ParkingEye POPLA appeal

metal_guru

My car was caught on camera having spent 30 mins too long in Welome Break Birchanger Green Services on the M11 at Bishops Stortford.
I appealed to ParkingEye (using a template from this site) and this was of course rejected. I have put together the following appeal to POPLA based on various posts on this site. I would appreciate any feedback. Particularly whether I should cut out the bit about VAT in section 3 as the court decision may have been overturned.
I also note that by appealing, ParkingEye will no longer accept the "discounted" charge should I lose. How unjust is that?

[FONT=&quot]Re: ParkingEye PCN, reference code xxxxxxxxxx[/FONT][FONT=&quot]
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:

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[FONT=&quot]1) Unclear, inadequate and non-compliant signage [/FONT][FONT=&quot]
2) Signage not compliant with Motorway Service Station requirements
3) Contract with the landowner is not compliant with the BPA Code of Practice and no legal status to offer parking or enforce charges
4) No contract with the driver
5) Unfair terms
6) ANPR accuracy
7) No breach of contract and no genuine pre-estimate of loss

Below are the detailed appeal points.

1) Unclear, inadequate and non-compliant signage
Due to their high position, overall small size and the barely legible size of the small print, the signs in this car park are very hard to read and understand. Moreover no notices at all are positioned near where the car was parked, between this parking space and the main amenity building, near the entrance to the main building, within the main building or at the entrances or exits to any of the shops within the main building.[/FONT]
[FONT=&quot]A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties. 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. 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.[/FONT]
[FONT=&quot]I contend that the signs and any core parking terms ParkingEye are relying upon were too small for any driver to see, read or understand. I request that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs on this land (wording, position, clarity and frequency) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2][/FONT][FONT=&quot]

2) Signage not compliant with Motorway Service Station requirements[/FONT]
[FONT=&quot]This is a Motorway Services Area. Operators of Motorway Services Areas (MSAs) and their agents must comply with the requirements of Government Policy. These provisions are reflected in the Traffic Signs Agreement into which they enter with the Highways Agency. The Highways Agency, on behalf of the Department for Transport (DfT), published a policy on the provision of roadside facilities on its network. That policy is 'DfT Circular 01/2008: Policy on Service Areas and other Roadside Facilities on Motorways and All-purpose Trunk Roads in England'.[/FONT][FONT=&quot]

The policy states that “B19. At all types of site, where a charge is to be levied for parking beyond the mandatory two free hours, the charging regime must be clearly displayed within both the parking areas and the amenity building.”

The compliance of the MSA with the above policy is disputed and I therefore require ParkingEye to prove that such clearly displayed signage exists within the amenity
building(s) at the car park in question. It is not enough to prove that such signage exists within the car park itself.

Furthermore the policy states “All signing of roadside facilities and signing arrangements within sites must comply with the current Traffic Signs Regulations and General Directions and any other guidance as may be issued from time to time by the Department for Transport or the Highways Agency. Approval must be sought from the Highways Agency’s signs specialist for the use of all non-prescribed signs.”

I require ParkingEye to show proof to the POPLA adjudicator that the DFT/Highways Agency has granted special authorisation for ParkingEye's traffic signs in this particular MSA to be exempt from this policy requirement. It will not be acceptable for ParkingEye to claim that these particular signs are in ParkingEye's own opinion not 'traffic signs' when these signs have not been erected or positioned to direct pedestrians but instead act to provide information to vehicle users who may never leave their vehicles.

3) Contract with the landowner is not compliant with the BPA Code of Practice and no legal status to offer parking or enforce charges
[/FONT][FONT=&quot]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.[/FONT][FONT=&quot]

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.
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I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS)v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges. It was stated that: "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be." The ruling of the Court was that "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses, as set out above.

The Operator does not, either through the original correspondence or in the reply to the appeal, make any reference to the recovery of monies for the Landlord at all.

4) No contract with the driver
There is no contract between ParkingEye and the driver, but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc, were not satisfied.

5) 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. In particular, 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" and 5(2) states: "A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term."

6) ANPR accuracy [/FONT]
[FONT=&quot]If ParkingEye's ANPR records are completely reliable (which I contest) then this Operator claims the car was parked for around 30 minutes more than the time allowed. 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 payment system in one or two retail outlets within the main building which the driver can only access after parking, which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all nor has it even been proved to relate to the same parking event that evening. [/FONT]

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[FONT=&quot]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 require the Operator 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 this Operator must 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. [/FONT][FONT=&quot]

So, in addition to showing their maintenance records, I require the Operator 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 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 this Operator in this car park is just as unreliable as the aforementioned ParkingEye system and I put this Operator to strict proof to the contrary.

7) No breach of contract and no genuine pre-estimate of loss
There was no parking charge levied, the car park is “free”. On the date of the claimed loss it was less than half full and there was no physical damage caused. A[/FONT][FONT=&quot]s such, this Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.[/FONT][FONT=&quot]

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[FONT=&quot]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 flowing from the parking event. This might be, for example, a reasonable sum based purely upon the potential loss of retail revenue at a shopping centre if another car was prevented from parking. However, this is not the case here because the car park was half empty.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]The Operator 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 akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. 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 or trifling), 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. [/FONT][FONT=&quot]

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':
[/FONT][FONT=&quot]"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.'' [/FONT]

[FONT=&quot]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: [/FONT][FONT=&quot]
[/FONT]
[FONT=&quot]''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”.[/FONT]

[FONT=&quot]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.''[/FONT]

[FONT=&quot] [/FONT][FONT=&quot]I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.[/FONT][FONT=&quot]

The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges for all day parking. This is all the more so for the additional charges which the operator states accrue after 14 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that, if a charge can be discounted by 40% by early payment, it is unreasonable to begin with.

Unlawful penalty charge
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), also OB Services v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December2011) and UKCPS v Murphy (April 2012) .

The operator could set out the letter as an invoice or request for monies, but chooses to use the wording “PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.

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

[/FONT][FONT=&quot]I request that my appeal is allowed.[/FONT]
[FONT=&quot] [/FONT]

Coupon-mad

I also note that by appealing, ParkingEye will no longer accept the "discounted" charge should I lose. How unjust is that?

But - to be fair - that's what happens with a Council PCN as well. That's normal and with both Councils PCNs and private ones, we know that almost every case can be beaten on further appeal. It's just that most people don't realise.

So yes you are right to query the VCS case as it isn't relevant now; get rid of the paragraph below and your POPLA appeal is good to go!

I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS)v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges. It was stated that: "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be." The ruling of the Court was that "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses, as set out above.

The Operator does not, either through the original correspondence or in the reply to the appeal, make any reference to the recovery of monies for the Landlord at all.