Parking Eye parking fine - Radisson Blu Durham

vwass07

Apologies - I posted before I saw your response.

I'm going to put something together and will post it here before I send it off, but I am going to phone up tomorrow to ensure that they considered my comments in response to the evidence pack - I do have an e-mail from them to state that these were added, but as absolutely NOTHING has been mentioned from it I'm wondering if it's gone missing in the backlog...?

catfunt

No point phoning - everything in writing so there is a paper trail. (or email)

Coupon-mad

Don't phone, you will be disheartened and fobbed off by a clerk. You can see the Assessor didn't consider all the evidence presented because the decision shows the Assessor only looked at the appeal made originally, he/she even says what your case is (from the first appeal you wrote) and mentions nothing else you produced.

vwass07

ok - have first draft of complaint going back to POPLA - if you could offer any advice, maybe I need to tone it down as still a little narked from the response. Been told I have 28 days to pay so would like this away asap so they can consider within the timescales (and considering their backlog excuse). One thing I would like to know is that if I don't pay what's the worst that could happen? Is it worth getting a solicitor involved ?

In response to your POPLA decision for appeal reference xxx I wish to make a formal complaint to your Lead Adjudicator and request a re-hearing with ALL evidence to be reviewed including the rebuttal and ‘grace periods’ issue within the Code of Practice (and on the signs).

I have the following comments to make with reference to the Supporting Rationale and why I think my comments have NOT been taken into consideration.

On the 21st December I submitted a 3-page 1000+ word document PDF of comments as the appellant to be added to the case file. On the 21st December I received a response from a Gemma Edmed to say that these comments had been attached to my appeal. I don’t believe that this document has been taken into account at all as there is absolutely no reference to my appeal within your 235 word response.

You state that that I was on site for 5 hours and 14 minutes – this is true, however 3 minutes of this time was prior to the 5 hours and 11 minutes afterwards. As I clearly can’t time travel then the 3 minutes should be discounted as per section 13.2 of the BPA Code of Practice - You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action

So this leaves the 11 minutes afterwards which you state that ‘Section 13.4 of the British Parking Association Code of Practice states ‘You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.’ I was under the belief that this was 11 minutes. If I am wrong and this is set at 10 minutes then I am 1 minute over – not 14 minutes, which you have concluded in ‘I do not consider 14 minutes to fall within a reasonable grace period’. However, you have not considered the grace period for section 13.2 and secondly this argument is even more ridiculous to agree to impose a hugely disproportionate fine for an extra 1 minute.

What’s even more apparent is the fact that there was a 15 minute grace period in the car park (on all signage) which you state that you have seen. On speaking with the Radisson Blu hotel in Durham about the situation and they too agreed that the time within the 15 minute allowable period, so xx from the hotel e-mailed PE directly on the 6th November requesting that the fine was cancelled – this e-mail was included within my appeal but not once referred to.

Finally I phoned up on the 23rd February to find out how much longer it would take for a response – I was told that there was a backlog going back to the beginning of November but my case would be reviewed soon, so am very surprised that I received a reply in less than 24 hours – considering all the documentation I would have thought that it would and should take longer.

Coupon-mad

One thing I would like to know is that if I don't pay what's the worst that could happen? Is it worth getting a solicitor involved ?

Worst case scenario is a PPC issues a small claim and you defend with our help. It goes to a hearing, if the PPC proceed (think Judge Rinder, you with your evidence file and them with theirs). If you win then you win! And can sometimes claim expenses but not solicitors costs - so no, it's not worth engaging a solicitor for a small claim unless an insurance policy of yours has free legal cover. In general, you can't reclaim legal costs.

If you lose then most ParkingEye cases mean the victim pays about £190 tops, sometimes less. Then you'd pay and there would be no repercussions, no black mark on credit rating, not even a CCJ if you pay up within 30 days of judgment.

Re the complaint I think I would set it out more by quoting the Assessor's sentence about ''14 minutes being unreasonable'' then contrasting that with the BPA CoP on grace periods. Something like:




Dear POPLA Lead Adjudicator,

In response to the POPLA decision for appeal reference xxxxxxxxxx I wish to make a formal complaint to your Lead Adjudicator and request a re-hearing with ALL evidence to be reviewed including my rebuttal, the operator's signs, the Hotel's email/site contract and the two distinct and different ‘grace periods’ as allowed in the BPA Code of Practice.

I have the following comments to make with reference to the Supporting Rationale and why I think my evidence and comments have NOT been taken into consideration.

The information overlooked by the Assessor is noted to be as follows:

- Grace Periods section of the BPA code of Practice misunderstood/misquoted
The Assessor was mistaken on all these counts:

''The appellant’s vehicle exceeded the minimum grace period of 10 minutes'' (IN FACT: the grace period was at least 15 minutes according to the signs, PE's own evidence pack and the Hotel site conatract and their email...and the BPA CoP sections 13.2 and 13.4 which both apply added together).

''in the circumstances, I do not consider 14 minutes to fall within a reasonable grace period.'' (IN FACT: The Assessor could not reasonably conclude this so I believe not all the evidence was seen).

''however, the appellant parked for longer than was paid for.''(IN FACT: the car was parked only for no more than 5 hours and the excess time was within grace periods allowable).

The BPA Code of Practice was considered a regulatory set of rules by the supreme Court in Beavis and it beggars belief that POPLA have misread it and thought there was only one grace period within that CoP. The Assessor has made a factual error and quoted only 13.4 and not considered the equally relevant section 13.2 from the CoP, despite the fact I quoted BOTH sections in my PDF rebuttal of the evidence pack in December.

The CoP requires that additional time upon entry and further time upon exit, is required (see BPA minutes quoted to prove that grace periods are 'mandatory'):

''Prior to parking:-

13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.

IN ADDITION:

Upon returning to the vehicle:-

13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 11* minutes.''

...this used to be 10 but was changed to 11 minutes several months ago by the BPA. If the BPA has not made it clear to its members that is one thing but consumers and ISPA would reasonably expect POPLA Assessors to be fully aware of such a vital decision from the BPA minutes of a Board meeting in Autumn 2015:

Quote:
''Implications of the 10 minute grace period were discussed and the Board agreed with suggestion by AH that the clause should comply with DfT guidelines in the English book of by-laws to encourage a single standard. Board agreed that as the guidelines state that grace periods need to exceed 10 minutes clause 13.4 should be amended to reflect a mandatory 11 minute grace period.''


- ParkingEye's own evidence pack shows there is 15 minutes grace period allowed

The following was submitted by ParkingEye:

Date/Time in 5/10/15 09:35:01
Date/Time out 5/10/15 14:49:29
Time Allowed: 0 hours 15 minutes 0 seconds
Time In Car Park: 5 hours 14 minutes 28 seconds
Time Paid For: 5 hours

This clearly is within my favour as 15 minutes is allowable as a grace period within the landowner contract and I proved this in my rebuttal to this evidence pack by enclosing an email from the Hotel.

ParkingEye's own evidence also mentions the grace period at the start which the Assessor did not take into account on top of the grace period allowable at the end. The operator admitted: ''ParkingEye operates a grace period on all sites, which gives the motorist time to enter a car park, park, and establish whether or not they wish to be bound by the terms and conditions of parking.''

That is from section 13.2 which the Assessor missed and in my case this took a mere 3 or 4 minutes, which is very obviously 'reasonable' when a car's VRN is first captured in moving traffic at the entrance. It is also fair to assume that at least 11 minutes under section 13.2 alone would be perfectly 'reasonable' upon entering, in view of the fact the BPA think 11 minutes is reasonable for a similar journey at the end, which after all, does not even involve driving round looking for a space, parking, getting out , locking the car, walking over to a machine, reading signs and queueing to pay (which is the point of sale of any financial contract).

ParkingEye's own evidence pack shows the signs which state there is a 15 minute grace period and this is reiterated in the first words of the evidence quoted above 'Time Allowed: 0 hours 15 minutes 0 seconds'. How did the Assessor overlook something so fundamental?



- Signage in the evidence pack shows no sign to inform a driver how the ANPR data would be used
I raised this lack of information in my rebuttal of the evidence in December but this was ignored. Drivers have no idea that the timer has started as soon as they drive in which is contrary to contract law (Thornton v Shoe Lane Parking is the authority on the fact that the contract only starts in a P&D car park when the money goes into the machine AFTER parking).

In my rebuttal I didn't use technical language and should not be expected to, but I clearly said: ''Obviously if drivers had any idea their P&D ticket would not be the time under which they would later be bound and that the operator held all the cards with a secret timing already working against them, they would not park at this car park at all because this is contrary to good faith. ''


- My rebuttal of the evidence was not considered at all
I believe the Assessor failed to read any of my rebuttal or did not have the full information available to them. On the 21st December I submitted my 3-page 1000+ word document PDF of comments to be added to the case file. On the 21st December I received a response from a Gemma Edmed to say that these comments had been attached to my appeal.

I do not believe that this document has been taken into account at all, as there is absolutely no reference to my appeal within the Assessor's 235 word response. In addition to the above points, I also stated the following: ''Nowhere does it state that the 15 minutes is before or after the paid for time, it clearly states ‘up to 15 minutes’ on all signage.''

On speaking with the Radisson Blu hotel in Durham about the situation and they too agreed that the time within the 15 minute allowable period, so xx from the hotel e-mailed ParkingEye directly on the 6th November requesting that the fine was cancelled – this e-mail was included within my evidence but not once referred to by POPLA. It looks to me that the Assessor has read my original appeal only, then missed the flaws in the operator's evidence and failed to take any account of my rebuttal and the suspicion is that this decision was rushed in the end, to clear a backlog. I phoned up on the 23rd February to find out how much longer it would take for a response. I was told that there was a backlog going back to the beginning of November but my case would be reviewed soon, so am very surprised that a decision was then rushed out within hours. Considering all the documentation, dozens of pages from ParkingEye and a considered rebuttal and evidence from myself, I would have thought that it would and should take longer for the actual assessment.


Conclusion - all of the evidence was not seen by the Assessor. This is unfair and contrary to POPLA's stated aims.
I do not believe the Assessor has looked at the signage properly nor ParkingEye's own evidence which destroys their own case, nor the contract with the landowner which allows 15 minutes (redacted but it's a condition of the site agreement and the Hotel's email confirms this - all overlooked).

I do not believe the BPA CoP on grace periods has been properly considered and I do not believe the Beavis case has been properly applied.

I do not know who advised POPLA about the Beavis case but please review the major differences in that case when compared with most other parking charge cases. Your Assessors should surely be aware after POPLA's delay in considering and deliberating upon the impact of that case, that it is impossible and indeed a very serious misunderstanding of the case law, to apply the highly unusual, fact-specific and 'complex' contract in the Beavis case to all parking charge cases. Especially those involving a quantifiable monetary transaction and especially one like mine where the operator has been 'called off' by the Hotel and therefore there is not even a 'legitimate interest' left to this operator, to excuse their pursuit of an unconscionable and unsupported charge which is out of all proportion with any unpaid tariff (an easily calculated sum but not stated anywhere by the operator). Pay and Display car parks where a consumer makes a cash/card/phone payment to park are 'standard contracts' which the Court of Appeal Judges remarked more than once, were 'entirely different' from the Beavis case, so POPLA cannot fairly apply it here.

In my rebuttal I explained this and cited the UTCCRs but this too was not considered (the Beavis case has not changed contract law for standard contracts).

I have been severely disadvantaged and I am formally requesting, please, that the original rushed and unfortunately mistaken decision is reversed and the full evidence is reviewed, due to not all evidence being considered.

I look forward to hearing from the Lead Adjudicator and reserve the right to forward the evidence and flawed decision to ISPA if a fair review is not undertaken quickly, time being of the essence as the operator will be expecting that I should pay the unfair charge and are extremely litigious.

Thank you in anticipation of a thorough investigation and review and a swift update to myself and ParkingEye.

vwass07

That's great thanks - will get something together today - would like to get this off to them asap

Ralph-y

good luck .....

can I ask what the assessors name is

Ralph:cool:

vwass07

Thanks Coupon Mad - I've more or less copied and pasted your letter and just added the reference points - complaint sent off, will let you know once (or if) I receive a response

vwass07

Ralph-y - it was Lauren Bailey

Coupon-mad

vwass07 wrote: »

Thanks Coupon Mad - I've more or less copied and pasted your letter and just added the reference points - complaint sent off, will let you know once (or if) I receive a response

They really do appear to be overlooking emailed PDF rebuttals which is a scandal almost as big as the Beavis-case-applies-to-all pill they have recently swallowed from whoever 'advised' POPLA.