parking eye charge after hours

harrypotter123

Hi all,
just completed my POPLA appeal letter I was hoping you kind souls would give it a read through and tell me whether it is ok. Thanks to the authors of the letters I have shamelessly nicked bits from, I have added relevant info that applies to my situation, thanks in advance.

Re: ParkingEye PCN, reference code xxxxxxxxxx
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:

1) No genuine pre-estimate of loss
2) No standing or authority to pursue charges nor form contracts with drivers
3) The signage was inadequate so there was no valid contract formed
4) The ANPR system is unreliable and neither synchronised nor accurate

1) No genuine pre-estimate of loss
This car park is a free shopping car park limited to 1 1/2 hours parking whilst the shop is open. It is alleged that the vehicle overstayed in this car park by the total time of 1 hour and 57 minutes. The adjoining shop was closed and the car park was empty, as a result therefore there can be no loss as a result of this parking event. In fact the only loss incurred would be the £2.50 to obtain vehicle details from the DVLA.

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 that 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 the PCN sum is massively inflated, I require ParkingEye to submit a breakdown of how this sum was calculated prior to the parking event, especially as the car park was completely empty at the time of the alleged event.

The ParkingEye Notice to the 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 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 vehicle recall that the car park was completely empty at stated times on parking charge notice.

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, but a blanket one charge fits all penalty.

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.''

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) 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.'' So in this case there is no loss to be compensated for.


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

On receipt of the PCN I visited the shop in question to establish who owned the land and if it would be possible to speak to the manager, I was told by the manager of the shop, Home Bargains, that he did not know whether Home Bargains had a contract with ParkingEye

I therefore 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 did 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 redacted, contemporaneous copy of the contract between ParkingEye and the landowner. This is required so that POPLA and I 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 or was 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) The signage was inadequate so there was no valid contract formed

In response to your claim that the sign entering the car park states that the maximum free stay is 0 hours and 0 minutes is not true, the sign states nothing like that at all. The sign entering the car park does not state at all any penalty that will be imposed for any overstay And any such signs within the car park are approx. 2 feet above head height and the terms and conditions are in very small font rendering them impossible to read, thus not enabling the driver to enter into a contract due to there being a lack of information displayed. A contract has to be agreed upon by all parties involved and this clearly is not the case

Any photos supplied by ParkingEye to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera & flash and the angle may well not show how high the signs are. As such, I require ParkingEye to state the height of each sign in their response and to show contemporaneous photo evidence of these signs in the dark without the aid of flash photography. 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. This would include the signs being prominent/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

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 1 hour and 57 minutes more than the free time allocated. I would like to know how the time stamps of the alleged event are synchronised.

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 approaching darkness and if there was such a sign at all then it was neither clear 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 as the evidence in the Fox-Jones case.

I request that my appeal is allowed.

FunnyMunny

Wow your POPLA appeal letter sounds epic. Really well researched and written so you should have no problems winning.

What do the old hands at this think?

Dee140157

You have the win in no GPEOL.

The only thing I am unclear about is what the signs do actually say. However with POPLA the onus is on The PPC to disprove what you say, rather than on you to prove what you say (as with an IAS appeal).

So yes it looks good to go.

Coupon-mad

That will win!

I would remove this bit:

'In fact the only loss incurred would be the £2.50 to obtain vehicle details from the DVLA.'

...because really there is no 'initial loss' in a free car park, which is all POPLA need to consider, pretty much.

harrypotter123

Dee. The sign on entrance states 1 and half hour maximum stay, only to be used while shopping on site, see terms and conditions on signs in car park.

Coupon mad, I will remove that piece, thanks

harrypotter123

Ok guys and gals my appeal has been sent, I will keep you informed of the decision when I hear back from them, fingers crossed. thanks for the advice and help and thank you to the people whose work i have plagiarised :-).

Guys_Dad

harrypotter123 wrote: »

Ok guys and gals my appeal has been sent, I will keep you informed of the decision when I hear back from them, fingers crossed. thanks for the advice and help and thank you to the people whose work i have plagiarised :-).

As regulars will know, I am not generally in favour of long-winded appeals and by long winded, I mean anything over a couple of paragraphs per appeal point.

However, I am very impressed with some of the newish points you have included. For example:-

I contend that ParkingEye merely did 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.

Now many of the points have been made before, but your appeal lacks the scatter-gun finish of many others and is persuasive.

harrypotter123

Not all my own work, I have mixed letter templates with my situation added where relevan

harrypotter123

Hi all, just a quick question. I had my POPLA appeal hearing set for 15th October, how long generally does it take them to inform you of their decision because as of yet I have heard nothing from them. Thanks

Edna_Basher

One ParkingEye POPLA appeal I'd been working on was due "on or soon after" 13th October. I finally received the notification yesterday, so it would seem the adjudications are running about a week behind schedule.

Oh, and my appeal was successful, by the way; as usual, ParkingEye did not bother to submit any evidence to POPLA.

I guess that you've received no evidence pack from ParkingEye?