POPLA Appeal - Welcome Break Hopwood - Birmingham

Claudy

Hi,

I'm just about to appeal through POPLA in relation to an overstay at Hopwood Welcome Break services of 37 minutes. There is so much information on these threads (which is great), although I'm running out of time to appeal before I go away & don't have time to read through them all.

I have already written to ParkingEye & my appeal was unsuccessful, so just drafting my appeal to POPLA - I was going to use the following: -

Dear Sir/Madam,

Reference: Parking Charge Notice - .........
POPLA Verification Code: ............

Further to my recent correspondence with ParkingEye in relation to a parking charge I would like to appeal this charge based on their being no breach of contract and no genuine pre-estimate of loss.

The parking charge levied for the car park is “free” for 2 hours and any time after that time period is rated at £11 for 24 hours. I have confirmed this by telephoning Welcome Break Hopwood Park Services.

The alleged overstay is 37 minutes and on the date of the claimed loss the car park was only at approximately 20% capacity. There was no physical damage caused and can therefore be no loss arising from this incident. Parking Eye cannot lawfully include their operational day-to-day running costs in any ‘loss’ claimed. I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to ‘charge for breaches’ at this site) has been prepared or considered in advance.

Calculating the ‘loss’ (on the basis that £11 is equal to 24 hours), an alleged 34 minute overstay would equate to £1.34. To incur a ‘loss’ of £60 a driver would have to stay in a full car park for 5.5 days. The £100 pre-discounted ‘loss’ would require a driver to have stayed in a full car park for 9 days.

......


I have read that appeals to POPLA are more likely to be allowed if there are several reasons for the appeal & I wondered whether I should include information in relation to the accuracy of the ANPR as per below: -

The ANPR system is unreliable and neither synchronised nor accurate, and there is no evidence that this was just one visit
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 evening. 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.

Also, I have a receipt which confirms that I used the Starbucks in the services therefore I used their facilities. Should I include this as evidence?

Thanks in advance for your help!

Redx

I would suggest you look at the examples of popla appeals linked in post #3 of the NEWBIES sticky thread

you want at least the following

not a gpeol

no contract

poor signage

anpr calibration

etc

Marktheshark

Add in the people they have a contract for parking with don't own the site, they are management agents.

Claudy

Thanks very much for your advice! I've tried to pull of the relevant info from the threads, how does this sound...

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 demonstrate that I am not liable for the parking charge: -


1) No genuine pre-estimate of loss


The parking charge levied for the car park is “free” for 2 hours and any time after that time period is rated at £11 for 24 hours. I have confirmed this by telephoning Welcome Break Hopwood Park Services.


The alleged overstay is 37 minutes and on the date of the claimed loss the car park was only at approximately 20% capacity. There was no physical damage caused and can therefore be no loss arising from this incident. Parking Eye cannot lawfully include their operational day-to-day running costs in any ‘loss’ claimed. I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to ‘charge for breaches’ at this site) has been prepared or considered in advance.


Calculating the ‘loss’ (on the basis that £11 is equal to 24 hours), an alleged 34 minute overstay would equate to £1.34. To incur a ‘loss’ of £60 a driver would have to stay in a full car park for 5.5 days. The £100 pre-discounted ‘loss’ would require a driver to have stayed in a full car park for 9 days.


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 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 apply the same fixed charge 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 established that the land is not owned by the managing agent, with whom ParkingEye have a contract. Therefore I believe that 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, therefore there was no valid contract formed


The occupants of the car recall seeing no signs on entrance to the car park. I require ParkingEye to state the height of each sign in their response and to show contemporaneous photo evidence of these signs. 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. 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 37 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 morning.


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. 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 unreliable.


I request that my appeal is allowed.


Yours faithfully,

Umkomaas

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:

This is no longer correct.

The BPA have changed their advice on GPEOL after pressure from one of their members - no prizes for guessing which one!

The Beavis case has gone to the CoA and judgment is (imminently) awaited.

So leave out the BPA reference, and if you take out this bit about Beavis it should take care of things in this section of the appeal.

(now being taken to the Court of Appeal by Mr Beavis anyway)

The rest, at a glance looks ok, but to be honest most of us regulars are pretty punch-drunk from ploughing through the minutiae of endless drafts, day in, day out, so please do carefully proof read what you've written/copied and make sure it all stacks up.

POPLA are staying all PE assessments awaiting the Beavis judgment - so this may hold things up (or speed things up) depending on outcome.

Good luck!

Claudy

Thanks so much for your help, appeal submitted, fingers crossed!