ParkingEye appeal to POPLA - Advice

applemac14

Hi,

Like many others, I am here seeking advice on appealing to POPLA. ParkingEye have rejected my appeal to them. I used a template (adapted to my needs) from here.

My situation is my car was parked in a P&D car park in Leeds on a weekend day. The PCN alleges that we did not pay for this stay. We were parked for 2 hours 40 minutes at an all day rate (8am to 6pm) of 3.50, but we left the carpark at 6:40pm, therefore we went over by 40 minutes. There is only an option of an all night rate of 5.50 (6pm to 8am), and no option of hourly rate as there is on weekdays.

As this was in the summer, the car park is in daylight but the signs were not clear and were obscured. I have included this in the POPLA appeal. But wonder how to tighten this up.

I am wondering how I could add a paragraph about breaching section 4 (Paragraph 9) of POFA 2012, as the original PCN (NTK) or the rejection did not identify the fee paid and the fee that remained unpaid. I read on the forum that this means that there is no keeper liability as they did not identify this information.
the NTK should state the amount of parking charge (fee) paid and the amount not yet paid. See paragraph 9 of the POFA 2012 schedule 4.

What do people think of this appeal. I have put my amendments to the template in bold

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 not readable from the vehicle access so there was no valid contract formed between ParkingEye and the driver
4) The ANPR system is unreliable and neither synchronised nor accurate

1) No genuine pre-estimate of loss
This car park is Pay and Display and payment was made at £4 for parking for up to 10 hours (8am to 6pm). It should be noted this is more than the payment required for this duration of parking. Having received the Notice in the post I checked the signage in daylight and it seems that parking after 6pm (6pm to 8am) is charged at £5.50. The alleged offence is for parking for an additional 40 minutes after 6pm. Therefore the only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge = £5.50 at the most.

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 over and above £5.50, I require ParkingEye to submit a breakdown of how this sum was calculated prior to the parking event, as being capable of directly flowing from a minor alleged breach.

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 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 approximately half full on arrival and almost empty when the driver left.

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.

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 anyway) 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) 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. 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 license 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 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.

3) The signage was not readable from the vehicle access so there was no valid contract formed between ParkingEye and the driver
The only signs are up on poles (away from the Pay & Display machine, which is not a 'sign' nor does it communicate full contractual terms & conditions). Any upright signs were obscured by foliage and were not seen by the occupants of the car. Signs are positioned at the entrance to the car park, which is accessed by crossing a very busy footpath. I believe that ParkingEye place their signs in this position so high that terms would only be legible if a driver got out of a car climbed a step ladder and cleared the foliage to try to read them. 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.

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 lit - and it can be seen from ParkingEye's own photos of an isolated numberplate in the dark, that the entrance (where signs must be clear) was in fact pitch black. 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. The only charges the driver knew about were the small sums mentioned on the pay and display machine. 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 40 minutes more than the time paid for. 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 pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all and has not been shown to be synchronised to the pay and display machine clock nor even to relate to the same parking event that evening.

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 dark and if there was such a sign at all then it was neither lit 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 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 and to show how these camera timings are synchronised with the pay and display machine.

I request that my appeal is allowed.

Yours faithfully,



Mr xxxxxxxxxxx {registered keeper's name...}

Redx

I would have numbered headings for each part but shorter, reproduced as numbered bullet points just prior to the main appeal points and on one line only

the header for 3) is especially poor at the moment, but is about signage

Coupon-mad

That will be fine once tidied up. PE won't defend it at all.