POPLA Appeal for Ticket at Canvey Island Seafront

Umkomaas

Where does TPS/Total Parking Solutions fit in here? You need to very carefully proofread this.

DollyDee_2

and UKPC towards the end of the rebuttal

bucklag

Thank you will go through it again very carefully.

Apart from the obvious company name errors do you think I need to add any more or remove anything else?

Thanks again.

Coupon-mad

You can't just repeat stuff like this which was about UKPC. You need to read this again and remove stuff not about your case, we won't go through it with a fine tooth comb - that's your job! The things that are wrong are fairly obvious when you read it, like this:

Parking Eye seem unsure as to the rationale behind their disproportionate charge and can't have it both ways. On the one hand when talking about the UTCCRs, they say ''We reject the notion that our charges require consumers ‘to pay a disproportionately high sum in compensation’ in its entirety and assert that our charges are a genuine pre-estimate of loss.''

Yet when hanging on the coat-tails of the non-comparable decision in ParkingEye v Beavis they assert the opposite: ''the POPLA Appeal mentions Genuine Pre-Estimate Of Loss, however this charge does not represent this at all.''

This is just meant to be a valid a rebuttal relating to what they have said, not another POPLA appeal.

You didn't say if I was right about the car park being the one with bollards (outside the barrier) & potholes (if it is not, change what you are saying!). And you haven't told us whether the signage evidence includes one which says 'INCORRECT SIGN' underneath it in the evidence pack?

bucklag

Thanks Coupon Mad fully intend to go through it with a fine tooth comb, I just wanted to see if I had got the general gist of the rebuttal correct.

It is the same car park with the bollards outside the barrier and all the potholes yes. Unfortunately in the evidence pack there is no sing which includes INCORRECT SIGN underneath.

thanks again for the input.

bucklag

Whoa mistakes were plentiful in the first draft, apologies for that!

Heres my second draft hopefully I got rid of them all...?


POPLA Appeal - Evidence pack rebuttal

Rebuttal of evidence pack received from Parking Eye
[DATE]


Registered Keeper: [NAME]
PCN: [PCN NUMBER]
POPLA Appeal Number: [POPLA CODE]
Date evidence pack was received: [DATE]


Contents

POPLA Appeal - Evidence pack rebuttal

1) No landowner contract nor legal standing to form contracts or charge drivers


2) Poor signage / signage does not comply to the BPA:CoP and ambiguous ANPR evidence

3) The ‘Notice to Keeper’ fails to comply to the Protection of Freedoms act (PoFA)

4) No genuine pre-estimate of loss (GPEOL)




1) No landowner contract nor legal standing to form contracts or charge
drivers

Parking Eye has provided in Section G of their evidence pack a scan of a supposed management contract for the site. This statement is redacted making it impossible to identify the alleged signatory, therefore making this piece of evidence worthless. Even if identification of the alleged signatory was possible there is still no proof that the alleged signatory has ever seen the landowner contract nor that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practise (BPA:CoP) to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.

As Parking Eye are not the owners of this land and as such they cannot form a contract with the driver. Parking Eye has failed to provide evidence of a full un-redacted copy of their contract with the landowner which allows them to form such a contract.

Parking Eye “Feels” that supplying a few unreadable pages of their landowner contract, and heavily redacting it, is sufficient proof that they have a compliant landowner contract and the legal standing to form contracts and charge drivers. The contract evidence supplied by Parking Eye is worthless, as it cannot be scrutinised for BPA:CoP compliance. Parking Eye should stop using their ‘feelings’ and actually supply evidence so that they can be put to strict proof.

A witness statement as to the existence of such a contract is not sufficient. I believe there is no contract with the landowner that gives Parking Eye the legal standing to levy these charges nor pursue them in the courts in their own name as creditor. This was shown to be the case by District Judge McIlwaine in VCS v Ibbotson, Case No 1SE09849, S!!!!hrope County Court, 16th May 2012 (transcript in the public domain). So as regards the strict requirements regarding the scope and wording of landowner contracts, Parking Eye have breached the BPA:CoP section 7 and failed to demonstrate their legal standing, which renders this charge unenforceable.

Should a basic contract be produced mentioning parking charge notices, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.





In light of this, and in addition to these points, i will reiterate point 1 of my initial appeal, which Parking Eye have failed to adequately address with their ridiculous quasi evidence:

1) No standing or authority to pursue charges nor form contracts with drivers

Parking Eye do not own the land mentioned in their Notice to Keeper and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. Even if a contract is shown to POPLA, I assert that there are persuasive recent court decisions against Parking Eye which establish that a mere parking agent has no legal standing nor authority which could impact on visiting drivers.

In ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013 District Judge Jenkins checked the ParkingEye contract and quickly picked out the contradiction between clause 3.7, where the landowner appoints ParkingEye as their agent, and clause 22, where is states there is no agency relationship between ParkingEye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between ParkingEye and motorists who used the land. This decision was followed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the Defendant. District Judge Jones concurred completely with the persuasive view in ParkingEye v Sharma that a parking operator has no standing to bring the claim in their own name. My case is the same.



Also in recent successful POPLA appeal Here's what assessor Nial Vivian had to say in a case:

"The appellant has stated that they do not believe the operator has the relevant authority of the landowner to pursue charges from or form contracts with motorists using the car park in question. Section 7 of the British Parking Association Code of Practice requires operators to own the land or to have written authority from the landowner to operate on the land. Upon reviewing the evidence, the operator has provided me with a copy of a signed contract. However, the quality of the document renders it unreadable, and as such I am not able to confirm that it is a contract between the operator and landowner confirming that the landowner has conveyed such authority to the operator".





2) Poor signage / signage does not comply to the BPA:CoP and ambiguous ANPR evidence


From the photos supplied in Section D of Parking Eyes evidence pack The ANPR timer has started when the car was outside the car park boundary, which is delineated by a barrier. As such, the photos actually show no evidence of the car within the car park at all as they are both taken outside the barrier and in fact, the driver recalls stopping at that point to try to read the signs around the barrier first, and to look into the site to see where to park since the surface is potholed and not the most welcoming of sites.

Despite peering at the signs at the entrance it was extremely confusing, due to the presence of an incorrect sign stating that the site was for customers only (which it is not, people can also pay and display). This alone (OUTSIDE THE SITE) took some 15 minutes as they debated whether to stay or not because the signs were confusing and seemed to suggest that only customers could park, yet another sign said the opposite.
The driver finally drove in, negotiated the pot-holes, waited for a clear space, parked and walked over to the machine to try to make sense of the wordy terms. As it was busy and the road surface here is so very bad, not all spaces are accessible and this activity alone took another 15 minutes before the driver was able to enter into any contract with this operator by virtue of paying a tariff.

So, at the start, an unquantified number of minutes (up to as much as 30 minutes difference from that alleged by ParkingEye, due to the awful state of the car park and conflicting entrance signs and unfair starting time of the 'clock') have been artificially added to the true time when the contract could have lawfully started. As such, the ANPR photo merely shows the point when the car was still outside and has added a very significant number of unquantified minutes to the timing. At the end, again the ANPR camera only shows the car at the bollards, after it had already passed the barrier which is no proof of the 'period of parking' at all.

Indeed the BPA code of practice allows another, further 11 minutes after the expiry of paid-for time, for a car driver & occupants to load bags, seat themselves & children, belt up and drive out of any car park. This is a prescribed Grace Period which, when added to the up to 30 minutes misleading time wrongly 'claimed' by ParkingEye as part of the contract at the start, makes the actual parking time unproven. The operator cannot fairly claim that the car was actually parked for longer than it should have been, based on two photos outside the site.

Further, among the conglomoration of wordy/mixed signs, there is nothing to tell a driver how the ANPR data captured will be used. So the driver - a genuine customer who paid and displayed once actually parked in a bay in the end - had no idea the timing had unfairly started before they even drove on site, when they were debating whether to enter at all.

This is inherently an unfair contract term under the Consumer Rights Act 2015 (CRA) and an unfair and misleading business practice under the CPUTRS 2008 as well as a clear breach of the BPA Code of Practice in several respects. Not only have NO pictures been taken of the car on site (only off site beyond the barriers) but they have failed to inform drivers how the captured ANPR data will be used. This is an ICO requirement for data handlers and ParkingEye have failed. The driver had no information to tell them that the clock started any earlier (much earlier in this case) than the moment when the payment was made after parking, so the driver cannot possibly be deemed to have agreed to that unfair term. Unfair and non-transparent terms are unenforceable under the CRA.

In National Car Parks v HMRC [2015] UKFTT 0666 (TC) in the First Tier Tax Tribunal, it was held in a relevant decision regarding when the contract starts in a Pay and Display car park (this rationale is applicable whether the payment is made by cash, card or by phone):


47 '' The correct contract law analysis is as per Thornton v Shoe Lane Parking in the context of dealing with a car parking machine:

“it can be translated into offer and acceptance in this way; the offer is made when the proprietor of the machine holds it out as being ready to receive the money. The acceptance takes place when the customer puts his money into the slot. The terms of the offer are contained in the notice placed on or near the machine stating what is offered for the money. The customer is bound by those terms as long as they are sufficiently brought to his notice before-hand, but not otherwise.”




3) The ‘Notice to Keeper’ fails to comply to the Protection of Freedoms act (PoFA)

I refer to the ‘Notice to Keeper’ presented in Section E, Notice of Rejection, of the evidence pack provided by Parking Eye, And would wish to draw your attention to the following Heading contained therein:

I Wasn’t the driver therefore I will not be paying the parking charge

This statement makes it clear that Parking Eye is dealing with its claim in accordance with the requirements of Schedule 4 of PoFA. The requirements of Schedule 4 are quite clear in that there must be strict compliance with all of its requirements in order to take advantage of the rights granted under that Act to pursue the registered keeper in respect of a driver’s alleged debt.

The BPA:CoP also supports the need for strict compliance in Section 21, paragraph 5:
“If you want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and you have not issued and delivered a parking charge notice to the driver in the car park where the parking event took place, your Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9).”

Parking Eye has however failed to comply in regards to paragraph 9(2)(h) of Schedule 4, PoFA 2012.

Whilst the ‘Notice to Keeper’ indicates that a payment is to be made to “Parking Eye Ltd”, there is no specific identification of the “Creditor”, who may, in law, be Parking Eye or some other party.

PoFA requires a ‘Notice to Keeper’ to have words to the effect that “The Creditor is….”

The wording of Paragraph 9(2)(h) of Schedule 4 of PoFA does not indicate that the “creditor must be named, but “identified”. To “identify” a “Creditor” a parking company must do more than name that person. The driver is entitled to know the identity of the party with whom he has legally contracted.

This view is supported by the Secretary of State for Transport. He has reserved to himself powers to make regulations to specify not only what must be said in a ‘Notice to Keeper’ but also what evidence should be provided.

He says “The purpose of this power is to leave flexibility to mandate the specific evidence which must accompany a notice to keeper if it becomes clear that creditors are attempting to recover parking charges without providing keepers with sufficient evidence to know whether the claim is valid”.

4) No genuine pre-estimate of loss (GPEOL)


Parking Eye seem to be under the misapprehension that the Supreme Court judgment was a green light legitimising all frivolous parking charges . It is in fact quite the reverse and makes plain that in each individual circumstance the operator must have a legitimate interest in enforcing the charge and that charge must be proportionate to that interest to avoid the charge being an unenforceable penalty . In this case they do not ,it is not and it does not.
There is no legitimate interest in enforcing a charge against a motorist who had paid to park all day. The charge is simply being enforced in an attempt to punish the motorist for an alleged inadvertent mistake solely for the operator's profit , that is not a legitimate interest . None of the reasons that gave Parking Eye a legitimate interest that disengaged the penalty rule in their case against Mr Beavis are present in this case in which the penalty rule remains firmly engaged .

The appellant respectfully submits that the assessor carefully reads the Supreme Court judgment. There must be a legitimate interest in enforcing the charge.




I wish to rebut Parking Eyes evidence in its entirety and am not liable to pay £100.


The facts here differ significantly from the Beavis case. Parking Eye have admitted that they would have been happy to have accepted £60 early payment. This £60 was not paid.

This sum of £60 sets this case apart from the Beavis case because that is the sum that Parking Eye admit they would have accepted to resolve the dispute after the event. There is no such comparator in the Beavis case. Unlike in the Beavis case where there was free parking offered under licence first and no quantified sum under £85.

A sum of £60 which would have been accepted for settlement after the event cannot suddenly escalate to £100. At no point did the driver consent to pay £100 at the point of parking,

consideration flowed from the driver and none from the operator either (unlike in the Beavis case). The elements of a contract are fundamental, as is evidence of breach, and neither exist here (unlike in Beavis).

This is an unfair 'price escalation clause which is an unenforceable penalty an unfair under the UTCCRs (now incorporated within the Consumer Rights Act 2015).

So the Regulations say the same as the Beavis Judges were at pains to make clear; everything depends on 'all the circumstances' of each case. And the circumstances of an operator being prepared to accept £60, as here, set this apart from Beavis and Parking Eye have quantified the only loss that could feasibly/fairly be pursued in this case.

Considering all the facts of this case, this charge is unconsionable, not contractually agreed, disproportionate when compared to £60. Parking Eye are not saved by the Beavis case at all where it was stated that charges cannot be set in order to punish.

Even if there is a legitimate interest in issuing a ticket because it was believed the vehicle had overstayed its time that is simply not enough. There must be a legitimate interest in enforcing the charge and no contract agreed to pay £100, there is no legitimate interest in enforcing it in this case. Indeed the operator has failed to reveal any legitimate interest they may have in enforcing a £100 charge in this case.

I believe the facts of this unfair parking charge are such that POPLA should uphold my appeal, considering all the circumstances.

nigelbb

bucklag wrote: »

I wish to rebut Parking Eyes evidence in its entirety and am not liable to pay £100.


The facts here differ significantly from the Beavis case. Parking Eye have admitted that they would have been happy to have accepted £60 early payment. This £60 was not paid.

This sum of £60 sets this case apart from the Beavis case because that is the sum that Parking Eye admit they would have accepted to resolve the dispute after the event. There is no such comparator in the Beavis case. Unlike in the Beavis case where there was free parking offered under licence first and no quantified sum under £85.

This argument doesn't hold water. In Beavis the charge on the signs was indeed £85 but a similar price escalation clause was proposed with a charge of £50 for early payment. This 40% discount for early payment is required by the BPA Ltd Code of Practice

Coupon-mad

I agree with nigelbb. Don't try to adapt the UKPC £15 argument, it doesn't fit your case and was unique to that other case only.

Also:

- remove the words 'for an alleged inadvertent mistake' from point #4 because that's not the case in these circumstances.

- you have missed the three most important things wrong with the NTK. Lack of creditor is debateable and weak and I think their NTKs DO use that word! The three main things wrong are:

(a) No 'date sent' or 'date given' (PLEASE don't reply that there's a 'date issued'. I KNOW, THAT'S THE POINT*)!

(b) No 'period of parking' shown on the Notice. All timings on the NTK are misleading because the ANPR is wrongly positioned and started and ended the clock outside the barrier, outside the car park.

(c) No description of the unpaid parking charge they allege the driver should have paid, a sum quantified in Schedule 4 as a sum outstanding from the driver, as at the DAY BEFORE the date on the NTK. i.e. can't be the £100 then, it can only be the unpaid tariff because there was no mechanism for the driver to pay £100 on the day, so that sum cannot possibly be the 'unpaid' parking charge due before the NTK was even created.

*All the above are written succinctly in Aldi-leek's point #5 here which you can copy from because his NTK is a PE one like yours, re a P&D car park:

https://forums.moneysavingexpert.com/discussion/comment/70050556#Comment_70050556

And regarding your point #1 'No landowner contract nor legal standing to form contracts or charge drivers' as I read it I am completely confused. It is too long, although you certainly need the POPLA Assessor Niall Vivian's words and you need to say it's unreadable and you need to point out of the signatory is only a non-landholder agent/facility (Starr Snooker, one of several outlets?) as far as you can see.

The confusion arises for me, because you say at one point that it's not a landowner contract, then it is a landowner contract but unreadable, and in there you also have an objection to a witness statement (but you've not said it was a 'witness statement', you;ve said it was the contract). Needs to say who has signed it, is it a managing agent not the landowner with title, can you not tell...say it like it is.

bucklag

Thank you everyone for your input a contribution to this appeal it is really appreciated.

Heres draft 3:

POPLA Appeal - Evidence pack rebuttal

1) No landowner contract nor legal standing to form contracts or charge drivers


2) Poor signage / signage does not comply to the BPA:CoP and ambiguous ANPR evidence

3) The ‘Notice to Keeper’ fails to comply to the Protection of Freedoms act (PoFA)

4) No genuine pre-estimate of loss (GPEOL)




1) No landowner contract nor legal standing to form contracts or charge
drivers

Parking Eye has provided in Section G of their evidence pack a scan of a supposed Supply Agreement for Car Park Management. This Document is an extremely poor scan making it impossible to identify the alleged signatory, therefore making this piece of evidence worthless. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practise (BPA:CoP) to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.

As Parking Eye are not the owners of this land and as such they cannot form a contract with the driver. Parking Eye has failed to provide evidence of a full un-redacted copy of their contract with the landowner which allows them to form such a contract.

Parking Eye “Feels” that supplying a few unreadable pages of their Supply Agreement for Car Park Management, and heavily redacting it, is sufficient proof that they have a compliant landowner contract and the legal standing to form contracts and charge drivers. The evidence supplied by Parking Eye is worthless, as it cannot be scrutinised for BPA:CoP compliance. Parking Eye should stop using their ‘feelings’ and actually supply evidence so that they can be put to strict proof.

I believe there is no contract with the landowner that gives Parking Eye the legal standing to levy these charges nor pursue them in the courts in their own name as creditor. This was shown to be the case by District Judge McIlwaine in VCS v Ibbotson, Case No 1SE09849, S!!!!hrope County Court, 16th May 2012 (transcript in the public domain). So as regards the strict requirements regarding the scope and wording of landowner contracts, Parking Eye have breached the BPA:CoP section 7 and failed to demonstrate their legal standing, which renders this charge unenforceable.




In light of this, and in addition to these points, i will reiterate point 1 of my initial appeal, which Parking Eye have failed to adequately address with their ridiculous quasi evidence:

1) No standing or authority to pursue charges nor form contracts with drivers

Parking Eye do not own the land mentioned in their Notice to Keeper and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. Even if a contract is shown to POPLA, I assert that there are persuasive recent court decisions against Parking Eye which establish that a mere parking agent has no legal standing nor authority which could impact on visiting drivers.

In ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013 District Judge Jenkins checked the ParkingEye contract and quickly picked out the contradiction between clause 3.7, where the landowner appoints ParkingEye as their agent, and clause 22, where is states there is no agency relationship between ParkingEye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between ParkingEye and motorists who used the land. This decision was followed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the Defendant. District Judge Jones concurred completely with the persuasive view in ParkingEye v Sharma that a parking operator has no standing to bring the claim in their own name. My case is the same.



Also in recent successful POPLA appeal Here's what assessor Nial Vivian had to say in a case:

"The appellant has stated that they do not believe the operator has the relevant authority of the landowner to pursue charges from or form contracts with motorists using the car park in question. Section 7 of the British Parking Association Code of Practice requires operators to own the land or to have written authority from the landowner to operate on the land. Upon reviewing the evidence, the operator has provided me with a copy of a signed contract. However, the quality of the document renders it unreadable, and as such I am not able to confirm that it is a contract between the operator and landowner confirming that the landowner has conveyed such authority to the operator".





2) Poor signage / signage does not comply to the BPA:CoP and ambiguous ANPR evidence


From the photos supplied in Section D of Parking Eyes evidence pack The ANPR timer has started when the car was outside the car park boundary, which is delineated by a barrier. As such, the photos actually show no evidence of the car within the car park at all as they are both taken outside the barrier and in fact, the driver recalls stopping at that point to try to read the signs around the barrier first, and to look into the site to see where to park since the surface is potholed and not the most welcoming of sites.

Despite peering at the signs at the entrance it was extremely confusing, due to the presence of an incorrect sign stating that the site was for customers only (which it is not, people can also pay and display). This alone (OUTSIDE THE SITE) took some 15 minutes as they debated whether to stay or not because the signs were confusing and seemed to suggest that only customers could park, yet another sign said the opposite.
The driver finally drove in, negotiated the pot-holes, waited for a clear space, parked and walked over to the machine to try to make sense of the wordy terms. As it was busy and the road surface here is so very bad, not all spaces are accessible and this activity alone took another 15 minutes before the driver was able to enter into any contract with this operator by virtue of paying a tariff.

So, at the start, an unquantified number of minutes (up to as much as 30 minutes difference from that alleged by ParkingEye, due to the awful state of the car park and conflicting entrance signs and unfair starting time of the 'clock') have been artificially added to the true time when the contract could have lawfully started. As such, the ANPR photo merely shows the point when the car was still outside and has added a very significant number of unquantified minutes to the timing. At the end, again the ANPR camera only shows the car at the bollards, after it had already passed the barrier which is no proof of the 'period of parking' at all.

Indeed the BPA code of practice allows another, further 11 minutes after the expiry of paid-for time, for a car driver & occupants to load bags, seat themselves & children, belt up and drive out of any car park. This is a prescribed Grace Period which, when added to the up to 30 minutes misleading time wrongly 'claimed' by ParkingEye as part of the contract at the start, makes the actual parking time unproven. The operator cannot fairly claim that the car was actually parked for longer than it should have been, based on two photos outside the site.

Further, among the conglomoration of wordy/mixed signs, there is nothing to tell a driver how the ANPR data captured will be used. So the driver - a genuine customer who paid and displayed once actually parked in a bay in the end - had no idea the timing had unfairly started before they even drove on site, when they were debating whether to enter at all.

This is inherently an unfair contract term under the Consumer Rights Act 2015 (CRA) and an unfair and misleading business practice under the CPUTRS 2008 as well as a clear breach of the BPA Code of Practice in several respects. Not only have NO pictures been taken of the car on site (only off site beyond the barriers) but they have failed to inform drivers how the captured ANPR data will be used. This is an ICO requirement for data handlers and ParkingEye have failed. The driver had no information to tell them that the clock started any earlier (much earlier in this case) than the moment when the payment was made after parking, so the driver cannot possibly be deemed to have agreed to that unfair term. Unfair and non-transparent terms are unenforceable under the CRA.

In National Car Parks v HMRC [2015] UKFTT 0666 (TC) in the First Tier Tax Tribunal, it was held in a relevant decision regarding when the contract starts in a Pay and Display car park (this rationale is applicable whether the payment is made by cash, card or by phone):


47 '' The correct contract law analysis is as per Thornton v Shoe Lane Parking in the context of dealing with a car parking machine:

“it can be translated into offer and acceptance in this way; the offer is made when the proprietor of the machine holds it out as being ready to receive the money. The acceptance takes place when the customer puts his money into the slot. The terms of the offer are contained in the notice placed on or near the machine stating what is offered for the money. The customer is bound by those terms as long as they are sufficiently brought to his notice before-hand, but not otherwise.”




3) The ‘Notice to Keeper’ fails to comply to the Protection of Freedoms act (PoFA)

As keeper of the vehicle, I decline, as is my right to provide the name of the driver of the vehicle at the time in question. As the parking company have neither named the driver nor provided any evidence as to who the driver was I submit that I am not liable to any charge. In regards to the notices I have received Parking Eye has made it clear that it is operating under Schedule 4 of the Protection of Freedom Act but has not fully met all the keeper liability requirements and therefore keeper liability does not apply. The parking company can therefore in relation to this point only pursue the driver.

I would like to point out that Schedule 4 paragraphs 8 and 9 of the Protection of Freedoms Act stipulates that some mandatory information must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with.

The Notice has no 'date sent' nor a 'date given' which immediately renders it non-compliant with Schedule 4. It has what the operator describes as a 'date issued' which is neither of the two dates the Act requires. It might just about scrape through if the 'date issued' was in fact synonymous with the date of posting but it is not. The Notice did not arrive for a week after this purported 'date issued' because it is known that ParkingEye use iMail which only actually posts letters several days after the documents are prepared. The Notice must have been posted some three working days after their 'date issued' so the Notice does not comply with the statute as it omits either a 'date sent' or 'date given'.

The Notice also fails to explain the circumstances which caused the charge to arise, instead it says 'either' this happened 'or' that happened which to a keeper creates no certainty at all.

The Notice also fails to describe the parking charges which were due from the driver as at the day BEFORE the date of posting of the Notice. The meaning of 'parking charges' in this section of the Act cannot be the £60 because there was no mechanism for a driver to pay this sum, therefore it cannot be described as 'unpaid' before the PCN was even posted to me, which was the first we knew of the matter.

I would also like to point out that the Act stipulates that the parking company must provide me with the period the car was parked. I would strongly argue that the format of evidence provided (ANPR is wrongly positioned and started and ended the clock outside the barrier, outside the car park.) is not actually valid or sufficient on its own as a form of evidence.

4) No genuine pre-estimate of loss (GPEOL)


Parking Eye seem to be under the misapprehension that the Supreme Court judgment was a green light legitimising all frivolous parking charges . It is in fact quite the reverse and makes plain that in each individual circumstance the operator must have a legitimate interest in enforcing the charge and that charge must be proportionate to that interest to avoid the charge being an unenforceable penalty . In this case they do not ,it is not and it does not.
There is no legitimate interest in enforcing a charge against a motorist who had paid to park all day. The charge is simply being enforced in an attempt to punish the motorist solely for the operator's profit , that is not a legitimate interest . None of the reasons that gave Parking Eye a legitimate interest that disengaged the penalty rule in their case against Mr Beavis are present in this case in which the penalty rule remains firmly engaged .

The appellant respectfully submits that the assessor carefully reads the Supreme Court judgment. There must be a legitimate interest in enforcing the charge.


A sum of £60 which would have been accepted for settlement after the event cannot suddenly escalate to £100. At no point did the driver consent to pay £100 at the point of parking,

consideration flowed from the driver and none from the operator either (unlike in the Beavis case). The elements of a contract are fundamental, as is evidence of breach, and neither exist here (unlike in Beavis).

This is an unfair 'price escalation clause which is an unenforceable penalty an unfair under the UTCCRs (now incorporated within the Consumer Rights Act 2015).

So the Regulations say the same as the Beavis Judges were at pains to make clear; everything depends on 'all the circumstances' of each case. And the circumstances of an operator being prepared to accept £60, as here, set this apart from Beavis and Parking Eye have quantified the only loss that could feasibly/fairly be pursued in this case.

Considering all the facts of this case, this charge is unconsionable, not contractually agreed, disproportionate when compared to £60. Parking Eye are not saved by the Beavis case at all where it was stated that charges cannot be set in order to punish.

Even if there is a legitimate interest in issuing a ticket because it was believed the vehicle had overstayed its time that is simply not enough. There must be a legitimate interest in enforcing the charge and no contract agreed to pay £100, there is no legitimate interest in enforcing it in this case. Indeed the operator has failed to reveal any legitimate interest they may have in enforcing a £100 charge in this case.

I believe the facts of this unfair parking charge are such that POPLA should uphold my appeal, considering all the circumstances.

Coupon-mad

I would remove this and just move the Nial Vivian recent POPLA decision up, because you do not need to repeat what was in your appeal, the Assessor will have that in front of them:

In light of this, and in addition to these points, i will reiterate point 1 of my initial appeal, which Parking Eye have failed to adequately address with their ridiculous quasi evidence:

1) No standing or authority to pursue charges nor form contracts with drivers

Parking Eye do not own the land mentioned in their Notice to Keeper and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. Even if a contract is shown to POPLA, I assert that there are persuasive recent court decisions against Parking Eye which establish that a mere parking agent has no legal standing nor authority which could impact on visiting drivers.

In ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013 District Judge Jenkins checked the ParkingEye contract and quickly picked out the contradiction between clause 3.7, where the landowner appoints ParkingEye as their agent, and clause 22, where is states there is no agency relationship between ParkingEye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between ParkingEye and motorists who used the land. This decision was followed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the Defendant. District Judge Jones concurred completely with the persuasive view in ParkingEye v Sharma that a parking operator has no standing to bring the claim in their own name. My case is the same.

And none of this is right, these are not the arguments to use, this is still trying to use the UKPC £15 example so get rid of this:

A sum of £60 which would have been accepted for settlement after the event cannot suddenly escalate to £100. At no point did the driver consent to pay £100 at the point of parking,

consideration flowed from the driver and none from the operator either (unlike in the Beavis case). The elements of a contract are fundamental, as is evidence of breach, and neither exist here (unlike in Beavis).

This is an unfair 'price escalation clause which is an unenforceable penalty an unfair under the UTCCRs (now incorporated within the Consumer Rights Act 2015).

So the Regulations say the same as the Beavis Judges were at pains to make clear; everything depends on 'all the circumstances' of each case. And the circumstances of an operator being prepared to accept £60, as here, set this apart from Beavis and Parking Eye have quantified the only loss that could feasibly/fairly be pursued in this case.

Your last point of rebuttal should be like this, I would suggest:

4) No GPEOL: this is the opposite of the complex contract in ParkingEye v Beavis as this one is a 'simple financial contract'

The Beavis case was considered to be a 'complex' contractual arrangement with a specifically argued 'legitimate interest'. Here, ParkingEye has shown no comparable 'legitimate interest' in enforcing their charge and nor have they shown it is anything more than a standard monetary contract, where GPEOL is still a requirement (as was reiterated in the Supreme Court hearing).

The purported contract with the motorist is undoubtedly a simple financial contract where the loss is easily calculable, unlike the complex arrangement - a valuable licence to park free of charge at first, offset with a 'quid pro quo' £85 charge -in Parking Eye v Beavis. Here there is a clear financial interaction between the operator and motorist. The £100 'charge' is clearly an attempt to impose payment of a large sum in consequence of the non payment of a very small sum, contrary to the Consumer Rights Act 2015 and contrary to Lord Dunedin's four tests for a penalty.

Parking Eye seem to be under the misapprehension - and desperately hoping - that POPLA Assessors will swallow the BPA line that the Supreme Court judgment was a green light legitimising all frivolous parking charges. They also seem to cling to the hope that POPLA will believe that the UTCCRS (now within the Consumer Rights Act 2015) do not apply somehow, to any parking charge case!

With reference to The Consumer Rights Act 2015 (Schedule 2 part 1 para 6) the charge is very clearly an unenforceable contract term because the operator is seeking to impose a charge in compensation that is vastly disproportionate to an (easily calculated) allegedly 'unpaid' parking tariff. It is noted that in their evidence, ParkingEye have not mentioned the Consumer Rights Act at all, so they have not made any argument at all that can disapply it. However, whether a defendant/appellant mentions the fairness of a contract term or not, courts are obliged to ALWAYS give consideration to the fairness/unfairness of any contract or term.

As regards the Beavis case, it was made plain that in more complex contracts (in that case, a free car park with no monetary sum paid per hour) the trader must demonstrate a 'legitimate interest' in enforcing a disproportionately high charge, to avoid such a charge in each individual case from being an unenforceable penalty. But this case can easily be distinguished from Parking Eye v Beavis and this case is not a 'complex' contractual arrangement at all.

The Beavis case is not relevant to any other car park except that precise situation and location in that unique case (as the SC Judges were at pains to Tweet as soon as the astonishing decision was made public). A thorough review of the findings from the Supreme Court and the Court of Appeal hearings, shows that case has no application to a Pay and Display car park whatsoever.

There is no 'legitimate interest' in enforcing a punitive charge against a motorist who had paid to park for the time actually parked. In this case the driver had no idea that they would later be bound by timings starting up to half an hour before they actually made the payment for parking, based on photographs taken outside the barrier/boundary (surely inadmissable as evidence). This is not the same as in the Beavis case where the driver was considered to have understood and accepted all terms which were 'clear and very prominent' and where there was no tariff in play to make it a standard contract.

This charge is simply being enforced in an attempt to punish the motorist. None of the reasons that gave Parking Eye a legitimate interest which disengaged the 'penalty rule' in their case against Mr Beavis are present in this material case, in which the penalty rule remains firmly engaged and where there is a quantified tariff in play.

The appellant respectfully submits that the assessor carefully reads the Supreme Court judgment and the preceding Court of Appeal judgment, as regards any type of 'simple financial contract' such as this one where there is a quantified tariff. After all, both ParkingEye and myself are citing the words from the earlier hearing as supporting our case.

In a standard contract such as this, an offer of parking is made in return for payment of a small tariff and that contract only starts when the payment is made (as shown already in my rebuttal, Thornton v Shoe Lane applies). Here, ParkingEye is seeking to impose a charge for breach of contract, as they were in Beavis but that is where the similarity ends. Here, the alleged loss suffered for allegedly failing to make a further payment is easily calculable as the unpaid tariff and this makes it a simple 'standard contract', nothing more complex than that, where the transaction between the contracting parties can be assessed in monetary terms.

The Supreme Court adjudged that the charge in Parking Eye v Beavis, although engaging the penalty rule also disengaged it and that the case was more 'complex' than a standard contract (such as one with a quantifiable simple loss, as here with the alleged 'unpaid' partial tariff). The court considered that Lord Dunedin's tests to identify an unenforceable penalty were still a "useful tool" in deciding whether a simple damages clause in a standard contract was 'unconscionable' or 'extravagant' and the court stated that the penalty rule was certainly engaged.

The 'legitimate interest' in Beavis was complex and specific to that car park and was described in the Supreme Court judgment as :

“97
a. The need to provide parking spaces for their commercial tenants’ prospective customers; -

b. The desirability of that parking being free so as to attract customers;

c. The need to ensure a reasonable turnover of that parking so as to increase the potential number of such customers;

d. The related need to prevent ‘misuse’ of the parking for purposes unconnected with the tenants’ business, for example by commuters going to work or shoppers going to off-park premises; and

e. The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.”-


The above justifications are irrelevant in this situation and conspicuously absent. The penalty rule is clearly engaged in this case of a standard contract with a quantified tariff, but unlike in Parking Eye v Beavis it is not disengaged by Parking Eye merely pointing to the Beavis case as if it has blanket relevance. It most certainly does not. In fact the citations used by ParkingEye in their own evidence give away the fact that the Judges were ONLY discussing complex contractual arrangement 'of this kind' (i.e. of the kind in the Beavis case).

ParkingEye said:

''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.”

and ParkingEye then say:

''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”.

So their own evidence shows that the 'landmark' case they are relying upon has no application to standard contracts involving a monetary sum because the Judges were only discussing ''a contract such as we are concerned with'' which was a far more complex one than ''all the previous cases shown to us {which} have concerned contracts of a financial or at least an economic nature.''

Here, this is one of those cases Courts have seen many times before, a simple contract of a 'financial/economic nature' and the only interest ParkingEye has in enforcing their £100 charge instead of the 'outstanding tariff' is profit alone. That is not a legitimate interest and they have failed to provide any other compelling evidence specific to this operation at this car park.

The car park is no different to any commercial enterprise and a trader cannot argue that a legitimate interest is simply ensuring that a high payment is made instead of the tariff. If that was the situation, any contractual term requiring payment for breach would never need a supporting legitimate interest and could always disproportionately exceed the loss, even in standard contracts. This position is reinforced in the earlier judgment from the Court of Appeal, the same hearing level quoted by ParkingEye. The judgment states:

"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...

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. It is thus useful to
the driver, being close to the shops, and free. It is also useful to the shopkeepers, in
encouraging visitors, and in particular in encouraging a turnover of visitors because of
the two hour limit...

47. ...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...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.”


This judgment makes clear that the Court of Appeal would also have considered the disproportionate charge in this case (but not the more complex Beavis case or cases 'of its kind') a clear penalty. They found the contract in Beavis 'entirely different' from simple, commercial 'monetary transaction' cases such as they had seen before.

'ENTIRELY DIFFERENT'. So without displaying intellectual dishonesty it would be impossible to apply Beavis to this case.