Parking Eye- Rejection of Invalid Invoice and no POPLA code

Cheradanine

Hi everyone,

I appealed via PE's online system to a speculative invoice received from them. I received back to letters- one a Rejection of Invalid Invoice and a seperate letter in response to the appeal. There was no POPLA code enclosed, just a FAQ and a reference to the Beavis trial and a judgement from HHJ Moloney.

Do I know complain to PE demanding a POPLA code?

TIA:beer:

waamo

Complain to the BPA contact details are in the Newbies thread. The BPA won't sanction PE like they should but you shod get a POPLA code.

Cheradanine

Thank you waamo.

Do I need to contact PE again?

Zero_Gravitas

Good evening Mr. Zakalwe,

I can only concur with Waamo - do not complain to PE, but go straight to the BPA. Complain that PE are denying you access to an independent appeals process, and you wish to know what sanction the BPA will apply for this contravention of their COP; and complain that PE are also knowingly misrepresenting the position on Beavis by not pointing out that it is under appeal - yet they want POPLA appeals putting on hold whilst waiting for the results of the appeal.

Your table is ready for you now.

Best Regards,

ZG.

Cheradanine

Zero_Gravitas wrote: »

Good evening Mr. Zakalwe,

I can only concur with Waamo - do not complain to PE, but go straight to the BPA. Complain that PE are denying you access to an independent appeals process, and you wish to know what sanction the BPA will apply for this contravention of their COP; and complain that PE are also knowingly misrepresenting the position on Beavis by not pointing out that it is under appeal - yet they want POPLA appeals putting on hold whilst waiting for the results of the appeal.

Your table is ready for you now.

Best Regards,

ZG.

Thank you (and a nod to the fellow Banks fan! I am truly awed to get a response from a General Systems Vehicle )

For reference, here are copies of the responses from PE:

imageshack.com/a/img537/8060/lLz7jc.jpg

imageshack.com/a/img537/3817/DYZw9K.jpg

imageshack.com/a/img537/4446/pLkOnn.jpg

You'll need to copy the links and stick a "http colon fowardslash" to get them.

Will PE then issue a POPLA appeal code or will the BPA issue one?

TIA

Zero_Gravitas

Things have been a bit quiet for the ITG recently, so I dabble on here occasionally .

PE will be the people who send you the POPLA code, once the BPA have "chastised" them appropriately (where "appropriately" actually means the BPA will ask PE very nicely if they wouldn't mind sending you what they really should have sent you in the first place, if it's not too much trouble ...)

However, you've posted links to three pages. The third links ends "This legislation is not applicable on private...", which leads me to think that there should be another page... If so, it might be the one with the POPLA code. Can you just check that you've got all of the pages, and there isna't a 10-digit number somewhere on the last page....

ZG.

Cheradanine

Zero_Gravitas wrote: »

However, you've posted links to three pages. The third links ends "This legislation is not applicable on private...", which leads me to think that there should be another page... If so, it might be the one with the POPLA code. Can you just check that you've got all of the pages, and there isna't a 10-digit number somewhere on the last page....

ZG.

That page continues onto this page:

imageshack.com/a/img537/3817/DYZw9K.jpg


The last page of the letter just gives details of where to make payment to. There's no POPLA code listed.


I have emailed Steven Clark at the BPA with this email:

///////////////////////////////////////////////////////////////////////
Steve Clark
Head of Operational Services
British Parking Association
Stuart House
41-43 Perrymount Road
Haywards Heath
West Sussex
RH16 3BN

Sir:

I recently received an invoice from one of your members, Parking Eye, for an alleged breach of contract. I have appealed this claim via Parking Eye's online appeal service on 03/03/2015. Today I received two letters from your member, dated 19th March 2015, neither of which contained a POPLA code to allow me to appeal to the independent appeals process. I wish to make a formal complaint to you regarding the sharp practices that I have detailed below as the actions of your member are denying me access to the independent appeals process.

I wish to draw your attention to the following:

Point 22.8 of your Code of Practice advises that your member MUST "acknowledge or reply to the challenge within 14 days of receiving it". Your member, Parking Eye, is in contravention of this by sending me a letter dated 19th March.
Parking Eye have rejected my appeal. Point 22.12 clearly outlines that in the event of a rejection then the PPC must "tell the motorist how to make an appeal to POPLA. This includes providing a template ‘notice of appeal’ form or a link to the appropriate website for lodging an appeal and a valid 10-digit verification code. Even if the verification code is automatically printed on an enclosed appeal form, it must still be in a prominent position on the first page of the rejection letter. Your member has not provided a POPLA code and as such in breach of the Code of Practice

I assume that your member has, as per point 4.1, signed a declaration agreeing to keep to your Code? Given that their pitiful response to my appeal appears to be in breach of your code I respectfully request that you consider disciplinary action against them (as per Point 4.2). I also expect you to investigate this clear breach of your code as I am making a formal complaint to you (see Point 6.4).

In addition Parking Eye's letter refers to the Parking Eye vs Barry Beavis case. They do not mention that this case has been appealed in the Court of Appeal and as such I consider that they are knowingly mis-representing this case by not pointing out that it is currently under appeal.

I formally request an acknowledgement from you and a clear statement of the actions that you intend to take against your member. In addition I also request that you demand that Parking Eye follows the Code of Practice and issue a POPLA code to allow me access the the independent appeal process.

////////////////////////////////////////////////////////////////////

waamo

Very good letter. The BPA will refuse to comment about PE but you may well get a POPLA code.

Hot_Bring

waamo wrote: »

Very good letter. The BPA will refuse to comment about PE but you may well get a POPLA code.

Indeed but the reason the BPA refuse to comment on PE is the rather large loan PE gave them to help them set up POPLA. They wouldn't want to upset their sugar daddy would they ?

Cheradanine

Well, after to-ing and fro-ing with Steve Clark I eventually received a POPLA number from PE.
it's clear just how much in the pocket of PE that the BPA is...Clark refused to acknowledge PE's breach of their own code (by not contacting me within 14 days of my appeal) by stating stating that we would not agree on that point. What exactly is the point of a CoA if they do not have the cojones to uphold it???

Anthoo...on with the POPLA appeal now.

Cheradanine

Here is my POPLA appeal and would welcome any input or feedback :beer:

Re: ParkingEye PCN, reference code XXXXX
POPLA Code: XXXXXXX


I am the registered keeper of the vehicle related to the parking charge notice (reference above).
I contend that I am not liable for the parking charge on the grounds listed below and request that they are all considered:
1) No genuine pre-estimate of loss or breach of contract
2) Failure of the Private Parking Company to adhere to the BPA Code of Practice
3) Unlawful Penalty Charge
4) No standing or authority to pursue charges nor form contracts with drivers
5) The signage was non-compliant with Motorway Service Station Requirements
6) The ANPR system is unreliable and neither synchronised nor accurate

1) No genuine pre-estimate of loss or breach of contract
This car park is a free motorway service car park. It is alleged I overstayed in this car park by the total time of 49 minutes. On the date in question, the car park was estimated to be less than 60% full. No physical damage was cause. As a result, there can be no loss arising from this incident.

The charge is a penalty and not a genuine pre-estimate of loss.

The fee being charged contravenes the Unfair Contract Terms Act 1997. Under the Unfair Terms in Consumer Contracts Regulations 1999 a list of terms is presented which may be regarded as unfair and includes 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’.
Also, Regulation 5(1) states: ‘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. (2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.’
In this case the £100 charge asked for cannot be construed as anything but a punitive penalty. In ParkingEye’s response to my appeal they did not address this issue, and has not stated why they feel a £100 charge is an appropriate pre-estimate of loss. For this charge to be justified a full breakdown of the costs that ParkingEye has suffered as a result of the car being parked at the car park is required and should add up to £100. Normal expenditure the company incurs to carry on their business (e.g. provision of parking, parking enforcement or signage erection) should not be included in the breakdown, as these expenses would have been suffered irrespective of the car being parked at that car park. I have, in my initial appeal, requested that ParkingEye provide me with a Genuine Pre-Estimate of Loss. ParkingEye have not provided this.
The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. I would also question that if a charge can be discounted by 40% by early payment that it is unreasonable to begin with.

The Operator cannot reasonably claim a broad percentage of their entire business running costs as they operate various different arrangements, some where they have pay and display, and others which are free car parks. Given that ParkingEye charge the same lump sum for a 49 minute overstay as they would for 3 hours, and the same fixed charge applies to any alleged contravention, it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss caused by this incident in this car park.
The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. ParkingEye have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some subsequently penned 'commercial justification' statement they may have devised afterwards (since this would not be a pre-estimate).

The British Parking Association Code of Practice uses the word 'MUST':"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 proportionate and commercially justifiable. This charge is neither “proportionate” nor 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) 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) Failure of the Private Parking Company to adhere to the BPA Code of Practice
In direct contravention of Clause 22.8 of the British Parking Association’s Code of Practice, to which ParkingEye must abide, states that members of the BOA must “acknowledge or reply to the challenge within 14 days of receiving it". My appeal was lodged on ParkingEye’s online system on 03/03/2015. ParkingEye did not respond until the 19th March, where they rejected my appeal.
In their rejection of my initial appeal, ParkingEye did not include a POPLA code or include any information on how to appeal. This is in contravention of Clause 22.12 which outlines that in the event of a rejection then the PPC must "tell the motorist how to make an appeal to POPLA. This includes providing a template ‘notice of appeal’ form or a link to the appropriate website for lodging an appeal and a valid 10-digit verification code. Even if the verification code is automatically printed on an enclosed appeal form, it must still be in a prominent position on the first page of the rejection letter”. It is only through the intervention of Mr Steven Clark of the British Parking Association (following a number of emails that I sent to him) that ParkingEye issued a POPLA code’
In addition, the POPLA code issued by ParkingEye was issued on 26/03/2015, yet the code was issued on the 25/03/2015. As such, ParkingEye have issued a code one day before the date of the appeal rejection letter. This means that I have not been given the full 28 days to appeal.

ParkingEye is in clear breach of the code that they are to operate under. As such I reject their claims.

3) Unlawful Penalty Charge
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OB Services v Thurlow(review, February 2011), ParkingEye v Smith (Manchester County Court December2011) and UKCPS v Murphy (April 2012) .

The operator could state the letter as an invoice or request for monies, but chooses to use the wording “PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.


4) No Standing or Authority to pursue charges nor form contracts with drivers
There is no contract between ParkingEye and the driver, but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc. were not satisfied. I therefore request that ParkingEye provide POPLA and myself with an un-redacted, 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.).

5) The signage was non-compliant with Motorway Service Station Requirements
This was a Motorway Services Area. Operators of Motorway Services Areas (MSAs)and their agents must comply with the requirements of Government Policy. These provisions are reflected in the Traffic Signs Agreement into which they enter with the Highways Agency. The Highways Agency, on behalf of the Department forTransport (DfT), published a policy on the provision of roadside facilities on it’s network. That policy is 'DfT Circular 01/2008: Policy on Service Areas and other Roadside Facilities on Motorways and All-purpose Trunk Roads in England'. The policy states that “B19. At all types of site, where a charge is to believed for parking beyond the mandatory two free hours, the charging regime must be clearly displayed within both the parking areas and the amenity building.” The compliance of the MSA with the above policy is disputed and I therefore require ParkingEye to prove that such clearly displayed signage exists within the amenity building(s) at the car park in question. It is not enough to prove that such signage exists within the car park itself.

Furthermore the policy states “All signing of roadside facilities and signing arrangements within sites must comply with the current Traffic Signs Regulations and General Directions and any other guidance as may be issued from time to time by the Department for Transport or the Highways Agency. Approval must be sought from the Highways Agency’s signs specialist for the use of all non-prescribed signs.” I require ParkingEye to show proof to the POPLA adjudicator that the DFT/Highways Agency has granted special authorisation for ParkingEye's traffic signs in this particular MSA to be exempt from this policy requirement. It will not be acceptable for ParkingEye to claim that these particular signs are in ParkingEye's own opinion not 'traffic signs' when these signs have not been erected or positioned to direct pedestrians but instead act to provide information to vehicle users who may never leave their vehicles

6) The APNR system is unreliable and neither synchronised nor accurate
This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's ApprovedOperator Scheme Code of Practice. I require the Operator to 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 this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

In addition to showing their maintenance records, I require the Operator in this case to show evidence to rebut this point: 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. I contend that this ANPR "evidence" from this Operator in this car park is unreliable I put this Operator to strict proof to the contrary.

I also claim that the signs at the car park do not clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner. Unless the Operator can show documentary evidence otherwise, then this BPA CoP breach would also point to a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary.