Parking Eye - Parking Charge Notice

Georginio

Sorry for bumping this back up.


I'm pretty sure I'm more on the money this time and would be really grateful if someone could give the above popla appeal a quick scan.

ampersand

OK G - others will drop in, so wait, but have tweaked considerably-

para 1., change to 'The demand for a payment of £90 is punitive, unreasonable and bears no relationship to any loss...'

...in fact, a lot of this is verbose. Simplify, remain courteous, keep it readable.

Lead the Assessor to seeing things your way.
So, para 1:
'1) No genuine pre-estimate of loss

The demand for a payment of £90 is punitive, unreasonable, and bears no relationship to any loss that could possibly have been suffered by the Landowner or the Operator.

ParkingEye are put to strict proof to explain their 'charge' by providing POPLA with a detailed financial breakdown which fully qualifies as a genuine pre-estimated amount of loss in this particular car park for this alleged contravention.
Heads of cost which include sums covering normal operational costs and tax-deductible back office functions, such as debt collection, etc. do not constitute in any way a genuine pre-estimate of loss.

Any such costs cited cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued and would have had many of the same business overheads even if no vehicles breached any terms at all. This means that with or without any 'breach', the cost of parking enforcement would still be the same and there was no loss or damage caused.

To reiterate, ParkingEye have no cause of action to pursue this charge.

I specified in my original appeal that I would like to see a breakdown of the costs incurred by ParkingEye as a result of the alleged breach. -careful, did you do this? if not, omit and continue thus]
By failing to provide this information, stating that the charge is in line with BPA guidelines and therefore 'deemed reasonable', the claimant has no cause.

The fact that the recommended maximum level in section 19.5 (“we would not expect this amount to be more than £100”) has not been exceeded merely means that the operator does not have to justify the amount in advance.

In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6, which states that the charge can “cannot be punitive or unreasonable”.

ParkingEye must strictly prove that a contemporaneous loss occurred and submit a breakdown of how this sum was calculated prior to the parking event. It cannot be capable of directly flowing from a minor alleged breach as a genuine pre-estimate of loss.

If ParkingEye claim that the charge is 'commercially justified' and cite 'ParkingEye v Beavis & Wardley', this claim is irrelevant.

Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision. It is lodged, cited as being 'full of caveats and full of holes and a distinct lack of case law.'

In addition, this is the recent judgment of POPLA Assessor Chris Adamson [June 2014]concerning an alleged 'loss statement' submitted by the claimant, which was a failed attempt to convince POPLA:

''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, 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.''

This case is the same.

ParkingEye are 'operators' who put up signage and 'issue tickets'.

Again, the Assessor is referred to the copy note from the front of house manager from the hotel, which confirms in writing that Parking Eye have been 'operating' the car park on their behalf.

Despite requests for a copy of the relevant contract between Parking Eye and the landowner, nothing has been forthcoming. Of course, money changing hands will affect any calculations of so-called 'loss' and is one of several reasons why I require sight of a contemporaneous, unredacted landowner/ParkingEye contract in full as per point #2.

2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability

As this was a Pay/Display car park, the Notice to Keeper (NTK) must set out the position clearly in terms of 'describing the parking charges due'. The NTK fails to state the amount of the parking charge which allegedly remains unpaid i.e. the fee or tariff, not the inflated sum which this Operator also calls a 'parking charge'.

As keeper I can see from the limited information in the NTK 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 was and whether the driver paid nothing, or paid too little, or paid only for half an hour or an hour, or paid in full but put in the wrong car registration, or some other scenario.

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 are required under the POFA - to state on the NTK the basic details which 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 at all.

The keeper could, at best, make only a guess at what it might have been, by contacting the landowner to find out the tariff and then interrogating the driver for more detail.

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.

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

ParkingEye have no proprietary interest in the land concerned and have not responded to a request for a copy of any contract with the landowner in which authority to pursue outstanding parking charges is set out in section 7.2 paragraph (f): “whether or not the landowner authorises you to take legal action to recover charges from drives charged for unauthorised parking” has not been addressed.

In the absence of this evidence, I believe that ParkingEye do not have the legal capacity to enforce such a charge.

Any full and unredacted landowner contract provided by the claimant must include all payments made between the parties, names, dates and details of all terms included.

A 'witness statement' or 'site agreement' instead of the relevant contract is unacceptable, as these can not show sufficient detail, such as restrictions, charges and revenue-sharing arrangements agreed with a landowner.

They may well be signed by a non-landholder, such as another agent. There would be no proof that the alleged signatory can act on behalf of the landowner or has ever seen the relevant contract.

No 'witness statement' or 'site agreement' will be acceptable and would fail to rebut the appeal point about the Operator's lack of standing and assignment of any rights.

Again, the Assessor is referred to the statement in writing, already referred to [attached] from the front of house manager from the hotel.

ParkingEye are merely an employed site agent and this is nothing more than a commercial agreement between the two parties.

There is nothing that enables ParkingEye to impact upon visiting drivers in their own right, for their own profit. Only the full relevant contract, can provide sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner)

4) Unreadable Signage. No valid contract formed between ParkingEye and the driver

The only signs are high[approx. height? 8/9'?] 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 not so prominent among all the other signage on site that they were ever seen by the occupants of the car. I believe that ParkingEye place their signs so high, at non-compliant angles, which would only be legible if a driver got out of a car and climbed a stepladder, holding a torch, to try to read them.[was this at night? weather conditions?]

Photos supplied by ParkingEye to POPLA often show signs in bright sunlight or with the misleading aid of a close-up camera. Further, the angle often fails to show how high the sign is. Without due prominence, ParkingEye signs can only be one of many types of signage in the clutter of this busy car park.

I therefore require ParkingEye to state the height of each sign and to show contemporaneous photo evidence of these signs, taken at the same time of day, without photo-shopping or cropping, showing truthfully where the signs are placed among a myriad of other information bombarding a customer.

Requests for this photographic evidence in the initial appeal to ParkingEye have been ignored.

'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.

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.
#####
Sort out the points needing corroboration etc.
See what others say.
Can't spend any more hrs on this now:-)

Coupon-mad

It's looking good but missing the usual ANPR paragraph that you see in PE cases?

Georginio

There is a fault in the site Ampersand. For some reason it only lets me press the thanks button once on each post. I cannot begin to tell you how much I appreciate your help. A thousand clickety thanks!


On the specific questions you have asked:






"I specified in my original appeal that I would like to see a breakdown of the costs incurred by ParkingEye as a result of the alleged breach. -careful, did you do this? if not, omit and continue thus]"


You are correct. I thought I had but having re-read it I did not.


"The only signs are high[approx. height? 8/9'?] up on poles"


I have no idea if this is fully true. I live several hundred miles from the car park in question and am not sure about the sign locations.


I removed the ANPR paragraph after advise from Ampersand (who btw is amazing) in post #8 of this thread. Upon re-reading I may have completely misread the advice he/she offered. It may have been that I needed to remove the word I which I used to describe myself as the registered keeper. If it is better off in I can easily re add it. The ANPR paragraph I was looking at using is point 5 in post #7 in this thread.


One final time for this post, thank you all so much for your help with this.

Coupon-mad

"The only signs are high[approx. height? 8/9'?] up on poles"

I have no idea if this is fully true. I live several hundred miles from the car park in question and am not sure about the sign locations.

They are indeed that high - I was in Cornwall at Easter myself and had a little look at some PE car parks on my walks!

And yes you should have an ANPR paragraph like the ones you see in the Newbies thread PE examples linked in post #3 of the sticky.

Georginio

I will get that added back in and mention the height then.


With the permission of the board am I ready to submit?

Coupon-mad

Hehehee, yes!

Georginio

You're all amazing!


I will let you know how it goes.

ampersand

Just in G - did you include the day/night conditions section?

You will certainly be 'found guilty' of T'Internet Template Appealing':-) if yours was a daytime parking event.

See here:...[in point 4, para 2]
,....' holding a torch, to try to read them'.[was this at night? weather conditions?]

Georginio

Sorry for the late reply Ampersand.


The torch details were removed.


Do you have any idea how long POPLA tend to take?