Parking Eye PCN

Guys_Dad

LMck111 wrote: »

Parking Eye....! What a joke.
I have 3 invoices (NOT FINES) from them well over 2 years old now.

The vehicle in question was parked in a Lidl car park on various days over a 2 week period.

The signage was non existent & what was there was so small it was out to trap you.

Anyway - received 3 different invoices, never replied or acknowledged them at all. Got the obligatory threats, fines, solicitors garbage etc for the first 3 months.
Then another set 6 months down the line & another about a year later.

Ignored every one & have never heard a thing since.

This was also the method various others used from the same car park.

So to sum up - They have no power - They don't go through with their threats - They are praying for you to "crack" first & give them money that they cant legally enforce out of you.

I will be charitable and, as this is your first post on this forum and I assume you are genuinely trying to offer help, I won't flame you.

2 years ago, this may have been the right advice but the game changed in 2012 with the introduction of Protection of Freedom Act 2012. Putting it simply, in exchange for banning clamping, it gave the PPCs some power to pursue registered keepers for parking charges. Parking Eye have issued large numbers of court claims ever since and to ignore their tickets is not a good choice.

Please swat up on POPLA before offering any other well meaning advice here or leave it to those who have spent considerable time getting to grips with this subject.

spector_2

Hello,

First-time forumer so I hope it's ok that I'm posting on this thread - figured since it's regarding the same parking company... I'm desperately after some advice as I don't know whether I can take this further or whether I should just pay up.

I received a parking charge notice in the post from Parking Eye for being in one of their car parks for 40 minutes without paying. The car park is on the same site where I work but I've never parked there before (usually just get dropped off). On the day in the question, my partner drove to meet me at work and we sat in the car for (what must have been) 40 minutes, then left the car park (I'm the registered keeper but he was driving).

PE want £40 from us (if we pay in less than 14 days - £70 thereafter) for violating the T&Cs of parking here and included a CCTV photo of the car entering and leaving the car park. We emailed them to contest it as we weren't parked, we never left the vehicle throughout the duration of being on the premises. They replied with along the lines of we used the car park, we should have paid. There is a lot of signage but the specific T&Cs which we were not aware of were in the smallest print on the bottom of the sign which you cannot read as you drive into the car park and as we didn't leave the car, we didn't read them.

Basically we don't know if we have any grounds to take this further (if there's any legislation we can throw at them) or if we do just need to accept and pay up.

Any advice would be greatly appreciated!

Thanks.

Guys_Dad

We keep one thread to one person so we can tailor advice.

So, start a new thread and we can help, but don't mix up your replies on this thread.

Saleshark

Hi All

I've had my appeal rejected by PE, surprise surprise and been issued the Popla code.

Here is my Popla Appeal below put together from the forum, I have stated that I am the driver as my vehicle is a company car. Section 4 I am unsure of the wording as it is a Free car park, is there a better way of wording this?

Re: ParkingEye PCN, reference code
POPLA Code:

As the driver 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) Inadequate signage so there was no valid contract formed
4) The ANPR system is unreliable and neither synchronised nor accurate
5) Unreasonable/Unfair Terms

1) No genuine pre-estimate of loss
1. The Charge is not a genuine pre-estimate of loss. The amount of £85 charged by Parking Eye is not a genuine pre-estimate of loss.
The car park at XXXXX is free and has no provision for the purchasing of a ticket or any other means for paying for parking. No damage and/or any obstruction/s was caused by my vehicle. There can, therefore, be no loss arising from the incident.

In ParkingEye v Smith at Manchester County Court in 2011, claim number 1XJ81016, the original claim of £240 was deemed an unrecoverable penalty, unrelated to damages incurred and the only sum which could be recovered was deemed to be £15 (the amount of the pay and display fee for more than one visit). The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. As this is a Free Car Park, the PCN sum is massively inflated. I require Parking Eye to submit a breakdown of how the charge was calculated prior to the parking event, as being capable of directly flowing from a minor alleged breach.

The Parking Eye Notice to Keeper, their reply to my appeal to them and signage all allege 'breach of terms & conditions / failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. It might be reasonable for a sum to be based upon the alleged lost parking revenue, or even loss of retail revenue at a shopping centre if another car was prevented from parking. However, this is not the case because the occupant(s) of the car recall(s) that the car park was not full, and there was no lost parking revenue as it is a Free of Charge car Park.

In addition, Parking Eye 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, some where they have pay and display, and others which are free car parks. Given that Parking Eye charge the same lump sum for a 20 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 obvious 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. In addition, as heads of cost (wages, uniforms, normal operational costs and tax-deductible back office functions, debt collection, etc) cannot possibly flow as a direct consequence of this parking event, Parking Eye would have been in the same position had the parking charge notice not been issued, and would still have had many of the same business overheads even if no vehicles breached any of the terms.

The BPA Code of Practice requires that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. Parking Eye cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some 'commercial justification' statement they may have devised / produced afterwards (since this would not be a pre-estimate). The British Parking Association Code of Practice uses the word 'MUST':

"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.''

In answer to a proposition from a PPC concerning "commercial justification" about the Parking Eye v Beavis small claims decision, 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.''

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 Excel Parking Services v Hetherington-Jakeman (2008), OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012).

2) No standing or authority to pursue charges nor form contracts with drivers

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.

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.

3) Inadequate Signage- no contract with driver
The signage used by Parking Eye was not clearly readable so there was no valid contract formed between Parking Eye and the driver. It is argued that the signs used by Parking Eye were not prominent enough, were too highly placed and the wording was too small for any driver to see, read or understand when driving into this car park. The actual car park entrance does not have any signs advising drivers of the terms of the car park and are only sporadically placed around the whole car park. There are also no signs placed outside the store for visitors to see and read.
As a POPLA assessor has said previously in an adjudication "Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear".

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. As Parking Eye are arguing the driver entered into a legal contract with them based ENTIRELY on signage, Parking Eye needs to show evidence and signage map/photos on this point - specifically showing the height of the signs, height of lettering, size of signs, where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in. Any terms displayed on signage within the car park do not alter the contract which must be shown at the entrance. The signs failed to properly and clearly warn/inform the driver of the terms and conditions in this car park as they failed to comply with the BPA Code of Practice appendix B. I require Parking Eye to provide evidence that proves otherwise.
4) The ANPR system is unreliable and neither synchronised nor accurate
If ParkingEye's ANPR records are completely reliable (which I contest) then this Operator claims the car was parked for around 2.5 hours more than the time permitted. And yet their evidence shows no parking time, merely photos of a car driving in and out which does not discount the possibility of a double visit that evening. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all and has not been shown to be synchronised to the pay and display machine clock nor even to relate to the same parking event that evening.

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. It was dark and if there was such a sign at all then it was neither lit nor 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.

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 and to show how these camera timings are synchronised with the pay and display machine.
5. Unreasonable/Unfair Terms

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.
Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness."

I contend it is wholly unreasonable to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. In addition, the signage of terms were placed too high to read and a lack of entrance sign mentioning these charges is far from 'transparent'. I put this Operator to strict proof to justify that their charge does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

I request that my appeal is allowed.

Dee140157

For the free parking bit you could adapt these words if you wish

This is a free (for 60 minutes) car park and there is no mechanism to pay for additional parking. The signage indicates that parking for over 60 minutes attracts a £90 charge and, as no limits are specified, this could equally apply for an additional 10 minutes, 10 weeks or indeed 10 years!

The same sum is also sought for returning to the car park within 2 hours, something clearly disallowed by the wording “No return within 2 hours … “, which is immediately followed by “or charge of £90 will apply” - in other words “don’t do this or else” which shows the charges are actually for failing to comply, which equals a deterrent for breach.

In addition no VAT invoice has been provided and I have no evidence that this business operation on this car park has been registered for business rates.

Despite what the sign attempts to say, it is not an offer to park for a fee and it is clear that the true and predominant purpose of the alleged 'parking operation' at (insert location) is to deter breach and, in the absence of evidence that this charge is a genuine pre estimate of loss, it is an unrecoverable penalty.

Obviously make sure all relevant points for.

But apart from that it looks good to go.

Saleshark

Thanks

So i've amended point 1, see below.

Also do I need to provide photographic evidence of the signage?

1. The Charge is not a genuine pre-estimate of loss. The amount of £85 charged by Parking Eye is not a genuine pre-estimate of loss.

This is a free (for 90 minutes) car park and there is no mechanism to pay for additional parking. The signage indicates that parking for over 90 minutes attracts £85 charge and, as no limits are specified, this could equally apply for an additional 10 minutes, 10 weeks or indeed 10 years!

In addition no VAT invoice has been provided and I have no evidence that this business operation on this car park has been registered for business rates.

Despite what the sign attempts to say, it is not an offer to park for a fee and it is clear that the true and predominant purpose of the alleged ‘parking operation’ at XXXX is to deter breach and, in the absence of evidence that this charge is a genuine pre estimate of loss, it is an unrecoverable penalty.

In ParkingEye v Smith at Manchester County Court in 2011, claim number 1XJ81016, the original claim of £240 was deemed an unrecoverable penalty, unrelated to damages incurred and the only sum which could be recovered was deemed to be £15 (the amount of the pay and display fee for more than one visit). The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. As this is a Free Car Park, the PCN sum is massively inflated. I require Parking Eye to submit a breakdown of how the charge was calculated prior to the parking event, as being capable of directly flowing from a minor alleged breach.
The Parking Eye Notice to Keeper, their reply to my appeal to them and signage all allege 'breach of terms & conditions / failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. It might be reasonable for a sum to be based upon the alleged lost parking revenue, or even loss of retail revenue at a shopping centre if another car was prevented from parking. However, this is not the case because the occupant(s) of the car recall(s) that the car park was not full, and there was no lost parking revenue as it is a Free of Charge car Park.
In addition, Parking Eye 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, some where they have pay and display, and others which are free car parks. Given that Parking Eye charge the same lump sum for a 20 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 obvious 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. In addition, as heads of cost (wages, uniforms, normal operational costs and tax-deductible back office functions, debt collection, etc) cannot possibly flow as a direct consequence of this parking event, Parking Eye would have been in the same position had the parking charge notice not been issued, and would still have had many of the same business overheads even if no vehicles breached any of the terms.
The BPA Code of Practice requires that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. Parking Eye cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some 'commercial justification' statement they may have devised / produced afterwards (since this would not be a pre-estimate). The British Parking Association Code of Practice uses the word 'MUST':

"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.''

In answer to a proposition from a PPC concerning "commercial justification" about the Parking Eye v Beavis small claims decision, 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.''

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 Excel Parking Services v Hetherington-Jakeman (2008), OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012).

Coupon-mad

Also do I need to provide photographic evidence of the signage?

No need to attach pics of signs for POPLA (if it was the IAS then yes, but it's not). And yes that POPLA appeal is fine.

Saleshark

Just an update, I put my Popla appeal in and received an email from them saying that I would have a decision by 26th September.

Now that has gone and still no word, is this normal as I presume they are flooded with appeals lol.

ezerscrooge

They are rathwer swamped - I expect the result will come in the next week or so.