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should I send my POPLA letter late?
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Nutella02
Posts: 15 Forumite
Hi there can I ask if this POPLA is okay - I borrowed alot of info from a lovely man on this site who seems to have some of the same case as me. Please read tell me what you think - My POPLA is late by a few days so will they throw this out actually? should i bother or should i just pay the PCN - I have a pic of the tariff sign and a pic of the car ticket to also send off.
I am the registered keeper and I wish to appeal a recent parking charge from ParkingEye. below are points to show the refusal of liability for the parking charge:
1) No genuine pre estimate of loss
2) The signage was inadequate and misleading so there was no valid contract formed
3) The ANPR system is unreliable and neither synchronised nor accurate
1) No genuine pre-estimate of loss
The Operator issued a PCN to vehicle .... on the grounds of an alleged 'over stay' of 1hr48m. A ticket however had however been purchased.
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 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.''
3)The signage was inadequate so there was no valid contract formed
The signage of the car park was confusing and misleading and has subsequently led to this. The occupants of the vehicle were not late in retrieving the car, they were led to believe (by the signage provided) that they had paid up and over the specified time (please see pictorial evidence).
As you can see in the picture - there are three different tariffs. The Occupier was looking at tariff one where it states hours of fee from 8am -6pm. You can see on the parking ticket that the occupants had paid past 6pm and to 6.30pm therefore enough fee had been paid. the occupiers were not staying 'overnight' and so did not see the relevance of an 'up to 14hr stay at the fee of £5.50'. when working out how much was to be paid.
The date and time of the alleged incident would mean any signs in the car park were difficult to see and as you can see in the picture - the sign closest to the vehicle is too high to fully read. (please note this picture was taken the day after the PCN was received in broad daylight and not in the late evening when the PCN was taken from)
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 number plate 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
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 occupier 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,
I am the registered keeper and I wish to appeal a recent parking charge from ParkingEye. below are points to show the refusal of liability for the parking charge:
1) No genuine pre estimate of loss
2) The signage was inadequate and misleading so there was no valid contract formed
3) The ANPR system is unreliable and neither synchronised nor accurate
1) No genuine pre-estimate of loss
The Operator issued a PCN to vehicle .... on the grounds of an alleged 'over stay' of 1hr48m. A ticket however had however been purchased.
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 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.''
3)The signage was inadequate so there was no valid contract formed
The signage of the car park was confusing and misleading and has subsequently led to this. The occupants of the vehicle were not late in retrieving the car, they were led to believe (by the signage provided) that they had paid up and over the specified time (please see pictorial evidence).
As you can see in the picture - there are three different tariffs. The Occupier was looking at tariff one where it states hours of fee from 8am -6pm. You can see on the parking ticket that the occupants had paid past 6pm and to 6.30pm therefore enough fee had been paid. the occupiers were not staying 'overnight' and so did not see the relevance of an 'up to 14hr stay at the fee of £5.50'. when working out how much was to be paid.
The date and time of the alleged incident would mean any signs in the car park were difficult to see and as you can see in the picture - the sign closest to the vehicle is too high to fully read. (please note this picture was taken the day after the PCN was received in broad daylight and not in the late evening when the PCN was taken from)
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 number plate 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
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 occupier 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,
0
Comments
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if it is past the expiry date they will refuse it
only a really good excuse will be allowed (read their website FAQ)
so if you have no extenuating circumstances for the late appeal, it will be refused and so not even considered , even if its the best appeal ever
the one thing you never do, is miss the deadline
its like that easyjet program where people turn up late and complain because the check in desk is now closed, even if the plane is on the taxiway or parking area, its deemed to be gone !
ps:- edit the post as the VRN is visible
pps:- point 2) is missing too0 -
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Has the european ADR come into force yet?Changing the world, one sarcastic comment at a time.0
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Thanks Redx - Yeah I had three letters sent from Parking eye all at once so I missed the small print on the back of one of the POPLA forms (parking eye had attached) where it said you have 28 days to provide a POPLA.
So I wont submit this POPLA letter? and I wont pay - ill just wait to see if they take me to small claims court?
Stator - I don't know what a European ADR is so i'm guessing no -
All I have received which has put this fine back in my mind is the 'letter before county court claim' including £50 solicitor costs and £25 court claim issue fee! it also says n this letter that they stated
'if you do not pay the parking charge but want to appeal you have 28 days to do so' - the is nothing as such on the correspondence i have received from Parking eye. Only when I go to look on the small print on the back of the POPLA form does it say anything about a time limit.
Do I have to pay anything if they're the ones taking me to court?
Thank you for your help.
Nutella020 -
The European ADR Stator raised is a new EU directive regarding Alternate Dispute Resolution provisions - I believe it comes in to force on 15th July 2015 - would be worth reading up on this - it may be useful for your case.
If you have received a real LBCCC from Parking Eye or solicitors acting on their behalf - you need to respond to it - court papers are imminent and you need to read this thread on how to deal with an LBCCC
https://forums.moneysavingexpert.com/discussion/4754020
Responding may not head them off at the pass but ignoring it will definitely mean court papers next
You should also post #5 of the NEWBIES sticky thread re:dealing with a Small Court Claim0
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