Parking eye charge notice

Coupon-mad

Keirb99 wrote: »

So just to clarify, should I not mention anything about trying to pay at the pay station either?

No, you should say the driver tried to pay but the machines would not accept the payment or registration. That should be in the introduction so POPLA know what the situation was, just to set the scene.

Coupon-mad iv'e had a read through the link you have gave me and they have admitted that they knew upon entering the car park that they were entered into a contact.. I'm not admitting that am I? They've used this to show how their case differs to the beavis case and I don't see how I could use this unless of course I admit to letting them know I was entered into contract.

They haven't, not to the extent you did where you said 'the driver knew the rules/knew about the time limit/had overstayed' or whatever it said (no admissions please). Try adapting a version of this one shown as point #4 here (below) but you will need to remove certain sentences of course, such as the photos being taken 'outside the car park boundary' (unless yours were too!):

https://forums.moneysavingexpert.com/discussion/comment/70180335#Comment_70180335

HTH

Keirb99

Okay thanks coupon mad.

I've only got until the end of the week to get it sent off best get a move on!

Will edit my appeal and post up what will hopefully be my final edit.

Thanks again.

Redx

also edit post #21 like you were asked to edit post #1 as well

the less the PPC know the better, so no admissions by anyone

keep it simple ( K.I.S.S. principle)

the words "me , myself and I" dont exist in this parking land

Keirb99

All done, can tell i'm a newbie and hopefully will be staying as one too! Robbing B*******

Keirb99

The appeal has been edited, I will post it up tomorrow while the experts are online.

Keirb99

What do you think of this?

I should start this appeal by explaining the situation of how I was, as the registered keeper of the vehicle xxxxxx, issued with a £100 parking charge notice (PCN) from ParkingEye. I am the registered keeper and this appeal will prove that I am not liable for the parking charge.
The driver entered and parked in the ***** car park in ***** on m**** of ********* at ****. The driver parking at that time was aware that their parking would need to be paid for. After shopping in ****** the driver arrived back at the carpark and attempted to pay for their parking at the pay station. After attempting to type in the registration for the vehicle several times and trying to pay, the driver could clearly see that there was a fault with the machine so they tried the next pay station next to it. After attempting to type in the registration of the vehicle again several times in the second machine and it not working , the driver returned to the vehicle and located next to where the vehicle was parked there was a third pay station which when approached to try again to pay, was out of order. The driver then drove back over to the original pay station where they tried to pay originally and waited while another 2 people were using the machines and were also unsuccessful in making a payment for their parking. After attempting to pay for their parking again several times on both of the pay stations, the driver had no choice but to drive away as the car park was un-manned to ask for any help.

Two weeks later I the registered keeper received a PCN of £100.

Since receiving the parking charge I have done a lot of research into the charges from ParkingEye and have found countless sites stating it is a very common, misleading trap being set by this specific private parking company. As research shows, ParkingEye is even having a negative impact on the popular tourist locations around the UK due to errors of their own and tourists are being stung with a charge for so called ‘breach of contract’. As widely and very consistently reported online by the victims of such a parking charge, I now feel strong enough to exercise my right to appeal this to POPLA.

The grounds for this appeal are as follows:
· Insufficient information provided by signage
· The ANPR system is unreliable nor accurate.
· No genuine pre-estimate of loss
· Proprietary Interest
· Without a contract
· The notice to keeper is not compliant with the POFA 2012 – no keeper liability

A) Insufficient information provided by signage.

The signage says for 1 additional hour its £3.00 which the driver understood when they attempted to pay. The sign also says, ‘‘motorists must enter their full, correct vehicle registration when using the payment machine’’ but when they did this the payment machine did not respond to the registration number resulting in them not being able to make the £3.00 payment and thus receiving the parking charge for this. There is no clear information on what to do in the event of failure of ParkingEye’s machines to take the VRN so when a problem arises, information regarding this doesn’t exist and therefore you receive a parking charge.

I require that the operator provides documented evidence of the number of times the driver inputted the registration into the machine, this will obviously be documented on ParkingEye’s system if the machine was in proper operation on the day.

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 (which is denied here, due to a fault with the machinery being no fault of the drivers).

The BPA's view is: 'As with all new technology, there are issues associated with its use'

The ANPR system is unreliable nor accurate.

ParkingEye's evidence shows no proof of department on the alleged exit time, merely photos of a car driving out. The image is poor, it is a picture of a registration plate and a set of lights, the rest is black and nothing else can be seen. With no photo evidence of the vehicle at the exit, how can ParkingEye justify this photo as proof of time of department when it could have been taken anywhere on the car park at any time. This is not proof of leaving the car park. The exit photo is not evidence of 'parking time' at all.

C) No genuine pre-estimate of loss

The Beavis case was considered to be a 'complex' contractual arrangement with a specifically argued 'legitimate interest'. Here, ParkingEye has shown no comparable 'legitimate interest' in enforcing their charge and nor have they shown it is anything more than a standard monetary contract, where GPEOL is still a requirement (as was reiterated in the Supreme Court hearing).

The purported contract with the motorist is undoubtedly a simple financial contract where the loss is easily calculable, unlike the complex arrangement - a valuable licence to park free of charge at first, offset with a 'quid pro quo' £85 charge -in Parking Eye v Beavis. Here there is a clear financial interaction between the operator and motorist. The £100 'charge' is clearly an attempt to impose payment of a large sum in consequence of the non-payment of a very small sum, contrary to the Consumer Rights Act 2015 and contrary to Lord Dunedin's four tests for a penalty.

Parking Eye seem to be under the misapprehension - and desperately hoping - that POPLA Assessors will swallow the BPA line that the Supreme Court judgment was a green light legitimising all frivolous parking charges. They also seem to cling to the hope that POPLA will believe that the UTCCRS (now within the Consumer Rights Act 2015) do not apply somehow, to any parking charge case!

With reference to The Consumer Rights Act 2015 (Schedule 2 part 1 para 6) the charge is very clearly an unenforceable contract term because the operator is seeking to impose a charge in compensation that is vastly disproportionate to an (easily calculated) allegedly 'unpaid' parking tariff. It is noted that in their evidence, ParkingEye have not mentioned the Consumer Rights Act at all, so they have not made any argument at all that can disapply it. However, whether a defendant/appellant mentions the fairness of a contract term or not, courts are obliged to ALWAYS give consideration to the fairness/unfairness of any contract or term.

As regards the Beavis case, it was made plain that in more complex contracts (in that case, a free car park with no monetary sum paid per hour) the trader must demonstrate a 'legitimate interest' in enforcing a disproportionately high charge, to avoid such a charge in each individual case from being an unenforceable penalty. But this case can easily be distinguished from Parking Eye v Beavis and this case is not a 'complex' contractual arrangement at all.

The Beavis case is not relevant to any other car park except that precise situation and location in that unique case (as the SC Judges were at pains to Tweet as soon as the astonishing decision was made public). A thorough review of the findings from the Supreme Court and the Court of Appeal hearings, shows that case has no application to a Pay and Display car park whatsoever.

There is no 'legitimate interest' in enforcing a punitive charge against a motorist who had attempted to pay to park for the time actually parked. In this case the driver had no idea that they would later be unfairly charged when they actually tried to make the payment for parking but couldn’t could to faulty machinery. This is not the same as in the Beavis case where the driver was considered to have understood and accepted all terms which were 'clear and very prominent' and where there was no tariff in play to make it a standard contract. This charge is simply being enforced in an attempt to punish the motorist for no fault of their own.

The appellant respectfully submits that the assessor carefully reads the Supreme Court judgment and the preceding Court of Appeal judgment, as regards any type of 'simple financial contract' such as this one where there is a quantified tariff. After all, both ParkingEye and the driver are citing the words from the earlier hearing as a support for the cases. This case is an unfair penalty and clearly differs from the 'Beavis v Parking Eye' judgment.

In its parking charge notice, ParkingEye has failed to provide sufficient evidence to justify the £100 loss the landowner might have incurred for the exceeded time the vehicle was parked in its property. For this charge to be justified, a full breakdown of the costs ParkingEye has suffered as a result of the vehicle being parked at the car park, is required and should add up to £100. Normal expenditure the company incurs to carry on their business should not be included in the breakdown of the costs, as these are part of the usual operational costs irrespective of any car being parked at that car park.

POPLA and ParkingEye will be also familiar with the well-known case on whether a sum is a genuine pre-estimate of loss or a penalty: Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79. Indeed I expect ParkingEye might cite it. However, therein is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach.'' There is a presumption... that it is penalty when "a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage". This case is the same and POPLA must be seen to be consistent if similar arguments are raised by an appellant.

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 when it was £3 to park on the day. 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 and upon returning to the car park when the driver attempted to pay for their stay there were many empty spaces so it’s not even as if the vehicle was taking up space where someone else could have parked incurring ParkingEye these alleged losses. 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.

D) Proprietary interest

ParkingEye has stated in the letter declining the appeal, that a contract is formed with the driver via signage detailing the conditions under which a motorist is authorised to park. I find it hard to accept that a contract can be formed with lack of information on the signage around the carpark of how to pay for the parking. The Signage provided doesn’t provide enough information on the payment machines and this is clearly why so many people are failing to pay for the parking and being hit with such a charge. It also seems as this has been purposely done so that people will ‘fail to comply with the terms & conditions’ for this reason it is not believed that the driver could have been entered into a contract with ParkingEye for the property of where the driver parked because they didn’t fail to comply with any of the terms & conditions, there were simply mislead by the inadequate information supplied by the signage.

E) Without a contract

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.

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.


F) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.

At this ANPR 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. 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!

In the NTK before me I can see that the driver either not purchased the appropriate parking time or remained at the car park for longer than permitted. This does not create any certainty of terms, it leaves a keeper to wonder how the charge of £100 can differ so much from the price of parking time equalling to the sum of £3 clearly showing this has NOT cost ParkingEye anywhere near the £100 charge or even the £60 for the 14 day reduced charge. This 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).

These are the omission from POFA 2012 in the NTK issued:
''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, as at a time which is—

(i)specified in the notice; and

(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4))”

The NTK specifically fails on all counts. It even fails to describe the specific circumstances for such a parking charge amount due.

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.


This concludes my POPLA appeal.
Yours faithfully,

Coupon-mad

B needs a sentence added to say there were no signs to inform a driver how the data captured by ANPR would be used which is a breach of the ICO registration and BPA CoP and fails to tell a driver that they are being timed from the entrance, rather than 15 minutes later when the contract SHOULD start, at the P&D machine (Thornton v Shoe Lane Parking is the authority on when the contract starts in a P&D car park).

D and E seem muddled and we never recommend a heading 'without a contract' (it's drivel started by someone pointlessly and other poster then copied it pointlessly). You just need one called 'no landowner authority' which covers what you said in E.

And get rid of this from the GPEOL point because it's not about loss:

In its parking charge notice, ParkingEye has failed to provide sufficient evidence to justify the £100 loss the landowner might have incurred for the exceeded time the vehicle was parked in its property. For this charge to be justified, a full breakdown of the costs ParkingEye has suffered as a result of the vehicle being parked at the car park, is required and should add up to £100. Normal expenditure the company incurs to carry on their business should not be included in the breakdown of the costs, as these are part of the usual operational costs irrespective of any car being parked at that car park.

POPLA and ParkingEye will be also familiar with the well-known case on whether a sum is a genuine pre-estimate of loss or a penalty: Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79. Indeed I expect ParkingEye might cite it. However, therein is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach.'' There is a presumption... that it is penalty when "a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage". This case is the same and POPLA must be seen to be consistent if similar arguments are raised by an appellant.

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 when it was £3 to park on the day. 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 and upon returning to the car park when the driver attempted to pay for their stay there were many empty spaces so it’s not even as if the vehicle was taking up space where someone else could have parked incurring ParkingEye these alleged losses. 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.

Make those changes and we'll have another look!

Keirb99

Thanks for the reply Coupon-mad.

Just done what you said.. Shall I delete D from the appeal or has renaming E sorted the muddle between them?

Here is the edited appeal..

The ANPR system is unreliable nor accurate.

ParkingEye's evidence shows no proof of department on the alleged exit time, merely photos of a car driving out. The image is poor, it is a picture of a registration plate and a set of lights, the rest is black and nothing else can be seen. With no photo evidence of the vehicle at the exit, how can ParkingEye justify this photo as proof of time of department when it could have been taken anywhere on the car park at any time. This is not proof of leaving the car park. The exit photo is not evidence of 'parking time' at all.

There were no signs to inform a driver how the data captured by ANPR would be used which is a breach of the ICO registration and BPA CoP and fails to tell a driver that they are being timed from the entrance, rather than 15 minutes later when the contract SHOULD start, at the P&D machine (Thornton v Shoe Lane Parking is the authority on when the contract starts in a P&D car park).

C) No genuine pre-estimate of loss

The Beavis case was considered to be a 'complex' contractual arrangement with a specifically argued 'legitimate interest'. Here, ParkingEye has shown no comparable 'legitimate interest' in enforcing their charge and nor have they shown it is anything more than a standard monetary contract, where GPEOL is still a requirement (as was reiterated in the Supreme Court hearing).

The purported contract with the motorist is undoubtedly a simple financial contract where the loss is easily calculable, unlike the complex arrangement - a valuable licence to park free of charge at first, offset with a 'quid pro quo' £85 charge -in Parking Eye v Beavis. Here there is a clear financial interaction between the operator and motorist. The £100 'charge' is clearly an attempt to impose payment of a large sum in consequence of the non-payment of a very small sum, contrary to the Consumer Rights Act 2015 and contrary to Lord Dunedin's four tests for a penalty.

Parking Eye seem to be under the misapprehension - and desperately hoping - that POPLA Assessors will swallow the BPA line that the Supreme Court judgment was a green light legitimising all frivolous parking charges. They also seem to cling to the hope that POPLA will believe that the UTCCRS (now within the Consumer Rights Act 2015) do not apply somehow, to any parking charge case!

With reference to The Consumer Rights Act 2015 (Schedule 2 part 1 para 6) the charge is very clearly an unenforceable contract term because the operator is seeking to impose a charge in compensation that is vastly disproportionate to an (easily calculated) allegedly 'unpaid' parking tariff. It is noted that in their evidence, ParkingEye have not mentioned the Consumer Rights Act at all, so they have not made any argument at all that can disapply it. However, whether a defendant/appellant mentions the fairness of a contract term or not, courts are obliged to ALWAYS give consideration to the fairness/unfairness of any contract or term.

As regards the Beavis case, it was made plain that in more complex contracts (in that case, a free car park with no monetary sum paid per hour) the trader must demonstrate a 'legitimate interest' in enforcing a disproportionately high charge, to avoid such a charge in each individual case from being an unenforceable penalty. But this case can easily be distinguished from Parking Eye v Beavis and this case is not a 'complex' contractual arrangement at all.

The Beavis case is not relevant to any other car park except that precise situation and location in that unique case (as the SC Judges were at pains to Tweet as soon as the astonishing decision was made public). A thorough review of the findings from the Supreme Court and the Court of Appeal hearings, shows that case has no application to a Pay and Display car park whatsoever.

There is no 'legitimate interest' in enforcing a punitive charge against a motorist who had attempted to pay to park for the time actually parked. In this case the driver had no idea that they would later be unfairly charged when they actually tried to make the payment for parking but couldn’t could to faulty machinery. This is not the same as in the Beavis case where the driver was considered to have understood and accepted all terms which were 'clear and very prominent' and where there was no tariff in play to make it a standard contract. This charge is simply being enforced in an attempt to punish the motorist for no fault of their own.

The appellant respectfully submits that the assessor carefully reads the Supreme Court judgment and the preceding Court of Appeal judgment, as regards any type of 'simple financial contract' such as this one where there is a quantified tariff. After all, both ParkingEye and the driver are citing the words from the earlier hearing as a support for the cases. This case is an unfair penalty and clearly differs from the 'Beavis v Parking Eye' judgment.

D) Proprietary interest

ParkingEye has stated in the letter declining the appeal, that a contract is formed with the driver via signage detailing the conditions under which a motorist is authorised to park. I find it hard to accept that a contract can be formed with lack of information on the signage around the carpark of how to pay for the parking. The Signage provided doesn’t provide enough information on the payment machines and this is clearly why so many people are failing to pay for the parking and being hit with such a charge. It also seems as this has been purposely done so that people will ‘fail to comply with the terms & conditions’ for this reason it is not believed that the driver could have been entered into a contract with ParkingEye for the property of where the driver parked because they didn’t fail to comply with any of the terms & conditions, there were simply mislead by the inadequate information supplied by the signage.

E) No landowner authority

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.

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.

I've just posted the parts i've changed.

Thanks in advance for taking a look again.

Coupon-mad

Shall I delete D from the appeal or has renaming E sorted the muddle between them?

I think so, E covers it. But what you say in D fits better within your point 'A' about signage so you could move it up.

Keirb99

Okay so take the writing from D and edit it into A then take the D point off?

I'll get there in the end.... it's only taken me a month ha.