Appealed to PE, Rejection of Invalid invoice & NO POPLA CODE

The_Deep

That is much better.

Pmanesh

steve.c@britishparking.co.uk
Thanks for your e-mail, the contents of which are noted.

I am sorry that you are experiencing problems with Parking Eye and I hope that we are able to help you in resolving them.

By copy I am asking my colleague Gemma to look into this matter for you and she will be in contact once her investigation is concluded.

It would be helpful if you could send Gemma a note of your ticket/pcn number – it will be on the documentation that you have received from Parking Eye.

I note that you make two demands of us which I will deal with in turn;

· As we are not a regulatory body it is not within our powers to compel a member to a particular course of action. However if we conclude that a POPLA Code should have been provided, rest assured you will get one.

· It is our decision whether Sanction Points are awarded in a particular case – if there has been a breach of our Code appropriate disciplinary action will be taken but we do not share Sanction Points awarded to operators with motorists as we contend this is a confidential matter, like any normal disciplinary process, but we do issue a Press Release if a member is expelled.

Thanks once again for your note.

emailed them the PCN Number now, waiting for return

enfield_freddy

what a load of hogwash (letter)!


· As we are not a regulatory body it is not within our powers to compel a member to a particular course of action




hello ! they have not issued a POPLa code ,


so from now on , everyone can forget there commitments , and just not issue a code , because you can't compel them to?


teeth my !!!!




BPA = toothless "old boys" club , with locked doors and a secret handshake (hand containing wads of notes)

Pmanesh

finally received a reply...

BPA – 07413.

I have investigated your complaint with the operator and can advise as follows.

An appeal was received from the registered keeper on the 15th April 2015.!!Within the appeal, the keeper stated they were not the driver.!!Parking Eye, therefore, sent a letter in reply requesting driver details so they could re-issue the parking charge notice.

I can confirm Parking Eye have recently changed their processes to ensure a formal decision is sent whether driver details are provided or not.!!Unfortunately your appeal was sent in before these changes took place.

Parking Eye have confirmed a rejection letter has now been sent to you which includes your POPLA code.!!For your information your Code is: XXXXXXX You now have 28 days to submit your appeal to POPLA – the independent appeals service.

In view of the above and the corrective action taken, I have closed the investigation.

Thank you for bringing this matter to my attention.

Kind regards
Gemma Ridgewell
POPLA Liaison Officer
British Parking Association
Tel:!!!!!!01444 447 307
Email:!!gemma.r@britishparking.co.uk

Fruitcake

So now you construct an appeal to PoPLA. Have a look at the POPLA decisions sticky thread at the top of the main page (most recent posts) to see what to use and what not to use. eg. inadequate signage, no standing, etcetera.

Find everything you can that is relevant to your case then post it here before you submit it.

ampersand

op - had similar lies/probs from pe and intervention from bpa Steve.

To be completely tank-proof, calculate that 28-day date[25 June, if em arrived today] and ask for confirmation of it in a brief Thankyou to bpa. It's all part of leaving a trail which pe can't deny or lie about.
#
Then set to work on your draft for us to check over, as per fruitcake - apologies for xpost:-)
Remember, you now have time on your side to read throroughly and prepare.

Marktheshark

I would say that reply is an admission they failed to adhere to POFA 2012 in refusing the appeal unless you named the driver.

TheFlamingRed

ParkingEye have placed this charge on hold for 28 days to enable you to provide the evidence requested. If this information is not provided within 28 days, the appeal may well be rejected and a POPLA code provided

Surely, the OP should have done nothing. Waited 28 days, had his appeal rejected and...

... It will have likely been after 35 days for the initial appeal to be rejected, thus, they are out of time to respond to the appeal and must then cancel the charge (or rather complain to the BPA who would then defend them despite them breaking to Code of Practice)

Pmanesh

After looking at POPLA decisions, I have come across the below in the listings and made a couple changes

Please check the last sentence of point 3 and let me know if this should be removed or kept?

Re: ParkingEye PCN, reference code xxxxxxxxxx
POPLA Code:

I am the registered keeper and I wish to appeal a recent parking charge from Parking Eye. 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 not readable
4) The ANPR system is unreliable and neither synchronised nor accurate

1) No genuine pre-estimate of loss
This car park is free for the first 30 minutes stay. Having received the Notice in the post I checked the signage in daylight and it seems that up to 1 hour would have cost £2 so the only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge = £2 at the most.
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 over and above £2.00, 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 mostly empty on arrival and almost empty 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.''
As in previous cases the parking company day to day running costs of the business (for example Wages, Uniforms, Signage erection, Installation of ANPR cameras, Office Costs, Maintenance Costs) would have occurred had there been a breach or not and therefore may not be included in this pre-estimate of loss.


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 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 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.
The BPA code of practice contains the following:
7 Written authorisation of the landowner
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges , through the courts if necessary.

3) The signage was not readable

The BPA Code of Practice states at 18.1: “You must use signs to make it easy for them to find out what your terms and conditions are.”
At 18.3 it states: “Specific parking terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving.”
The BPA Code of Practice further states under appendix B, entrance signage: “The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”
The signs are small, unclear and mostly located well above head height . There is a large amount of small print at the bottom of the signs which is a struggle to read, even when standing directly in front of them.
The vehicle was parking in a Disabled bay with a blue badge clearly displayed, with no clear readable parking signage any where near the disabled bay.


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 30 minutes. And yet their evidence shows no parking time, merely photos of a car driving in and out. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic if it is at the time of parking that the clock should start. The exit photo is not evidence of 'parking time' at all.
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 ParkingEye 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 on entry 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 just as unreliable and unsynchronised as the evidence in the Fox-Jones case. As their whole charge rests upon two timed photos, I put ParkingEye to strict proof to the contrary and to show how these two camera timings are synchronised.

I request that my appeal is allowed.

Yours faithfully,

Umkomaas

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 is well out of date. The CoA case was back in February and did not find in Barry Beavis' favour. It is now open for appeal to the Supreme Court, but at the time of writing this, the appeal has not yet been lodged.

You need to rework your GPEOL section.

The vehicle was parking in a Disabled bay with a blue badge clearly displayed, with no clear readable parking signage any where near the disabled bay.

Well either it was or it wasn't - have you just copied this appeal and not adapted it to your actual parking incident?

This car park is free for the first 30 minutes stay. Having received the Notice in the post I checked the signage in daylight and it seems that up to 1 hour would have cost £2 so the only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge = £2 at the most.

Again, is this relating to your parking incident?