Parking Eye - POPLA Appeal

kixxykat

Hi,
I was hoping for someone's advice over whether my appeal is suitable, I have added a section in the pre-estimate of loss section that I feel is relevant. As well as the fact a sign with t and C's on is not square with the entrance.

Also I feel the ticket system is poor as the ticket states your time you pay but not when you have paid until, which is standard for all other car parks, however I have not put this in the appeal.



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 in the dark 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 Pay and Display and payment was made at £1.20 for one hours parking. Having received the Notice in the post I checked the signage in daylight and it seems that up to 2 hours would have cost £2.40 so the only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge = £1.20 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 £1.50, 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 (they are not allowed to include operational costs such as wages, signs,office costs etc).

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 the Sun Inn 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 a quarter full on arrival and almost empty when the driver left, believing the parking time to have been one and a half hours.

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.''

It is also worth noting that the signage itself states that "Customers of the Sun Inn can receive a refund of up to 2 hours parking (equivalent cost of up to £2.40) against a minimum spend of £5 upon production of the second part of ticket". As the driver stayed for less than 2 hours the loss to The Sun Inn can only be the £5 minimum spend that the driver of the vehicle would have spent in The Sun Inn. Therefore a charge of £100 is not proportionate to their losses. The driver in question did visit The Sun Inn but as they were driving and therefore not drinking alcohol they did not spend the required minimum amount but have still been charged for "loss" to the company.

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 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 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 in the darkened alley way entrance 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). I believe that ParkingEye place their signs so high that terms would only be legible if a driver got out of a car and climbed a stepladder, 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 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 lit - at the entrance the signs are on the left of the vehicle and at height which the driver would not see when entering the car park, the signs are also in an alleyway created by two tall buildings and therefore even in the day this creates a dark entrance way. An additional sign at the entrance listing a number of terms and conditions is also not viewable by the driver as rather than facing the entranceway it is at 90 degree angle meaning the driver could only see it if they looked to their left when directly inline with the sign, but as they are driving with due care and attention this would not occur. 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 30 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.

Coupon-mad

I would put these bits together (so bring up the paragraph that starts 'It is also worth noting') and lose the part in bold (too much information!):

1) No genuine pre-estimate of loss
This car park is Pay and Display and payment was made at £1.20 for one hours parking. Having received the Notice in the post I checked the signage in daylight and it seems that up to 2 hours would have cost £2.40 so the only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge = £1.20 at the most.

It is also worth noting that the signage itself states that "Customers of the Sun Inn can receive a refund of up to 2 hours parking (equivalent cost of up to £2.40) against a minimum spend of £5 upon production of the second part of ticket". As the driver stayed for less than 2 hours the loss to The Sun Inn can only be the £5 minimum spend that the driver of the vehicle would have spent in The Sun Inn. Therefore a charge of £100 is not proportionate to their losses. The driver in question did visit The Sun Inn but as they were driving and therefore not drinking alcohol they did not spend the required minimum amount but have still been charged for "loss" to the company.

Surely as a group the spend was over a fiver? Replace the bit in bold with:
The occupants of the car did spend more than a fiver between them (as every group visiting a pub would do!) but they had no idea about having to prove this. As is often the case, the driver was not drinking, so that person did not approach the bar at any point and had no idea about getting any refund let alone keeping the ticket on the off-chance that a third party might send a letter out two weeks later. If anything, the driver is still owed a refund, since the occupants of the car spent more than enough to qualify for free parking.


Then you can add another appeal point:

The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
As this was a Pay/Display car park with the option for customers of the Sun Inn to receive a refund of up to 2 hours parking, then the Notice to Keeper (NTK) has to set out the position clearly. It does not set out the position at all clearly, and nor does it state the amount of the parking charge which remains unpaid (i.e. the fee or tariff which allegedly remained unpaid, not the £100 which this Operator also calls a 'parking charge'). As keeper I can see only that the car stayed for a certain amount of time and that the contravention was 'either/or' an overstay or failure to pay. This does not create any certainty of terms, it leaves a keeper to wonder what the hourly rate tariff even was and whether the driver paid nothing, or paid too little (such as a pound) or paid only for half an hour or an hour, or paid in full but put in the wrong car registration, or some other event. As this operator has the technology to record car registrations, to collect and record payments and to take photos of cars arriving and leaving, they are certainly able, and indeed required, to state on the NTK the basic requirements set out under the POFA to show a keeper how the 'parking charge' arose.

These are the omissions:
''9(2)The notice must—
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid...'

This so-called outstanding 'payment' is not quantified - I have had to guess what it might be by going back and checking the signs and had to interrogate the driver to find out the details!

POPLA Assessor Matthew Shaw has stated that the validity of a NTK is fundamental to establishing liability for a parking charge. ''Where a Notice is to be relied upon to establish liability ... it must, as with any statutory provision, comply with the Act.'' As the Notice was not compliant with the Act due to the omissionsof statutory wording, it was not properly given and so there is no keeper liability.