Popla appeal

Dee140157

Ok , now we are in a new thread, can I reiterate what Umkomaas said about Beavis which needs to go into appeal.

Why have you changed the time in red In the the first paragraph to 1 hour? This makes little sense. The point is that it is the same "fee" whether 30 mins or 15 hours!

You may need to make this point a whole separate paragraph:

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.

This large quotation below I have lifted straight froma different appeal about EA2010 from one Coupon-Mad wrote for another disabled car park user.

It will clearly need adapting for your disability, but the general issue remains the same. I would suggest you read carefully and adapt for your situation and make this the first point.

Now I stress it will not win the appeal, but we are constantly trying to get POPLA to recognise the fact that EA2010 comes above everything else as the law is more I portent than PPC terms and conditions.

1. The parking company in contravention of the Equality Act 2010

The BPA Code of Practice states:

16.1 The Equality Act 2010 says that providers of services to the public must make ‘reasonable adjustments’ to remove barriers which may discriminate against disabled people.

16.5 If your landowner provides a concession that allows parking for disabled people, if a vehicle displays a valid Blue Badge you must not issue it with parking charge notices.

Locating the full terms and conditions at a point where it is unreasonable to expect an individual who suffers from walking difficulties to see them, with no signage placed in the dedicated disabled area is a clear contravention of 16.1 above.

The Equality Act states:

142(1) Unenforceable terms
A term of a contract is unenforceable against a person in so far as it constitutes, promotes or provides for treatment of that or another person that is of a description prohibited by this Act.

144(1) A term of a contract is unenforceable by a person in whose favour it would operate in so far as it purports to exclude or limit a provision of or made under this Act.

By enforcing a ‘contract’ (in dispute) due to inadequate provision and signage - and would necessitate a disabled person parking 300m from the station entrance - would prohibit an individual such as myself from utilising the railway services as is my legal right to do so. Therefore the terms as claimed by the Operator has created indirect disability discrimination and are therefore unenforceable.

''5.4 What does the Act say? Indirect discrimination may occur when a service provider applies an apparently neutral provision, criterion or practice which puts persons sharing a protected characteristic at a particular disadvantage.''

On 10th April 2013, a POPLA assessor, Shona Watson, erroneously decided in that case, that an Operator's terms & conditions could circumvent the Equality Act 2010. Mr Greenwood subsequently faced Excel in Court on 4th October 2013, and in 3QT60496 the judge decided that the Operator had a legal duty to make a 'reasonable adjustment' for a genuine disabled person.

The Operator's case was lost in court, showing that POPLA was wrong to allow t&cs over disability law - and my case is the same as Excel v Greenwood.

15 (1) A person (A) discriminates against a disabled person (B) if—

(a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

I therefore additionally request the Operator responds to 15 (1) (b) to substantiate what legitimate aim is being met by the issuance of a punitive invoice and how this is proportionate, given there is no formal contract between Operator and driver.

naf123

Thanks everyone for your responses, special thanks to those who made this in its own thread. I have rewritten the appeal, changes in red to include the matis case and the equality act.....


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) Equality Act 2010
4) Signage & night-time
5) 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 3 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.

Neither is this charge 'commercially justified'. In answer to that proposition from PE response to my initial appeal which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:

''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.

This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

2) No standing or authority to pursue charges nor form contracts with drivers
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 seems to only offer the option of pay by phone which mean the parking company is in contravention of the Equality Act 2010 as 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.

The BPA Code of Practice states:

16.1 The Equality Act 2010 says that providers of services to the public must make ‘reasonable adjustments’ to remove barriers which may discriminate against disabled people.

The Equality Act states:

142(1) Unenforceable terms
A term of a contract is unenforceable against a person in so far as it constitutes, promotes or provides for treatment of that or another person that is of a description prohibited by this Act.

144(1) A term of a contract is unenforceable by a person in whose favour it would operate in so far as it purports to exclude or limit a provision of or made under this Act.

By enforcing a ‘contract’ (in dispute) due to inadequate provision and signage - and would necessitate a deaf person parking at the hospital grounds to attend A&E- would prohibit an individual such as the driver from utilising the A&E as is the driver's legal right to do so. Therefore the terms as claimed by the Operator has created indirect disability discrimination and are therefore unenforceable.

''5.4 What does the Act say? Indirect discrimination may occur when a service provider applies an apparently neutral provision, criterion or practice which puts persons sharing a protected characteristic at a particular disadvantage.''

On 10th April 2013, a POPLA assessor, Shona Watson, erroneously decided in that case, that an Operator's terms & conditions could circumvent the Equality Act 2010. Mr Greenwood subsequently faced Excel in Court on 4th October 2013, and in 3QT60496 the judge decided that the Operator had a legal duty to make a 'reasonable adjustment' for a genuine disabled person.

The Operator's case was lost in court, showing that POPLA was wrong to allow t&cs over disability law - and my case is the same as Excel v Greenwood.

15 (1) A person (A) discriminates against a disabled person (B) if—

(a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

I therefore additionally request the Operator responds to 15 (1) (b) to substantiate what legitimate aim is being met by the issuance of a punitive invoice and how this is proportionate, given there is no formal contract between Operator and driver.

4)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 night-time 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.



5) 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

naf123

Bump! Please can anyone tell me if my appeal above is good enough? Many thanks!

Umkomaas

You've covered all the main appeal points and I've skim read the gist of your appeal paragraphs. Looks fine to me, but only the POPLA assessor can say if it's 'good enough'!

Nothing in it suggests they won't!

naf123

Got email from popla. Won the appeal! The reason was... The Operator has not produced a copy of the parking charge notice, nor any evidence to show a breach of the conditions of parking occurred, nor any evidence that shows what the conditions of parking, in fact, were. Accordingly I have no option but to allow the appeal.

Interesting that PE did not even bother to contest?

trisontana

naf123 wrote: »

Interesting that PE did not even bother to contest?

They've done that hundreds of times. This goes to prove that if somebody stands up to them they will back down. Typical bully-boy, or in this case girl (Hello Rachel!) behavior.