ParkingEye PCN

salmosalaris

If ,in your case , the ticket was issued through a failure to pay an adequate tariff when it would have been welcome to stay if adequate payment had been made use something like this to distinguish your case from Beavis , changing details where necessary


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

The contract entered into between the driver and ParkingEye is a simple financial consumer contract. An offer of parking for a set sum was made and in return payment was made. This makes plain that the sum of £100 being demanded is nothing other than a penalty clause designed to profit from inadvertent errors or minor underpayment , and is consequently unenforceable. As this is a simple financial contract any claim for liquidated damages for breach of contract must represent a genuine pre-estimate of loss. If ParkingEye believe that inadequate payment was made (which their PCN fails to make clear and which I deny ) their demand should be for any unpaid tariff as that would be their only loss. The vehicle parked for an authorised stay that was fully paid for. £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 ParkingEye believe their charge is a genuine pre-estimate of their loss I demand they produce a detailed and itemised breakdown of how this

I would refer the POPLA adjudicator 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. 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 ParkingEye and the motorist.

This is in stark contrast to the present case where there was an economic transaction between ParkingEye and the motorist, and no restriction on the time of stay was made provided payment was made.
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 ParkingEye 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 .

salmosalaris

As an idea look at this appeal in post 24 . Not all will be relevant to your case and details will need changing in others

http://forums.moneysavingexpert.com/showpost.php?p=69501237&postcount=24

I would also write to Parking Eye and offer the inadvertantly unpaid tariff . Unless I am mistaken the sign ( contract ) will make no reference as to when the parking tariff has to be paid by . In that case if you offer payment there is consequently no breach of contract . If you do this add it as an appeal point to POPLA .

paulsmith0071

Thank you very much for your help and input everyone, I have a long night ahead of me putting the appeal together and then I will submit on here for it to be checked over by the experts.

Can't thank you all enough.

paulsmith0071

Hi All,

Here is my final draft, please let me know of any mistakes etc.

The scenario for your understanding is that, no ticket was purchased, under the assumption it was free car park for all guests. No money was paid, no ticket retrieved nor displayed.

Stayed in car park for a few hours. Driver was not the registered keeper.

---

Appeal reasons:
The registered keeper of the vehicle would like to appeal and request the cancellation of the parking charge notice issued by Parking Eye Limited. Cancellation is requested based on numerous reasons as explained below and the main factor being that the parking charge notice exceeds the appropriate amount, the Notice to Keeper is not compliant and also no standing or authority to pursue charges.

1) Unreasonable and unfair terms – no contract agreed to pay
£100. Fails the ‘Aziz test’.
2) Inaccurate/Unreliable ANPR System.
3) Breach of the BPA Code of Practice regarding Grace Periods
4) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.
5) No standing or authority to pursue charges nor form contracts with drivers.
6) The charge was not based upon a GPEOL and there is no justification for breach of the duty to allow grace periods.
7) The Registered Keeper is not liable.
8) Unclear, inadequate and non-compliant signage.
9) Without a contract.
10) Unlawful Penalty Charge.


1) Unreasonable and unfair terms – no contract agreed to pay £100. Fails the ‘Aziz test’.

The sign was 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 and not an obligation upon us).

The only place the word 'stay' is mentioned on the sign is where it talks about maximum stay of 14 hours, 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. The only contract agreed was to pay the tariff and return before expiry.
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.

2) 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:-

3) Breach of the BPA Code of Practice regarding Grace Periods:

The BPA Code of Practice requires that additional time upon entry and further time upon exit be allowed. It is wholly unreasonable and a breach of the CPUTRs (misleading action) for Parking Eye to ignore their industry code, which states re grace periods:

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.

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.

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.

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

As this was a Pay/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 stayed 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/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.

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.

5) 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.

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 and there was no unpaid parking time in any case.

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.

The contract entered into between the driver and Parking Eye is a simple financial consumer contract. An offer of parking for a set sum was made and in return payment was made. This makes plain that the sum of £100 being demanded is nothing other than a penalty clause designed to profit from inadvertent errors or minor underpayment, and is consequently unenforceable. As this is a simple financial contract any claim for liquidated damages for breach of contract must represent a genuine pre-estimate of loss. 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 believe 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, a POPLA adjudicator, 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 is in stark contrast to the present case where there was an economic transaction between Parking Eye and the motorist, and no restriction on the time of stay was made provided payment was made.

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.

7) The Registered Keeper is not liable

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. Parking Eye Limited should also have issued a Notice to Driver stuck on the vehicle to back up their claims that the car was even parked in the first place, which in this case they failed to do.

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/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.

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

Umkomaas

The scenario for your understanding is that, no ticket was purchased, under the assumption it was free car park for all guests. No money was paid, no ticket retrieved nor displayed.

Stayed in car park for a few hours. Driver was not the registered keeper.

I'm not sure where you are going with this.

You argue about a short grace period not being provided, yet the car stayed in the car park 'for a few hours'? Doesn't correlate.

In your GPEOL appeal point you argue that a fee was paid:

This is in stark contrast to the present case where there was an economic transaction between Parking Eye and the motorist, and no restriction on the time of stay was made provided payment was made.

Yet you say at the preamble to your appeal that 'No money was paid'. Which is it?

You need to go through this with a fine toothcomb and ask yourself does it link with your case and are there any contradictions? I've done just a skim read and questioned a few, you need another thorough re-examination.

In terms of presentation strategy I'd re-order your batting lineup by opening with 'No keeper liability' (also have a look at appeal point #7 'The RK is not liable' to check for duplication, then look to meld it in with 'nkl') follow 'nkl' with 'No standing or authority', then back to the remaining lineup.

That's it from me. Good luck.

salmosalaris

The contract with the motorist that PE are relying on to sue that motorist is a simple financial consumer contract where parking is offered in return for a tariff . The fact that in this case no payment was made as opposed to an underpayment is irrelevant , the basis of the contract is still the same , unless of course PE want to claim , as a result of non payment , there is no valid contract . The only loss is the parking tariff .

You're right though in that the OP needs to tidy up the apoeal , lose irrelevant points and tailor the relevant ones to their particular circumstances and not just copy and paste

paulsmith0071

I have gone through my appeal again and tried my level best to tidy it up and remove the irrelevant sections which do not apply to my appeal.

The reason why I gave the background was to help the reader understand the scenario, I was trying to helpful as on the other threads, the full circumstances have been asked for.

I would be extremely grateful if the experienced members can please read my appeal to make sure it stacks up and that inconsistencies have been removed by me. I fully appreciate it is a long read and many of you have better things to do, but I just want to make sure my appeal does not have any holes in it.

Please also note, that I have literally a few days before my POPLA deadline is up, so as you can imagine I am rather anxious especially if I need to re-write the appeal with further revisions.

Thank you to everyone who has contributed thus far; I am grateful.

---

Appeal reasons:
The registered keeper of the vehicle would like to appeal and request the cancellation of the parking charge notice issued by Parking Eye Limited. Cancellation is requested based on numerous reasons as explained below and the main factor being that the parking charge notice exceeds the appropriate amount, the Notice to Keeper is not compliant and also no standing or authority to pursue charges.

1) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.
2) No standing or authority to pursue charges nor form contracts with drivers.
3) Unreasonable and unfair terms – no contract agreed to pay £100. Fails the ‘Aziz test’.
4) The Registered Keeper is not liable.
5) The charge was not based upon a GPEOL and there is no justification for breach of the duty to allow grace periods.
6) Inaccurate/Unreliable ANPR System.
7) Unclear, inadequate and non-compliant signage.
8) Without a contract.
9) Unlawful Penalty Charge.


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

As this was a Pay/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 stayed 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.

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.

2) 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.

3) Unreasonable and unfair terms – no contract agreed to pay £100. Fails the ‘Aziz test’.

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 and not an obligation upon us).

The only place the word 'stay' is mentioned on the sign is where it talks about maximum stay of 14 hours, 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.

4) The Registered Keeper is not liable

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. Parking Eye Limited should also have issued a Notice to Driver stuck on the vehicle to back up their claims that the car was even parked in the first place, which in this case they failed to do.

5) 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, a POPLA adjudicator, 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 £50 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.

6) 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.

7) 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])

8) 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.

9) 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.

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

salmosalaris

I think Sir Timothy Lloyd has had a couple of career progressions from POPLA adjudicator

Umkomaas

As this was a Pay/Display car park,

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.

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

1. Which is it?

2. Embolden heading #3.

Parking Eye Limited should also have issued a Notice to Driver stuck on the vehicle to back up their claims that the car was even parked in the first place, which in this case they failed to do.

3. Not sure where you got that one from?

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.

4. Do ParkingEye actually make that statement, in that form of words, in their NtK?

5. Finally, to reiterate salmosalaris' point, you need to sort out Sir Timothy Lloyd!

paulsmith0071

Hi all,

Thank you very much to Umkomaas for your time to read my appeal and your constructive feedback. Thank you.

1) - It was a pay and display car park. Not a free car park. I shall amend accordingly.

2) - I shall delete the following

"Parking Eye Limited should also have issued a Notice to Driver stuck on the vehicle to back up their claims that the car was even parked in the first place, which in this case they failed to do."

3) - Here is the wording of the NTK -

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

By either not purchasing the appropriate parking time or parking without a valid permit, in accordance with the terms and conditions set out in the signage, the Parking Charge is now payable to ParkingEye Ltd (as the creditor)

You are notified under paragraph 9 (2)(b) of schedule 4 of the Protection of Freedoms Act 2012 that the driver of the motor vehicle is required to pay this parking charge in full. As we do not know the drivers name or current postal address, if you were not the driver at the time, you should tell us the name and current postal address of the driver and pass the notice to them.

You are warned that if, after 29 days from the date given (which is presumed to be the second working day after the date issued), the parking charge has not been paid in full and we do not know both the name and current address of the driver, we have the right to recover any unpaid part of the parking charge from you. This warning is given to you under paragraph 9(2)(f) of Schedule 4 of the Protection of Freedoms Act 2012 and is subject to our complying with the applicable conditions under Schedule 4 of the that Act.

Should you provide an incorrect address for service, we will pursue you for any Parking Charge amount that remains unpaid.

Should you identify someone, who denies they were the driver, we will pursue you for any Parking Charge amount that remains unpaid."

4) - I shall remove the section of Sir Timothy Lloyd.


The template of the appeal I have used is obviously copied, from that obviously the errors have been picked up where there are inconsistencies.

I don't know who Sir Timothy Lloyds was and what he has progressed on to become, again, I have copied and pasted from different appeals I have come across.

I will remove the above observations/corrections made.

I am seriously stressed out and trying my best here. Thank you for your assistance.