Parking Eye PCN

JulieR

Hello everyone, i have spent time looking over all the posts and advice and just want to be re-assured that i am acting correctly in the appeal.

I parked in a retail car park where i have often shopped, on this occasion it was to attend a meeting in work time at offices over the shops. Whilst i know excuses are not welcome, it was for a mere 12 minutes over the 2 hour limit.
In all honesty. i was not aware that there were any restrictions in this area!

the alleged offence occurred 5 march 2015 date of notice sent 12 march 2015 received.

The PCN complies with paragraphs 7/8 showing pics of my registration entering and leaving along with details of charges and dates of appeals etc

I am sending the template initial letter with no amendments just adding my details as the keeper.

anything i have missed?

Ralph-y

Which PPC was it?

Ralph:cool:

JulieR

i hate abbreviations lol, what is ppc Ralph?

bod1467

The NEWBIES thread (see my sig) explains everything, including acronyms.

Private Parking Company.

JulieR

parking eye?

Umkomaas

JulieR wrote: »

The PCN complies with paragraphs 7/8 showing pics of my registration entering and leaving along with details of charges and dates of appeals etc

I am sending the template initial letter with no amendments just adding my details as the keeper.

anything i have missed?

JulieR wrote: »

i hate abbreviations lol, what is ppc Ralph?

Precisely, which ones are you not so keen on?

JulieR

Parking Eye refused my appeal stating i over stayed - pay.

this is the POPLA appeal letter that will be submitted today. Please advise if there are any points not pertinant or need amending.

As the register keeper of the above vehicle, I received a NCP notice on 5th March 2015, but I believe it was unfairly issued.

I have declined Parking Eyes invitation to name the driver, which is not required of me as the keeper of the vehicle and I am not therefore liable for the alleged parking charge.

My appeal was submitted and declined by parking eye on 14th April 2015.

Please be advised that I will not be paying the demand for payment and I submit the points below to show that I, as the keeper, am not liable for the parking 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

1) No genuine pre-estimate of loss
This car park is a free shopping car park limited to 2 hours parking . It is alleged the vehicle overstayed in this car park by the total time of 12minutes.I believe that the amount charged is not based upon any genuine pre-estimate of loss to the company or the landowner.
According to the Unfair Consumer Contract Regulations, parking charges on private land must not exceed the cost to the landowner during the period the motorist is parked there.

The car park is free to all genuine customers of multiple retailers within the site.
The driver informs me that the car was parked correctly in a designated parking space and did not contravene any parking regulations;
In this case, the £85 charge being asked for, by far exceeds the cost to the landowner as parking is free, therefore there is no justified loss by the landowner for the 12 minutes the driver allegedly over stayed.
There is no opportunity for anyone wishing to continue shopping over a two hour period to be able to purchase a ticket, the driver also informs that during the time spent at the complex there were ample parking spaces available for those entering the complex. So there is no legitimate claim of loss.
It is clear that this charge is a penalty as parking eye, or the landowner will not make any money out of the contract unless drivers ‘overstay’.
It is not the drivers practice to retain shopping receipts over 2-3 days; therefore as the NPC’s notification was received way beyond this time, they are not available.
The driver is as a cash payer, there is no evidence by way of receipts or bank statements to provide to you.
In ParkingEye v Smith at Manchester County Court in 2011, claim number 1XJ81016, the original claim of £240 was deemed an unrecoverable penalty, unrelated to damages incurred and the only sum that could be recovered was deemed to be £15 (the amount of the pay and display fee for more than one visit). 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, 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 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 might be, for example, a reasonable sum based purely upon the alleged lost parking revenue, or even loss of retail revenue at a shopping centre if another car was prevented from parking. However, this is not the case because the occupants of the car recall that the car park was almost empty on arrival and when the driver left.

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. Given that ParkingEye charge the same lump sum for a 30 minute overstay as they would for 3 hours, and the same fixed charge applies to any alleged contravention (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 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 cannot change this requirement so they 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 based on the genuine pre-estimate of loss that you suffer.''

Neither is this charge '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) No standing or authority to neither pursue charges nor form contracts with drivers


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 neither 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 strict 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 ANPR system is unreliable and neither synchronised nor accurate

If ParkingEye's ANPR records are completely reliable (which I contest) then this Operator claims the car was parked for around 12 minutes more than the free time allocated.
This Operator is 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/used. I say that Parking Eye have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. I have 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 this Operator 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 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 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. 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.



Based on all this information I request that my appeal is allowed.

JulieR

MY LETTER OF APPEAL TO PARKING EYE

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

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

a). 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.
b). As keeper I believe that the signs were not seen, the wording is ambiguous and the predominant purpose of your business model is intended to be a deterrent.
c). There is no evidence that you have any proprietary interest in the land.
d). Your 'Notice' fails to comply with the POFA 2012 and breaches various consumer contract/unfair terms Regulations.
e). There was neither consideration nor acceptance flowing from both parties and any contract with myself, or the driver, is denied.

Your clients should be thoroughly ashamed of the shoddy way you treat consumers visiting their premises. The landowner will be made fully aware of this matter and your response, which I will forward to their CEO when I complain in writing and via social media, as appropriate. Parking firms like yours fail to demonstrate even a basic understanding of customer service. The reputation of your business model appears to be more akin to a protection racket than 'parking management'. Your ATA may offer sound-bites about driving up standards or fight for motorists' rights but in reality they are not a regulator; they merely exist to represent the interests of paying members, in order to gain access to DVLA data. The public have no faith in the private parking industry and, as far as I have seen, your firm has not shown itself to be any different than the ex-clampers with whom you share a membership.

The purpose of this communication is:

1. Formal challenge
There will be no admissions as to who was driving and no assumptions can be drawn. As such, you must either rely on the POFA 2012 or cancel the charge. I suggest you uphold this challenge now or alternatively, send a rejection letter - subject to accepting my claim for costs as clearly stated below, since you have no case.

2. ''Drop hands'' offer
The extravagant 'parking charge' is baseless but I realise that you may have incurred nominal postage costs. Equally, I have incurred costs to date, for researching the law and responding to your junk mail dressed up to impersonate a parking ticket. It is clear that my costs and yours, at this point, do not exceed £15. Therefore, this is a formal “drop hands” offer. I remind you of the duty to mitigate any loss, so withdraw the spurious charge within 35 days without further expense and I will not pursue you for my costs. If you persist then I will charge in full for my time at £18 per hour plus my out-of-pocket expenses and damages for harassment.

3. Notice of cancellation of contract
I hereby give notice of withdrawal from this alleged 'contract' which was never properly offered by you and certainly was not expressly agreed. This 'contract' is hereby cancelled and any obligations now end. If you offer - and if I decide to use - IAS or POPLA, then the contract ends immediately on the date of their decision (whatever the outcome) so my notice of cancellation still applies. The Consumer Contracts (Information, Cancellation & Additional Payments) Regulations apply now to every consumer contract, save for a few exemptions, which parking contracts are not. It is the will of Parliament following the EU Consumer Rights Directive, that express consent is obtained for consumer contracts now - not implied consent - and that information is provided in a durable medium in advance.

You have failed to meet these requirements. The foisting of unexpected contracts like this on consumers, by stealth, is a thing of the past.

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,

Redx

its a PCN , not NCP

NCP is a parking company, but yours was Parking Eye , not NCP

there are 4 points listed in your menu, but only 3 in the appeal

signage is missing

I suggest you havent done "due diligence" in formatting your draft appeal before asking us for comments

you should also add details that the Beavis case is going to be appealed at the Supreme Court too

JulieR

belive me RedX i have been doing little else in viewing the stickies and posts in this forum = due dilligence.
The amount of information within the formum is overwhelming (but valuable) - there are so many letters to view and change to fit personal circumstances the chance of something being ' not quite right ' is high - hence double checking before submitting!!

As this is an ever changing sitution its diffucult to actually find the last advice.

re signage, the amount of signage around the area in question is overwhelming. There is also a sign stating thet imaging is being taken as you enter the car park - are you suggesting that this paragraph should be used anyway?

Beavis case - i had originally included this, however, looking at recent posts they are not taking any notice and i took it out - i will revew the letter and put it back in.

Thank you for taking the time to read my appeal and comment.

Redx

frankly I dont care how many signs there are or if they are bright orange like Easyjets

the fact is that you allege the signage does not meet the BPA CoP and then the ppc has to prove that they do

leave it out and they dont have to prove its legally correct or that it meets the BPA CoP

if we go off the fact that most signage is inadequate and does not meet the BPA CoP , or that it could be termed as gobbledegook by a judge , then as most signage fails these tests then you allege its incorrect, as you are no expert anyway

the trick is to

accept nothing , query everything , make them prove their case, seeing as they brought the case

stick Beavis back in, as popla may end up staying the cases due to the new appeal to the supreme court

stick signage in, as then they have to prove it meets the BPA CoP

let popla decide what is relevant, not you, not me, but put it in on the grounds of

"if you dont ask, you dont get"

I would do so, plus I would add not a gpeol , anpr , no contract with the landowner , signage , beavis and any other pedantic point I can use to win the case

the fact that its a lot of info and takes time is offset by the amount you save if you win, or you pay somebody to do it all for you , but dont expect people on here to give up vast amounts of their free time doing it for you

I might give up 5 minutes for you , but not 5 hours (think about it)

I thought I was skim reading a final draft, then realised too many mistakes and omissions were in it, hence my reply , if you cannot handle the critique, then dont ask for critique