract - liquidated damages, in other words compensation agreed in advance. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss flowing from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of retail revenue at a shopping centre.
The parking company submitted that the charge is a genuine pre-estimate of the losses incurred in managing the parking location.
The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I require the parking company to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach at the time. Note:- the charges demanded by the operator as "genuine loss" are those allegedly incurred at the point of issuing the charge, and cannot include speculative future costs relating to internal appeal procedures or mounting a POPLA defence.
For example, were no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included. Equally, as the claim is being made for estimated losses at the time of the alleged contravention, then any costs included by the Operator that relate to accumulated amounts post that date are obviously invalid. Should such cost heads be included in the claim, as well as any profit element, then POPLA must reject the charge.
It would, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.
2) No standing or authority to pursue charges nor form contracts with drivers
ParkingEye do not own the land mentioned in their Notice to Keeper and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. Even if a contract is shown to POPLA, I assert that there are persuasive recent court decisions against ParkingEye which establish that a mere parking agent has no legal standing nor authority which could impact on visiting drivers.
In ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013 District Judge Jenkins checked the ParkingEye contract and quickly picked out the contradiction between clause 3.7, where the landowner appoints ParkingEye as their agent, and clause 22, where it states there is no agency relationship between ParkingEye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between ParkingEye and motorists who used the land. This decision was followed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the Defendant. District Judge Jones concurred completely with the persuasive view in ParkingEye v Sharma that a parking operator has no standing to bring the claim in their own name. My case is the same.
3)The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between ParkingEye and the driver
I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because ParkingEye are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance). Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) ParkingEye have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival.
The only signs are up on poles (away from the Pay & Display machine) and were not read nor even seen by the occupants of the car, who were there to use the car park to attend the hospital A&E department.
In addition, the signage was not readable at nightime so there was no valid contract formed between ParkingEye and the driver
The entrance sign states a table of tariffs applicable, which does not cover the period from 6pm to 6am: this statement is included outside of the tariff table.
Given that the entrance road from which the car park is accessed falls into the 15mph approach speed in accordance with the BPA CoP Appendix B (June 2013), the lack of a clear indication of charges being applicable to a ‘Reasonable Person’ driving past the sign is insufficient to form any contract.
Given that the premises in question are an Out Of Hours medical facility, it should be expected that the ‘Reasonable Person’ standard be adjusted to cover those in similar circumstances of medical urgency, including signage commensurate with a proportion of the visitors. Furthermore I contest that this mechanism is deliberate.
There is no mention on the entrance sign that the site is “Managed By” ParkingEye, as is required in appendix 2 of the aforementioned Code of Practice.
There is also no notification on the 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.
The only signs are up on poles (away from the Pay machine, which is not a 'sign' nor does it communicate full contractual terms & conditions). Any upright signs were shrouded in darkness and were not seen by the occupants of the car.
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, holding a torch, to try to read them: This mechanism also is believed to be deliberate.
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 at the same time of night 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 a numberplate in the dusk & rain, that the entrance (must be clear) was in fact approaching dark. 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.
In addition, the signage seems to only offer the option of pay by phone which is full breach of the Equality Act 2010. The driver of the car is profoundly deaf and could not use the phone to pay for parking. The signage does not seem clear enough to offer a cash alternative. It was too dark to read it properly.
4) ANPR Accuracy and breach of the BPA Code of Practice 21.3
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 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 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.
I request that my appeal is upheld and for POPLA to inform ParkingEye to cancel the PCN.
Yours faithfully,
THE REGISTERED KEEPER
(background - had to take baby girl to A&E at night in a deserted hospital car park and no state of mind to read signs and I am deaf cannot phone and park!! and cant see machines at night and I cannot delay time when taking baby to A&E) anyway later I found out its £3 an hour parking and I was there for like 2.5 hours.) So I did appeal using coupon-mad short template for Parking Eye. Parking eye responded quoting the parking eye and beavis & wardly court case plus a whole waffle including "we notice your queries are of a generic nature"
SO, I intend to appeal to POPLA like this - please confirm if its OK for someone like me who didn't pay... (all changes to template on this forum in red to make it easier!) MANY THANKS!!
My Appeal is
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) Signage & nightime
4) ANPR Accuracy
1) No genuine pre-estimate of loss
This car park is Pay and Display. There was no damage nor obstruction caused so there can be no loss arising from the incident. The Car Park was empty at the time we arrived and empty when we left. ParkingEye notices allege '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. Given that ParkingEye charge the same lump sum for a 30 minute overstay as they would for 1 hours, and the same fixed charge applies to any alleged contravention (whether serious/damaging), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.
The wording on the signs appears to indicate that the parking charge represents damages for a breach of the parking contract - liquidated damages, in other words compensation agreed in advance. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss flowing from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of retail revenue at a shopping centre.
The parking company submitted that the charge is a genuine pre-estimate of the losses incurred in managing the parking location.
The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I require the parking company to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach at the time. Note:- the charges demanded by the operator as "genuine loss" are those allegedly incurred at the point of issuing the charge, and cannot include speculative future costs relating to internal appeal procedures or mounting a POPLA defence.
For example, were no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included. Equally, as the claim is being made for estimated losses at the time of the alleged contravention, then any costs included by the Operator that relate to accumulated amounts post that date are obviously invalid. Should such cost heads be included in the claim, as well as any profit element, then POPLA must reject the charge.
It would, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.
2) No standing or authority to pursue charges nor form contracts with drivers
ParkingEye do not own the land mentioned in their Notice to Keeper and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. Even if a contract is shown to POPLA, I assert that there are persuasive recent court decisions against ParkingEye which establish that a mere parking agent has no legal standing nor authority which could impact on visiting drivers.
In ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013 District Judge Jenkins checked the ParkingEye contract and quickly picked out the contradiction between clause 3.7, where the landowner appoints ParkingEye as their agent, and clause 22, where it states there is no agency relationship between ParkingEye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between ParkingEye and motorists who used the land. This decision was followed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the Defendant. District Judge Jones concurred completely with the persuasive view in ParkingEye v Sharma that a parking operator has no standing to bring the claim in their own name. My case is the same.
3)The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between ParkingEye and the driver
I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because ParkingEye are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance). Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) ParkingEye have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival.
The only signs are up on poles (away from the Pay & Display machine) and were not read nor even seen by the occupants of the car, who were there to use the car park to attend the hospital A&E department.
In addition, the signage was not readable at nightime so there was no valid contract formed between ParkingEye and the driver
The entrance sign states a table of tariffs applicable, which does not cover the period from 6pm to 6am: this statement is included outside of the tariff table.
Given that the entrance road from which the car park is accessed falls into the 15mph approach speed in accordance with the BPA CoP Appendix B (June 2013), the lack of a clear indication of charges being applicable to a ‘Reasonable Person’ driving past the sign is insufficient to form any contract.
Given that the premises in question are an Out Of Hours medical facility, it should be expected that the ‘Reasonable Person’ standard be adjusted to cover those in similar circumstances of medical urgency, including signage commensurate with a proportion of the visitors. Furthermore I contest that this mechanism is deliberate.
There is no mention on the entrance sign that the site is “Managed By” ParkingEye, as is required in appendix 2 of the aforementioned Code of Practice.
There is also no notification on the 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.
The only signs are up on poles (away from the Pay machine, which is not a 'sign' nor does it communicate full contractual terms & conditions). Any upright signs were shrouded in darkness and were not seen by the occupants of the car.
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, holding a torch, to try to read them: This mechanism also is believed to be deliberate.
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 at the same time of night 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 a numberplate in the dusk & rain, that the entrance (must be clear) was in fact approaching dark. 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.
In addition, the signage seems to only offer the option of pay by phone which is full breach of the Equality Act 2010. The driver of the car is profoundly deaf and could not use the phone to pay for parking. The signage does not seem clear enough to offer a cash alternative. It was too dark to read it properly.
4) ANPR Accuracy and breach of the BPA Code of Practice 21.3
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 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 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.
I request that my appeal is upheld and for POPLA to inform ParkingEye to cancel the PCN.
Yours faithfully,
THE REGISTERED KEEPER
0
Comments
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Please can you start your own thread (see my signature) and post this on there again. Then any comments can be kept to your own thread.
The general rule of them is one parking event per thread. That ways advice does not get muddled.
I have seen at least 2 things that needs changing just on the first point.
And the disability issue needs a major rewrite. So please start new thread and we can help you worded something much stronger regarding EA2010.Newbie thread: go to the top of this page and find these words: Main site > MoneySavingExpert.com Forums > Household & Travel > Motoring > Parking Tickets, Fines & Parking. Click on words Parking Tickets, Fines & Parking. Newbie thread is the first post. Blue New Thread button is just above it to left.0 -
As PE have mentioned the Beavis case in their response to you, you do need to cover it in your POPLA appeal. Here is the piece to build in, but you do need it to fit as flowing text rather than just create a space and randomly dump it in. It needs to go into the no GPEOL section.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.''
The PE MO for the past few months is not to respond to POPLA where a forum-assisted appeal has been submitted, giving the motorist a default win. Hopefully it will be the same in your case, but you can't be complacent.
HTHPlease note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.#Private Parking Firms - Killing the High Street0 -
Wasn't aware that needed to start a new thread....will start a new thread tonight after work so people please don't response at this stage. Thanks to both posters who responded.0
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The PE MO for the past few months is not to respond to POPLA where a forum-assisted appeal has been submitted, giving the motorist a default win. Hopefully it will be the same in your case, but you can't be complacent.
HTH
That sounds interesting and am I wondering in the initial appeal to Parking Eye you mention you are following the wonderful advice given by the members of this very forum...0 -
staceyhume wrote: »That sounds interesting and am I wondering in the initial appeal to Parking Eye you mention you are following the wonderful advice given by the members of this very forum...
By using the initial appeal in the NEWBIES sticky they will full well know 'you are following the wonderful advice given by the members of this very forum...'
Where PE are not quite as 'smart' as Smart Parking Ltd, is in the fact they don't drop the case then, but proceed up to the POPLA wire, then dip out.
What isn't clear, if dipping out at the 11th hour, is if they incur a POPLA fee charge; if they don't maybe they are just providing maximum hassle for the motorist; if they do incur the fee, one wonders what this current tactic is all about!Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.#Private Parking Firms - Killing the High Street0 -
By using the initial appeal in the NEWBIES sticky they will full well know 'you are following the wonderful advice given by the members of this very forum...'
Where PE are not quite as 'smart' as Smart Parking Ltd, is in the fact they don't drop the case then, but proceed up to the POPLA wire, then dip out.
What isn't clear, if dipping out at the 11th hour, is if they incur a POPLA fee charge; if they don't maybe they are just providing maximum hassle for the motorist; if they do incur the fee, one wonders what this current tactic is all about!
Well from my minimal experience I got the feeling due to the correspondence I received from Parking Eye that they are reluctant to give out POPLA reference numbers and actually sent me a separate letter asking me to name the driver when I said in my appeal to them that they won't be getting it.
I would have thought that once an appeal goes in they have to pay but I will try and contact POPLA and try to discover if this is actually the case..0 -
Good luck in getting that information from them! Do let us know if you find out.Newbie thread: go to the top of this page and find these words: Main site > MoneySavingExpert.com Forums > Household & Travel > Motoring > Parking Tickets, Fines & Parking. Click on words Parking Tickets, Fines & Parking. Newbie thread is the first post. Blue New Thread button is just above it to left.0
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staceyhume wrote: »"Thank you for your email below.
The fee becomes payable once an appeal is registered with POPLA.
Kind regards,
POPLA Administration Team."
Thanks for the information.
It looks like PPC's, such as P Eye, who don't just cancel when they see a forum assisted 1st appeal are still carrying on playing the numbers game then - hoping that the motorist will just pay up when their first appeal is rejected and won't bother to submit a POPLA appeal.0 -
The above posts have been split into a new thread.0
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