Parking Eye - unsuccessful appeal - help!

Tobyslt

Hi here is the letter I have drafted to send to popla, I would really appreciate it if someone could have a quick look at it for me. It taken me ages to complete it!


ParkingEye PCN, reference code xxxxxxxxxx
POPLA Code:

As the registered keeper of vehicle registration XXXX XXX, I am appealing against parking charge number XXXXXXX using POPLA appeal code XXXXXX. I am not liable for the parking charge on the grounds stated below, and I respectfully ask that all points are taken into consideration.



1) No contract between driver


2) No genuine pre-estimate of loss
3) No standing or authority to pursue no charges or form contracts with drivers


4) The signage was not clear on entry to the car park so there was no valid contract







1) No contract between driver



ParkingEye must prove that the driver actually saw read and accepted the terms at the time the alleged breach took place. Had this been the case the driver would had seen the terms and conditions of parking, it would be implied that a conscious decision was made by the driver to park in exchange for paying the £100 parking charge that ParkingEye is now demanding rather than simply the £4 amount due in a machine on site. The idea that any driver would accept these terms knowingly is perverse and beyond credibility, and so the existence of a contract between the driver and the Operator is being disputed.



2) No genuine pre-estimate of loss


As mentioned in the first appeal by the driver, this car park was taken over by Parking Eye and before the takeover the car park charged £3 for a full day of parking. Poor signage and no notification of the takeover/change of car park management meant that the driver was unaware that a tariff had been put in place. £3 had been paid, when a full day had increased to £4. Looking at the tariff now it is clear that the driver was unaware of this as its £1.90 for three hours or £4 for thirteen hours. It’s obvious that the driver’s intention was to stay for the full day.





On the day in question that the parking charge notice arose, the space that the driver had parked in had no clear signage of the tariff and a photo is attached a photo to show this. The driver became aware of the tariff on 19 May 2015 (this is the third day that the driver parked in the car park under the new management of ParkingEye, the second time that the driver parked in the car park they received a second parking charge notice POPLA ref: 6061705132 which is also being appealed separately) The driver parked in a different space and a tariff was on the wall. The driver paid £3 and returned to their car, and then saw a tariff sign and had to pay an additional £4 to ensure they had paid the correct amount (paying £7 in total). Pictures of the tickets to prove this are attached.





This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

The Operator cannot reasonably claim a broad percentage of their entire business running costs as they operate various different arrangements. Given that ParkingEye charge 90p for an hour, the driver calculates the loss of earnings to Parking Eye at £6.30 due to the underpayment of £1.



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) 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 neither 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 a copy of the contract between ParkingEye and the landowner. This is required so that POPLA and I 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.

4) The signage was not clear on entry to the car park so there was no valid contract formed between ParkingEye and the driver

The signage was not clear on entry to the car park. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see that a new sign had been placed at the car park; there was no consideration/acceptance and no contract agreed between the parties.



There is no mention on the car park entrance sign that the site is "Managed By" ParkingEye, as is required in appendix 2 of the aforementioned Code of Practice.



There is also no notification on the car park entrance sign that there is a ‘Free Period’ during which there is time allowed to park, read the terms and decide whether to enter into any contract or not, which is a requirement under Contract Law.



The signs are very small and the writing on them is very hard to see, especially as the driver was not expecting for the tariff to change and would not be intentionally looking at the signs as the driver has been parking in this car park since February 2015. There is a sign inside the car park up on poles and was not seen by the driver of the car on the day of the charge. Also where the driver parked there was no sign visible.

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.

I request that my appeal is allowed.

Yours faithfully

Redx

swap 2) and 4) around and then add the Beavis paragraph in blue from the newbies sticky thread, below 4) , just above "I request"

dont forget to alter the initial menu too

ps:- this part is incorrect too (the dangers of copying and pasting

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:

its already been to the CoA in february 2015 , its now at the Supreme Court next week

Tobyslt

Thank you


I have made those changes. I will let you know the outcome. I plan on using the same letter for both charges.


I no longer park in this car park!