Parking Fine for 18 minute pick-up!!

MrTom90

My partner has received a PCN for an 18 minute stay in a car park operated by Parking Eye for £100. They stopped their to pick me up from the train station for 18 minutes and stayed with the car.

However, the car park was not busy, lots of spaces were available and it is the worst layout in the world, allowing barely any manoeuvrability to actually drive around it, revers in/out of spaces and so on - thus meaning extended time to get in/out.

There is no evidence to show we even parked, nor how long for, just that we entered and exited 18 minutes apart. The cost is clearly no indicative of any loss they may have made for us not paying to park, but nor did my partner think an 18 minute stay would be a problem (albeit we were not aware it had a camera system recording entrances and exits).

Irrespective of any circumstances or opinions, in its simplest form £100 for 18 minutes is obviously entirely unreasonable and I have every intention to appeal.

I am fairly certain, and will be checking this information once I pass the car park when I get off my train today, that the car park allows 15 minutes to either purchase a ticket or exit, and I would say it is reasonable to assume it takes 3 minutes to exit such a poorly designed car park. I have drafted my letter based on this.

I just wanted to see if anyone had any further thoughts or advice relating to my situation in addition the NEWBIES threads which I have read, and also wanted to post my draft appeal letter to get feedback if possible?

FYI.. I am the registered keeper of the car. Partner was the driver, but I have seen already not to disclose that information anyway.

I will obviously double check the 15 minute time limit when I get home tonight, but here is my draft for any initial feedback and help.

ONE MORE QUESTION: Do i need to provide imagery or any hard evidence of anything with this? Im not so sure its that applicable. Would this letter suffice?

Many Thanks in advance.

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DRAFT LETTER

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Dear Sirs

Re: PCN No. ....................

I challenge this 'PCN' as keeper of the car, on these main grounds:

• The sum does not represent a genuine pre-estimate of loss, nor is it a core price term. It is a disguised penalty and not commercially justified.
• As keeper I believe that the signs were not seen, the wording is ambiguous and mostly unreadable.
• There is no evidence that you have any proprietary interest in the land.
• Your 'Notice' fails to comply with the POFA 2012 and breaches various consumer contract/unfair terms Regulations.
• There was no consideration nor acceptance flowing from both parties and any contract with myself, or the driver, is denied.
• The ANPR system is unreliable and neither synchronised nor accurate
• The car park allows 15 minutes to purchase a ticket and it is reasonable to assume that the driver took 3 minutes to exit the barely manoeuvrable car park upon deciding not to park, in addition there is no evidence to show that the vehicle spent any of this duration in a marked parking spot.
1) The Charge is not a genuine pre-estimate of loss

This car park is Pay and Display and, as keeper, I have no reason to believe that the driver did not make payment for a period of parking. The Notice to Keeper (NTK) does not say one way or the other. Having checked the signage at the site it would seem that up to 12 hours would have cost £5 and up to 24 hours £8 so the only recoverable sum under the POFA 2012 is the sum of the alleged 'unpaid' parking charge which is £8 at the most and more likely only £3. Parking Eye have not told me these details (see point 3 below).

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 the stated tariff, 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 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. I suggest there was never any advance meeting held with the client, nor regard paid to any 'genuine pre-estimate of loss' prior to setting the parking charges at this site (before putting signs up and enforcing the charges, when the contract was initially signed). I put this operator to strict proof to the contrary and to explain how the calculation happens to be the same whether the alleged overstay is 12 hours, or, as would appear to be the case on this occasion, 1 minute.

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 must amount in its entirety, only to a genuine pre-estimate of loss, not some subsequently penned 'commercial justification' statement they have devised afterwards, since this would not be a pre-estimate. Any later 'new' calculation (even if dressed up to look like a loss statement) would fall foul of Mr Greenslade's explanation about GPEOL in the POPLA 2014 Report and would also falls foul of the DFT Guidance about private parking charges. The British Parking Association Code of Practice states: "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.''

This charge cannot be 'commercially justified' so this Operator would be wasting their time to adduce the flawed and not persuasive 'ParkingEye v Beavis' small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway, due to be heard in February 2015). 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) The signage was not compliant with the BPA Code of Practice and was not seen before parking - so there was no valid contract formed between ParkingEye and the driver

Signs at this car park are unclear, up high on poles and hard to read, to the extent that they are incapable of forming a contract even if the driver had seen and agreed to the terms, which is not the case in this instance. Since receiving the NTK, I went to the site and could not read all of the sign due to the small font size and height of the sign (around 8 – 9 foot high). The sign breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver: ''Signs should be readable and understandable at all times”.Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, such as when the driver walks away and past a sign, as this is too late. In breach of BPA CoP Appendix B (Mandatory Entrance Signs) ParkingEye has no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.
I put ParkingEye to strict proof otherwise; as well as a site map they must show unedited photographic evidence. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms.

3) Lack of standing/authority from landowner
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.

4) The Notice to Keeper (NTK) is not properly given and does not establish keeper liability under the Protection of Freedoms Act (POFA) 2012

• The NTK does not specify the period of parking in accordance with POFA 2012, Schedule 4, para 9(2)(a) and (b). Note: only the time in car park is shown which is calculated from the photographs of the vehicle entering and exiting the car park. This cannot be the period of parking since the photographs are taken at the entrance and exit of the car park which will not reflect the time taken to drive around the car park to find a suitable space and park and to reverse out of that space and drive to the exit of the car park on leaving. In addition the signage states that drivers have 15 minutes to purchase a ticket upon arrival. If therefor a ticket is not purchase and the vehicle exits within 15 minutes a parking charge is not incurred. Thus it could be that the driver entered the car park, and within the 15 minute time frame decided not to park for an extended duration and in-fact move on. With the difficult manourability of this car park due to tiny spaces and extremely restrictive reversing and infact straight-line driving space it is entirely possible that it then took 3 minutes to turn around and exit the car park. There is no evidence to indicate that the vehicle was parked in a marked parking place for more than 15 minutes. Whilst it is impossible to say, since the NTK does not state the relevant period of parking nor the total due and the amount unpaid as required by POFA, ParkingEye have not proved that the vehicle was parked any longer than any period for which merits any appropriate fee. I put ParkingEye to provide this proof that the vehicle overstayed it’s allowance.
• The NTK does not state that the parking charges have not been paid in full in accordance with POFA 2012, Schedule 4, para 9(2)(b).
• The NTK does not specify the parking charges due from the driver at the end of the period in accordance with POFA 2012, Schedule 4, para 9(2)(c).
• The NTK does not specify the circumstances in which the requirement to pay this alleged parking charge arose in accordance with POFA 2012, Schedule 4, para 9(2)(c). It provides ambiguous, alternative possible explanations and does not state which applies. Neither of these possible explanations explain how the parking charge arose nor provide any information about whether a ticket had been purchased.
• The NTK does not specify the amount of the total parking charges due which remain unpaid in accordance with POFA 2012, Schedule 4, para 9(2)(d). POFA requires that a NTK describes any 'unpaid' charges which the driver owed as at a time not later than the DAY BEFORE the issue of the postal NTK. The sum for breach of contract cannot be described as ‘unpaid by the driver’ prior to the day the NTK was issued, because it only arises and could be described as 'unpaid', if at all, at/after the time of receipt of the NTK by the keeper. The inflated PCN amount now being pursued for 'breach' should not be confused with the sum intended by Schedule 4 of the POFA, just because it is also - coincidentally, perhaps - called a ‘parking charge’. The timelines are clearly stated in the Act and it is clear that the Act requires any unpaid tariff that the driver owed before the NTK was issued, to be stated - and that this is the only sum that can be pursued from a registered keeper.
• The “date on which the notice is sent” is not explicit as required by POFA Schedule 4 para 9 (2)(i).
• To pursue me, as keeper, me under the Protection of Freedoms Act 2012, the creditor must have “the right to enforce against the driver of the vehicle the requirement to pay the unpaid parking charges” (Schedule 4 para 5 (1)(a) ). The NTK states that the “car park is managed by ParkingEye Ltd”. The British Parking Association Ltd's Code of Practice, version 4 section 7 requires that ParkingEye have a contract with the Landowner. The contract must give them the right to take legal action to recover outstanding parking charges from drivers charged for unauthorised parking. ParkingEye have not provided any evidence for the existence of such a contract. Therefore I put them to strict proof they have the legal right to enter a contract on behalf of the Landowner by providing a full, un-redacted and contemporaneous copy of the signed and dated contract with the landowner.
The fact that some of the above information may be able to be implied by a reader familiar with the legal context of parking does not mean that the NTK is compliant. A NTK is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 as regards the wording in a compliant NTK are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out even some of the mandatory NTK wording means there is no 'keeper liability'.

5) The ANPR system is unreliable and neither synchronised nor accurate

ParkingEye's 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. 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.
As keeper I cannot discount that this may have been a double visit (possibly even with two drivers since the car has more than one family member who drives it). Or the driver may have driven in, realised it was pay and display then driven out to get change before returning (and of course the ANPR cameras show only the first and last visits). The BPA even mention this as an inherent problem with ANPR on their website.


The BPA's view is: 'As with all new technology, there are issues associated with its use:
a) Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.
b) Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'
Even if ParkingEye shows a list with 'no record' of that car registration in between the times, this would not discount the 'double visit' possibility as it is well known that car registrations are completely missed when a vehicle is followed closely by a higher vehicle, or by a temporary interruption in the camera recording. Or even an item temporarily obscuring the camera from picking up one car registration, such as a passing bird or wind-blown carrier bag or leaves appearing in front of the camera, even for moments, would stop a record appearing of a car leaving in between the stated times. I put ParkingEye to strict proof to the contrary. All footage would have to be checked and this would have to be continuous footage and not time-lapsed still photographs.
Further, ParkingEye are 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 and used. I say that ParkingEye have failed to clearly inform drivers about the cameras and how the data will be used and stored. 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 them 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 ParkingEye 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. As their whole charge rests upon two timed photos, I put ParkingEye to strict proof to refute all of my points about their flawed ANPR records.

5) The car park allows 15 minutes to purchase a ticket or exit the car park and there is no evidence to show that this time limit was exceeded and a marked parking place occupied for the duration or longer.

Since the car park signage states that drivers have 15 minutes to purchase a ticket, or exit the car park, it is reasonable to assume that within the 15 minute time limit the driver decided not to park and due to the extremely poor layout of the car park it is a tiresome and difficult task to manoeuvre a car quickly to exit.

Thus it is entirely feasible that the driver took 3 minutes to exit the car park upon deciding to not park, and due to clearly unreliable ANPR system the recorded exit time is not indicative of the actual time spent parking. Furthermore there is no evidence to show that the vehicle or driver spent any time occupying are parking space during this short stay.


By replying to the challenge you are acknowledging receipt and acceptance of points 2 and 3 above. If you decide to persist with this unwarranted threat, I will be put to unnecessary expense and hours of time in appealing or defending this matter. As such, you will be liable for my costs and a pre-estimate of my loss - and in contrast with yours, mine is genuine - is that this sum will be likely to exceed £100.

I have kept proof of submission of this challenge. I look forward to your considered reply within 35 days.

Yours faithfully,

The_Deep

What a load of cobblers.

Jim_AFCB

Very helpful, Deep ... nothing to say WHY it's a load of cobblers!!!
The picture to the left of his post is there for a reason... hey ho.

To the OP - one of the more learned members will be along in time, but I would think there really is no need to send such a detailed appeal to them - save the wordy stuff for POPLA if required.

I would just send the bullet points - anecdotal evidence suggests that PE are cancelling PCNs on the initial appeal when it is clear it is "forum assisted" as they know they will lose at POPLA. But wait to see what some of the more experienced members suggest....

Redx

frankly, the template letter in the NEWBIES sticky thread is what you send to PE as an appeal (or attach it if doing it online)

the wordy appeals are for POPLA , not PE , examples of which are also in that NEWBIES thread using the blue link "how to win at popla"

what happened on the day is largely irrelevant at this stage, or at popla

MrTom90

Thanks for your replies. Deep. I have actually done a lot lf research and read all of the posts on this forum. I have also referenced information from other appeal letters o found on here and re-used tailoring it to my needs.

My mistake it seems is that I have focussed more on the examples and advice for the POPLA stage as opposed to the First stage.

But thanks for your ever so helpful advice, I have reported your post for the inappropriate, rude and unhelpful manner.

Guys_Dad

MrTom90 wrote: »

Thanks for your replies. Deep. I have actually done a lot lf research and read all of the posts on this forum. I have also referenced information from other appeal letters o found on here and re-used tailoring it to my needs.

My mistake it seems is that I have focussed more on the examples and advice for the POPLA stage as opposed to the First stage.

But thanks for your ever so helpful advice, I have reported your post for the inappropriate, rude and unhelpful manner.

Now, the Deep and I do not always concur as can be seen from a current thread on this forum, but I do feel you are being a bit precious for reporting his two contributions to MSE.

Perhaps his original post was a trifle short, but the point is that you need to keep your powder dry for the POPLA or IAS appeal and make a shorter appeal to the PPC.

When you come to POPLA, again I would trim your somewhat long appeal down to something that the adjudicator won't fall asleep to. We have a couple of recent POPLA decisions where the adjudicator seems to have missed the important points and your layout and content needs significant improvement.

The_Deep

Perhaps his original post was a trifle short, but the point is that you need to keep your powder dry for the POPLA or IAS appeal and make a shorter appeal to the PPC.

Indeed it was one of my shorter ones, but even at Popla you do not need to be too verbose, this one at post 11

http://forums.pepipoo.com/index.php?showtopic=91234&pid=972877&st=0&#entry972877

had the desired effect.

MrTom90

So to clarify, shall I use the standard template from the newbies thread for this first stage? Does it need any alterations for my situation?

Thanks again, and alologies, for obvious reasons you've caught me on a bad day 😑

bluetoffee1878

When PE have been receiving forum based appeals recently which they obviously recognise, they have been caving in and cancelling. So you may not even have to go as far as POPLA

bod1467

You can trim out the rant at the bottom of the template appeal (claiming costs, submitting an invoice etc.) if you wish ... PE will like this as it saves them a stamp having to send a rejection of terms.

Otherwise use it exactly as is.

MrTom90

Thanks for your help guys. I've submitted the standard template with the addition of a point (F) but not waffling on about it, just listed in short in the bullet points at the top of letter in relation to the ANPR system been inaccurate and unreliable.

I eagerly await a reply from them. In the meantime, if the original post I submitted is more applicable to the POPLA stage - any advice on that, given that it seems likely this will progress to POPLA would be great in preparation for that time.

I've noticed a couple of mistakes in it due to copying and pasting, then changing some things, so I will fix them (e.g. 24 hour, £8, £3 statement).

Thanks in advance.