Parking Eye's Delaying Tactics.

14wrence

Thanks Coupon Mad.

i) It was a free 1 hour car park. She or I do not know if you could pay for extra time.
ii) I have text her to ask how long her overstay was. From memory I think it could have been an hour.
iii) at the time, they did not know it was an epileptic attack, nor at the time of the appeal. It was not a typical attack as she just blacked out from what I was told. She has been having test for a good while and was only diagnosed epileptic following a brain scan, literally last week - also admittedly although I mentioned it was for medical reasons in the appeal, I did not go into too much detail as thought it was just mitigating.

Coupon-mad

It is not just mitigating and a blackout can be an epileptic attack. Sadly I know too much about that condition that I won't go into.

Have a look at post #3 of the Newbies thread to add some more recent wording from the example PE one there then re-post your draft.

I will try to fit in time to add something re the Equality Act now I know it was a free car park, but could do with confirmation as to how much the overstay was as it needs writing into the EA argument.

Because POPLA is new to this service provider we don't know what they will make of the EA but (in particular) because of something that was said in the Beavis decision about other 'laws and regulations' that a consumer can rely upon, I think the EA is worth bringing into POPLA appeals again.

14wrence

Coupon-mad wrote: »

It is not just mitigating and a blackout can be an epileptic attack. Sadly I know too much about that condition that I won't go into.

Have a look at post #3 of the Newbies thread to add some more recent wording from the example PE one there then re-post your draft.

Thanks Coupon Mad - I've just got back off hols, so ready to start putting things together.

It gets more complicated. The car is registered to her ex, who has thrown away a lot of early correspondence as he was not on speaking terms to her. However she has told me that it was about 2 hours (Due to the waiting time in the NHS drop in centre). So 3 hours on a 1 hour free car park.

Is that going to be accurate enough?

I'll start the draft now.

14wrence

OK so here it is:

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 – undiagnosed at the time), had an attack while shopping in the store and injured herself, and had to be rushed to the nearby NHS drop in centre, which, due to the excessive waiting times at the drop in centre, meant getting 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. Amid the panic of a medical emergency, there was no time to stop, study the signage and digest the terms and conditions in the fine detail, as the health of the passenger was of far more importance.

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.

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.

‘’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.’

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!

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

On another note, today we got a reply from the shop who owns the car park. They say although they have a contract with PE, they have no control over the fines, and that we have to take it up with PE.

Umkomaas

14wrence wrote: »

On another note, today we got a reply from the shop who owns the car park. They say although they have a contract with PE, they have no control over the fines, and that we have to take it up with PE.

Shop - large retailer? Care to name?

PE operate in 'large-ish' retailers like Morrisons, Aldi, Home Bargains, B&M. From recollection I don't think they have many dealings with small local independents with car parks - I may be wrong in your case, but PE doesn't instantly spring to mind for the small retail sector.

14wrence

Umkomaas wrote: »

Shop - large retailer? Care to name?

PE operate in 'large-ish' retailers like Morrisons, Aldi, Home Bargains, B&M. From recollection I don't think they have many dealings with small local independents with car parks - I may be wrong in your case, but PE doesn't instantly spring to mind for the small retail sector.

Wynsors World of Shoes.

They are a semi large retailer, I don't think they have that many stores.

I think they are well within their rights to ask PE to show some consideration, but can't be ar*ed, so no danger naming and shaming them I guess.

Not sure if coupon mad is around, but I am hoping that letter is ok to go tomorrow, as have to send it by then.

ampersand

Who engaged parkinglie to infest that private land? If Wynsor's, they can also direct p.lie to cancel any bountyhunter fake invoices.

If not Wynsor's, who is the land holder/landowner? Make them aware of what p/lie have done in their name and involve local journos. Now your initial mitigation wariness has been nulllified by c-m, can you provide redacted proof of little one's outcome, to show immediacy along the diagnostic route.

https://www.google.co.uk/search?q=winsor%27s+shoe+retail%2B+parking&ie=utf-8&oe=utf-8&gws_rd=cr&ei=1F9gVrXMCcivUdyYkfAK#q=wynsors+world+of+shoes

Made a couple of quick calls. Spoke to a couple of Branches and now know there are 43 spread over the North of country, so name the relevant one pleaee, asap.
#
Now, linking
'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.'

You must pursue this in the further light of your #22

'at the time, they did not know it was an epileptic attack, nor at the time of the appeal. It was not a typical attack as she just blacked out from what I was told. She has been having test for a good while and was only diagnosed epileptic following a brain scan, literally last week'

-good, strong insistence can and must be made. Don't forget local reporter involvement. Poor poppet, much ongoing scariness for her, let alone for Mum.
#
Just phoned their HO.
Am pm'g you right now. URGENT action required.
Give me a moment, please before you check - connectivity notspot here.

Half_way

As above full force should be put on the principal (Wynsors) especially if they know that there as an EA act element to this.
They contracted parking eye and allowed the parasitic parking company onto their car park to act on their behalf.
The antics of Paking Eye, Rachel Ledson, Rosana Breaks and co are well known, and it could possibly be argued that Wynsors have been negligent in allowing this parasitic and predatory company onto their car park.

When contacting Wynsors ( if it is them , if not then the landowner/whoever allowed this company onto their land) you will need to knock the nothing to do with us we contract our parking out to parking eye, you need to contact parking eye Type of response out of them, Tell them that they are jointly liable for the actions of their agents.

If going to the press make sure that the message gets out that Wynsor Shoes ( or who ever) are pursuing you/the driver/the person involved through their agents parkting eye, and also make it known that Wynsor shoes ( or who ever) are responsible for their agents actions

14wrence

ampersand wrote: »

Who engaged parkinglie to infest that private land? If Wynsor's, they can also direct p.lie to cancel any bountyhunter fake invoices.

If not Wynsor's, who is the land holder/landowner? Make them aware of what p/lie have done in their name and involve local journos. Now your initial mitigation wariness has been nulllified by c-m, can you provide redacted proof of little one's outcome, to show immediacy along the diagnostic route.

https://www.google.co.uk/search?q=winsor%27s+shoe+retail%2B+parking&ie=utf-8&oe=utf-8&gws_rd=cr&ei=1F9gVrXMCcivUdyYkfAK#q=wynsors+world+of+shoes

Made a couple of quick calls. Spoke to a couple of Branches and now know there are 43 spread over the North of country, so name the relevant one pleaee, asap.
#
Now, linking
'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.'

You must pursue this in the further light of your #22

'at the time, they did not know it was an epileptic attack, nor at the time of the appeal. It was not a typical attack as she just blacked out from what I was told. She has been having test for a good while and was only diagnosed epileptic following a brain scan, literally last week'

-good, strong insistence can and must be made. Don't forget local reporter involvement. Poor poppet, much ongoing scariness for her, let alone for Mum.
#
Just phoned their HO.
Am pm'g you right now. URGENT action required.
Give me a moment, please before you check - connectivity notspot here.

Just for Reference it was their Stoke-on-Trent (Hanley) Store