ParkingEye PCN- should I fight it?

The_Deep

If you want more arrows in your quiver, investigate why there is a patch over the "2" in "2 hours parking". It may well be that planning permission was awarded on the basis that people could park for a longer period but the PPC has amended that without council permission in order to catch more people.

I am sure that no-one would object if you peeled it off to have a look. If there was a longer period, put PE to strict proof that they have planning consent for reducing the time allowed

WRT to signage, what does all of that stuff in very small print at the bottom say? In my opinion the sign is unreadable by anyone with less than 20/20 vision.

Shagger

The_Deep wrote: »

If you want more arrows in your quiver, investigate why there is a patch over the "2" in "2 hours parking". It may well be that planning permission was awarded on the basis that people could park for a longer period but the PPC has amended that without council permission in order to catch more people.

I am sure that no-one would object if you peeled it off to have a look. If there was a longer period, put PE to strict proof that they have planning consent for reducing the time allowed

WRT to signage, what does all of that stuff in very small print at the bottom say? In my opinion the sign is unreadable by anyone with less than 20/20 vision.

Very good point re: the patch. I'll investigate.

I'm going back down there to get a close-up photo of the small print after reading something written by Parking Prankster last night. It sounds like there may be passages within it that further undermine ParkingEye's case, depending on how it's worded.

Shagger

I've scoured the forums but can't find anything about how long I should wait for my POPLA number.
I sent my PPC appeal letter via 1st class recorded post on 7th August and today got home to another PCN (identical to the first one by the looks of it) but no appeal rejection.
I've read stories of people suddenly being issued with court papers despite never being given the chance to appeal to POPLA, so how long should I wait and who should I contact if I still haven't heard anything after that point?

Redx

Shagger wrote: »

I've scoured the forums but can't find anything about how long I should wait for my POPLA number.
I sent my PPC appeal letter via 1st class recorded post on 7th August and today got home to another PCN (identical to the first one by the looks of it) but no appeal rejection.
I've read stories of people suddenly being issued with court papers despite never being given the chance to appeal to POPLA, so how long should I wait and who should I contact if I still haven't heard anything after that point?

the BPA CoP says 14 days for acknowledgement and 35 days to reply

so 7 days doesnt quite "cut it"

this info has been posted on here dozens of times , lol

ps:- if you sent it recorded they may refuse delivery, so check the slip online

it should have been sent at the P.O. with free certificate of posting

Shagger

Redx wrote: »

the BPA CoP says 14 days for acknowledgement and 35 days to reply

so 7 days doesnt quite "cut it"

this info has been posted on here dozens of times , lol

ps:- if you sent it recorded they may refuse delivery, so check the slip online

it should have been sent at the P.O. with free certificate of posting

Thanks. I'll hang on a bit longer then.

If they can refuse delivery of a recorded letter then what's to stop them just saying they never received a standard letter? In both cases I'd have the proof to say that I sent it but what you've said implies that I'm somehow worse off if they've deliberately refused delivery.

Edited to say that I've just checked and they have signed for it and accepted delivery on 8th August, but I'm still interested to know the answer to the above question for future reference (although hopefully I'll never have to sort this sh*te out again).

Redx

already explained in previous posts on here, the letter is deemed "delivered" 2 days later , because it wont be refused

the point is that recorded is accepted or refused and signed for if accepted , but no signature if refused

the PPC would argue that same point for all the letters they sent to you, deemed delivered 2 days later, they dont use recorded either , do they ?

Shagger

As if they somehow read my mind, I got the rejection letter today so I've written my POPLA appeal and would be grateful for you could cast an experience eye over it and critique it for me:

Dear Sir/Madam,

Re: ParkingEye PCN , POPLA verification code ********

I am writing to appeal against a recent Parking Charge Notice issued by ParkingEye. I am the registered keeper of the vehicle concerned and I would like my appeal to be considered on the following grounds.
1. The charge is punitive and is not a genuine pre-estimate of loss
In the Department for Transport guidelines Section 16 (Frequently Asked Questions) it states that:

"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalize the driver."

The car park in question is free and there is no provision for the purchasing of a ticket or any other means of paying for parking. There was no damage resulting from the alleged parking event, nor was any obstruction caused by it, so there can be no loss arising from the alleged parking event.
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 resulting from the parking event. This might be, for example, a reasonable sum based purely 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 occupants of the car recall that the car park was nowhere near full on arrival and virtually empty when the driver left.
The alleged overstay is 78 minutes and 18 minutes of this was after the business’ closing time. I therefore contest that £100 is not a reasonable or genuine pre-estimate of loss. The ParkingEye signage at the site states that the charge is for “Failure to comply” and 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):

"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.''

Normal business running costs (their day to day costs like provision of parking, enforcement, signage, salaries, rent etc) must not be included in the breakdown as ParkingEye would need to pay these irrespective of this alleged parking event.

In my appeal to ParkingEye I made the following requests:

A) - if alleging breach of contract, with your rejection letter I require a breakdown of the liquidated damages suffered, and by whom, and when this calculation was determined and how this particular 'loss' arose. Please also explain how/why you charge a fixed sum no matter whether the alleged contravention was trivial or more serious and how that can amount to a genuine pre-estimate of loss.

- if alleging 'contractual fee' I require that you now send me a VAT invoice by return and explain the daily rate for parking and service provided for the fee. Failure to provide this information and a VAT invoice now that I have requested it, will be considered evidence that this was not in fact a genuine offer to park for a fee and is merely a penalty which is not recoverable in contract law (as found by Mr Recorder Gibson QC, on appeal at Luton County Court in the case of Civil Enforcement v McCafferty 3YK50188 (AP476) 21/2/2014).
Please note neither of these items were received within the rejection of appeal.
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):
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.''

Both requests were ignored, and instead their appeal rejection letter referenced the findings of the ParkingEye vs Barry Beavis and Martin Wardley court hearing (which is currently being taken to the Court of Appeal by Mr Beavis), however in June 2014, POPLA Assessor Chris Adamson stated 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 fulfilled. 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.''

Also worthy of note, in his recently published annual report for POPLA, chief adjudicator Mr Greenslade stated:

“However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards.”

The charge is clearly punitive and disproportionate to any alleged breach of contract.

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. The judge decided that the only amount the operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty.
In the case of the alleged parking event that I am appealing, the driver was eligible for free parking with no payment due whatsoever.

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.
Despite my request for proof of this, it was not 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 require ParkingEye to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between ParkingEye and the landowner so that it can be verified as prrof that it allows this operator to make contracts with drivers themselves and provides ParkingEye 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.). If ParkingEye produce a 'witness statement' in lieu of the contract then I will immediately counter that with evidence that these have been debunked in other recent court cases due to well-publicised and serious date/signature/factual irregularities. I do not expect it has escaped the POPLA Assessors' attention that ParkingEye witness statements have been robustly and publicly discredited and are - arguably - not worth the paper they are photocopied on. I suggest ParkingEye don't bother trying that in my case. If they do, I contend that there is no proof whatsoever that the alleged signatory has ever seen the relevant contract terms, or, indeed is even an employee of the landowner, or signed it on the date shown. I contend, if such a witness statement is submitted instead of the landowner contract itself, that this should be disregarded as unreliable and not proving full BPA compliance nor showing sufficient detail to disprove the findings in Sharma and Gardam.

The BPA code of practice contains the following:

7 Written authorisation of the landowner
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges , through the courts if necessary.

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.


3. Unclear, inadequate and non-compliant signage
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. In fact the size of the font used for the terms and conditions is so small that it is virtually impossible to read even when stood immediately below and in front of the sign and looking directly up at it.
In the case of this alleged parking event, the only signs are high up on poles and were not read nor even seen by the occupants of the car.

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding. The idea that any driver would accept these terms knowingly is perverse and beyond credibility.


4. ANPR accuracy and breach of the BPA Code of Practice 21.3
This Operator is obliged to ensure that their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I submit that ParkingEye 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 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.

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. In addition, the BPA code of practice contains the following:
''21 Automatic number plate recognition (ANPR) 21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.''

As ParkingEye signs are too small and placed too high to see on arrival, there is no opportunity for drivers in moving traffic at the entrance to be 'informed that this technology is in use and what the Operator will use the data captured by ANPR cameras for'.
I contend that as well as being unreliable, this is a non-compliant ANPR system being merely a secret high-up spy camera - far from 'transparent' - unreasonably 'farming' the data from moving vehicles at the entrance & exit and neither 'managing, enforcing nor controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any parking event at all. 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 at all then it was not prominent, since the occupants of the car 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.

So, in addition to showing their maintenance records and the above points about inadequate signage, 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 connected 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.

On the basis of all the points I have raised, this “charge” fails to meet the standards set out in section 19 of the BPA CoP and also fails to comply with basic contract law.

I therefore respectfully request that my appeal is upheld and the charge dismissed.

Yours faithfully,


*******

Coupon-mad

Very nicely put together - I can see you haven't just copied one template verbatim but have added bits and relevant stuff like Mr Greenslade's quote.

I would be tempted to also add something about this point EVEN IF YOU HAVE NO CLUE WHAT THE CHANGE WAS:

put PE to strict proof that they have planning consent for reducing the time allowed

...perhaps at the end of the signage point, to the effect that you have noticed there is a patch over the 'free parking hours' allowed in the signage. You believe the time has been changed by the Operator in conjunction with the retail park, no doubt because PE wasn't catching enough people to make the little racket worth their while (that's my paraphrasing and I would use it but it's up to you! Make it politer maybe!). It is in the public domain that ParkingEye have liaised with retailers to unlawfully change hours in some car parks in more than one place in the UK (e.g. Aldi Portslade) and such unauthorised changes have caused the retailer to be fined due to planning permission or other orders being breached. As such you put PE to strict proof as to why this free period has been changed, what the change was and when, and that the council was consulted and agreed beforehand.








* PE are particularly good at twisting Aldi round their little finger and persuading them to try to reduce free parking hours for the jumped up excuse of achieving 'a parking space maximisation scheme to increase footfall' (LOL!). Was yours Aldi by any chance?!

Shagger

Thank you It was a B&M car park rather than an Aldi (although I suppose they're similar in many ways).

I've added in that bit about the reduction in free parking hours so I'll get it sent off to POPLA now and keep everything crossed as I really don't fancy having to go to court.

Redx

you do realise you can submit it online on their website, and attach the appeal and any evidence ? free of charge with an email acknowledgement from london councils

easier then putting all the popla details etc (like ver number) on each and every sheet and going to the PO and sending with free certificate of posting

or do both

I also assume they didnt send the rejection recorded delivery, so they deemed it delivered 2 days later when they sent you this rejection letter , lol

anyway, good luck, although you should not need it as due to the fact its PE it will be another PSDSU in about 6 weeks time

at which time you will be very pleased to have cost them £30 and not paid a penny