Parking Eye Reply - They say we can't win - Please Help

14wrence

Huge thanks to you all. Here is my final copy, and whether successful or not, I hope it will help others in a similar situation.

Dear Sirs

Ref. POPLA appeal xxxxxxxxxx

Response to the "evidence pack" Parking Eye has submitted in support of their speculative and disputed invoice.
I do not intend to address each and every point they have raised in detail as their submission is clearly a quickly hashed template, much of which is repetitive or indeed irrelevant to the matter at hand.

In making their assessment I ask the POPLA assessor to consider the following in further support of my original POPLA appeal.

1. GPEOL
There is no Genuine Pre-estimated of Loss breakdown included to show how they have come up with £100: As business costs are not losses and they cannot be passed down to a motorist as GPEOL. Parking Eye seem to infer that it is up to me to demonstrate how their £100 is not a GPEOL - I am not sure this is possible and is any case a moot point as the burden of proof is upon Parking Eye to demonstrate the loss that has occurred as a result of the alleged breach. Despite submitting this huge 'evidence' pack they have failed to do this.
The Department for Transport guidelines state that:

"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver."

There can be no losses to the landowner whatsoever as the time of the alleged parking incident was well outside of the store’s opening hours.
I would conclude that Costs of Issuing the Notice, postage of Notice to Keeper, and Final Notice to Keeper, Admin and Man Hours are all business losses that Parking Eye is trying to recover. As is the 'remainder' to be paid back into office wages. Therefore, the charge is quite clearly to recover office losses. Regardless of Parking Eye 's stance on the 'fairness' of that fact.

There have been several invitations for Parking Eye to break-down their cost to highlight exactly which losses they have allegedly suffered. The vagaries of Parking Eye's response to this highlights that there is, in fact, no justification in a £100 or even a £60 charge for the alleged offence.
In my appeal rejection Parking Eye claim the recent case, Parking Eye v Barry Beavis and Martin Wardley [2014]) heard at the Court of Appeal gives justification to their claim.
I contend that there are few similarities as the penalties imposed in my local authority car parks are £50 and this is reduced even after appeal by 50%.
Therefore I contend that the charge imposed by Parking Eye is indeed extravagant.

Parking Eye were making payments to that landowner for a parking management concession conferring what might be considered as landowner rights. It was argued by Parking Eye that it was necessary for them to recover these sums by the issuing of parking charge notices.
I contend that, unless a similar contract is in place with this landowner, there can be no argument in this case of commercial justification as no loss to them was involved.
The Beavis case is for a site where Parking Eye "rent" the land, the driver in this case was allegedly parked in a customer car park for a store, out of the store hours.

Finally I would state that the Beavis case is still subject to appeal and until this matter is finally resolved any claims by ParkingEye are without merit.
It's very clear from the information given that a 'Genuine pre-estimate of loss' as many of my points above have illustrated has not been provided. Nor has a break-down of the costs implied been provided. Only one figure of £85 mentioned on the Parking Eye vs Barry Beavis and Martin Wardley [2014]) case has been mentioned. This in itself is less than the £100 applied in this case and therefore shows that the amount here is extravagant.

2. NO ASSIGNMENT OF RIGHTS TO BRING CLAIMS IN THEIR OWN NAME
There also seems to be no valid copy of an unredacted contract included between Parking Eye and the Car Park owner, thus hiding information that could be relevant to the costs calculation because a valid unredacted copy could include information about 'money changing hands'. In any case, the document submitted which Parking Eye claim is an unredacted contract (which I refute) fails to meet the strict proof of contract terms needed and is dated after the alleged breach of contract took place.

Parking Eye have been requested to provide a valid contract between themselves and the car park.

3. SIGNAGE
It is simply not possible to read any signs whilst in a moving car at night time, and certainly not have read them sufficiently to have be deemed to fully understand the T&C's to which it is alleged was agreed by the driver of the vehicle. Parking Eye's own 'evidence' photos (which I have attached again) show that that the car park is pitch black, and only through technology on their camera does light reflect from the number plate of the car. Apart from seeing that and the car’s illuminated lights, absolutely nothing at all can be seen from these photographs. Certainly no signage at all can be seen in any of the photos. You cannot even make out the outline of the car let alone deem the ambient lighting suitable to see and comprehend any signage.
Parking eye have also included in their “evidence pack” photographs of the signage taken during daylight hours at another time. I do not even know to be sure if this was the same signage as was in place at the time of the incident and would need to see proof of this.
The car park had no lighting in place and Parking Eye state that the ambient lighting coming from the street lighting is adequate enough to read their signs. They have attached evidence (which I have reattached) showing in particular the signs close to the street lighting.
There is 1 Parking Eye sign near to a street light. Every other sign is nowhere near any lighting so I have not reattached their signage plan, as those other signs are indisputably totally illegible at night.
The one sign nearest to the street lights, as is shown on one of the photographs is taken at an awkward angle and does not really show the proximity to the street light accurately. The other photograph shows the proximity of the sign to the street lights more adequately, and clearly shows the nearest street lights pole is over a metre away, the light itself is on top of a very tall pole, and faces out to the road and away not towards the Parking Eye sign. The other street light is quite far away and could not light up these signs.
There is no evidence to show how well the street lights actually show the signage at night time. Based on the evidence (photographs of the driver’s car) it would suggest the street lights at night do not light up any signage at all or that the council owned street lighting on this occasion was not operational at the time the driver entered the car park. I would also require evidence that the street lights are actually turned on at this time.
Again I point to Parking Eye’s own photographs which show the area to be pitch black.
All photographs of signage are taken during the day, and do not show the signs at night so is unsuitable evidence.
If they were taken with a camera with no flash the signage would be illegible from more than 2 metres away.
As the signage could not be read no contract with the driver has been entered into.

I respectfully request that this appeal is upheld.

14wrence

It seems I can not submit further evidence on line for some reason. Odd but POPLA code does not work. hope this is not going to be an issue and am emailing them instead.

14wrence

Good News Folks.

POPLA have been back in touch and the appeal has been allowed.

A snippet from the POPLA decision....

"The Operator has not produced any evidence to demonstrate that it is the land-owner; or, that it has the authority of the land-owner to issue parking charge notices at this site."

A big thanks for every-bodies help. And looks like as per UMKOMAAS, REDX and COLLIESCARER have said - wasn't won on GPEOL but instead on locus standii.

Hope others find my appeal and rebuttal letters useful.

Now (as mentioned earlier in this thread) the driver is still awaiting parking eye's reply for the second ticket. (the driver had unwittingly parked in the same place 2 nights on the trot.) Last correspondence heard from PE regarding the second charge was them trying to con the owner into saying who parked the car there. As Captain Krunch and Coupon-mad advised - it's none of their business so they were not informed this. However at the time they put the PCN on hold for 14 days while they awaited a reply. That was mid-April and still haven't heard anything regarding this.

Do you think they will give up on it now that this verdict has come in?

Redx

they should have replied within 35 days according to the BPA CoP

its hard to say what they will do, so let sleeping dogs lie for now

you can check if the pcn is still "live" on their website, if not then assume its dead

well done on your win

ColliesCarer

Congratulations !

14wrence wrote: »

Do you think they will give up on it now that this verdict has come in?

Hard to say - but probably not - they tend to be like a dog with a bone

But if it is still active (as per Redx's suggestion) I would suggest you complain to the BPA Ltd (contact details in post #6 of NEWBIES) for their failure to respond to your appeal within 35 days and for delaying their response while seeking to get you to name the driver.

You don't want any nasty surprises coming out of the woodwork later

14wrence

One thing that does worry me, is they said - QUOTE:

"You are warned that if, after 29 days from the date of issue, the parking charge has not been paid in full and we do not know both the name and current address of the driver, we have the right to recover any unpaid part of the parking charge from you, the registered keeper."

It then says in the next paragraph:

"This parking charge has been placed on hold for 14 days in order for you to provide additional/further evidence."

I may add, at no time, since my appeal to them, have they provided me with a POPLA code for the second ticket. In fact I haven't heard anything since this was sent mid April.

I can't help but feel like they are trying to be clever with this so after time runs out there is no time to appeal and the Registered keeper get's stitched up.

Should I be asking them for a POPLA code?

Redx

so if you log onto their website , is it live ? or not ?

14wrence

Redx wrote: »

so if you log onto their website , is it live ? or not ?

Yes... only way I could see was to try and pay it, and it says the amount is outstanding.

fisherjim

They are saying they are awaiting further evidence and will no doubt try to say you timed out if you don't provide it.
Complaint to the BPA

ColliesCarer

14wrence wrote: »

Should I be asking them for a POPLA code?

IMO - No you shouldn't be asking PE for a POPLA code.

It seems the PCN is still active so I would still say you should
complain to the BPA Ltd (contact details in post #6 of NEWBIES) requesting they should instruct their AOS member to either cancel the charge or provide you with a rejection and POPLA code.

Provide copies of all correspondence to/from PE and complain to the BPA ltd that
- you are the keeper and have submitted your appeal
- PE responded that they had placed your appeal on hold for 14 days in order for you to provide additional/further evidence
- you chose not to respond to the letter stating they were putting your appeal on hold as you considered PE were using delaying tactics and you did not wish to add anything further at that time.
-once the 14 days expired you expected to hear further from PE i.e. either a cancellation of the charge or a rejection of your appeal together with the required POPLA code
- there has been no further correspondence from them
- ask what sanctions will be taken against PE for their failure to respond to your appeal within 35 days