Urgent POPLA Appeal ParkingEye

Leopold_2

Thanks to the wonderful people here I have drafted a POPLA appeal which I need to send TODAY!

I am hoping someone can quickly let me know if I have made any obvious mistakes or omissions. This event took place in a free car park for Morrisons in Reigate. I initially ignored the letter and then identified the driver (my wife) after receiving a "Letter before County Court". I then received a new parking charge notice addressed to my wife.

I have not said anything about the signage as I have not been back there to check what the situation is. Should I add something anyway? In the appeal to ParkingEye I did cite "Your signage was not sufficiently prominent nor clearly worded and consideration did not flow from both parties, so there was no contract formed." but I have no photographic evidence.



Dear POPLA,

I wish my appeal to be considered on the following grounds.

1. The charge is punitive and not a genuine pre-estimate of loss.
2. Lack of standing/authority from landowner.
3. ANPR accuracy and compliance.


1. The charge is punitive and not a genuine pre-estimate of loss.

The ParkingEye Ltd sign states the charge is for “Failure to comply” so according to paragraph 19.5 of the BPA Code of Practice ParkingEye Ltd must prove the charge to be based on a genuine pre-estimate of loss.

I contend that there can be no loss flowing directly from this parking event which took place in a free car park.

To justify the charge of £85 for an alleged overstay of 49 minutes, I require ParkingEye Ltd to provide POPLA and myself with a full and detailed financial breakdown of the pre-estimated costs they have suffered as a result of the alleged parking event. Normal costs of running their business (their day to day costs like provision of parking, enforcement, signage, salaries, rent etc) must not be included in the breakdown as ParkingEye Ltd would need to pay these irrespective of this alleged parking event.

Given that ParkingEye Ltd charge the same fixed sum for a 30 minute overstay as they would for 3 hours, it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss caused by this incident in this car park.

As a member of the BPA ParkingEye Ltd 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):

In answer to the ParkingEye 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.''

2. Lack of standing/authority from landowner.

I believe that ParkingEye Ltd 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 Ltd to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between ParkingEye Ltd 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. ANPR accuracy and compliance

I require ParkingEye Ltd to 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 ParkingEye Ltd produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from the Operator was 'fundamentally flawed' as 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 Ltd in this case to show evidence to rebut this point: 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 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. 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 this Operator in this car park is just as unreliable as the ParkingEye system in the Fox-Jones case and I put this Operator to strict proof to the contrary.

In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which 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.
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''

At this location, there are merely a couple of secret small cameras up high on a wall, partly obscured by the roof. No signs at the car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here. Unless the Operator can show documentary evidence otherwise, then this BPA Code of Practice breach would also point to a failure to comply with the POFA 2012 (keeper liability requires strict compliance), a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary.

I request that my appeal is allowed.

Yours faithfully,

Coupon-mad

Yes you should always have an unclear signage paragraph, no need to check. Then it makes them show maps and photos if they bother to contest it. Make sure the POPLA appeal is signed off by your wife as driver of course as she's the one with the recent PCN and POPLA code. She can add facts such as she did not see any signs at all because they are far too high and even if you tried to read one you can't without a stepladder. So there was no contract between PE and herself as driver.

The rest looks fine and the important thing is to make it go through in good time today - don't panic if the code doesn't get accepted at first, the code IS valid (sometimes the POPLA system glitches).

Leopold_2

Many thanks for your reply. My wife didn't notice any signs about a maximum stay but there are plenty there, including one at the supermarket entrance if I remember rightly. Some of them are quite low down, see the photos here from an unrelated thread for the same car park (sorry I'm not allowed to post actual links) -> goo.gl/s0kbfi

The last photo shows a sign that is at eye level, and there is probably a similar one at the entrance to the supermarket, so I'm not sure I can use the stepladder line?

Coupon-mad

Nope (not the stepladder line then!) but you could quote that those words 'failure to comply with this' has been exposed by a Judge in a small claim that PE lost, as having a confusing meaning. Drafting mistakes or ambiguity in signage wording must be read in the way that most favours a consumer, as the doctrine of contra proferentem applies. So in this case the only charge that the signs purport to relate to is if someone returns to the car park within 3 hours ('this' should be interpreted in the best interests of a consumer, as relating to the sentence immediately above because 'this' is singular). Pedantic but a legal point a Judge agreed with.

You could even attach a link to the transcript of the case in question, with two defendants: CHRISTINE LEMON (Case: 3QT62681) AND SUSAN HARRIS (Case: 3QT62156), ahearing on 6th December 2013 at Southampton Court:

http://nebula.wsimg.com/4be9744029488d97a4de50455867bb8d?AccessKeyId=4CB8F2392A09CF228A46&disposition=0&alloworigin=1

Re the words: "Failure to comply with this will result in a charge of £100." The Judge said that the defendants were saying that the word 'this' is singular and that therefore it refers to one item, therefore it was not clear that staying for more than two hours would result in a charge. He said that he agreed and that he was finding for the defendants.''

Include it just to rub PE's noses in it perhaps, just for fun, and the POPLA Assessor will enjoy reading something different!

Leopold_2

That's genius, I will include it. How about this then? Does it need more, like the bit about contra proferentem?

4. Unclear/ambiguous signage.

The ParkingEye Ltd signs read ''Failure to comply with this will result in a Parking Charge of: £85''. The word ''this” is singular and therefore refers to one item, in this case the “No return within 3 hours”. It was therefore unclear that staying for more than 2 hours would result in a charge.

In the case of ParkingEye vs Lemon/Harris on 6 Dec 2013 the judge agreed and ruled in favour of the defendants. The transcript of the case can be found here [link].



Should I also say that my wife didn't see any signs? And if so should I say "the driver" or "I".

Coupon-mad

As this is written by your wife put 'I' and she can say she saw no signs, yes, but 'on returning to look for the signs I found one (among the many adverts on the side of the store that of course no-one gives a second glance to, let alone reads) which I contend has misleading and cluttered terms.'

You *could* include the contra proferentem thing, it is over-egging the pudding though and PE won't even defend this POPLA appeal! It's fun to put more nails in the coffin though.

Leopold_2

I'm entering the verification code at popla.org but it keeps saying invalid code. It checks out on the parkingcoyboys code checker so there must be a problem with the site. Any advise?

[EDIT: It's working now]

Redx

a few people here have had similar problems recently, including last night

try a different browser like chrome , firefox , opera or slimbrowser and try again

otherwise email them like another member did last night asking them to check the code and asking for advice on appealing

Leopold_2

Appeal submitted. I'll report back with the outcome. Thanks for all the help.

[UPDATE from POPLA:

We have received your appeal.

This will now be sent to ParkingEye Ltd.The operator will send their evidence to

us and to you before the scheduled date of hearing.

Your appeal will be considered on or soon after 17 September 2014

You will be notified of the decision as soon as it is available, in the manner you

selected.]

Leopold_2

I received an email from POPLA today confirming that my appeal was successful. It sounds as if Parking Eye didn't bother to contest it.


Reasons for the Assessor’s Determination

It is the Appellant’s case that the parking charge notice was issued

incorrectly.

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.


Thank you all for the help with this.

Coupon-mad

Great news!

Could you post about it here:

https://forums.moneysavingexpert.com/discussion/4488337

...with a link to this thread, naming the PPC so our stats can take into account it's Parking Eye? They always drop out now when they see our appeals.