Parking Eye's Delaying Tactics.

14wrence

Sorry I am a bit confused: Do I still send this, although much is irrelevant - based on the weight of what is relevant, (and at least the irrelevant stuff will waste parking eye's time.

Also by adding this?

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.

bargepole

14wrence wrote: »

Sorry I am a bit confused: Do I still send this, although much is irrelevant - based on the weight of what is relevant, (and at least the irrelevant stuff will waste parking eye's time.

Also by adding this?

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.

I take it you've been living on Mars wearing earplugs and a blindfold for the past few days, the Beavis case was decided in Parking Eye's favour last week, and all those arguments no longer apply.

I don't agree that you should send the irrelevant stuff. It may cause PE more work, but it will be so easy for them to rebut that the assessor will see that their case is stronger.

You really need to stop blindly copying template text without doing research to find out what is current and relevant.

Jim_AFCB

Beavis verdict was handed down last week, the case is over.

Edna_Basher

An operator's non-compliance with POFA 2012 is the main reason for appealing as keeper rather than driver. If you are appealing as keeper this should be top of your list of appeal points.

henrik777

bargepole wrote: »

I take it you've been living on Mars wearing earplugs and a blindfold for the past few days, the Beavis case was decided in Parking Eye's favour last week, and all those arguments no longer apply.

I don't agree that you should send the irrelevant stuff. It may cause PE more work, but it will be so easy for them to rebut that the assessor will see that their case is stronger.

You really need to stop blindly copying template text without doing research to find out what is current and relevant.

I'm leaving penalties and unfairness in my appeals until popla rule on them. Keeper liability and lack of contract are the main attack areas, obviously.

Coupon-mad

14wrence wrote: »

Sorry I am a bit confused: Do I still send this, although much is irrelevant - based on the weight of what is relevant, (and at least the irrelevant stuff will waste parking eye's time.

Also by adding this?

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.

None of that is relevant now.

Have you looked at the couple of much more recent POPLA examples linked in post #3 of the NEWBIES thread? Obviously 'no keeper liability' is a given, as you were careful not to name the driver (think about it - what's the point of not naming the driver if you then miss out the relevant appeal point which protects the keeper - hopefully - at POPLA stage?).

When's your POPLA deadlne? If not yet, why rush it, let's spend a few days getting this right. So pop back to the NEWBIES thread post #3 (where that blue wording about Beavis is removed as it's not relevant now) and read the better recent examples, such as the Tower Rd one. Recent efforts are being linked there for a reason and yours could be worked upon to be another example now.

Then come back with a fresh draft. Let's get this right or she will lose.

14wrence

Opologies I offended you bargepole.

I used an appeal I myself had originally written for a family member (based then on templates and advice) and tried to update it, not knowing how the Beavis Case had unfolded.

I am trying to help out a colleague, who does not know the law, or is a competent user of the internet herself, and whose daughter has been very ill and at the time was un-diagnosed. This was obviously a stressful time for her, and parking was the least of her worries.

I really want to help her, but am getting worried I can't now, as I go on holiday for a week tomorrow.... she is finding out the POLA appeal date for me now, so hopefully will wait until I return.

Anyway.. Coupon Mad, thank you for your help again - you really are a modern day saint. I really appreciate it.

Here is the latest draft, which is a bit of a copy and paste but tried to doctor it. I have completely removed GPEOL, as from what I gather it holds no weight now.

Re: ParkingEye PCN, reference code
POPLA Code:
Background from the appellant who is the registered keeper (the driver was not evidenced):

As a law abiding citizen who always pays their way I was deeply upset to receive a £100 ‘parking charge notice’.

I am the registered keeper but the driver will not be named because I wish to use the protection offered to keepers in the POFA 2012, as one of my appeal points.

On a shopping trip, one of the passengers in the car (who has recently been diagnosed with epilepsy), had an attack and injured herself, and had to be rushed to the nearby drop in centre, which meant we got back to the car later than planned. The cars occupants were more concerned with the health of this passenger than anything else at this time.

How a £100 ‘fine’ can arise from that, without being unlawful, is beyond us.

I submit the points below to show that I am not liable for the parking charge:

1) Unreasonable and unfair terms – no contract agreed to pay £100. Fails the ‘Aziz test’.
2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.
3) No standing or authority to pursue charges nor form contracts with drivers.

1) Unreasonable and unfair terms – no contract agreed to pay £100. Fails the ‘Aziz test’.

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 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 and it is unlawful under the 'misleading actions' section (7.3) of the CPUTRs.

This was undoubtedly a ‘concealed pitfall or trap’, which resulted in a disproportionate and unfair charge which placed an unfair burden upon the driver, breaching Schedule 2 of the UTCCRs and the Unfair Contract Terms Act:

http://www.legislation.gov.uk/uksi/1999/2083/pdfs/uksi_19992083_en.pdf

‘’SCHEDULE 2 Regulation 5(5) INDICATIVE AND NON-EXHAUSTIVE LIST OF TERMS WHICH MAY BE REGARDED AS UNFAIR - 1. Terms which have the object or effect of –

(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;
(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract...’’

Unfair Contract Terms Act 1977:
‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’

In the Barry Beavis v ParkingEye hearing at the Supreme Court in July 2015 the matter of the Aziz test was discussed, relating to the ECJ case: Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5.

The question arising from that binding case is whether a term would have been agreed, had the parties sat down with a blank sheet of paper and negotiated the term in advance. I can state as an indisputable fact that the driver would without a shadow of doubt, never have agreed to this term, had it been negotiated in advance and if we knew then what we know now the driver would never have entered a ParkingEye run car park and never will again.

Under the Consumer Rights Act now enacted, the question of unfairness in any consumer contract must be considered by the Courts (whether a consumer raises this issue or not) and therefore by definition, should also be a consideration of an ADR prior to court. It is suggested that it would be unjust if POPLA were to settle on anything less than a consistent approach: i.e. that any PCNs where operators have acted or operated unfairly, like this one, should be cancelled.

This was no agreed contract and the sum is unfair, unreasonable and unrecoverable.


2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
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 an overstay or failure to pay for more time. 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 could have paid for extra time. This Operator has the technology to record car registrations, 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—
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(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...'
NTK is not compliant, for example re this requirement:

The NTK specifically fails on all counts.

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 standing or authority to pursue charges nor form contracts with drivers

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.

This concludes my POPLA appeal.

Yours faithfully,

14wrence

One thing I am worried about. I used the drivers name to the BPA when complaining about PE's delaying tactics. I wonder if PE have now got it from this?

14wrence

I have been informed that we have until early December to get the appeal in. I will therefore probably pick this up when I get back.

Coupon-mad

This does need some more work by you, but with our help.

You said this but on the other hand you do want to say you were an occupant of the car, so that we can work in an Equality Act point, so I would lose this:

[STRIKE]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 an overstay or failure to pay for more time.[/STRIKE]

And lose this because the Beavis case should be used to distinguish your case as different, not to mention it as if it supports your appeal:

[STRIKE]In the Barry Beavis v ParkingEye hearing at the Supreme Court in July 2015 the matter of the Aziz test was discussed, relating to the ECJ case: Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5. [/STRIKE]

Same with this:

[STRIKE]This was undoubtedly a ‘concealed pitfall or trap’, which resulted in a disproportionate and unfair charge which placed an unfair burden upon the driver, breaching Schedule 2 of the UTCCRs and the Unfair Contract Terms Act:
http://www.legislation.gov.uk/uksi/1999/2083/pdfs/uksi_19992083_en.pdf [/STRIKE]

And lose this as it will need to be re-written to show your case differs from Beavis:

[STRIKE]The question arising from that binding case is whether a term would have been agreed, had the parties sat down with a blank sheet of paper and negotiated the term in advance. I can state as an indisputable fact that the driver would without a shadow of doubt, never have agreed to this term, had it been negotiated in advance and if we knew then what we know now the driver would never have entered a ParkingEye run car park and never will again. [/STRIKE]

And lose this because it patently obviously only talking about Motorway Services!

[STRIKE]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.[/STRIKE]

I think we need more facts. So can you tell us:

- was 'the four' a free hour or a tariff paid hour?

- Does the keeper have the P&D ticket as evidence if it was pay and display?

- How many minutes was the alleged overstay, as shown on the PCN?

- Did the first appeal tell ParkingEye about the passenger having an epileptic attack and that's why there was a delay?