parking eye charge after hours

harrypotter123

Hi all,
just a quick one I received a charge from parking eye, I was on the way home from work and pulled into home bargains car park as my van had suffered a puncture, long story short by the time i had got the tyre off and replaced it it was exactly 1 hour 57 mins (due to a rounded off wheel nut)the time was 8:36pm until 10:34pm, by the way, as long as I can remember from being a kid the car park in question has always been used by the residents whose houses back on to the car park and has always been a free car park so this has been a sneaky move by home bargains, Are my grounds good enough to appeal this charge due to the lateness of the incident as i obviously haven't prevented any one else from parking there.

thanks in advance,

Tony

The_Slithy_Tove

Read the NEWBIES sticky thread and follow its advice. Your circumstances and what happened are completely irrelevant, and will not form part of any appeal anyway. You will simply be challenging the whole legitimacy of the charge.

harrypotter123

Thanks slithy, I am reading and re-reading them at this minute, but was unsure whether to explain the circumstances in my initial appeal to parking eye, I know not to include them to popla etc.

Tony

The_Slithy_Tove

Yes, you could use the circumstances in your initial "soft" appeal, which will definitely result in rejection and a POPLA code. You then go in all guns blazing with the standard winning arguments at POPLA. PE tend not to cave in even with an initial "hard" appeal, so it really makes no difference.

harrypotter123

Thanks Slithy, I think i will just email the appeal template, its going to get rejected whatever I send right?

Tony

Coupon-mad

Yes from your description above. But please, reading that makes me worry you are about to slap in an appeal saying who was driving, as your first post is 'full of holes' in that respect! Why not just send the template from the Newbies thread, as the above is all mitigation and pointless for PE and POPLA alike.

harrypotter123

coupon-mad,
dont panic :-) I have just sent the template appeal in, thanks for the reply

Tony

harrypotter123

Hi all, got my appeal rejection letter today from parkingeye, a bit long winded( see below) I have my POPLA appeal number where do I go from here? I hope it is ok to post a copy of my appeal rejection it quotes a case that has been ruled in their favour, is that the one that I have read on here somewhere that has been appealed. Thanks in advance.

Dear Sir,
Thank you for your correspondence in relation to the parking charge incurred on 23 July 2014 at 22:34 at Home Bargains Rhyl.
We are writing to advise you that your recent appeal has been unsuccessful. This site is a maximum stay car park, as per the terms and conditions as detailed on the signage. Your appeal has been rejected on the basis that the maximum time allowed was exceeded.

You have stated that you do not believe that the parking charge amount is pre-estimation of loss or that it is extravagant/unfair/unreasonable. Please note that HHJ Moloney QC has recently presided over a court hearing (parking eye v Barry Beavis and Martin Wardley) regarding the amount of parking eye’s parking charges and found that a parking charge of £85 could not considered an unenforceable penalty. To the best of our knowledge this is the most senior judge to have heard a private parking matter and therefore HHJ Moloney’s judgement appears to be very persuasive. Indeed HHJ Moloney QC listed this test case to decide upon many of the legal points often raised by defendants in these matters. HHJ Moloney QC stated, “I have taken the unusual course of hearing these two cases at first instance in the hope that this decision will assist the parties and district judges hearing similar cases in future.

HHJ Moloney QC heard the case over the course of a day, and then reserved judgement for a number of weeks to consider all the relevant law. He has now given judgement and ruled in parkingeye’s favour on all points.
Within this judgement it was found that the proper modern approach to whether a charge was a penalty was not by assessing whether it was a pre-estimate of loss or not but rather by examining the clause from three overlapping perspectives:

7.12 Analysis and discussion
It appears to me that on the basis of the above authorities that the proper modern approach to deciding whether any particular clause in unenforceable as a penalty must be a global one, examining the clause from three overlapping perspectives: i. proportionality to actual loss, ii. Tendency to deter rather than compensate; and iii. Commercial justification/fairness, with a view to deciding whether, considered in the round, it is so extravagant, unconscionable and unjustifiable that the courts ought not to give effect to it.
The judge examined parkingeye’s parking charge amount using this approach and found that the charge was proportionate (i.e. not extravagant) and evidently not unconscionable. He also found that the charge was commercially justified.

7.16 Is this provision enforceable?
For the above reasons, my overall conclusion is that, although there is a sense in which this contractual parking charge has the characteristics of a deterrent penalty, it is neither improper in its purpose nor manifestly excessive in its amount. It is commercially justifiable, not only from the viewpoint of the landowner and parkingeye, but also from that of the great majority of motorists who enjoy the benefit of free parking at the site, effectively paid for by the minority of defaulters who have been given clear notice of the consequences of overstaying.

7.17
This conclusion is reinforced to some extent by consideration of the 2012 act (see 6 above). That act is set out to regulate abuses by privately run car parks. In particular it prohibited clamping and its associated charges. But so far as enforcing payment of private parking charges was concerned, it positively encouraged it by conferring on the private operator’s similar rights and powers in respect of registered keepers to those previously enjoyed by local authorities. It laid down detailed provisions in that respect; but although charges similar to those in issue here were common before the act was passed, it made no attempt to prohibit or regulate them, as it well could have done if this was thought to be an abuse like clamping.

We also note that a number of your queries are of a generic nature, a number of which we have seen before. Please see parkingeye’s answers to frequently asked questions.

Tony

Dee140157

Yes Beavis is the one going to appeal.

Time to plan the POPLA appeal. Back to post 3 of newbie thread.

harrypotter123

Not sure which appeal is best for me as i was parked at 8:30 ish at night when everywhere was shut will keep reading until something sinks in, I was never the best at stuff like this !

Dee140157

I would use the Parking Eye free car park one combined with the Care Parking one on signage as it has something about unlit signs.

Linked to from post 3 of newbie thread.