Parking Eye's Delaying Tactics.

14wrence

Hi Guys,

Can anyone offer me a quick bit of advice. After a successful POPLA victory of Parking Lie. A colleague of mine got caught out by them on the exact same Car park.

There's a long story behind this, but in a nutshell due to having to genuinely rush off for medical attention for her daughter while shopping, she went over the hour. Her car was still registered at her Ex's (who her relationship with is already not good), who decided to sit on the PCN for ages, suffice to say, we only just got an appeal in, just a few days before the deadline.

Anyway she had a reply from Parking Eye asking her for evidence. Particularly who was driving the car and they put on hold for 28 days.

We expected to ignore and await the POPLA code. However 25 days later they sent the EXACT same letter only the date of the letter had changed. They want the name of the driver and put on hold for 28 days.

She is desperate to try and sort this out as it's been hanging over her head for such a while.

So finally to my question - Does anyone recommend we contact Parking Eye, and say we have no further evidence please look into the appeal and either cancel the charge or send us a POPLA code, or is there another route we need to go down - i.e the BPA.

We are worried, they are trying to delay us, until the deadline for paying is up, as the original ticket said if not paid by 29 days of date of issue they have the right to recover the payment.

I'm trying to help her and do not want her to have the stress that will come with Debt Collectors turning up at her Ex's house and making things more difficult for her.

On a side note we contacted the Shop whose car park it was, both locally at the store to the manager and to their head office, to which we have so far been ignored.

Herzlos

Complain to the BPA - it's against their code of practice to delay an appeal like this. Complain to the DVLA too because breaching the BPA COP also breaches the DVLAs KADOE agreement.

Then respond to Parking eye with something like:

"Dear Parking Eye,
No more information will be supplied. Uphold the appeal or provide a POPLA code.

Regards,
Keeper
<squiggle>
"

The_Deep

Tell them that you have raised the matter with the BPA and DVLA.

Fruitcake

As per the two posts above. Complain to BPA and DVLA, and then tell parking lie you have done this.


I'm sure you already know, but make sure the driver's identity isn't revealed.

Coupon-mad

We are worried, they are trying to delay us, until the deadline for paying is up, as the original ticket said if not paid by 29 days of date of issue they have the right to recover the payment.

This is completely irrelevant when you appeal, the case is frozen. PLEASE take you eye off the payment deadline which does not apply to an appellant. Who cares how long they take to send the POPLA code?

Nothing to stop you going online to PE again and add a second appeal submission telling them to get their finger out with the POPLA code as you have nothing to add. But you don't have to, there is no rush.

I'm trying to help her and do not want her to have the stress that will come with Debt Collectors turning up at her Ex's house and making things more difficult for her.

I take it she's had to identify herself as driver to get this in her name not the ex? Then PE can't revert to the ex at all, ever.

By the way don't let her write a POPLA appeal based on mitigation, please.

14wrence

Coupon-mad wrote: »

This is completely irrelevant when you appeal, the case is frozen. PLEASE take you eye off the payment deadline which does not apply to an appellant. Who cares how long they take to send the POPLA code?

Nothing to stop you going online to PE again and add a second appeal submission telling them to get their finger out with the POPLA code as you have nothing to add. But you don't have to, there is no rush.


I take it she's had to identify herself as driver to get this in her name not the ex? Then PE can't revert to the ex at all, ever.

By the way don't let her write a POPLA appeal based on mitigation, please.

Thanks Coupon Mad - We have not identified her as driver yet. Will it harm our case to do so?

We have mentioned the mitigation to Parking Lie, but as not got a popla code yet, will not bother using it to them when we write the POPLA appeal.

Herzlos

There's no benefit to you in naming the driver. They have extra hoops to jump through for the registered keeper to be liable and they always fail.

14wrence

Thanks for the advice guys.

Finally after letter to the BPA a POPLA code came.

Here is my appeal if anybody fancies checking it looks OK, I would be very grateful.

I hope to send today as this has been dragging on for my colleague for so long now.

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. Unclear and non-compliant signage created no contract with the driver.
4. The ANPR records are unreliable, non-compliant and not proof of one parking event.

************************************************** ************************

1. The charge is not a genuine pre-estimate of loss.
This car park is a free shopping car park limited to 1 hours parking. It is alleged the driver overstayed in this car park. The adjoining shop was closed and the car park was empty as a result. Therefore there could surely have been no loss of business as a result of this parking event.
In ParkingEye v Smith at Manchester County Court in 2011, claim number 1XJ81016, the original claim of £240 was deemed an unrecoverable penalty, unrelated to damages incurred and the only sum that could be recovered was deemed to be £15 (the amount of the pay and display fee for more than one visit). The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. As the PCN sum is massively inflated, I require ParkingEye to submit a breakdown of how this sum was calculated prior to the parking event, as being capable of directly flowing from a minor alleged breach.
The ParkingEye Notice to Keeper 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 might be, for example, a reasonable sum based purely upon the alleged lost parking revenue, or even loss of retail revenue at a shopping centre if another car was prevented from parking. However, this is not the case because the occupants of the car recall that the car park was almost empty on arrival and when the driver left.
The Operator cannot reasonably claim a broad percentage of their entire business running costs as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. Given that ParkingEye charge the same lump sum for a 30 minute overstay as they would for 3 hours, and the same fixed charge applies to any alleged contravention (whether serious/damaging or trifling), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss caused by this incident in this car park.
The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. ParkingEye cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some subsequently penned 'commercial justification' statement they may have devised afterwards (since this would not be a pre-estimate):

The British Parking Association Code of Practice uses the word 'MUST':
"19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.''

Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:

''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.

This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''
2. 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 a 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.

3. Unclear and Non-compliant signage which created no contract with the driver, who did not see any signs.

The occupants of the car recall seeing no signs on entrance to the car park.
Any photos supplied by ParkingEye to POPLA will no doubt show the signs in with the misleading aid of a close up camera and the angle may well not show how high the signs are. As such, I require ParkingEye to state the height of each. Unreadable signage breaches Appendix B of the BPA Code of Practice which states those terms. 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. In a free car park, where the Operator does not own the land (the named principal being the only party capable of offering the spaces and other amenities in the facility), there is no possibility of a contract, since no consideration can flow between a driver and a site agent. No money/offer/promise/permit or any other tangible nor implied nor executory consideration was capable of being exchanged with ParkingEye in this case.
No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal). Lord Denning continued: 'The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.'

4. 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.

The 'two visits recorded as one' problem is very common and is even mentioned on the BPA website as a known issue:
http://www.britishparking.co.uk/How-does-ANPR-work
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 or filling up with petrol or water, 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' for more than 2 hours. There is a petrol station on site, as well as air and water, so I put ParkingEye to strict proof of actual parking for over two hours with no other petrol station-related activity. Even if the car first drove past the cameras and though the car park the driver may have decided to get petrol whilst the passengers were in the MSA facility and so 'parking' for over two hours would not have occurred. The Government rules require a full two hours free parking to allow a driver to rest. So I require ParkingEye to rebut these assertions.

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.

bargepole

An illustration, if one was needed, of the dangers of copying templates. Most of that is completely irrelevant and out of date now.

The_Deep

This sort of mitigation usually goes down very well with judges, (and the Daily Mail).

For this reason I believe that it will never get to court, so basically, you are in the driving seat. You are however in a position to cause them a bit of inconvenience and expence, so why not take advantage and issue a few complaints, to BPA and DVLA.

Your draft appeal contains lots of pre-Beavis stuff, and will no longer fly, but no matter, if will cost them money to refute. so might as well leave it in.

4consumerrights

bargepole wrote: »

An illustration, if one was needed, of the dangers of copying templates. Most of that is completely irrelevant and out of date now.

Exactly what I was thinking.

@ The OP that wording is sooo out of date now and irrelevant for the most part.

Keep up with the latest in case law and I would suggest you start by reading the judgment handed down with Beavis and the Supreme Court.