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

bod1467

Why not use the wording in blue from post #3 of the NEWBIES thread (in respect of GPEoL) ... as mentioned in the very post you quoted?

Pmanesh

Umkomaas wrote: »

It is now being appealed at the Supreme Court! The only reference you now need to make about the Beavis case is contained in the blue typeface I referenced above.

Place your GPEOL appeal paragraph at the end of your appeal, then as a final sub-paragraph place the blue typeface wording.

Thanks so much,
please see letter below. all good to go?

Re: ParkingEye PCN, reference code XXXX/XXXX
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 standing or authority to pursue charges nor form contracts with drivers
2) The signage was not readable
3) The ANPR system is unreliable and neither synchronised nor accurate
4) No genuine pre-estimate of loss



1) 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.

2) The signage was not readable - No contract with driver

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 signage failed to bring home the terms and conditions of parking so prominently that the driver must have been aware of them and consequently there was no contract formed with the driver, therefore there was no breach of contract.
The vehicle was parking in a Disabled bay with a blue badge clearly displayed, with no clear readable parking signage anywhere near the disabled bay.


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 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.

4) No genuine pre-estimate of loss
The Amount of £70 demanded by Parking Eye is not a genuine pre-estimate of loss. The estimate must be based upon loss following from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of retail revenue at a shopping centre. As this is a free car park there can be no losses incurred from onsite parking charges and as the car park was mostly empty, no loss of retail revenue. I request Parking Eye to provide a full breakdown of how these costs are calculated, all these costs must represent a loss resulting from the alleged breach and the pre-estimate of loss must add up to the amount demanded of £100.

As in previous cases the parking company has included day to day running costs of the business (for example Wages, Uniforms, Signage erection, Installation of ANPR cameras, Office Costs, Maintenance Costs) these would have occurred had there been a breach or not and therefore may not be included in this pre-estimate of loss.

Given that Parking Eye charge the same lump sum for a 25 minute overstay as they would for 250 minutes, and the same fixed charge applies to any alleged contravention (whether serious/damaging, or trifling as in my case), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.

The Office of Fair Trading has stated to the BPA Ltd that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.

---

The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.


Accordingly, this appeal must be allowed.

Yours faithfully,

bod1467

And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.

I might be tempted to remove that sentence. The BPA CoP has changed and talks about commercial justification (as I recall).

Pmanesh

removed, thank you. all good to go?

Umkomaas

You need to look at appeal point 4 - you have a £70 demand and a £100 demand in the same paragraph. It needs to be one or other.

In terms of your final para re the charge being extravagant etc, do a quick internet search on council parking penalty charges for the town/county in question. Will give you some info should PE subsequently rebut it

Whatever it is - leave the para as is for the purpose of this appeal.

Given your time limit for getting this to POPLA I think we've gone as far as we can now - so send it off. Tick three of the four 'Reasons' boxes, obviously not the 'Stolen' one - standard forum advice. It has never disadvantaged anyone previously.

Pmanesh

sent! lets hope for the best.

Pmanesh

Nothing happened for a while, I sent my letter about 35 days before receiving this email in my junk, a 48 page PDF in my junk mail from Parking eye.

Dear Sir/ Madam,

Please find enclosed all information sent to POPLA regarding your recent case reference number.

Yours sincerely

ParkingEye Team

there's too much to quote from the 48 page PDF so here is a portion :

Case Detail
Site
Type
Name
Vehicle Registration Vehicle Make Vehicle Model Vehicle Colour Date/Time In Date/Time Out Time Allowed
Time In Car Park
History
04/04/2015
System check/manual check identified breach of terms and conditions, prior to DVLA request
08/04/2015 10/04/2015 10/04/2015 27/04/2015
27/04/2015
27/04/2015
27/04/2015 28/05/2015
Rules and Conditions
Request queued to DVLA for keeper details
DVLA response received - Success
Parking Charge Letter Issued - Letter1 - Ltr01-120
Website appeal received from motorist states the charge is not a genuine pre-estimate of loss and as the keeper, believes that signs were not seen. States ParkingEye have propriety interest in the land.
Letter sent requesting the details of the driver at the time and advising 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 the registered keeper also providing information confirming the Parking Charges are fair and reasonable including a breakdown of costs and Frequently Asked Questions.
Letter sent to motorist advising ParkingEye reject all invoices for payment or appeal.
Duplicate website appeal received from motorist. No further action taken as response already sent.
Letter sent to motorist advising valid/sufficient evidence was not provided to show that the terms and conditions, stipulated on the signage were not broken also providing information confirming the Parking Charges are fair and reasonable including a breakdown of costs and Frequently Asked Questions – POPLA reference and details provided– POPLA reference and details provided.
ALDI Boscombe, BH1 4HN
ANPR monitored and enforced
Mr XX XXX XXX
reg: XXXX XXX
car : xxxxx
04/04/2015 16:13:56
04/04/2015 17:06:20
0 hours 0 minutes 0 seconds- Aldi customers must enter their registration into the terminal in store to qualify for 1 hour free parking.
0 hours 52 minutes 24 seconds
Date of event
This site is a 1 hour free stay customer car park when a customer enters their registration into the terminal within the store as clearly stated on the signage (enclosed). There are 5 signs, placed at the entrance, exit and throughout the site stating the terms and conditions.
Evidence G
System generated print out showing that the motorist vehicle registration number does not appear on the date of the event.
Authority
ParkingEye can confirm that the above site is on private land, is not council owned and that we have written authority to operate and issue Parking Charge Notices at this site from the landowner (or landowner’s agent).
It must also be noted that any person who makes a contract in his own name without disclosing the existence of a principal, or who, though disclosing the fact that he is acting as an agent on behalf of a principal, renders himself personally liable on the contract, is entitled to enforce it against the other contracting party. (Fairlie v Fenton (1870) LR 5 Exch 169). It follows that a lawful contract between ParkingEye and the motorist will be enforceable by ParkingEye as a party to that contract.
Further information
ParkingEye ensures that all its signage is clear, ample, and in keeping with the British Parking Association (BPA) regulations.
The signage at this site demonstrates adequate colour contrast between the text and the backgrounds advised in the BPA Code of Practice, you will note the colour contrast at this site is black text on yellow background.
There are also signs at the entrance to the car park which adjoin an illuminated public road and so we can confirm that there is sufficient ambient lighting at this site.
It is up to the person who is seeking to park in an area to make sure that they can validly park in that area. The onus is on the person parking.
Initially, ParkingEye would like to state that we are a leading user of ANPR Technology. We ensure that our cameras, technology and processes are of the highest quality, and have built up this expertise with almost 10 years of experience of using ANPR cameras. We ensure that we use the best cameras, and that these are expertly configured.
We have also developed a robust process for handling the data and ensuring the accuracy of the system. ParkingEye is regularly required to provide data taken from these ANPR cameras for Police investigations.
Once ParkingEye has installed the cameras, signage and other technology at a site, we will test the system extensively before Parking Charges are issued on site. This involves allowing the site to function normally without Parking Charges being issued, to ensure that the system is functioning correctly.
The British Parking Association Code of Practice contains guidelines for the use of ANPR cameras at Section 21. We comply fully with this;
21.1 – ParkingEye uses ANPR cameras in a reasonable, consistent and transparent manner. All signage contains the universally recognised symbol for the use of these cameras, and it is made clear that ANPR technology is in use on site.
21.2 – All data undergoes a multiple stage checking process, undertaken by trained ParkingEye staff to ensure that Parking Charges are issued correctly.
21.3 – All ANPR equipment is monitored and kept in good working order. A central team of trained Technical Support Engineers proactively monitor the performance of all systems to ensure the accuracy of data collected. Automated monitoring and alerting ensure potential issues are highlighted and dealt with quickly along with data management routines to ensure affected data does not result in a Parking Charge being issued. Dedicated mobile engineers respond to physical faults which require on-site resolution with testing periods to ensure equipment is configured and working to our high standards. Equipment is selected and deployed to ensure a reliable and robust solution which performs consistently and accurately.
Physical and logical access to data is restricted and processed securely. Full auditing of user access and actions ensures clear and full accountability. Dedicated server facilities are protected by named user access control systems.
ParkingEye has passed the relevant and most recent BPA audit.

21.4 – ParkingEye complies with all of the relevant guidelines including those set out by the ICO, DVLA and CO.
21.5 – The Notices to Keeper comply with Schedule 4 of the Protection of Freedoms Act 2012. ParkingEye’s Automatic Number Plate Recognition (ANPR) cameras and software are fully compliant with the British Parking Association Code of Practice. We ensure that the cameras are checked regularly by both automated routines and Technical Support Engineers to ensure that they are in good working order, and that they are producing accurate data. We have passed both our British Parking Association and DVLA audits and follow all DVLA requirements concerning the data that we obtain.
Images recorded by the ANPR (Automatic Number Plate Recognition) systems are time-stamped at source. The ANPR servers use NTP to regularly verify the accuracy of the local time clock with any adjustments being logged thus ensuring that all images are captured and stamped with an accurate time and date. Network Time Protocol (NTP) is a widely used standard to accurately synchronise computer time over wide area networks. Institutions that use NTP technology include; HM Revenue & Customs, The Metropolitan Police, NASA, Inland Revenue, The Land Registry, RBS, NASDAQ, Buckingham Palace, GlaxoSmithKline, Deutsche Bank, BBC, NHS, BAE Systems, BT, HP, DELL and the Bank of England. We firmly believe that these time-stamped images are accurate.
Any time deviance detected on the ANPR servers generates an automatic alert monitored by the Technical Support Team at ParkingEye Head Office. If at any stage of the process the ANPR cameras are found to be deviating, Parking Charges are not issued. There are automated and manual checks to ensure that the cameras are accurate.
It is important to note that cameras and ANPR servers are directly attached as an integrated solution situated on-site therefore ensuring the accuracy of the ANPR read and associated date-timestamp. Transactional data and images are recorded locally before batch transfer to our central systems.
There is no evidence to suggest that a Parking Charge has been issued incorrectly, and ParkingEye goes to great lengths to ensure that all Parking Charges are issued correctly. The data taken from the Automatic Number Plate Recognition cameras is sent to ParkingEye, where it undergoes a checking process of up to 19 stages. This ensures that no errors have been made. There are various other procedures in place to ensure that Parking Charges are issued correctly, and there is no reason to believe that an error has occurred in this case.
You have stated that you do not believe that the Parking Charge amount is a pre-estimation of loss or that it is extravagant/unfair/unreasonable. Please note that HHJ Moloney QC presided over a court hearing (ParkingEye v Barry Beavis and Martin Wardley [2014]) regarding the amount of ParkingEye’s Parking Charges and found that a Parking Charge of £85 could not be considered an unenforceable penalty. An appeal was subsequently lodged by the First Defendant and the matter was heard by the Court of Appeal on 24 February 2015. The Court of Appeal handed down its Judgment on 24 April 2015, and found in ParkingEye’s favour on all grounds.
Addressing the issue of pre-estimate of loss and commercial justification, Lord Justice Moore-Bick agreed with HHJ Moloney QC’s findings, and opined at paragraph 27 that: “The application in a case of this kind of a rule based on a simple comparison between the amount of the payment and the direct loss suffered by the innocent party is inappropriate.”
In agreement with Moore-Bick LJ, and distinguishing the contract formed between ParkingEye and the motorist from a commercial contract, Sir Timothy Lloyd states at paragraph 47 that, “[...] the principles underlying the doctrine of penalty ought not to strike down a provision of this kind, in relation to a contract such as we are concerned with, merely on the basis that the contractual provision is disincentive, or deterrent, against overstaying”.
In terms of the amount of the Parking Charge, both the first instance and Court of Appeal Judgments, along with the BPA Code of Conduct at paragraph 19.5, support the level of Parking Charge issued by ParkingEye. At paragraph 7.13(i) HHJ Moloney QC considers the charges issued by local authorities, and notes that these charge amounts can be up to £105. Please note that as these are fines, backed by
statutory authority, the costs of enforcing these charges are considerably lower than those encountered by a private parking company.
In addition, Moore-Bick LJ states at paragraph 25 that, “although it would be in theory be possible to charge motorists a much more modest amount for overstaying the free period, it would be wholly uneconomic to enforce such charges by taking legal proceedings against them” and he concludes at paragraph 26, as outlined above, that, “it [the charge] was neither improper in its purpose nor manifestly excessive in amount, having regard to the level of charges imposed by local authorities and others for overstaying in public car parks”.
Furthermore, at paragraph 28 of the Judgment, Moore-Bick LJ found that: “These provisions strongly support the conclusion that Parliament considered it to be in the public interest that parking charges of the kind now under consideration should be recoverable, [...] it is difficult to see on what basis it can be said that the charges which are not in themselves grossly unreasonable, are to be treated as unenforceable at common law.”
ParkingEye submits that the Court of Appeal’s Judgment provides much needed clarity to motorists and the Parking Industry, and delivers a binding precedent to support the position that our Parking Charges are fair, reasonable and legally enforceable.

then theres a copy of the original letter, and the letters I have sent to PE and POPLA

After the copies of the letters between us, there is 5-6 pages of photos of all the signage around the Aldi car park.

Whats happening now?

bod1467

You've received their evidence pack. You should now digest it and send POPLA a rebuttal of various points.

For example ... they've mentioned the CoA judgment (re. Beavis) but not that it has been appealed further to the Supreme Court (which hearing was completed last month). So the CoA judgment has no relevance at this time.

The_Deep

They are quoting Beavis although the Supreme Court may well overrule any previous decisions. Furthermore, unless they produce a contract they have no proof that the penalty is commercially justified. Indeed that they are in fact entitled to level such charges in the first place.

PE legal adviser will be aware of this and a complaint against here compliance in this deceit is warranted to the SRA..

Pmanesh

Dear Sir/Madam,

After 35 days, I have been emailed Parking Eye’s Evidence pack for POPLA code: xxxxx.

The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.


Kind Regards,

Please see above, going as per the Newbies thread, I can't think of any other points besides the newbies blue paragraph to add.