ParkingEye PCN

paulsmith0071

Here is my revised and amended version.
I have read, re-read and proof read again, to make sure there are no further inconsistencies. I apologise in advance if I have missed anything.

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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 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 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.


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 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.


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 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.

paulsmith0071

I will also include the following, under Heading 3 - unfair terms:

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”

paulsmith0071

Hi all,

Can I please get some feedback asap, please.

My POPLA deadline is imminent and I just want to get this done and dusted, as you can imagine, I am stressing about the situation.

paulsmith0071

Hi can somebody please help me and tell me if the appeal I have posted in post 22 is ok to be submitted to POPLA?

I am running out of time fast.

Coupon-mad

Point #1 is the same as point #4 with repetition, so amalgamate them and renumber the appeal. And add in the fact that the 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.


I am concerned about this bit (below) which looks like copy & paste - is 14 hours right - doesn't seem likely?! You also need to remove 'upon us' and change it to 'on the driver'.

• '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'.


You can't say any of this if NO payment was made! Makes no sense!

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:

Fruitcake

I believe that at least one of those points will win.


The only comment I have is with regard to: -


6 Inaccurate ANPR system.


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.


Timings of parking incidents cannot be relied upon due to the criminal activities of private parking companies.


UKPC have recently been investigated for fraud because some of their operatives had changed time stamps on their photographic evidence. It is eminently possible for parking lie to have fabricated or altered the times of their ANPR photographs and as such they cannot be relied upon as being accurate or truthful.

paulsmith0071

A very heartfelt and sincere thanks to

Salmosalaris
Fruitcake
Catfunt
Coupon-mad
Umkomaas

For all your help and advice.

Parking Eye cancelled the PCN!

I am grateful for the dedicated people on this board who invest their own time in helping others.

salmosalaris

Job done
Now who thought the loss of gpeol as an apoeal point would ring the death knell ?
One door closes another opens
Well done

The_Deep

Now who thought the loss of gpeol as an apoeal point would ring the death knell


But has it? I am not convinced that a PPC would be able to argue Beavis in inter alia a hospital or University cat park, leaving site, parking on a hatched area, when a ticket flips, in an "own space" situation, double dipping, a small oberstay whilst looking for a space, or when ringo or a P&D machine fails.

salmosalaris

The_Deep wrote: »

Now who thought the loss of gpeol as an apoeal point would ring the death knell


But has it? I am not convinced that a PPC would be able to argue Beavis in a hospital or University cat park, leaving site, parking on a hatched area, when a ticket flips, in an "own space" situation, or when a P&D machine fails.

I agree , but your argument could not be based on gpeol , it is established law that a liquidated damages clause can now be way in excess of any loss even if that loss is zero .