Advice please, appealing a PCN at stage 1

Hi all,

I've had a parking charge notice from Parking Eye for my car being at the Monico car park on Canvey Island. I've read through the letter several times and I've gone through the template letter in the newbies sticky thread.

I think I've correctly covered it by comparing to point 9 of the PoFA2012. Unfortunately I don't have receipts for the time spent in the establishment that was being visited (paid with cash an no receipts kept, the car was cleared out for a clean the day before the letter arrived).

I'm going to appeal online using the letter below via their online service. Would someone mind checking for me that I've not made any glaring omissions or errors? My only concern is point D, as comparing the PoFA2012 to my notice, they do seem address all those points (I think). Also they never mention a contract, just 'terms and conditions' in the notice.

Many thanks.

30/09/2015

Dear Sirs

Re: PCN No. XXXXXXXXXXXX

I challenge this 'PCN' as keeper of the car, on these main grounds:

a). The sum is disproportionate, does not represent a genuine pre-estimate of loss, nor is it a core price term.
b) The sum is extravagant and unconscionable and cannot be justified.
c). There is no evidence that you have any interest in the land. I will complain to the landowner about your aggressive ticketing.
d). Your 'Notice' fails to comply with the POFA so there can be no keeper liability.
e). I believe that the signs were not seen/are ambiguous and the predominant purpose is to deter so there is no contract to pay this charge, which is a penalty.

Formal challenge
There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 or cancel the charge. I will only appeal further if you offer POPLA, the only independent ADR with a scrutiny panel and trained Assessors. The 'IAS' offered by IPC firms will not be used, for well-documented reasons.

''Drop hands'' offer
The charge is baseless but I realise that you may have nominal postage costs. Equally, I have incurred costs for responding to your junk mail dressed up to mimic a parking ticket. It is clear that my costs and yours, at this point, do not exceed £15 so this is a formal “drop hands” offer. I remind you of the duty to mitigate any loss, so withdraw the spurious charge within 35 days and I will not pursue you for my costs.

Breach of CCRs
I hereby give notice of withdrawal from this alleged 'contract' of 'terms and conditions' which was never properly offered nor expressly agreed. This 'contract' is cancelled and any obligations now end.

I have kept proof of submission of this appeal and look forward to your reply.

Yours faithfully,

XXXXXX
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Replies

  • UmkomaasUmkomaas Forumite
    34.6K Posts
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    Formal challenge
    There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 or cancel the charge. I will only appeal further if you offer POPLA, the only independent ADR with a scrutiny panel and trained Assessors. The 'IAS' offered by IPC firms will not be used, for well-documented reasons.

    Remove this bit as it really only applies to IPC PPCs (and even then, the chances of an appeal to POPLA is somewhere between nil and zero). ParkingEye is a BPA operator, so POPLA is available to you.
    Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
    I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
  • Thank you, I'll edit that bit out.
  • I've had my rejection letter back and will work on my POPLA appeal next. What's interesting is that I've had 2 letters back, one to say my appeal has reached the end of their internal investigation and has been rejected and a second in regards to me invoicing them for my time.

    What do you make of this paragraph of the second letter.

    "You have not formed a legally binding contract with ParkingEye, under which any right to invoice for payment for goods or services may arise; therefore as stated your invalid invoice is rejected."

    I thought the whole point of this was that I had entered a legally binding contract as per their wording when the car entered the carpark. Or does this specifically state that it's in relation to just me billing them for my time?

    Any advice appreciated. I can post the whole letter if seeing it in context works better.

    Thanks
  • bod1467bod1467
    15.2K Posts
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    Ignore the other letter ... that's a default response by PE. They've done that so that IF you decide to send them an invoice for the time YOU have wasted they'll claim no valid contract. (I'll let others try to explain this better).

    Your focus for now needs to be on your POPLA appeal. Check out the POPLA Decisions thread ... start at the end and work back for guidance.
  • RedxRedx Forumite
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    one letter refers to their invoice claim against you

    in the other letter they are denying any claim by you upon them due to your response (in other words they are saying they are not liable for any future counter claim if you are successful with your appeal)

    so heads they win, tails you lose

    they can claim against you, but deny that you can counter claim against them

    as mentioned above, ignore the second letter and sort out your popla appeal
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
  • CastleCastle Forumite
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    bod1467 wrote: »
    Ignore the other letter ... that's a default response by PE. They've done that so that IF you decide to send them an invoice for the time YOU have wasted they'll claim no valid contract. (I'll let others try to explain this better).
    You don't need a contract to claim damages; trespass for example
  • Thanks everyone, I'll draft my POPLA and check it with you early next week.

    I'll start with the appeals thread as suggested.
  • edited 23 October 2015 at 2:47PM
    MrchillibeerMrchillibeer Forumite
    14 Posts
    edited 23 October 2015 at 2:47PM
    Ok, I had some free time this afternoon (and this is really bugging me!). I took the template for another fellow that had been charged in the same car park and have changed a few pieces to fit my circumstances, would you mind having a read?

    I realise that the new POPLA appeals procedure means I have to chunk this up to fit their new process.

    Re: ParkingEye PCN, reference code XXXXXX
    POPLA Code: XXXXXXXXX


    I am the registered keeper and I wish to appeal a recent parking charge from ParkingEye on [Date at Time], at [Location] Car Park. I submit the points below to show that I am not liable for the parking charge:


    1) No standing or authority to pursue charges nor form contracts with drivers.
    2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.
    3) No genuine pre-estimate of loss.
    4) The signage was not compliant so there was no valid contract formed.
    5) The ANPR system is unreliable and neither synchronised nor accurate - evidence does not discount two visits shown as one.


    1) No standing or authority to pursue charges nor form contracts with drivers
    I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, ParkingEye must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put ParkingEye to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between ParkingEye and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to ParkingEye.


    2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
    As this was a Pay/Display car park, the Notice to Keeper (NTK) has to set out the position clearly in terms of 'describing the parking charges due' which remained unpaid as at the day before the date of issue of the PCN. Due to this timeline stated in Schedule 4, these 'parking charges due' can only be a tariff the driver should have paid, because no higher sum was 'due' before the PCN was even printed.

    I can see from the limited information before me in the NTK, only that the car stayed for a certain amount of time and that the contravention was 'either/or' an overstay or failure to pay. This does not create any certainty of terms, it leaves a keeper to wonder what the hourly rate tariff even was and whether the driver paid nothing, or paid too little, or paid only for half an hour or an hour, or paid in full but put in the wrong car registration, or some other event. This Operator has the technology to record car registrations, to collect/record payments and to take photos of cars arriving and leaving, so it would be reasonable to assume that they are able - and indeed are required under the POFA - to state on the NTK the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff) as at the day before the PCN was issued.
    These are the omissions:


    ''9(2)The notice must—
    (c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
    (d)specify the total amount of those parking charges that are unpaid...'


    The validity of a NTK is fundamental to establishing liability for a parking charge. As POPLA Assessor Matthew Shaw stated: ''Where a Notice is to be relied upon to establish liability...it must, as with any statutory provision, comply with the Act.'' This NTK was not compliant due to the omissions of statutory wording, so it was not properly given and there is no keeper liability.


    3) No genuine pre-estimate of loss
    This car park is Pay and Display and as far as I can ascertain as keeper, a payment was made.

    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. I suggest there was never any advance meeting held with the client, nor was any due regard paid to establishing any 'genuine pre-estimate of loss' prior to setting the parking charges at this site. I put this operator to strict proof to the contrary and to explain how the calculation happens to be the same whether the alleged overstay is 20 minutes or 20 hours.

    The Operator alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This must amount in its entirety, only to a genuine pre-estimate of loss, not some subsequently penned 'commercial justification' statement they have devised afterwards, since this would not be a pre-estimate. Any later 'new' calculation (even if dressed up to look like a loss statement) would fall foul of Mr Greenslade's explanation about GPEOL in the POPLA 2014 Report and would also falls foul of the DFT Guidance about private parking charges.

    In this case, even if the Operator contends there was a small outstanding P&D sum (which they have missed off the Notice to Keeper, so I have no idea) they certainly cannot claim an inflated amount. A GPEOL calculation must be a sum which might reasonably flow directly as a result of a parking event.

    An Operator cannot include 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment. Appeals staff are already paid to do their admin job which includes handling appeals among other tasks, so there is no question that there is any 'loss' caused by these staff who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage.

    Judge Charles Harris QC in 'A Retailer v Ms B' (where the Claimant tried to claim a 'loss' from a consumer for 'staff and/or management time investigating') stated:

    "[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do... [16] So the claim in respect of staff time cannot, in my judgment, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home... [17] It follows that the claims must be dismissed’’

    In the case of private parking charges in general - including this Operator - the administrative staff and Managers who handle challenges and POPLA appeals are not 'significantly diverted from their usual activities', nor do appeals cause any 'significant disruption to its business', nor was there any significant loss of revenue generation. So none of the 'staff time' can be properly included in a GPEOL calculation. If POPLA do accept a small amount of staff time in a GPEOL sum then this could only be 1% of the typical time taken for POPLA appeals, because only 1% of cases follow the POPLA route. No higher figure can have been in the reasonable contemplation of the Operator at the time of the parking event because the chances of POPLA are even less than 'debt collector stage' both being far too remote to be likely.

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

    POPLA Assessor Chris Adamson has stated in June 2014 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.''


    4) The signage was not readable so there was no valid contract formed between ParkingEye and the driver.
    The only signs are up on poles, away from the Pay & Display machine, which is not a 'sign' nor does it communicate full contractual terms & conditions. Any upright signs were not so prominent among all the other signage on site that they were ever seen by the occupants of the car. ParkingEye place their signs so high that terms would only be legible if a driver got out of a car and climbed a stepladder, to try to read them. 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 and the angle may well not show how high the sign is nor the fact the ParkingEye signs are one of many pieces of information in the clutter of this busy customer car park. As such, I require ParkingEye to state the height of each sign in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day and same season without photoshopping or cropping and showing where the signs are placed among a myriad of other information bombarding a customer.

    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.

    5) The ANPR system is unreliable and neither synchronised nor accurate, and there is no evidence that this was just one visit.
    ParkingEye's evidence shows no parking time, merely photos of a car driving in and out which does not discount the possibility of a double visit that evening. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic if they in fact offer a pay and display system which can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all and has not been shown to be synchronised to the pay and display machine clock nor even to relate to the same parking event.

    As keeper I cannot discount that this may have been a double visit (possibly even with two drivers since the car has more than one family member who drives it). Or the driver may have driven in, realised it was pay and display then driven out to get change before returning (and of course the ANPR cameras show only the first and last visits). The BPA even mention this as an inherent problem with ANPR on their website;

    The BPA's view is: 'As with all new technology, there are issues associated with its use:
    a) 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.
    b) Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'
    Even if an Operator shows a list with 'no record' of that car registration in between the times, this would not discount the 'double visit' possibility as it is well known that car registrations are completely missed when a vehicle is followed closely by a higher vehicle, or by a temporary interruption in the camera recording. Or even an item temporarily obscuring the camera from picking up one car registration, such as a passing bird or wind-blown carrier bag or leaves appearing in front of the camera, even for moments, would stop a record appearing of a car leaving in between the stated times. I put the Operator to strict proof to the contrary. All camera records could be checked and this Operator would still be unable to refute the 'double visit' possibility, since they don't bother to record continuous footage, this not being CCTV. If I am wrong then they must show POPLA a complete 'video' that they allege shows no more entries or exits that day by this car.

    Further, 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 and used. Parking Eye have failed to clearly inform drivers about the cameras and how the data will be used and stored. . 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. Indeed, 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.


    This concludes my POPLA appeal.


    Yours faithfully,
  • bod1467bod1467
    15.2K Posts
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    I wish to appeal a recent parking charge from ParkingEye on [Date at Time], at [Location] Car Park

    Change to that for your forum post. Parking companies read these forums. :)
  • bod1467 wrote: »
    I wish to appeal a recent parking charge from ParkingEye on [Date at Time], at [Location] Car Park

    Change to that for your forum post. Parking companies read these forums. :)

    Sorry, what do you mean exactly? Change it so that it can't be identified on here?
This discussion has been closed.
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