Have things changed with PE appeal?

ampersand

Hello susi - my pms self-eradicate at present, &squat being a notorious notspot, for no known reason. I am unable to help further atm.

Can only direct you to a big dose of calm, stepping back and copying c-m's advice to send longer appeals as attachments via the Other box in the new set-up.

I am not effectively in until after RWC final, but the info. friend needs IS all in this Forum. Let friend do some granny time, while you use search box and effectively use the Defeat ParkingLie toolkit, complete therein.

Paste it up for a final critique here, spaced, headed, clear.

Then pour yourself une bonne verre.

susi

Ok I have read and altered what you pasted on here ampersand, thank you (have sent you a pm). I am unsure about the signage section. Because the driver didnt park up and leave the car the signs werent even looked at or noticed by her, do i still include the inadequate and non compliant signage section on this when truth is they didnt even check it out? I have also removed some things that differ from her actual pcn. Am I heading the right way????

POPLA reference number: xxxxxxxxx

Parking Eye facsimile invoice no.yyyyyy

Vehicle reg. no.

The car park in question is frequently used as a "through road" which was the case on this particular day. As you can see by the times on the PCN it took 16 minutes from entering to leaving which surely in itself shows there was not enough time there to park the car walk to the shops, shop and return and exit the car park.
I am the registered keeper but was also an occupant in the car on the said date so can give an honest account.

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.

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]

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

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]

4. Unfair contract 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 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.]

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.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.

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.'

[/FONT]

Redx

always include signage queries, its their job to prove that the signage met the BPA CoP, not the defendants to prove otherwise (but good if you do find it fails)

it may not meet the CoP even if nobody has read it, most signage fails in some way or other

also include NOT A GPEOL subject to the Beavis judgment on 04 November 2015

susi

Ok here goes once again, I think things are finally sinking in this old brain of mine (probably because Im reading it over and over again!!!) I have added and taken away from previous drafts so hoping I may be somewhere close now, im a little unsure of what is still applicable in the old posts so just winging some of it.....fingers crossed



POPLA reference number: xxxxxxxxx

Parking Eye Reference Code

Vehicle reg. no.

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 regularly for this purpose so I am familiar with the site but on this occasion the driver has not been identified.

As registered keeper I submit the points below to show that I am not liable for any parking charge:

1) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability

2) Inadequate and non-compliant signage

3) PE lack any proprietary interest in the land and haveno compliant contractual authority from the landowner./holder

4) Unfair contract 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) No genuine pre-estimate of loss

#
In rebutting this unenforceable invoice, as Registered Keeper of reg.no I wish to appeal the above parking charge, In so doing, I invoke and accept the protection offered to keepers in the POFA 2012,

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 is not compliant with the POFA 2012 - no keeper liability, expanded in points [a] to [e]:


(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 that any unpaid tariff that the Driver allegedly owed before the Notice to Keeper was issued, must be stated. This is the only sum that can be pursued from a registered Keeper.

(d) 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..

(e) 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.


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..

In addition, the angle may well not show how high the sign is, nor the fact that ParkingEye signs are but one among many, lost 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 each, taken at the same time of day, without photo-shopping or cropping, and showing each sign's location in the myriad of other information bombarding a customer,.or unseen by fleeting through road usrs, as in this case.

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 'terms' and 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.

3) PE lack any proprietary interest in the land and hold no compliant contractual authority from the landowner./holder

The Operator has no neither standing, nor 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 an alleged 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.]

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 assured, it is indisputable that the driver would never have agreed to such a term had it been a clear requirement to be accepted in advance of any parking event.


5) ANPR records are unfit for purpose and cannot be held to 'prove' the 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.

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. Even so, this arrival time shot 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.

Of course, the ANPR cameras times, as supplied by Parking Eye, 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.

Even an item temporarily obscuring the camera from picking up a car registration, such as a passing bird, ar wind-blown carrier bag, or leaves appearing in front of the camera, even for moments, can and do 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 this is not so, Parking Eye must show POPLA a complete 'video' that they allege shows no repeat 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.

Indeed, I question the entire reliability of the system and 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 reg.no entering and exiting at specific times.



6) No genuine pre-estimate of loss


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.

This car park is pay-and-display. As far as I can ascertain as keeper, even if parking had occurred, 1 hour would have cost 50p so the only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge i.e. 50p.

Parking Eye have not given me these details, despite it being a prerequisite of Schedule 4
[see 2.Inadequate and non-compliant signage).

The Operator cannot reasonably claim a broad percentage of their entire business running costs, as they operate various different arrangements.

Operators can and do pay landowner or landholders a substantial amount, akin to a 'fishing licence', to entrap motorists. Some are pay-and-display; others are designed to entice as 'free' car parks.

I suggest there was never any compliant advance meeting held with the client, nor 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 also 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 abut GPEOL in the POPLA 2014 Report and also falls foul of DFT Guidance about private parking charges.

In this case, even if the Operator contends there was a small P&D sum outstanding, they have omitted it from the Notice to Keeper. It cannot exceed 50p. by their own terms.

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 job, which is 'administrative' work; including handling appeals among other tasks.

In the case of private parking companiesin general, including this Operator, the administrative staff and managers who handle challenges and POPLA appeals are simply
- 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 be only 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 proceeding from POPLA to 'debt collector stage' are even fewer, making both 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 on which judgement is due on 4th November 2015, the decision may need to reflect this judgement[Check Redx's guidance here.]

Redx

seems reasonable on a skim read, but several simple spelling mistakes , like regularly and assured for example

run a spelling checker over it and amend it as required, then edit the above post as well to reflect the corrections

the bottom part about the Beavis case needs amending to show that the judgement is due on 04 Nov 2015 and so will have come out by the time popla deal with this, so no adjournment is necessary, but the decision may need to reflect the Beavis judgment

with that in mind , when is the expiry date for your popla appeal ?

susi

Thanks Redx have edited the post, not sure if i had to put "but the decision may need to reflect the judgement" or if you were just giving me the information. The 28 days is up on the 7th November

Redx

well I would wait until the 4th , 5th or 6th and see what the judgment says in case it needs better wording or alterations

my point is not to ask for an adjournment pending the outcome when the outcome is already known

ampersand

Suggested after thorough read through:
#
POPLA reference number: xxxxxxxxx

Parking Eye Reference Code

Vehicle reg. no.

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 regularly for this purpose.
[STRIKE]How Parking Eye can justify £100 is beyond me.[/STRIKE] [STRIKE]I am the[/STRIKE]

As registered keeper I submit the points below to show that I am not liable for any parking charge:

1) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability

2) Inadequate and non-compliant signage

3) PE lack any proprietary interest in the land and have no compliant contractual authority from the landowner./holder

4) Unfair contract 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) No genuine pre-estimate of loss
#
In rebutting this unenforceable invoice, as Registered Keeper of reg.no I wish to appeal the above parking charge, Ib so doing, I invoke and accept the protection offered to keepers in the POFA 2012,

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 is not compliant with the POFA 2012 - no keeper liability, expanded in points [a] to [d]:
Susi, did not see a point [e], hence alteration to a>d. You need to check if a 5th is buried somewhere.

(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 that any unpaid tariff that the Driver allegedly owed before the Notice to Keeper was issued, must be stated. This is the only sum that can be pursued from a registered Keeper.

(d) 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 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.

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..

In addition, the angle may well not show how high the sign is, nor the fact that ParkingEye signs are but one among many, lost 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 each, taken at the same time of day, without photo-shopping or cropping, and showing each sign's location in the myriad of other information bombarding a customer,.or unseen by fleeting through road usrs, as in this case.

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 'terms' and 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.
[STRIKE]
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.[/STRIKE]duplicated

3) PE lack any proprietary interest in the land and hold no compliant contractual authority from the landowner./holder

The Operator has [STRIKE]no[/STRIKE] neither standing, nor [STRIKE]or [/STRIKE]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 an alleged 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.]

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 assured, it is indisputable that the driver would never have agreed to such a term had it been a clear requirement to be accepted in advance of any parking event.


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

The ANPR system is unreliable and neither synchronised nor accurate.
Further, there is no evidence that this was just one visit: the phenomenon of 'double-dipping, is well-known.

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 the driver can only access after parking. Even so, this arrival time shot 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). The driver may have driven in, realised the carpark was pay-and-display, then driven out to get change before returning.

Of course, the ANPR cameras times, as supplied by Parking Eye, 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.

Even an item temporarily obscuring the camera from picking up a car registration, such as a passing bird, ar wind-blown carrier bag, or leaves appearing in front of the camera, even for moments, can and do 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 this is not so, Parking Eye must show POPLA a complete 'video' that they allege shows no repeat 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.

Indeed, I question the entire reliability of the system and 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 reg.no entering and exiting at specific times.



6) No genuine pre-estimate of loss

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.

This car park is pay-and-display. As far as I can ascertain as keeper, even if parking had occurred, 1 hour would have cost 50p so the only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge i.e. 50p.

Parking Eye have not given me these details, despite it being a prerequisite of Schedule 4
[see 2.Inadequate and non-compliant signage).

The Operator cannot reasonably claim a broad percentage of their entire business running costs, as they operate various different arrangements.

Operators can and do pay landowner or landholders a substantial amount, akin to a 'fishing licence', to entrap motorists. Some are pay-and-display; others are designed to entice as 'free' car parks.

I suggest there was never any compliant advance meeting held with the client, nor 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 also 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 abut GPEOL in the POPLA 2014 Report and [STRIKE]would [/STRIKE]also falls foul of [STRIKE]the[/STRIKE] DFT Guidance about private parking charges.

In this case, even if the Operator contends there was a small P&D sum outstanding, they have omitted it from the Notice to Keeper. It cannot exceed 50p. by their own terms.

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 job, which is 'administrative' work; including handling appeals among other tasks. [STRIKE]Thus, there is no question that any 'loss' is caused by these staff, who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage.appeals. [/STRIKE]largely duplicated to no effect

In the case of private parking [STRIKE]c[STRIKE]harges[/STRIKE][/STRIKE]companies [think you mean this, not charges]in general, including this Operator, the administrative staff and managers who handle challenges and POPLA appeals are simply
- 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 be only[STRIKE] be[/STRIKE] 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 proceeding from POPLA to 'debt collector stage' are even fewer, making both 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 on which judgement is due on 4th November 2015, the decision may need to reflect this judgement[Check Redx's guidance here.]
[/QUOTE]
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Right, have spent long enough on this now. Need to eat!:)
Have corrected loads of little errors but only blue'd the more significant ones, also spacing, setting out. Check it all again.

Wait for others's views and advance apologies for any obvious typo's. Connectivity playing up again: white strike and delayed strike makes writing difficult.
Best of luck, susi. Keep us informed.

Coupon-mad

You are doing this well. I would also wait for the Beavis outcome but don't miss your deadline, look again next week.

I would just add to this sentence near the start, to make it clear:

'I myself use it regularly for this purpose so I am familiar with the site but on this occasion the driver has not been identified.'

And in the ANPR section, I would get rid of the 'double visit' argument and change that to an argument that 'the car did not actually park, just drove round as many people do at this site. At no point was the car in a bay nor even stopped - nor were any parking tariffs applicable, nor were any signs readable from a moving vehicle.'*


*how many minutes are they showing on the PCN?

ampersand

Thanks c-m :-) I'm fading fast - The Final is Sat. Go ABs!