My POPLA letter - any advice?

snep

Hi,

I've followed all advice for my ParkingEye appeal. I have got to the POPLA stage now and drafted this appeal for your review:


"I dispute the claim for the reasons set out below. Please note that although I dispute the whole basis of the parking charge, my main concern is its disproportionate and punitive level.

1. Parking charge amount claim.

Explanation was requested of ParkingEye for the following and none was provided:
(i) Damages for trespass
(ii) Damages for breach of contract
(iii) A contractual sum

2. ParkingEye's loss.

A request was made to ParkingEye and no information provided regarding a full breakdown of the actual losses which evidences that this parking charge is a true reflection of the damages caused solely by the alleged parking contravention.

It is understood that ParkingEye quote the case of ParkingEye v Beavis, however with this case currently under appeal it is not reasonable to use this as an example against my case with them. Additionally, I request that POPLA do not await to result of this case before drawing conclusions of my appeal as there is no evidence provided by ParkingEye that their arrangements at the car park in the Beavis case are the same as the arrangements at the car park for which I am appealing.

3. My Status – the creditor.

The Parking Charge Notice - Notice to Keeper simply mentions ParkingEye Ltd. No information has been provided and therefore it cannot be valid to pursue me for damages while not being informed of the actual creditor making this £85 parking charge demand. I need to know exactly who is making the claim and in what capacity.

4. Ownership of premises.

A request was made to ParkingEye and no response provided on who owns the car park as I wish to send them a copy of my appeal.

5. Contractual Authority (as required by BPA Ltd AOS CoP B.7)

No contract has been provided to me between ParkingEye and the landowner/landholder that provides the necessary contractual written authority for the issue and enforcement of their Parking Charge Notice - Notice to Keeper. Again this is despite my request to ParkingEye.

6. Signage.

Signage is not provided in plain and intelligible language and in sufficiently large print as to be legible to a driver at the car park’s entry point. The first sign available is at a busy junction, is far back from the road and cannot reasonably be read from the driver's seat when the car is stationary, let alone when the car is in motion."



All help appreciated

victor2

I'm sure someone more knowledgeable will come along with advice on the content, but what sticks out is multiple references to Private Eye...;)

snep

What a numpty, good spot:T

All corrected...I hope!

Redx

sorry, but that appeal looks nothing like a typical PE popla appeal to me

I hope you have studied recent popla appeals linked in post #3 of the NEWBIES sticky thread ? to me , you havent , so please do so

its certainly not like anything I would submit anyway

I respectfully suggest you try again , looking at any PE popla appeal that was agreed upon in the last 6 months

snep

Hi Redx and all.

With my tail between my legs and appologies for not finding the POPLA format earlier, here is my (hopefully) better informed attempt for your review. A lot of it is a clean copy and paste job except points 1 and 3 which have been chopped and personalised somewhat.

Thanks in advance for your words of wisdom...



[FONT=&quot]I wish to appeal the subject [/FONT]parking[FONT=&quot] charge I recently received from ParkingEye. I submit the points below to show that I am not liable for the [/FONT]parking[FONT=&quot] 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 inadequate so there was no valid contract formed
4) The ANPR system is unreliable and neither synchronised nor accurate
[/FONT]
[FONT=&quot]
1) No genuine pre-estimate of loss
The subject car park is a retail car park limited to 2 hours [/FONT]freeparking[FONT=&quot]. It is alleged the vehicle overstayed in this car park by a total of 39 minutes. Given that ParkingEye charge the same lump sum for a 5 minute overstay as they would for 3 hours, and the same fixed charge applies to any alleged breach (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, or any other, incident in this car park.

This Operator cannot demonstrate any initial quantifiable loss. The [/FONT]parking[FONT=&quot] charge must be an estimate of likely losses resulting 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 [/FONT]parking[FONT=&quot] charge and, without it, costs incurred by issuing the [/FONT]parking[FONT=&quot] charge notice including business running costs 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 result as a direct consequence of this incident. The Operator would have been in the same position had the [/FONT]parking[FONT=&quot] charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.[/FONT]

[FONT=&quot]Further, I suggest there was never any advance meeting held with the client, nor was any due regard paid to establishing any 'genuine pre-estimate of loss' prior to setting the parking charges at this site. 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 39 minutes or 40 hours.
[/FONT]
[FONT=&quot]In a recent case between ParkingEye Limited and Mrs Natasha Collins-Daniel (Case No: 3JD06533), on 4th January 2014, Deputy District Judge Melville-Shreeve, when addressing the representative of ParkingEye was told:[/FONT]
“there is no suggestion of any charge for any parking. So if your, your car park was perfectly managed it would be simply full of people who never paid a penny, either to ParkingEye or to the land owner, or to anybody else, it would be a car park without payment, a car park without profit, a car park without money. So, there’s no question, for example, of this lady, when she gets into her fifth hour, of blocking off a place that a paying customer was dying to get into, because there are no paying customers, so even if she stayed there for 40 years the consequences to ParkingEye would be of no financial significance, because she’s never going to have to pay. So how do you say this £85 could possibly be justified as a payment?”

[FONT=&quot]In another case, Judge Charles Harris QC in 'A Retailer v Ms B' (where the Claimant tried to claim a 'loss' from a consumer for 'staff and/or management time investigating') stated:
[/FONT]"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do... [16] So the claim in respect of staff time cannot, in my judgment, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home... [17] It follows that the claims must be dismissed’’[FONT=&quot]

The £85 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:[/FONT]

''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.''

[FONT=&quot]In conclusion, the DfT Guidance and the BPA Code of Practice require that a [/FONT]parking[FONT=&quot] charge for an alleged breach must be an estimate of losses flowing from the incident. 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 also fall foul of Mr Greenslade's explanation about GPEOL in the POPLA 2014 Report.

[/FONT]
[FONT=&quot]2) No standing or authority to pursue charges nor form contracts with drivers [/FONT]
[FONT=&quot]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 did 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 provide proof to 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 or was 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 inadequate so there was no valid contract formed
[/FONT]Having visited the site since the receipt of the NTK, it is clear to me that signage is not provided in plain and intelligible language and in sufficiently large print as to be legible to a driver at the car park’s entry point. The first sign available is at a busy junction, is far back from the road and cannot reasonably be read from the driver's seat when the car is stationary, let alone when the car is in motion.[FONT=&quot]

Any photos supplied by ParkingEye to POPLA will no doubt show any signs in good light or with the misleading aid of a close up camera & flash and the angle may well not show how high the signs are or how far they are from the road. As such, I require ParkingEye to state the height of each sign in their response and the distance from the road, proving also how they could be viewed under dim lighting without the aid of flash photography. [/FONT]

[FONT=&quot]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. 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.


[FONT=&quot]4[/FONT]) The ANPR system is unreliable[/FONT][FONT=&quot] and neither synchronised nor accurate
I question the entire reliability of the ANPR 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 the 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 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 the 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 as the evidence in the Fox-Jones case.

I request that my appeal is allowed.

Yours faithfully,[/FONT]

Umkomaas

You seem to have the main appeal points covered.

I haven't gone through it word-for-word (this must be the 900th one I've looked at in the past 6 months - it gets hard going through the same stuff, week in, week out!), as long as when you are copy and pasting you have not c&p'd a different PPC name - you'd be amazed how many do - it should be OK.

You should be aware that POPLA are staying all PE appeals until the result of the Beavis case. If PE win, then your appeal may be turned down; if Barry Beavis (who'll go down in private parking history - kudos to the guy) wins, then you'll likely see PE offer no further challenge.

It's wait and see time - but get that appeal off - don't miss the POPLA deadline.

snep

Thanks Umkomaas, really appreciated