Parking charge - Leeds POPLA APPEAL

Spencerk

Hi, I received a Parking Eye invoice for failing to pay the correct amount. I thought I had paid for 'all day' but as I stayed after 6pm that apparently was a higher charge. This wasn't clear from the signs. I've read much of what has been said on these forums and lodged a soft appeal which has been rejected. I've got a POPLA code and am about to submit the POPLA appeal using the template below. Before I do could you let me know if it looks ok?

Many thanks

Re: ParkingEye Invoice, reference code xxxxxx
POPLA Code:

I am the registered keeper and I wish to appeal a recent invoice fromParkingEye. I submit the points below to show that I am not liable for theinvoice:

1) No genuine pre-estimate of loss
2) The Notice to Keeper is not compliant with the POFA 2012 - no keeperliability
3) No standing or authority to pursue charges nor form contracts with drivers
4) The signage was not readable so there was no valid contract formed
5) 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 £3.50 for "allday parking". Having received the Notice in the post I checked the signageand it seems that "All Day parking” is limited between 8 am & 6pm. Bythe information provided by Parking eye the vehicle exited the car park at(7.35pm). Overnight parking is charged at £5.50 from 6pm to 8am. So the onlyrecoverable 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 unrecoverablepenalty, unrelated to damages incurred and the only sum that could be recoveredwas deemed to be £15 (the amount of the pay and display fee for more than onevisit). The entirety of the parking charge must be a genuine pre-estimate ofloss in order to be enforceable. As the PCN sum is massively inflated over andabove the stated tariff, I require ParkingEye to submit a breakdown of how thissum was calculated prior to the parking event, as being capable of directlyflowing from a minor alleged breach.

The Operator cannot reasonably claim a broad percentage of their entire businessrunning costs as they operate various different arrangements, some where theypay a landowner a huge amount akin to a 'fishing licence' to catch motoristsand some where they have pay and display, and others which are free car parks.I suggest there was never any advance meeting held with the client, nor regardpaid to any 'genuine pre-estimate of loss' prior to setting the parking chargesat this site (before putting signs up and enforcing the charges, back when thecontract was initially signed). I put this operator to strict proof to thecontrary and to explain how the calculation happens to be the same whether thealleged overstay is 20 minutes or 20 hours.

The ParkingEye Notice to Keeper alleges 'breach of terms/failure to comply' andas such, the landowner/occupier (not their agent) can only pursue liquidateddamages directly flowing from the parking event. This must amount in itsentirety, only to a genuine pre-estimate of loss, not some subsequently penned'commercial justification' statement they have devised afterwards, since thiswould not be a pre-estimate. Any later 'new' calculation (even ifdressed up to look like a loss statement)would fall foul of Mr Greenslade'sexplanation abut GPEOL in the POPLA 2014 Report and would also falls foul ofthe DFT Guidance about private parking charges. The British Parking AssociationCode of Practice uses the word 'MUST': "19.5 If the parking chargethat the driver is being asked to pay is for a breach of contract or act oftrespass, this charge must be based on the genuine pre-estimate of loss thatyou suffer.''

This charge cannot be 'commercially justified' so this Operator would bewasting their time to adduce the flawed and not persuasive 'ParkingEye vBeavis' small claims decision (now being taken to the Court of Appealby Mr Beavis anyway, due to be heard in February 2015). POPLA Assessor ChrisAdamson has stated in June 2014 that:

''In each case that I have seen from the higher courts,...it is made clearthat a charge cannot be commercially justified where the dominant purpose ofthe charge is to deter the other party from breach. This is most clearly statedin Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly atparagraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v UnitedInternational Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states aclause should not be struck down as a penalty, “if the increase could in thecircumstances be explained as commercially justifiable, provided always thatits dominant purpose was not to deter the other party from breach”. Thissupports the principle that the aim of damages is to be compensatory, beginningwith the idea that the aim is to put the parties in the position they wouldhave been in had the contract been performed. It also seems that courts havebeen unwilling to allow clauses designed to deter breach as this undermines thebinding nature of the initial promise made. Whilst the courts have reasonablymoved away from a strict interpretation of what constitutes a genuine pre-estimateof loss, recognising that in complex commercial situations an accuratepre-estimate will not always be possible, nevertheless it remains that a chargefor damages must be compensatory in nature rather than punitive.''

2) The Notice to Keeper is not compliant with the POFA 2012 - nokeeper liability
As this was a Pay/Display car park, the Notice to Keeper (NTK) has to setout the position clearly in terms of 'describing the parking charges due'. TheNTK fails to state the amount of the parking charge which remains unpaid (i.e.the fee or tariff which allegedly remained unpaid, not the inflated sum whichthis Operator also calls a 'parking charge'). As keeper I can see from thelimited information before me in the NTK, only that the car stayed for acertain amount of time and that the contravention was 'either/or' an overstayor failure to pay.

This does not create any certainty of terms, it leaves a keeper to wonder whatthe hourly rate tariff even was and whether the driver paid nothing, or paidtoo little, or paid only for half an hour or an hour, or paid in full but putin the wrong car registration, or some other event. As this operator has thetechnology to record car registrations, to collect and record payments and totake photos of cars arriving and leaving, they are certainly able - and indeedare required under the POFA - to state on the NTK the basic requirements toshow 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 inrespect of the specified period of parking and that the parking chargeshave not been paid in full;
(c)describe the parking charges due from the driver as at the end of thatperiod, the circumstances in which the requirement to pay them arose (includingthe means by which the requirement was brought to the attention ofdrivers) 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 - I have had toguess what it might have been, by going back and checking the signs to find outthe tariff and then had to interrogate the driver to find out moredetail!

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

3) No standing or authority to pursue charges nor form contracts withdrivers
I believe that this Operator has no proprietary interest in the land, so theyhave no standing to make contracts with drivers in their own right, nor topursue charges for breach in their own name. In the absence of such title,ParkingEye must have assignment of rights from the landowner to pursue chargesfor breach in their own right, including at court level. This has not beenproduced by the operator in their rejection statement so I have no proof thatsuch a document is in existence. I contend that ParkingEye merely hold a barelicence to supply and maintain (non compliant) signs and to post out 'tickets'as a deterrent. A commercial site agent for the true landholder has noautomatic standing nor authority in their own right which would meet the strictrequirements of section 7 of the BPA Code of Practice.

I therefore put ParkingEye to strict proof to provide POPLA and myself with anunredacted, contemporaneous copy of the contract between ParkingEye and thelandowner. This is required so that POPLA and myself can check that it allowsthis Operator to make contracts with drivers themselves and provides them withfull authority to pursue charges, including a right to pursue them in court intheir own name. Please note that a witness statement to the effect that acontract is in place will not be sufficient to provide sufficient detail of thecontract terms (such as revenue sharing, genuine intentions of theserestrictions and charges, set amounts to charge for each stated contravention,etc.). In any case, ParkingEye's witness statements have been exposed as photocopytemplates from clients who may well have no knowledge of any individual parkingevent and the signatory may never even have seen the contract.

4) The signage was not readable so there was no valid contract formedbetween ParkingEye and the driver
The only signs are up on poles (away from the Pay & Display machine, whichis not a 'sign' nor does it communicate full contractual terms &conditions). Any upright signs were not so prominent among all the othersignage on site that they were ever seen by the occupants of the car. I believethat ParkingEye place their signs so high that terms would only be legible if adriver got out of a car and climbed a stepladder, holding a torch, to try toread them. Any photos supplied by ParkingEye to POPLA will no doubt show thesigns in daylight or with the misleading aid of a close up camera and the anglemay well not show how high the sign is nor the fact the ParkingEye signs areone of many pieces of information in the clutter of this busy customer carpark. As such, I require ParkingEye to state the height of each sign in theirresponse and to show contemporaneous photo evidence of these signs, taken atthe same time of day without photoshopping or cropping and showing where thesigns are placed among a myriad of other information bombarding a customer.

Unreadable signage breaches Appendix B of the BPA Code of Practice which statesthat terms on entrance signs must be clearly readable without a driver havingto turn away from the road ahead. A Notice is not imported into the contractunless brought home so prominently that the party 'must' have known of it andagreed terms beforehand. Nothing about this Operator's onerous inflated'parking charges' was sufficiently prominent and it is clear that therequirements for forming a contract (i.e. consideration flowing between the twoparties, offer, acceptance and fairness and transparency of terms offered ingood faith) were not satisfied.

5) The ANPR system is unreliable and neither synchronised nor accurate
ParkingEye's evidence shows no parking time, merely photos of a car driving inand out. It is unreasonable for this operator to record the start of 'parkingtime' as the moment of arrival in moving traffic if they in fact offer a payand display system which the driver can only access after parkingand 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 anddisplay machine clock nor even to relate to the same parking event thatevening.

Further, this Operator is obliged to ensure their ANPR equipment is maintainedas described in paragraph 21.3 of the BPA Code of Practice and tohave signs stating how the data will be stored and used. I saythat Parking Eye have failed to clearly inform drivers about the cameras and howthe data will be used and stored. . I have also seen no evidence that they havecomplied with the other requirements in that section of the code in terms ofANPR logs and maintenance and I put this Operator to strict proof of full ANPRcompliance.

In addition I question the entire reliability of the system. I require thatParkingEye present records as to the dates and times of when the cameras atthis car park were checked, adjusted, calibrated, synchronised with the timerwhich stamps the photos and generally maintained to ensure the accuracy of thedates and times of any ANPR images. This is important because the entirety ofthe charge is founded on two images purporting to show my vehicle entering andexiting at specific times. It is vital that this Operator must produce evidencein response and explain to POPLA how their system differs (if at all) from theflawed ANPR system which was wholly responsible for the court loss recently inParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judgesaid the evidence from ParkingEye was fundamentally flawed because thesynchronisation of the camera pictures with the timer had been called intoquestion and the operator could not rebut the point.

So, in addition to showing their maintenance records, I require ParkingEye toshow evidence to rebut the following assertion. I suggest that in the case ofmy vehicle being in this car park, a local camera took the image but a remoteserver added the time stamp. As the two are disconnected by the internet and donot have a common "time synchronisation system", there is no proofthat the time stamp added is actually the exact time of the image. The operatorappears to use WIFI which introduces a delay through buffering, so"live" is not really "live". Hence without a synchronisedtime stamp there is no evidence that the image is ever time stamped with anaccurate time. As their whole charge rests upon two timed photos, I putParkingEye to strict proof to refute all of my points about their flawed ANPRrecords.

I request that my appeal is allowed.

Yours faithfully,


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

Coupon-mad

Yep it's fine, looks like you hardly changed it which is alright if all the details are relevant.