Have things changed with PE appeal?

susi

Thanks coupon-mad, I am in the process of putting together a new appeal and have noted your points. It wasnt a free car park but is often used as a through road by many. There is also a jacket potato stand within the car park that is quite popular and used regurlarly (this is where people get into trouble, I have been through this morning at taken note of the signs, it gives you 10 minutes to park and obtain a ticket). Please bare with me and I will put up the new draft as soon as I have it done. Im struggling a bit as its half term here and Im looking after my eight year old grandson so not easy to concentrate for long. When I offered to do this I hadnt realised things had changed and thought it was just a case of using the appeal I had used last year. Mmmmmm that'll teach me lol!!!

Coupon-mad

Yup, half term here too but I only have 2 out of my 4 still at home and they are teens so keep themselves amused with football and Xbox!

susi

Not complaining about having my grandson here, love him to bits, just what little concentration I have seems to go south lol. Right, hope I am at least on the right track here, I have taken bits from other members which I thought may be relevant to this case, if you could cast your eyes over it for me and let me know what I need to add omit or change. I feel totally out of my depth with stuff like this!!!

POPLA reference number: xxxxxxxxx

I am the keeper of the vehicle with registration number xxxxx
On 19/09/2015 I received a Parking Charge Notice from Parking Eye to Keeper alleging a parking “offence” on 15/09/15, at xxxxx, This car park is used frequently as a through road which was the case on this date, I myself use it regurlary for this purpose. How Parking Eye can justify £100 is beyond me. I am the registered keeper but was also an occupant in the car on the said date so can give an honest account. 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.

My original appeal on 19/09/15 to the operator was rejected and I was supplied with a POPLA code. As the registered keeper I would like to appeal that I am not liable for the alleged Charge for the following reasons:


1. A non-compliant, and erroneous Notice To Keeper (NTK), failing to meet the conditions of Paragraph 9 of Schedule 4 of POFA 2012, therefore there is none keeper liability.
2. The signage on the possible site is inadequate and was either not seen or not understood by the driver, so no contract could have been formed.
3. The lack of Parking Eye's proprietary interest in the land at the possible site and no contractual authority from the landowner.
4. Unfair contact terms under the Unfair Terms in Consumer Contracts Regulations 1999.
5. The Charge levied is not a Genuine Pre-Estimate Of Loss, nor is it proportionate or commercially justifiable, and is nothing more than a disguised penalty.
6. ANPR records are not proof of one parking event, and do not show duration of parking.



1. A non-compliant, and erroneous Notice To Keeper (NTK), failing to meet the conditions of Paragraph 9 of Schedule 4 of POFA 2012, therefore there is no keeper liability.

In order to pursue Keeper Liability under the POFA, CP Plus must have met the strict conditions in the Act. However, they have failed to fulfil the requirements of the Notice to Keeper as per Paragraph 9 Schedule 4 of the Act.

The Notice to Keeper is non-compliant under the POFA 2012 for the following reasons:

(A) The period of parking is not specified in the Notice to Keeper, only the times the car was seen in traffic on arrival and on the final time it left that day. There is no evidence of parking at all.

(B) The Notice to Keeper does not 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) The Notice to Keeper fails to set out any unpaid parking charges for the specified period of parking. POFA requires that a Notice to Keeper describes any unpaid charges which the Driver owed at the time of the issue of the postal Notice to Keeper.

A charge for breach of contract cannot be described as unpaid by the Driver at the time the Notice to Keeper is issued, because it only arises at the time the Notice to Keeper is received. The punitive amount now being pursued for 'breach' should not be confused with the sum intended by Schedule 4 of the POFA. The Act requires any unpaid tariff that the Driver owed before the Notice to Keeper was issued to be stated, and that this is the only sum that can be pursued from a registered Keeper.

(D) The Notice to Keeper does not identify the Creditor. The fact that an Operator's name is on a Notice to Keeper as the payee, does not identify them as the Creditor, as administrative functions such as sending notices and collecting monies can be carried out by other parties. The Creditor has to be identified with words to the effect 'The Creditor is...'.

(E) It also fails to show the geographical address of the client/Landowner. This is a requirement for all consumer contracts, as well as being a breach of the POFA. the Notice To Keeper names the relevant land on which the vehicle was allegedly parked as “Poplar 2000”. Not only is this incorrect, but is not even a valid and fully-formed address and fails to specifically identify the alleged location and/or the land of the supposed parking event and subsequent Charge.

The requirements of Schedule 4 of the POFA as regards the wording in a compliant Notice to Keeper are prescriptive, unequivocal and a matter of statute, not contract law. Any omission, or failure to set out any of the mandatory wording, means there is no Keeper liability. This point alone invalidates their Notice To Keeper (NTK) for lacking clear and concise information relating to the alleged parking event, eliminating their right to claim unpaid parking charges from the keeper of a vehicle under Paragraph 4(2)(a) of Schedule 4 of POFA 2012.

In this case the Driver has not been identified, so the failure of PE to meet the conditions to invoke Keeper Liability means there is no legal basis for the charge to be enforced against me as Keeper.


2.The signage was not readable so there was no valid contract formed between Parking Eye 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. I believe that Parking Eye place their signs so high that terms would only be legible if a driver got out of a car and climbed a stepladder, holding a torch, to try to read them. Any photos supplied by Parking Eye 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 Parking Eye 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 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. [FONT=arial,helvetica,sans-serif]Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and i[FONT=arial,helvetica,sans-serif]t 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.[/FONT]

3. The lack of PE proprietary interest in the land at the possible site and no contractual authority from the landowner.

The Operator has no standing or authority to form contracts with motorists. Parking Eye has not provided me with any evidence that they are lawfully entitled to demand money from a driver or keeper in connection with parking at this site.

Parking Eye does not appear to have any ownership interest in the car park, so I contend they have no legal standing to enter into a contract with a driver in their own right, nor any legal standing to pursue charges for breach in their own name. As an agent only, Parking Eye has no automatic standing or authority which would meet the strict requirements of section 7 of the BPA Code of Practice.

If Parking Eye wish to rely on a contract with the Landowner to claim authority to demand money from me, I must have the opportunity to examine that contract.

I therefore require Parking Eye to provide an un-redacted, contemporaneous, signed and dated copy of the contract between Parking Eye and the Landowner, which, to demonstrate standing and authority, must specifically state that Parking Eye has the right to make contracts with drivers in their own name, that they have full authority to pursue charges through to court in their own name, and that the Landowner allows Parking Eye to charge £100 for a parking contravention. A witness statement to the effect that a contract is in place, which could be signed by someone who may never have seen the actual contract, will not be sufficient because it will not show the terms and conditions relating to the Operator’s authority, nor any restrictions that are in place.

If Parking Eye wish to rely on any such contract, I require them to show, on a point-by-point basis, that the contract is in complete compliance with all the requirements set out in the BPA Code of Practice.


4. Unfair contact terms under the Unfair Terms in Consumer Contracts Regulations 1999.

There is no contract between Parking Eye and the Driver, but even if there was a contract the charge that was levied is an unfair term, and therefore not binding, pursuant to the Unfair Terms in Consumer Contracts Regulations 1999.

Schedule 2 of those Regulations gives an indicative list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) ‘Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.’

The Charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999.
Regulation 5(1) states that: ‘A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer’.
Regulation 5(2) states: ‘A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.’

I therefore put Parking Eye to strict proof that their charge is not in breach of Unfair Terms in Consumer Contracts Regulations 1999.
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 CP Plus run car park and never will again.


5. The Charge levied is not a Genuine Pre-Estimate Of Loss, nor is it proportionate or commercially justifiable, and is nothing more than a disguised penalty.

This operator must prove the Charge to be a Genuine Pre-Estimate Of Loss(es) that arose directly from the alleged parking event, and not a penalty.
CP Plus’s rejection letter to me states:
“We consider the amount on the PCN as a reasonable charge for liquidated damages in respect of a breach of the parking contract.”

Because Parking Eye claim that the Charge is due to a contractual breach, this Charge must represent a claimed Genuine Pre-Estimate Of Loss. No proof has been submitted showing calculation of their Genuine Pre-Estimate Of Loss and/or how it relates to the amount of the Charge levied in their unenforceable facsimile invoice, labelled ‘Charge Notice To Keeper.'

Parking Eye claims a loss of £100. I require that Parking Eye demonstrates precisely how this ‘loss’ figure was arrived at. I require that they clearly demonstrate how each of the elements of their ‘loss’ figure meets the legal requirements to be considered a genuine pre-estimate of a ‘loss’ of this type.Parking Eye cannot lawfully include their normal operating costs in a pre-estimate of loss, eg their costs in enforcing parking restrictions at the site, as such costs do not represent a loss resulting from a breach, as, were no breach to have occurred, their costs would have been the same. This principle has been repeatedly stated by POPLA in adjudication.

I require Parking Eye to produce documentary evidence showing precisely when this pre-estimate of loss was calculated, and when the Landowner agreed that this amount represented a genuine pre-estimate of loss. I require PArkingEye to show that these dates were prior to setting the parking charges at this site.

I contend that the £100 charge is not commercially justified.

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977. The Charge levied is not a Genuine Pre-Estimate Of Loss, nor is it proportionate or commercially justifiable, and is nothing more than a disguised penalty. This operator must prove the Charge to be a Genuine Pre-Estimate Of Loss that arose directly from the alleged parking event, and not a penalty.

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’ may have an impact on the outcome of this POPLA appeal.


6. ANPR records are not proof of one parking event, and do not show duration of parking.
The ANPR system is unreliable and neither synchronised nor accurate
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. 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 the driver 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 that evening.

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;
http://www.britishparking.co.uk/How-does-ANPR-work
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 footage would have to be checked and this Operator will be unable to refute the double visit possibility since they don't bother to record continuous footage. 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. I say that 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 and I put this Operator to strict proof of full ANPR compliance.

In addition 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. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

So, in addition to showing their maintenance records, I require ParkingEye to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. As their whole charge rests upon two timed photos, I put ParkingEye to strict proof to refute all of my points about their flawed ANPR records

I contend that Parking Eye have failed to provide evidence that the vehicle was parked in this car park

I require Parking Eye to provide full evidence that their ANPR camera system is in full compliance with the BPA Code of Practice and all relevant legal requirements for CCTV data collection.

To reiterate;
- this charge fails to meet the requirements set out in paragraph 19 of the BPA Code of Practice, and fails to comply with basic contract law.
- it is wholly unreasonable to rely on inadequate, non-compliant signage not adhering to statute, with inaccurate or incomplete information
- to attempt to profit by charging a disproportionate sum which is nothing more than a disguised parking penalty
- to present an alleged claim with zero relationship to any supposed genuine pre-estimate of losses caused by a vehicle allegedly parked on land which may or may not be within the legal remit of the operator to manage.

This concludes my POPLA appeal
[/FONT]

Marktheshark

We await the new POPLA.
Personally researching some of the decision they have dished out as ombudsman service in other consumer disputes I think we are all in for a bit of a wake up call and rest of the clock to zero.

Coupon-mad

Well they've already upheld one for me re 'no landowner authority' so that bodes well for some semblance of consistency (I hope).

Re the POPLA appeal, was this a P&D car park then? Not a free one? The ANPR argument sounds like a free car park but the stuff about the tariff says it's not. So what was it?

And I am sure PE Notices do name the creditor so remove this and move 'E' up to become 'D':

(D) The Notice to Keeper does not identify the Creditor. The fact that an Operator's name is on a Notice to Keeper as the payee, does not identify them as the Creditor, as administrative functions such as sending notices and collecting monies can be carried out by other parties. The Creditor has to be identified with words to the effect 'The Creditor is...'.

and it's ParkingEye isn't it, not CP PLus?

CP Plus’s rejection letter to me states:

ampersand

POPLA reference number: xxxxxxxxx

Parking Eye facsimile invoice no.yyyyyy

Vehicle reg. no.

This car park is used frequently as a through road, as on this date,

Please note, the reg. keeper accepts the protection offered to keepers in the POFA 2012, in rebutting this unenforceble invoice.

As registered keeper, I am not liable for the alleged Charge. Nor will the driver be named, under the protection offered to keepers in the POFA 2012.

1.The Notice To Keeper (NTK) fails to meet the conditions of Paragraph 9 of Schedule 4 of POFA 2012 in five areas [a-e], thus negating any keeper liability.

(a) The period of parking is not specified in the Notice to Keeper, only the times the vehicle was seen in traffic on arrival and on final departure that day.

There is no evidence of parking at all.

(b) The Notice to Keeper does not inform the Keeper that the Driver is required to pay parking charges in respect of the specified period of parking, nor that the parking charges have not been paid in full.

(c) The Notice to Keeper fails to set out any unpaid parking charges for the specified period of parking.

POFA requires that a Notice to Keeper describes any unpaid charges which the Driver owed at the time of the issue of the postal Notice to Keeper.

A charge for breach of contract cannot be described as unpaid by the Driver at the time the Notice to Keeper is issued, because it only arises at the time the Notice to Keeper is received.

The punitive amount now being pursued for 'breach' should not be confused with the sum intended by Schedule 4 of the POFA.

The Act requires any unpaid tariff that the Driver owed before the Notice to Keeper was issued to be stated. This is the only sum that can be pursued from a registered Keeper.

(d) The Notice to Keeper does not identify the Creditor.

The fact that an Operator's name is on a Notice to Keeper as the payee, does not identify them as the Creditor, as administrative functions such as sending notices and collecting monies can be carried out by other parties.
The Creditor has to be identified with words to the effect 'The Creditor is...'.

(e) It also fails to show the geographical address of the client/Landholder.

This is a requirement for all consumer contracts, as well as being in breach of the POFA..

The Notice To Keeper names the relevant land on which the vehicle was allegedly parked as “Poplar 2000”.

This is incorrect.

It is not a valid and fully-formed address and fails to specifically identify the alleged location and/or the land of the supposed parking event and subsequent Charge.

The requirements of Schedule 4 of the POFA as regards the wording in a compliant Notice to Keeper are prescriptive, unequivocal and a matter of Statute, not contract law.

Any omission, or failure to set out any of the mandatory wording, means there is no Keeper liability.

This point alone invalidates this Notice To Keeper (NTK) for lacking clear and concise information relating to the alleged parking event, eliminating any right to claim allegedly unpaid parking charges from the keeper of a vehicle under Paragraph 4(2)(a) of Schedule 4 of POFA 2012.

In this case the Driver has not been identified, so the failure of PE to meet the conditions to invoke Keeper Liability means there is no legal basis for the charge to be enforced against me as Keeper.

2. Inadequate and non-compliant signage.
[on the ??[STRIKE]possible[/STRIKE?? - what's that about? Rhetorical?-no answer needed]
[STRIKE]
No signage was readable, so no valid contract was formed between ParkingEye[they're elided] and the driver[/STRIKE]

The keeper re-visited the named location, replicating the conditions, entry and exit procedure of the alleged parking event,

The only signs are x feet/metres high up on poles, x metres distant from the Pay & Display machineCOLOR=Blue]susi, can you gen. up on these bdetiaols in blue?[/COLOR, which is neither a 'sign', nor does it communicate full contractual terms & conditions, another element required for compliance.

Any upright signs were not so prominent among all the other signage on site that they were ever seen by the occupants of the vehicle

ParkingEye place their signs, which are unlit, so high that terms would only be legible if a driver left a car and climbed a stepladder, holding a torch [careful susi - was this night-time?] in an attempt to read them. In darkness, they would require a torch.

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 the height or exact placement of the sign[obscured by foliage?]

The alleged location is a crowded and constantly busy customer car park, cluttered with multiple signs, amid which none in particular is prominent

In any response, ParkingEye must state the height of each sign, show contemporaneous photo evidence of these signs, taken at the same time of day without photo-shopping or cropping, and showing where the signs are placed among a myriad of other information bombarding the 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. [FONT=arial,helvetica,sans-serif]Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and i[FONT=arial,helvetica,sans-serif]t 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.[/FONT][/FONT]

4. Unfair contract [careful, susi - 'contract', not 'contact'] terms under the Unfair Terms in Consumer Contracts Regulations 1999.

5. ANPR records are unfit for purpose and cannot be held to 'prove' the duration of parking,

6. The Charge levied is not a Genuine Pre-Estimate Of Loss, nor is it proportionate or commercially justifiable, being nothing more than a disguised penalty.

3. PE lack any proprietary interest in the land [STRIKE]at the possible site[/STRIKE] and no contractual authority from the landowner./holder

The Operator has no standing or authority to form contracts with motorists. Parking Eye has not provided me with any evidence that they are lawfully entitled to demand money from a driver or keeper in connection with parking at this site.

Parking Eye does not appear to have any ownership interest in the car park, so I contend they have no legal standing to enter into a contract with a driver in their own right, nor any legal standing to pursue charges for breach in their own name. As an agent only, Parking Eye has no automatic standing or authority which would meet the strict requirements of section 7 of the BPA Code of Practice.

If Parking Eye wish to rely on a contract with the Landowner to claim authority to demand money from me, I must have the opportunity to examine that contract.

I therefore require Parking Eye to provide an un-redacted, contemporaneous, signed and dated copy of the contract between Parking Eye and the Landowner, which, to demonstrate standing and authority, must specifically state that Parking Eye has the right to make contracts with drivers in their own name, that they have full authority to pursue charges through to court in their own name, and that the Landowner allows Parking Eye to charge £100 for a parking contravention. A witness statement to the effect that a contract is in place, which could be signed by someone who may never have seen the actual contract, will not be sufficient because it will not show the terms and conditions relating to the Operator’s authority, nor any restrictions that are in place.

If Parking Eye wish to rely on any such contract, I require them to show, on a point-by-point basis, that the contract is in complete compliance with all the requirements set out in the BPA Code of Practice.

4. Unfair contact terms under the Unfair Terms in Consumer Contracts Regulations 1999.

There is no contract between ParkingEye and the Driver, but even if there was a contract the charge that was levied is an unfair term, and therefore not binding, pursuant to the Unfair Terms in Consumer Contracts Regulations 1999.

Schedule 2 of those Regulations gives an indicative list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) ‘Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.’

The Charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999.

Regulation 5(1) states that: ‘A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer’.

Regulation 5(2) states: ‘A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.’

I therefore put Parking Eye to strict proof that their charge is not in breach of the Unfair Terms in Consumer Contracts Regulations 1999.
[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.] - susi, my instinct is to put this in brackets at this stage

A question arising in this 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.

Please be assuired, it is indisputable fact that the driver never have agreed to such a term had it been negotiated in advance. [STRIKE]and if we knew then what we know now the driver would never have entered a CP Plus run car park and never will again.
[/STRIKE]IS IT PE OR UKPC?
If ukpc, mention of ongoing invesitgation into fraudulent alteration of time-stamps MUST be prominent in assessor's mindset early on.

5. The Charge levied is neither a Genuine Pre-Estimate Of Loss, nor proportionate or commercially justifiable: in fact, it is nothing more than a disguised penalty.

This operator must prove the Charge to be a Genuine Pre-Estimate Of Loss(es) that arose directly from the alleged parking event, and not a penalty.
CP Plus’s rejection letter to me states:
“We consider the amount on the PCN as a reasonable charge for liquidated damages in respect of a breach of the parking contract.”
susi- sort this out, please - I can't spend any longer on it now - you must not copy and paste without real attention.
Because Parking Eye claim that the Charge is due to a contractual breach, this Charge must represent a claimed Genuine Pre-Estimate Of Loss. No proof has been submitted showing calculation of their Genuine Pre-Estimate Of Loss and/or how it relates to the amount of the Charge levied in their unenforceable facsimile invoice, labelled ‘Charge Notice To Keeper.'

###
I'm stopping at that point, susi, as much of the above will require fine-tuning/ re-hashing when you clarify who the parking operator was, time - day or night? etc.etc.
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This is a start

susi

Yes it was a pay and display coupon-mad wasnt sure which road to follow with that one as the driver wasnt particularly taking notice of the signs as didnt intend to park up, to be honest i go through that car park most days as a through road and have never taken any notice until today when I made a point of checking them out. Looking at the draft again I can see it looks wrong in this instance, will take a look at some more tomorrow evening when I have the time. Thank you for your imput, will re draft tomorrow, thank you

susi

Thank you ampersand, it was Parking Eye and just had a look at the PCN and it was afternoon so yes I do need to take more care I think I get to a point where everything just blurrs into one!!! Thank you so much, will take a look with fresh eyes tomorrow (when my babysitting duties have ended) Thank you once again everyone, you are most helpful, it must be so stressful for you to keep seeing people making the same mistakes and asking the same questions, just wish my brain was younger and I could absorb more :-)

ampersand

susi - as you still don't say for sure who it was, take a good look at this from Pranky today, Milk this, if my point at end of your rebuttal point 4. is relevant.

http://parking-prankster.blogspot.co.uk/


UK Parking Control continue to issue fraudulent tickets
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p.s. I am certainly older than you, but have a nasty atd mind :-) but know what you mean. I call them my 'Spot-the-deliberate-mistake' moments :-)

susi

Sorry ampersand for the late reply, am really struggling here to get on here with one thing and another, have decided if I cant get it done today then she needs to come herself on an evening and try and sort it out, Im stressing over something that really isnt my problem lol. Right moaning over will now go and take a look at your comments properly and thank you everyone so much, you have been more than patient!!!