ParkingEye PCN

paulsmith0071

Hi all,

I have done many hours of research on how to write out my appeal to POPLA....but there are a few points that I want clarity on please from the more experienced and knowledgeable members of this forum, especially surrounding the new ruling last month which has meant a few points have now become invalid due to the ruling on Beavis.

The scenario is that at Holiday Inn car park, no parking ticket was purchased at all. ParkingEye sent initial PCN stating

"The signage, which is clearly displayed at the entrance to and throughout the car, states that this is private land, the car park is managed by ParkingEye Ltd, as permit only/paid parking car park, what tariffs apply and the Parking Charge applicable without the appropriate permit or payment of the appropriate tariff when parking, along with other terms and conditions of the car park by which those who park in the car park agree to be bound"

I want to confirm that the following points which I will be using in my appeal are ok to include - I have striked out the ones which I believe are now invalid....


[STRIKE]1) Genuine pre-estimate of loss.[/STRIKE]
2) Punitive charges and unfair terms.
3) No contractual authority to levy charges.
4) No Contract was entered into between ParkingEye Ltd and the Driver or Registered keeper.
5) Unclear, inadequate and non-compliant signage.
6) No clear map of the site boundary - no contract with driver formed.
7) Keeper Liability Requirements and the Protection of Freedom Act.
8) Use of ANPR cameras ParkingEye Ltd have failed to show any evidence that cameras used at the site comply with the BPAs code of conduct (part 21 (ANPR)).
9) Unfair terms of contract.

10) 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. It is respectfully requested that this parking charge notice appeal be allowed.

11) Unreasonable:
The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "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.”

12) Unlawful Penalty Charge:
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, 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 “CONTRACTUAL PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.

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Those are all the points I have come across, but need to know which ones to include and which ones are now futile.

All feedback and pointers are appreciated so that I can write up the full appeal.

Many thanks.

The_Deep

Why have you deleted GPEOL?

This differs substantially from from Beavis in that it is not a free car park, there is no commercial justification in charging a penalty, you can stay there as long as you like as long as you pay the fee, and, if you were a guest at the hotel, the loss is unlikely to be great, unlike Mr. Beavis, you are not ignoring them.

I cannot see them winning at PoPLA, let alone in the County Court.

Fruitcake

I agree with TD about GPEOL, but you have to state why it is different to the Beavis case to make it a valid appeal point.


Also, what did the hotel manager say when you asked them to cancel the ticket? Did you point out that this is no way to treat genuine customers and you, your friends, your family, and colleagues will not be using that hotel again if this disgraceful charge isn't cancelled.
Tripadvisor, Fakebook, Tw@tter, and the hotel's own website are places where you could apply pressure.

paulsmith0071

Hi all,

Thank you for your responses.

So, can I confirm that I am to use ALL 12 points listed above on my POPLA appeal? and to most definitely to include the GPEOL?

Also, I can rebut the beavis case with the following -
"The Claimant may rely on the ruling by HHJ Moloney, in ParkingEye v Beavis & Wardley. The facts of that case - which is proceeding to the Court of Appeal - differ significantly and can be distinguished from the present case on a number of factual and legal points. This charge is not commercially justified."

In all honesty I have not pursued the option of contacting the hotel manager, as on the day I was only there for a short visit for drinks at the bar. Also, the driver was not even the RK. It states free car parking on the website, but it looks like the paying guests give their information to receive that free facility. Anyone else, gets bitten by ParkingEye. But that's my assumption as I thought it was all free parking.

Marktheshark

You and everyone else has to wise up.
Money saving advice is to avoid any car park they operate in, even when the rules are followed, you are not safe.
Best avoided and so is an business that thinks it is a good idea to employ them.
The risks are simply too high to be ignored.

catfunt

paulsmith0071 wrote: »

Hi all,

Also, I can rebut the beavis case with the following -
"The Claimant may rely on the ruling by HHJ Moloney, in ParkingEye v Beavis & Wardley. The facts of that case - which is proceeding to the Court of Appeal - differ significantly and can be distinguished from the present case on a number of factual and legal points. This charge is not commercially justified."

That is out of date - the case went to the Supreme Court and Beavis lost.

You need to research further into the Supreme Court judgment, and then explain how your case differs from Beavis. In the Beavis case, he overstayed, and PE pay the landowner to "farm" the site.

paulsmith0071

Hi Catfunt,

Thanks for replying.

Without focussing on the Beavis case, because it looks like I need to find out further information about that, my question is this;

With my 11/12 points listed in my initial post, will that be sufficient to win the appeal through POPLA?

Or

Are you saying that due to the ruling in Beavis and other changes, I have no leg to stand on altogether?

The reason why I came on here was because of the Beavis Case and the recent changes which has meant most points are now invalid.

I'm not as clued up or an expert like some of the members here, and I'm not asking anyone to write my appeal or do my leg work for me, I'm only asking to get clarity so that I can be confident that my understanding is correct.

I'm only looking for a straight forward answer that a layman can understand, without getting my wires twisted.

No point me putting in the appeal if my understanding or rationale is wrong.

Going back to Beavis, my case is different because I didn't even purchase a ticket, under the impression that it was free parking for all guests, not just paying guests staying over night.

I guess the crucial point here may be, what if PE are paying the landowner to "farm" the site? I am right or wrong in this?

Help is very much appreciated.

paulsmith0071

Hi,

I only have another 8 days to send my appeal into POPLA, as you can imagine, I am slightly on the stressed side.

This is now a matter of urgency, and I do request your expertise advice please.

Thank you.

paulsmith0071

Hi All,

I am starting to become very stressed about this whole situation.

I am in need of help from someone, anyone, please.

I have a draft of my appeal, but I need help in rebutting the Beavis Case and also I am concerned if PE were farming the land, if so, how can I find out?

This is a very desperate attempt for help, I only have a matter of days before my POPLA appeal must be submitted.

catfunt

Post up your full POPLA draft for the experts to look over.


This is probably winnable on points other than GPEOL, so don't get too hung up on Beavis, make it your last point.

Have a look at other recent (last few months) POPLA appeals in PE cases of you have notalready done so.

Umkomaas

You need to structure a POPLA appeal that resembles the many successful ones that have gone before you. Have a look at this thread, which is linked from the newbies sticky and work from the examples there.

https://forums.moneysavingexpert.com/discussion/5317558

Most of the drafts there are good enough for you to construct a winning appeal. If the particular appeal point is consistent (broadly) with the specific of your case, then put that into your appeal, virtually word for word - but make sure it is relevant and makes sense to your case.

There's plenty of top advice from Coupon-mad included in that thread to help you.

The key points you need to concentrate on and are a 'must' for your appeal are:

- Non compliant NtK
- No authority or standing to pursue charges

But also cover signage and no GPEOL. You don't need to 'rebut Beavis' as your case is much different to Beavis which was a free, busy retail car park which commuters tended to use for free all day parking when using the railway station.

PE have been throwing the towel in of late where strong appeal points for the above have been submitted. Go to town on these.

In terms of GPEOL make sure you leave out the following paragraph, which was used pre-Supreme Court decision.

It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.

This is the only 'Beavis' issue you need to deal with in the context of your parking charge.

The bit you've put into your earlier post about HHJ Moloney is well out of date and now superseded by the Supreme Court ruling, so don't go including anything about Moloney.

Put your new draft up here for critique and we'll see if we can suggest anything further. Don't miss that POPLA deadline, or you'll likely get court papers from PE.