Parking Eye Appeal Refused, POPLA Next....

MrQuomps

Hi everyone

I hope I'm doing the right thing by starting a new thread here.

I was issued a PCN by Parking Eye in February for a 12 minute stay in the pub carpark at the George Hotel, Poole.
I wasn't there, my gf was the driver and was meeting a friend, they were going to park up and go for a coffee for 20 minutes but were put off by the parking charges. They did not leave their vehicles.
It's not immediately obvious when you enter the carpark that you'll have to pay (and with it being a pub, you don't normally expect to).
By the time she'd waited for her friend to turn up, had a chin-wag with her about going somewhere else and whatnot 12 minutes had passed between entering and exiting the carpark.

I am the registered keeper so I have been issued the PCN (£100 down to £60 if I'd paid early)

I appealed to Parking Eye and got a refusal letter much like the one here shared recently by 'thehig'. (MSE won't let me post the link)

I am about to appeal to POPLA but just want to see if I can clarify whether I should be using the template from this site, pretty much 'as is' or whether it's best to explain the situation with some of the details mentioned above/below.

The pub is on a corner and so you have to indicate and make your decision to turn into the carpark as you come around the corner, by the time you notice any signage, it's all a bit late and you either have to go into the carpark or recklessly swing back into traffic.

I have taken various photos (and a video) showing how difficult it is to see any signs before entering the carpark. I can't seem to post the images here, unfortunately.

So, my question is should I be sending POPLA these images and giving our side of the story?
Or am I better off mentioning as little as possible and just sending the template with minimal details?
Speaking of templates, I was planning on using an amended version of this:

Re: ParkingEye PCN, reference code xxxxxxxxxx
POPLA Code:

I am the registered keeper and I wish to appeal a recent parking charge from ParkingEye. I submit the points below to show that I 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 I overstayed in this car park by the total time of 12minutes. The adjoining shops were all closed and the car park was empty as a result, therefore there can be no loss of a result of this parking event.

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 pursue charges nor form contracts with drivers

On receipt of the PCN I visited the adjoining shops to establish who owned the land and if it would be possible to speak with them, I was told by the manager of one of the shops, Farm Foods, that following a high amount of complaints the land owner and their landlord had instructed Parking Eye to remove signage from the car park and they would no longer be managing it.

I therefore 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 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 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

The occupants of the car recall seeing no signs on entrance to the car park. The date and time of the alleged incident would also have meant daylight would have been fast fading meaning that any signs in the car park may have been difficult to see and read. I have already alluded to returning to the car park following receipt of the PCN and all signs having been removed so I am unable to check on the contract Parking Eye claim to have been formed by themselves and the driver.

Any photos supplied by ParkingEye to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera & flash and the angle may well not show how high the signs are. As such, I require ParkingEye to state the height of each sign in their response and to show contemporaneous photo evidence of these signs in the dark without the aid of flash photography. 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 - and it can be seen from ParkingEye's own photos of an isolated numberplate in the dark, that the entrance (where signs must be clear) was in fact pitch black. 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

4) 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. And yet their 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 evening.

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. It was approaching darkness and if there was such a sign at all then it was neither lit nor prominent, since the driver did not see it. 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 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.

I request that my appeal is allowed.

Yours faithfully,


Any help/advice will be gratefully received, thanks!

Joe

MrQuomps

POPLA acknowledgement received within 24hrs of submitting the appeal:

"We have received your appeal.

This will now be sent to ParkingEye Ltd.The operator will send their evidence to us and to you before the scheduled date of hearing.

Your appeal will be considered on or soon after 04 May 2015 . You will be notified of the decision as soon as it is available, in the manner you selected.

Please note that in common with other tribunals, all electronic submissions and attachments received at POPLA will be destroyed after 6 months from the date of the last action in the matter and all hard copy received will be securely disposed of after six months from that same last action date.

Yours sincerely.........."


Wasn't expecting a date, I thought they were all being put on hold at the moment. Happy days if they sort it sooner rather than later :j

bod1467

I suspect that's a default reply (template with relevant dates put in) that hasn't been edited to account for PE instructing asking POPLA to hold their cases.

MrQuomps

Good call.

I'll keep this thread updated with any future communications in case it's of any use to other people.

MrQuomps

Thanks to members of the forum for providing templates and advice.
I received an email today from POPLA saying my appeal against Parking Eye has been allowed.

"The Appellant appealed against liability for the parking charge.

The Assessor has considered the evidence of both parties and has determined that the appeal be allowed.

The Assessor’s reasons are as set out.

The Operator should now cancel the parking charge notice forthwith.

Reasons for the Assessor’s Determination:

It is the Operator’s case that their Terms and Conditions of parking (“the Terms”) are clearly displayed throughout the above named site. They submit the Appellant breached the Terms by parking without authorisation or without paying to park and therefore is liable to pay the parking charge.

The Appellant has made several submissions however it is only necessary to consider one submission for the purposes of this appeal. This is the submission that the Operator has no authority from the Landowner to issue parking charges on the land.

The Operator has not provided a copy of a contract between themselves and the Landowner which authorises them to operate at the site and to issue parking charges on the Landowner’s behalf; nor have they provided a signed witness statement confirming the existence of such a contract. Therefore, I cannot find the parking charge to be enforceable by the Operator in this case.

Accordingly, I allow the appeal.

Ricky Powell
Assessor"

ella555

Congrats! This is really encouraging, I am trying to deal with a ticket from the same location, for a 10 minute stay. Could you advise if the letter that you posted was the one you actually sent? I'm having problems because I'm based nowhere near Poole so cannot check on the carpark signage. It was after 10pm and I can't even remember where the signs were (if they were at all adequately visible), or the conditions of stay in the carpark. Your letter says this carpark is a free stay for 2 hours (is this true?) but I am aware that you also said you were planning on amending the letter!
In my appeal to ParkingEye I did ask them to provide me with details of the signage, as well as a copy of the contract it had with the landowner to collect charges and a breakdown from ParkingEye to breakdown their claim of losses. Of course I got a generic rejection letter with none of my points addressed.
(I decided not to stay and therefore left the carpark, the engine was running the whole time).
I'd love to use your example in my POPLA appeal as you seem much more clued up on the conditions of the actual carpark than my foggy memory allows!
Thankyou

Umkomaas

MrQuomps (OP) hasn't been back to the forum since 29/05/15. He is probably unlikely to see your question. Try and send him a PM - he should then get an email to let him know you're trying to make contact.

If you want forum help for your case, please start a new thread, that way you'll get bespoke advice for your specific issue. Have you read the NEWBIES FAQ sticky? It contains everything you need to handle this.

MrQuomps

Here's the letter I sent. It will need amending, but hopefully it may help you a little. The Beavis case bit may as well be removed, I guess.
Feel free to PM me if I can be of further assistance.

"I am the registered keeper and I wish to appeal a recent parking charge from ParkingEye. I submit the points below to show that I 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 pub car park with no free parking once you have fallen into the trap of entering. It is alleged the driver of my vehicle overstayed in this car park by the total time of 12 minutes. There were spaces available had other drivers wanted to park.

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 hotel 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 not full 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 12 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 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 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 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

The occupants of the car recall seeing no signs on entrance to the car park. I have since visited the carpark myself and the signage is far from obvious. The hotel stands on a corner, when you first approach a sign directs you around the corner to the entrance. From the road in a moving vehicle any ParkingEye signage here is very difficult to see. When travelling around the corner, on a main road, it's necessary to make the decision and indicate that you will be turning into the carpark well before you have any chance of seeing the inadequate signage. The sign on the entrance is also obscured behind plants and by the time you have seen it, it would be reckless to swing back into traffic and very dangerous to attempt to reverse back out onto the road so close to the corner. So drivers have little choice but to enter the carpark at this stage. I will attach photographs to this appeal highlighting these facts. On entering the carpark and looking around for signage the first sign I found was on a wall 8 feet behind a metal fence and near impossible to read fully, with no way of getting closer to it. Any photos supplied by ParkingEye to POPLA will no doubt show the signs from favourable angles, taken on foot or with the misleading aid of a close up camera & flash and the angle may well not show how these signs are actually viewed from the drivers position. As such, I require ParkingEye to state the height of each sign in their response and to show contemporaneous photo evidence of these signs taken from the drivers position in their approach to the carpark. 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. It would be impossible to read the sign on the entrance without turning away from the road, and too late to avoid entering the carpark once you have read it, if you indeed notice it at all. 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

4) 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. And yet their 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. 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. If there was such a sign at all then it was not prominent, since the driver did not see it at the time, nor did I when I returned to the site. 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 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.

I request that my appeal is allowed.

Yours faithfully"

Redx

the Beavis case is being appealed at the Supreme Court in 4 weeks time. the wording for keeping Beavis in any popla appeal is in blue in the NEWBIES sticky thread

so anyone making a draft popla appeal should be re-reading that NEWBIES sticky thread, plus adding the wording to their popla appeal too

ie:- as times change , appeals alter

ella555

This is amazing, MrQuomps you've basically given me a great template to use for my POPLA appeal, thank you so much. Redx I've added the paragraph from the NEWBIES sticky about the Beavis case, thanks for pointing me in the right direction! Fingers crossed they grant me my appeal. (I wouldn't want to take on the 4 sides of the A4 if I were them!)

MrQuomps

No problem, good luck with it!

Sorry the copy & paste above seemed to remove the paragraphing, but hopefully you got the idea anyway

MrQ