Parking Eye (Newquay) POPLA - Advice & Help Please

Tommy1080

salmosalaris wrote: »

Read paragraphs 44 onwards of the CoA judgment and include pertinent parts on the basis that the CoA would have found differently in your case .
1. It is a financial contract and subject to the doctrine of penalties and their charge must represent a gpeol which it far exceeds
2. as the only motive of the charge is to deter underpayment ( or in your case apparent underpayment as you claim you paid ) it is an unenforceable penalty .
3. PE sell the parking for their own benefit
4. They would have been happy to sell the entire stay for the parking tariff , in comparison their PCN is extravagant and unconscionable to the loss of that tariff .
5. There is no loss to any retailers etc serviced by the car park which is simply a commercial operation by PE no different to any everyday commercial enterprise .
6. There was no loss as the driver paid therefore there is obviously a fault somewhere in oroceedings

Thanks!! Would appealing a GPEOL on this basis contradict an appeal point on the basis of "No standing / authority to form contracts with motorists"? I was going to include something along the lines of the below but it seems to contradict what I would say under a gpeol by believing that ParkingEye are the lease holder??


No standing/authority to form contracts with motorists

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. I contend that they merely hold a bare licence to supply and maintain (non-compliant) signs and to post out 'tickets' as a deterrent. Authority to merely 'issue tickets' is not the same authority as a right to form contracts in their own right, with visiting drivers. As a commercial site agent acting under an agency agreement 'on behalf of' the principal, ParkingEye has negative responsibility and no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA CoP.

I put ParkingEye to strict proof to provide an unredacted, contemporaneous copy of the contract which - to demonstrate standing and authority - must specifically state that ParkingEye can make contracts with drivers themselves and that they have full authority to pursue charges in court in their own name. A witness statement to the effect that a contract is in place will not be sufficient because it will not show which restrictions are to be enforced, what the times/dates/details of enforcement are. How will I know that the landholder contract allows ParkingEye to charge £100 for this particular contravention if the contract is not produced? Showing a piece of paper signed by someone who has never seen the actual contract, saying merely that ParkingEye can put up signs and 'issue parking charges' would not prove that they can form contracts with drivers nor show that they can charge this amount for this contravention.

salmosalaris

You could ask them to provide proof that they are the leaseholder and consequently able to offer contracts .
Will be interesting to see if they provide a witness statement by the landowner ( PE ) authorising (PE ) to offer contracts

Tommy1080

How does the following read for my POPLA appeal? I'd really appreciate any feedback and points to improve / change etc?


As the registered keeper, I appeal on the following grounds:
1. The charge is not a genuine pre-estimate of loss
2. No standing/authority to form contracts with motorists
3. Failure to invoke Keeper Liability under the Protection of Freedoms Act 2012 (the POFA)
4. Unclear and Non-compliant signage which created no contract with the driver, who did not see any signs
5. ANPR records are unreliable and not proof of one parking event

The charge is not a genuine pre-estimate of loss
As the registered keeper I believe that ParkingEye claim to be the leaseholder of the Tower Road carpark and therefor presumably retain the car parking tariff and a straightforward financial contract between ParkingEye and the Driver. There can be no commercial justification for charging a penalty for any underpayment. ParkingEye would have been entirely happy for the Driver to park at the site for the requisite fee. The PCN indicates that the maximum free stay authorised is 1hr and no external contractor is being used to enforce the carpark so the only possible loss to ParkingEye is any unpaid tariff plus possibly (although this is debatable) the DVLA look up fee, an envelope, a sheet of paper and a stamp. Therefor any PCN must be a genuine pre-estimate of loss, which the inflated charge of £100 is clearly not.

I also believe that the ruling in April 2015 of ParkingEye v Barry Beavis and Martin Wardley is irrelevant in this case as there are a number of significant differences in the assumed parking contract. I believe therefor that this is not a genuine pre-estimate of loss and the court would have found differently in my case.

In the ParkingEye vs Beavis Judgement, Sir Timothy Lloyd stated:

Paragraph 44: All the previous cases shown to us have concerned contracts of a financial or at least an economic nature, where the transaction between the contracting parties can be assessed in monetary terms, as can the effects of a breach of the contract by one party or the other.

Paragraph 45: The contract in the present case is entirely different. There is no economic transaction between the car park operator and the driver who uses the car park, if he or she stays no longer than two hours; there is no more than (for that time) a gratuitous licence to use the land. The operator affords the driver a free facility. That facility is, of course, of economic value to the driver, as well as of convenience, in assisting the driver to visit the shops in the shopping centre which the car park serves

Paragraph 47: It seems to me 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 a disincentive, or deterrent, against overstaying. When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.”

In this instance if ParkingEye are in fact the leaseholder this is a financial contract and subject to the doctrine of penalties and their charge must represent a GPEOL which it far exceeds. ParkingEye sell the parking for their own benefit so the only motive of the charge is to deter underpayment it is an unenforceable penalty.

As previously mentioned ParkingEye would have been happy to sell the entire stay for the parking tariff, so in comparison their PCN is extravagant and unconscionable to the loss of that tariff.
There is also no loss to any retailers or businesses serviced by the car park which is simply a commercial operation by ParkingEye and therefor no different to any everyday commercial enterprise.
There was no loss as the driver paid, therefore there is obviously a fault somewhere in proceedings

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 the required parking fee, 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.''

No standing/authority to form contracts with motorists
If ParkingEye are not the leaseholder, as the Operator they have 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. I contend that if they merely hold a bare licence to supply and maintain (non-compliant) signs and to post out 'tickets' as a deterrent. Authority to merely 'issue tickets' is not the same authority as a right to form contracts in their own right, with visiting drivers. As a commercial site agent acting under an agency agreement 'on behalf of' the principal, ParkingEye has negative responsibility and no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA CoP.

I put ParkingEye to strict proof to provide an unredacted, contemporaneous copy of the contract which - to demonstrate standing and authority - must specifically state that ParkingEye is in fact the lease holder or can make contracts with drivers themselves and that they have full authority to pursue charges in court in their own name. A witness statement to the effect that a contract is in place will not be sufficient because it will not show which restrictions are to be enforced, what the times/dates/details of enforcement are. How will I know that the landholder contract allows ParkingEye to charge £100 for this particular contravention if the contract is not produced? Showing a piece of paper signed by someone who has never seen the actual contract, saying merely that ParkingEye can put up signs and 'issue parking charges' would not prove that they can form contracts with drivers nor show that they can charge this amount for this contravention.

This was requested in my initial appeal to ParkingEye on the 26th April 2015 and subsequently ignored in their response on the 14th May, with no evidence provided.

Failure to invoke Keeper Liability under the Protection of Freedoms Act 2012 (the POFA)
In order to pursue Keeper Liability under the POFA, ParkingEye must have met the strict conditions in the Act. However, they have failed to fulfil the requirements of the “Notice to Keeper” (‘NtK’) as per para. 9 Sch 4 of the Act which reads in part:

“(1) A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
(2) The notice must—
(b) inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(e) state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i) to pay the unpaid parking charges; or
(ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii) the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
(h) identify the creditor and specify how and to whom payment or notification to the creditor may be made;
(4) The notice must be given by:
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.”

The NTK fails due to the following reasons:
The following points may be observed as flaws in this NTK, making this non-compliant under the POFA 2012:

(A) The 'period of parking' is not 'specified', only the times the car was seen in traffic on arrival and on the final time it left that day. There's no evidence of parking at all.

(B) It fails to describe any alleged unpaid parking charges “for the specified period of parking” (a period which was not specified). POFA requires that a NTK describes any 'outstanding' 'unpaid' charges which the driver owed as at a time not later than the DAY BEFORE the issue of the postal NTK. The sum for breach of contract cannot be described as ‘unpaid by the driver’ prior to the day the NTK was issued, because it only arises and could be described as 'unpaid', if at all, at/after the time of receipt of the NTK by the keeper. The inflated PCN amount now being pursued for 'breach' should not be confused with the sum intended by Schedule 4 of the POFA, just because it is also - coincidentally, perhaps - called a ‘parking charge’. The timelines are clearly stated in the Act and it is clear that the Act requires any unpaid tariff that the driver owed before the NTK was issued, to be stated - and that this is the only sum that can be pursued from a registered keeper.

The fact that some of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the NTK is compliant. A NTK is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 as regards the wording in a compliant NTK are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out even some of the mandatory NTK wording means there is no 'keeper liability'.

In this case the driver has not been identified so the charge has no legal basis to be enforced against me.

Unclear and Non-compliant signage which created no contract with the driver, who did not see any signs
In my initial appeal to ParkingEye, I requested photographic evidence of the signs that were allegedly displayed that would provide sufficient evidence that a lawful and legally enforceable contract was entered into. Again this request was blatantly ignored by ParkingEye in their response and subsequent rejection of my appeal. I also requested a diagram showing the locations and layout of those signs at the car park. Along with evidence that the wording is in plain and intelligible language and in sufficiently large print as to be legible to a driver at the car park’s entry point. Again this was ignored by ParkingEye.

The occupants of the car recall seeing no clear, legible and lit signs on entrance to the car park.

Any photos supplied by ParkingEye to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera & flash and the angle may well not show how high the signs are. As such, I require ParkingEye to state the height of each sign in their response and to show contemporaneous photo evidence of these signs from a driver’s point of view upon entering the carpark in traffic. 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.

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

Furthermore the policy states: 'All signing of roadside facilities and signing arrangements within sites must comply with the current Traffic Signs Regulations and General Directions {TSRGD} and any other guidance as may be issued from time to time by the Department for Transport or the Highways Agency. Approval must be sought from the Highways Agency’s signs specialist for the use of all non-prescribed signs.'

I put ParkingEye to strict proof that the DFT/Highways Agency has granted special authorisation for their traffic signs (any signs relating to traffic) in this particular MSA to be exempt from this policy requirement. It will not be acceptable for ParkingEye to claim that these particular signs are in their own opinion not 'traffic signs' when these signs provide information to vehicle users in moving traffic, who may never leave their vehicles.

Failure to comply with Government policy would render the alleged contract unenforceable.
In any case, unless signs are seen and understood before parking, they are not imported into any contract.

ANPR records are unreliable and not proof of one parking event
The charge is founded entirely on two photos of my vehicle entering/leaving the car park at specific times. I put ParkingEye to strict proof that their ANPR system is not fundamentally flawed because of known issues such as missing checks and maintenance of the timer/cameras and the possibility of two visits being recorded as one. The Operator's proof must show checks relating to my case/my vehicle, not vague statements about any maintenance checks carried out at other times. ParkingEye also sub-contract maintenance of said systems to 3rd party contractors, so I would bring into question the contractual arrangements between ParkingEye and the 3rd party and what checks they have in place to verify the accuracy and consistency of the 3rd party maintenance.

The 'two visits recorded as one' problem is very common and is even mentioned on the BPA website as a known issue: (Appropriate Link to BPA website and how ANPR works)
The BPA says: ''As with all new technology, there are issues associated with its use:
Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.''

Since I am merely the registered keeper, I have no evidence to discount the above possibilities. ParkingEye show no parking photographs so they cannot say for certain that the car was not involved in non-parking related activity - e.g. queuing, waiting for someone, looking for a parking space, nor can they show the car did not leave the site and return. This could easily be a case of two visits, or if my vehicle was on site for the time shown, I suggest that it may well not have been 'parked' continuously for the alleged period. I put ParkingEye to strict proof of actual parking for the entire alleged time frame.

I agree with the BPA that this ANPR technology has issues associated with its use. These also include (but are not limited to) synchronisation errors, buffering, faults with the timer, faults with one or other of the cameras, faults with the wireless signals and differences between the settings of the in/out clocks. The operator uses WIFI with an inherent delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever accurate to the minute.

In addition, the BPA CoP contains the following in paragraph 21:
''You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.''

ParkingEye fail to operate the system in a 'reasonable, consistent and transparent manner'. They place signs far too high to see on arrival and these are not lit, so there is no opportunity for drivers in moving traffic at the entrance to be 'informed that this technology is in use and what the Operator will use the data captured by ANPR cameras for'. I contend that as well as being unreliable, this is a non-compliant ANPR system being merely a secret high-up spy camera - far from 'transparent' - unreasonably 'farming' the data from moving vehicles at the entrance & exit and neither 'managing, enforcing nor controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any parking event at all.

salmosalaris

It's a mish mash of relevant , irrelevant and misunderstood points , which isn't surprising as you've followed some stuff which I would argue is probably past its sell by date .
You've even got references to MSA's in there !!
You haven't mentioned you actually paid and put them to strict proof that you did not ? Was your reg entered incorrectly ? If so this does not create a loss
If they claim to be the leaseholder Demand they produce a copy of the lease that would confirm they have the necessary proprietary interest in the land to offer contracts for parking .
When is this due in ?

Tommy1080

I paid cash at the machine but haven't got the ticket, so I didn't think I had a leg to stand on? Reg is entered correctly... It's got to be in by the 11th June!

What would you suggest?

salmosalaris

Nobody knows how POPLA will respond to cases like this yet but if you send me a PM I'll happily help you with a POPLA appeal
Hopefully others will confirm I'm legit
I can't promise it will win though

Umkomaas

salmosalaris is a respected poster both here and on PePiPoo. A great offer to help.

Ivor_Pecheque

It was the Cafe place (the bottom photo)... You mentioned entry exit routes to the car park? Was there a problem with them?

not sure mate, but seem to remember Parking Prankster mentioned it sometime last year.

Tommy1080

Great news.... my parking charge has been cancelled!! Just had this from POPLA this morning!!

Massive massive thanks to @salmosalaris for all of his time, help and assistance with my appeal! Really is much appreciated!!

Moral of the story, always keep your parking tickets!! :-)

Mr Tom Cowen (Appellant)
-v-
ParkingEye Ltd (Operator)

The Operator has informed us that they have cancelled parking charge notice number 001554/618939, issued in respect of a vehicle with the registration mark #####.

Your appeal has therefore been allowed by order of the Lead Adjudicator. You are not liable for the parking charge and, where appropriate, any amounts already paid in respect of this parking charge notice will be refunded by the Operator.

Yours sincerely,
Richard Reeve
Service Manager

Redx

well done tommy, glad to see that sense prevailed in respect of your issue that raised this thread, despite the hijack by other members, you got help required and it paid off

well done , and respect to salmosalaris for helping you