Parkking eye invoice -Aire street leeds

Harry_Hill

Hello,
I received an invoice in the post today for £100 (or £60 if pay within 14 days) from Parking Eye for an event that took place on the 14/11.

I'm a new driver, went into the car park but could not manage how to use their machines. It asked for a registration number and whenever I out in my Car's registration number it did not accept and issue a ticket. It was heavily raining so I wasn't go to stick around, and I left.

The invoice says I was in the park for 14 minutes.

I am about to make an on-line appeal to Parking eye. I think its unjust when I tried to pay but couldn't and didn't get use of the park at all. Do you think I should wait two days and lodge appeal because the letter (which arrived today) 'arrived' after the 14 day period (as today is close to the 14 day limit)? Here is my draft, any advice would be really welcome:

Dear Sir /Madam

Ref:
Car Reg:
Date of event: 14/11/2015
Date issued: 19/11/2015

As the registered keeper of the car referenced above I am writing to dispute the Parking Charge Notice I recieved on the 24/11/2013.

This charge is not valid and I do not have a case to due to each of the following facts: (1) the notice arrived 15 days after the alleged offence and therefore not within the required 14 days notice period (2) the driver entered into no contract with Parking Eye as no signs were seen (3) the driver decided to leave after around 10 minutes because they were unable to make a decision of whether to comply with any parking terms because no signs were seen (4) you do not own the car park and in any case your charges are well-known by the general public and by POPLA assessors,

Please can you cancel this charge forthwith.

I look forward to your confirmation of this cancellation.

Your faithfully

Harry

Redx

seems ok to me as it doesnt say who was driving (its a keeper appeal) , use their website and submit it choosing KEEPER , or RK , definitely not DRIVER

before doing so , read the blue appeal in post #1 of the NEWBIES sticky thread in case you need to add anything more

perhaps add that THE DRIVER could not work out how to use the pay machine and that is why they chose to leave

also quote clause 13 of the BPA CoP at them too , about the grace period entering the site and the 11 minutes or more allowed to exit the site (it says 10 mins in the CoP) but is supposed to be in excess of that, thereby the BPA are due to amend it to 11 minutes

4consumerrights

Harry_Hill wrote: »

Hello,
I received an invoice in the post today for £100 (or £60 if pay within 14 days) from Parking Eye for an event that took place on the 14/11.

I'm a new driver, went into the car park but could not manage how to use their machines. It asked for a registration number and whenever I out in my Car's registration number it did not accept and issue a ticket. It was heavily raining so I wasn't go to stick around, and I left.

The invoice says I was in the park for 14 minutes.

I am about to make an on-line appeal to Parking eye. I think its unjust when I tried to pay but couldn't and didn't get use of the park at all. Do you think I should wait two days and lodge appeal because the letter (which arrived today) 'arrived' after the 14 day period (as today is close to the 14 day limit)? Here is my draft, any advice would be really welcome:

Dear Sir /Madam

Ref:
Car Reg:
Date of event: 14/11/2015
Date issued: 19/11/2015

As the registered keeper of the car referenced above I am writing to dispute the Parking Charge Notice I recieved on the 24/11/2013.

This charge is not valid and I do not have a case to due to each of the following facts: (1) the notice arrived 15 days after the alleged offence and therefore not within the required 14 days notice period (2) the driver entered into no contract with Parking Eye as no signs were seen (3) the driver decided to leave after around 10 minutes because they were unable to make a decision of whether to comply with any parking terms because no signs were seen (4) you do not own the car park and in any case your charges are well-known by the general public and by POPLA assessors,

Please can you cancel this charge forthwith.

I look forward to your confirmation of this cancellation.

Your faithfully

Harry

I am assuming that is a typo error regarding the date received in 2013 !


However if the

Date of event: 14/11/2015
Date issued: 19/11/2015
and you received this today then that is within 14 days.....

The relevant period starts the day after the date of the parking event which means received by the 29/11/15 for the statement you made above.


However your appeal should still state no keeper liability as the notice fails to comply with the requirements of POFA

No contract with driver -
ANPR accuracy and grace period to comply with BPA Code of Practice

No authority to issue and pursue charges at this location - No valid landowner contract

Redx

as above , I missed those dates when I skim read it, so bear in mind everything that has been said so far before you appeal it and amend accordingly

LurkeyJefferson

My inkling is that they will say the grace period is 10 minutes and that there has to be a cut off somewhere otherwise the purpose of having a grace period is defeated.

Guys_Dad

The driver was unable to park because of a problem with the machine and left without parking.

That's it in a nutshell. That is what I would base my appeal on and challenge them to dispute it in court.

This car park - would it be feasible for anyone to only park there for 14 minutes. By that I mean if it was to take a driver 5 minutes to get to a shop and the same back, plus finding a space, would they have time to shop? If not, work that in as well.

Coupon-mad

LurkeyJefferson wrote: »

My inkling is that they will say the grace period is 10 minutes and that there has to be a cut off somewhere otherwise the purpose of having a grace period is defeated.

Yet the BPA CoP gives two grace periods and one is now 11 minutes on its own.

Harry_Hill

I issued an on-line appeal to Parking eye and they have refused it. Could you please check my appeal to POPLA (below). Its mostly a copy and paste from another post (I can't give you link because of spam detectors) except for points (2) and (3). If you don’t have time to read it all, could you look over those two original points (2 and 3) for me?


1) The Notice to Keeper is not compliant with the POFA 2012 - No Keeper Liability

As this was a Pay and Display car park, the Notice to Keeper (NTK) has to set out the position clearly in terms of 'describing the parking charges due' which remained unpaid as at the day before the date of issue of the PCN. Due to this timeline stated in Schedule 4, these 'parking charges due' can only be a tariff the driver should have paid, because no higher sum was 'due' before the PCN was even printed!

On the Notice To Keeper it only states that the car was in the car park for a certain amount of time and that the contravention was an overstay or failure to pay.

This does not create any certainty of terms, it leaves a keeper to wonder what the hourly rate tariff even was and whether the driver paid nothing, or paid too little, or paid only for half an hour or an hour, or paid in full but put in the wrong car registration, or some other event. The Operator has the technology to record car registrations, to collect and record payments and to take photos of cars arriving and leaving, so it would be reasonable to assume that they are able - and indeed are required under the POFA - to state on the NTK the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff) as at the day before the PCN was issued.

These are the omissions:
''9(2) the notice must—
(b) Inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c) Describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d) Specify the total amount of those parking charges that are unpaid...'
NTK is not compliant, for example re this requirement:
The NTK specifically fails on all counts.

NTK fails to include a 'date sent' or 'date given' which is a requirement of paragraph 9 of Schedule 4.

It merely has a misleading 'date issued' which is not the date it was posted at all because the NTK arrived a week later. This operator is known to use iMail which stores letters and posts them some 48 hrs or more later than they are produced. The 'date issued' is the date the NTL was first produced on the operator's system but that date is redundant and does not comply with the Act. The NTK also needs an actual 'date of sending' and/or 'date given' and it does not.

The validity of a NTK is fundamental to establishing liability for a parking charge. As POPLA Assessor Matthew Shaw stated: ‘‘where a Notice is to be relied upon to establish liability...it must, as with any statutory provision, comply with the Act.'' This NTK was not compliant due to the omissions of statutory wording, so it was not properly given and there is no keeper liability.


The registered keeper is submitting this appeal and Parking Eye do not have the identity of the driver, who is not the registered keeper.

As Parking Eye has failed to satisfy the requirements of Schedule 4 of the Protection of Freedoms Act, the registered keeper cannot be liable for the charge. The parking company can therefore in relation to this point only pursue the driver.

A) - The unpaid parking charge that should have been requested (paragraph 9(1) of the Act) is that which was unpaid on the day before the Notice to Keeper was issued. This can only be the purportedly unpaid parking tariff and not £100 which had not been requested and which there was no facility to pay on the day before the Notice to Keeper was issued. Consequently £100 cannot be considered unpaid for the purposes of the Act. It clearly demonstrates that Parking Eye has failed to satisfy the requirements of the Act and cannot rely on it. At no time was the registered keeper asked to pay the purportedly unpaid tariff.

– Parking Eye have failed to notify the registered keeper why the parking charge is due as is required by the Act. Their generic template PCN indicates that the vehicle supposedly stayed longer than was authorised or was not authorised at all. Which is it? The Act demands that the reason for the charge is made clear and again Parking Eye have failed to comply with the requirements of the Act and consequently cannot rely on its provisions.

Also, please note that the Act stipulates that the parking company must provide the duration the car was parked. But the evidence provided (photographs from a number plate recognition camera showing the vehicle enter and leave the car park) is not actually valid or sufficient on its own as a form of evidence as it easily can be digitally altered.

2) No Contract was entered into between ParkingEye Ltd and the Driver or Registered keeper.

The terms and conditions indicated in the signage indicates that a ticket must be purchased for the appropriate parking time. The ticket machine was flawed. By not issuing a ticket when the instructions (to issue a ticket) were followed the driver was unable to enter into a contract with Parking Eye Limited.

3) Lack of grace period

Under the BPA Approved Operator Scheme Code of Practice Version 6, Oct 2015, states that if drivers "…decide not to park but choose to leave the car park, you must provide them with reasonable grace period to leave, as they will not be bound by your parking contract." (28.3).
And that when using Automatic Number Plate Recognition (ANPR), "…your system must allow drivers who have not paid the fee to leave a site within a reasonable period that allows for the conditions and environment of that parking site. This grace period should be long enough to allow motorists to leave without having their vehicle registration mark processed for a parking charge." (30.2)

The time in car park is noted to be 0 hours 14 minutes. On entering the car park at 9.47AM, according to the notice, this time was used to read the signage in the car park. As the signage uses small print, is not lit and the Pay and Display Tickets were faulty (I feel that this constitutes a reasonable grace period to allow an informed decision and, following the decision not to park in this car park, to leave without charge. As a result, the 2 above conditions have not been met.

The 2014 case at Altrincham County Court: 3JD08399 PE v Ms X. Fistral Beach needs to be referred to, as It was found that 31 minutes driving around looking for a space was not classed as parking and therefore there was no contravention of the parking terms and conditions.

4) No standing or authority to pursue charges nor form contracts with drivers

The Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Parking Eye must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put Parking Eye to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Parking Eye and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Parking Eye.



5) Unreasonable and unfair terms – failure of ‘Pay & Display’ machine. No contract agreed to pay £100.


The sign is ambiguous and unclear as the sign is about 'PARKING TARIFFS' (not 'total stay') and the sign creates no obligations except to:

• 'Enter your full VRN correctly’ (it says 'you must' and the driver complied with that term).
• 'Park within bays' (the driver complied with that term).
• 'Blue Badge holders - tariffs apply' (OK, but not relevant obligation upon us).

The only place the word 'stay' is mentioned on the sign is where it talks about maximum stay, the rest is all about 'parking time'. So as the Pay & Display machine is the 'point of sale' and the Pay & Display ticket is the receipt upon which an ordinary consumer would rely for the parking time, there was no contravention of the sign.

It is wholly deceptive and unfair on drivers to impose a different time limit from cameras, than the time limit set on the Pay and Display ticket. Deceptive information which causes a consumer to take a different decision than they would have done, which then causes them detriment, is unlawful under the 'misleading actions' section (7.3) of the CPUTRs.

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

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

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

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

The 2014 case at Altrincham County Court: 3JD08399 PE v Ms X. Fistral Beach needs to be referred to, as It was found that 31 minutes driving around looking for a space was not classed as parking and therefore there was no contravention of the parking terms and conditions.

The driver NEVER agreed nor accepted any contract to pay £100.

If drivers had any idea their Pay & Display 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.

In the Barry Beavis v Parking Eye 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. It can be stated as an indisputable fact that the driver would without a shadow of a doubt, never have agreed to this term, had it been negotiated in advance and if it was known then what is known now, then the driver would never have entered a Parking Eye Limited run car park.

A Pay & Display machine system is incompatible with ANPR enforcement; an operator cannot run two systems with two timings and favor the one, which operates disadvantageously to consumers.

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

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

No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal). Lord Denning continued:

“The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling”


6) The charge was not based upon a GPEOL and there is no justification for breach of the duty to allow grace periods

This case is an unfair penalty and differs from the 'Beavis v Parking Eye' judgment.

The charge is for an alleged (but denied) breach of contract and therefore it must either be based upon a genuine pre-estimate of loss or otherwise shown to be socially or commercially justified that this non-landowning third party can claim a sum in excess of any damages. However, no such GPEOL or justification can apply here.

Unlike in Beavis, it is confidently argued that this charge has been artificially inflated and Parking Eye have failed to disengage the 'penalty rule' by virtue of a want of good faith and a failure in their duty to deal fairly with consumers and a failure to follow the requirements of their industry Code of Practice. £100 is hugely disproportionate to any alleged unpaid tariff.

The charge is not a genuine pre estimate of loss and as this was a paid parking site that can be distinguished from Parking Eye v Beavis.

If Parking Eye believe that inadequate payment was made (which their PCN fails to make clear and which is denied by the driver) their demand should be for any unpaid tariff as that would be their only loss.
£100 is quite clearly not a genuine pre estimate of their loss and is clearly extravagant and unconscionable compared to the supposed unpaid tariff. If Parking Eye believes their charge is a genuine pre-estimate of their loss it is demanded they produce a detailed and itemised breakdown of how this has been calculated.

If you refer to the persuasive remarks of Sir Timothy Lloyd in the judgment handed down by the Court of Appeal in the case of Parking Eye v Barry Beavis, it can be demonstrated in that situation the penalty charge was justified on the basis that it was necessary to deter motorists staying longer than allowed to facilitate the turnover of free parking places. It was determined that the contract was not a financial one in that there was no economic transaction between Parking Eye and the motorist.

This car park is no different to any other commercial enterprise. There can be no argument of commercial justification allowing what would otherwise be a clear penalty simply because a small payment was purportedly not made or a VRN incorrectly inputted into a machine when the vehicle would otherwise have been welcome to park as it did.

A contractual term, which imposes the requirement to pay a disproportionately large sum for failing to pay a far smaller one is the very essence of an unlawful penalty. Analysis of paragraphs 43-51 from the judgment clearly demonstrates that the Court of Appeal would have considered the charge in this case as an unenforceable penalty. This case can be clearly distinguished from that of Parking Eye v Beavis the judgment in which is irrelevant in this situation.

Any reliance on the Supreme Court judgment in the case of Parking Eye v Beavis should also be disregarded as the judgment simply reaffirms that the decision in that case was based on the use of that particular car park which was free and the charge justified to ensure motorists left within 2 hours for the good of all other drivers and the facility. As previously mentioned in this situation there is no such justification.

There was no parking charge levied. On the date of the claimed loss it was not at full capacity either. There can have been no loss arising from this incident. Neither can Parking Eye Ltd lawfully include their operational day-to-day running costs in any 'loss' claimed. It is contended there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance. In this case, Parking Eye Ltd has failed to provide any calculation to show how the £100 figure is arrived at, whether as an actual or pre-estimated loss. Again, it is the Appellant's position that Parking Eye Ltd has suffered no loss for the duration that the car was parked.

In addition, the sum claimed cannot be a genuine pre-estimate of loss, as any contractual breach attracts the exact same apparent amount of loss, whatever the alleged breach of contract may be. If the sum claimed were a genuine pre-estimate of loss, it follows that the loss cannot be £60 on days 1 to 14, then £100 thereafter. This is clearly an arbitrary sum invented by the Respondent.

POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same. The estimate must be based upon loss flowing from a breach of the parking terms, and in this instance there was no such loss.


7) Inaccurate ANPR System

Parking Eye are required to provide evidence that their ANPR systems are fully calibrated in accordance with the criteria laid down with the ICO and BPA code of practice and that the system is also calibrated with any payment options available on location. Without such there is no proof that these timings are accurate for evidential purposes.

The rules of the BPA require you to allow a grace period of at least 10 minutes either to allow a motorist to read the signs and make payment or decide whether parking is permitted, and at the end of a period of paid for time or maximum stay to allow for discrepancies in the time shown on different devices. A reasonable grace period should be granted and should be fair so no one is discriminated against i.e. those with small children or disabled people - see below clause 13 of the BPA COP:-

The ANPR cameras are not identified upon entry to the car park. Although these systems have a reported high accuracy rate, there is well-recorded evidence of them being prone to error and inaccuracy. Photographs produced as evidence by them, can be easily digitally altered. They do not prove the identity of the driver. Simple entry and exit photographs purported to be from the stated car-park do not prove unquestionably that the vehicle actually; entered and left it; parked within its boundaries, and remained parked within it for the alleged time


8) Unclear, inadequate and non-compliant signage

Due to their high position, overall small size and the barely legible size of the small print, the signs in the car park are very hard to read and understand.

POPLA is requested to check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. It is contended that the signs on this land, in terms of wording, position and clarity, do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2])


9) Without a contract

Without a contract it would seem the most appropriate offence would be a civil trespass. If this were the case, the appropriate award Parking Eye Limited could seek would be damages. As there was no damage to the car park there was no loss to them or the landowner at all and therefore there should be no charge.


10) Unlawful Penalty Charge

Since there was no demonstrable loss or damage and yet a breach of contract has been alleged, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012).

The operator is either charging for losses or it is a penalty/fine.

The operator could state the letter as an invoice or request for monies, but chooses to use the wording “PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.

Therefore, it is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point.

Fruitcake

I'm no expert but that looks very good to me. You would be unlucky if none of those appeal points didn't hit the target.


I've seen the sentence, "Although these systems have a reported high accuracy rate, there is well-recorded evidence of them being prone to error and inaccuracy," before but to me it seems contradictory.
In addition, the last thing anyone here would want is to suggest they are accurate as mentioned in the first part of the sentence. I think that pert should never be mentioned and only mention their failings.


Other opinions are available.

Umkomaas

I've skimmed it.

I think in point #2 you need to give a bit more about this, without giving any indication as to who the driver was (as in no 'me, myself, or I').

The ticket machine was flawed.

I'm not sure whether I'm misunderstanding what you are trying to say, but if this was a P&D car park, there would have been a parking charge? I'm not looking for an answer from you, just flagging it up as perhaps not being quite clear for its purpose.

There was no parking charge levied.

Otherwise it all looks OK to me.

Do please let us know the outcome, it helps to keep us informed about how POPLA are currently 'thinking' (so as to guide others in future); it also helps to keep our motivation up when we see our advice turn into positive results.