Parking Eye Morrisons Solihull

phill29

Hi, I've written to Morrisons this morning and will advise when I get a response. I've slightly adjusted a POPLA template. Can anyone advise on the below please to see if it is adequate please?

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 2.5 hours parking . It is alleged I overstayed in this car park by the total time of 35 minutes. The car park at the time of day of the parking event during weekdays is quiet with ample free parking spaces, therefore this parking event lead to no loss as a result.

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, 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 almost empty on arrival and 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 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 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 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

The occupants of the car recall seeing no signs on entrance to the car park. The last time the occupants visited the car park, upon leaving the Morrisons car park, a ticket was required. The occupants made this enquiry inside Morrisons but were told it is now a free car park.

I require ParkingEye to state the height of each sign in their response and to state when this car park changed from being a ticket operated car park to a free car park and to show contemporaneous photo evidence of these signs. 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.

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 12 minutes more than the free time allocated. 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 day.

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 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 as the evidence in the Fox-Jones case.

I request that my appeal is allowed.

Yours faithfully,

Coupon-mad

That's nearly done. I would say change this as shown:

1) No genuine pre-estimate of loss
This car park is a free shopping car park limited to 2.5 hours parking . It is alleged the vehicle overstayed in this car park...


And I would add to the dodgy signs paragraph that:

Morrisons signs inside the store and outside in the car park are a well-known and recognisable black/dark words on yellow. In the car park there is the usual clutter of Morrisons signs saying 'welcome' and informing customers where the trolley bay is, of the opening hours, etc. These are signs which regular shoppers would never be expected to give a second glance at. In my opinion, even if Morrisons themselves added an onerous sentence to their own signs, 90% of customers would never look at them because they have no need to read the retailer's signs. It is disingenuous then, that ParkingEye have chosen to install signs that are also black on yellow.*

Therefore, it is their own problem in the drafting of the signs that customers do not see them at all. This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not 'customers' of ParkingEye and are aware it is a free car park so are not expecting to read a contract. No consideration/acceptance flowed to and from both parties, so there was no contract formed.

No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal): 'The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.'

The signs are certainly not 'startling', since they are positioned on posts on a site where their client's own branding is well-known to be yellow. The restrictions were not obvious and nor were the terms drawn to the driver's attention in any explicit way - certainly not the risk of any hefty 'charge'. Terms on a notice - even if dozens of notices are dotted around the car park - are not imported into the contract unless brought home so prominently that the party 'must' have known of the terms and agreed to them in their entirety. This is not the case and it's hardly rocket science for ParkingEye, in pursuit of their alleged 'traffic space maximisation scheme' (for that term, read 'profit making moneyspinner') to work out that they should use another colour for their signs, where it is a Morrisons car park.




P.S. you don't have to use the last sentence if you don't want to - I would though. Make the POPLA Assessor smile!


*There was a thread last year about this with pics, where it showed how the very similar PE signs and Morrisons signs blend together in a car park, can anyone find it?

The_Deep

Are not Morrisons in deep doo doo profit wise? Can they really afford to impose time restrictions on those who like to take their time shopping in the establishment.

phill29

Again, thank you for all your help. I should have listened to earlier advice. I wrote to Morrisons on Monday. They asked for evidence showing that I was a regular customer. I provided a few bank statements (obscured screenshots) and they have cancelled the PCN. Parking Eye also emailed me to confirm. :T

trubster

Nice one, but TBH, a better result would have been the opportunity to cost the scammers £27 for the POPLA appeal rather than Morrisons having to intervene (and possibly pay an admin fee)

THETWYS

Redx wrote: »

just use the PE shortened template linked in the NEWBIES sticky thread, its especially shortened for online appeals to PE

alter your post above (edit) to say THE DRIVER overstayed , blah blah, dont give the opposition any ammo

the short word I doesnt exist in legalise ( nor ME . MYSELF or I )

where is the link to the pe letter template you refer to as i cannot find it in the sticky. cheers

Dee140157

thetwys, you need to read the newbie thread (see my signature.) it explains everything. If you have any further questions, start your own thread please.

ampersand

Start your own Thread please ukb - there is no parking eye template as such.

Read all the Newbie stickies first, several times. It will start to sink in.

Complain to Morrison's.
https://forums.moneysavingexpert.com/discussion/4766249

Even better if you have either receipt or online bank statement proof of shopping.