Made a mistake? Parking eye...

Dazed+confused

You are all fantastic! More than anything.. giving me the confidence to refuse to pay, instead of rolling over so I don't "lose out on the discount"!!

The power of social media.. I found them on facebook and wrote a review then followed it with another email stating I would review on similar sites.. I got this reply this afternoon:

Firstly, let me thank you for your custom at our hotel, and also for the feedback you have provided regarding the new parking system.
As this is the first case of you having received a fine, and as you are a genuine customer of our pub, I am willing to appeal on your behalf to Parking Eye, the third-party company managing our car park. If you could e-mail me with the reference number relating to your fine, your vehicle registration, and the date of your visit, I will forward these to our account manager and get your fine overturned.
I would, however, like to point out that the grace period for these fines is not indefinite, and I am only able to overturn a fine in the first incidence.

Coupon-mad

So we assume you have found the 'P&D car park version' for a Parking Eye POPLA appeal, as linked in the Newbies thread now. I would submit it to POPLA anyway, belt & braces! Or are you assuming it's cancelled? I wouldn't, I would do the POPLA appeal anyway.

Jeez they have called it a fine!

Dazed+confused

"I will forward these details tomorrow morning. Due to the nature of Parking Eye's automated system and the overlap between appeals and the notices being sent out, don't be surprised if you get a 'final notice' letter in the post. Please accept this email as confirmation that your charges will be overturned. If you have any questions or concerns, please call..." the manager of the hotel.

I was thinking this would be sufficient? I could do the POPLA letter as well if you don't think so?

Thanks again!

Coupon-mad

No it's not sufficient, necessarily. This is Parking Eye you are dealing with - they are horrible. Submit an online POPLA appeal as well - it's already written for you (bar the odd tweak of details) and Umkomaas told you where to find it in post #3 of the Newbies sticky thread near the top.

Dazed+confused

Ok, will take advice. THANK YOU ALL!!!

Umkomaas

As this is the first case of you having received a fine, and as you are a genuine customer of our pub, I am willing to appeal on your behalf to Parking Eye, the third-party company managing our car park.

I would, however, like to point out that the grace period for these fines is not indefinite, and I am only able to overturn a fine in the first incidence.

After this is all over I would write to the pub, thank them for their intervention and assure them that this will definitely be a 'one off' incidence, it will never happen again, because for as long as they have PE harassing customers you will be one ex-customer they will never have the opportunity of harassing ever again. You might also want to post that on the review site you originally used too.

The more landowners start to realise the damage PPCs are doing to their businesses, through swingeing penalties for simple errors, the sooner some sanity is brought into parking management.

Dee140157

+1 to Umkomaas advice. Certainly not a pub I would want to use again!

wiogs

I would also, when you write to the pub, correct their error of calling it a fine and suggest that they should not mislead their customers.

Dazed+confused

Hi all... sorry was trying to get hold of pics of sign as I live quite far away, someone gave me rough idea that they are high up, unlit but not the specific wording. I have copied, pasted and edited as they are written so much better than I could ever put together. If anyone could read and critique I would be very grateful. Will definitely write to pub again once resolved.

Dear POPLA,
I am the registered keeper & this is my appeal:

1) The Charge is not a genuine pre-estimate of loss
The Operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the car park was not even half full, and ultimately parking would have been free, as I had met the requirements, as customer of the Hotel in question, to have the ticket refunded. This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. 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.

2) Lack of signage - no contract with driver
I see that the sign is placed high up and is unlit, so that in darkness no signs are visible and the words are unreadable. I put UKCPS to strict proof otherwise; as well as a site map they must show photos in darkness taken without a camera flash. There is no entrance sign, no lighting on site and the sign is not prominent, not reflective & placed too high to be lit by headlights. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.

The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit...should be made of a retro-reflective material similar to that used on public roads''.

3) Lack of standing/authority from landowner
UKCPS has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put UKCPS to strict proof of the contract terms with the actual landowner (not a lessee or agent). UKCPS have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that UKCPS are entitled to pursue these charges in their own right.

I require UKCPS to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.


5) Unreasonable/Unfair Terms
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

An unlit sign of terms placed to high to read, is far from 'transparent'.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

I contend it is wholly unreasonable to rely on unlit signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described and with their utter lie about the keeper's right to appeal 'only if the car is stolen' in mind, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

I therefore respectfully request that my appeal is upheld and the charge is dismissed.

Northlakes

The appeal states UKCPS not Parking EYE!