Help at POPLA stage please - ParkingEYE at Swiss Cottage Parking-Here.com

Coupon-mad

One question in the back of my mind is whether I am correctly referring to Park-Here / Parking-Here / Regency Car Park as the Landowner - maybe I should refer to them as the site agent?

I very much doubt a firm with the stupid name of 'Park-Here' is the landowner so call them another agent.

Re your POPLA appeal, under the NTK omissions, I would expand on this sentence:

The PCN specifically fails on all counts. In addition, the PCN omits the 'date sent' or 'date given', instead choosing to print a confusing 'date issued' which is neither. It was certainly not the date sent because the PCN arrived a week later and in any case, it is known that ParkingEye use iMail which queues their prepared documents for posting for up to 3 working days. So the 'date sent' in the post is always days later than any date on a ParkingEye PCN and therefore, this breaches paragraph 9(2): 'The Notice MUST: (i) specify the date on which the notice is sent (where it is sent by post) or given (in any other case).'


In your point #4 you need to go through and change 'Operator' to 'ParkingEye' throughout. And it needs a major overhaul because you've used an old example. You need to get rid of these two paragraphs:

''This charge from Operator is a third party business agent is an unenforceable penalty. The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.

POPLA and Operator 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 that Operator will 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". My case is the same and POPLA must be seen to be consistent if similar arguments are raised by an appellant.''

...and replace them with a version like this but changed to make sense:

https://forums.moneysavingexpert.com/discussion/comment/70068188#Comment_70068188

Aldi-Parking made a good job there (ignore the words he's copied under #5 unfair terms).

Your point #5 about ANPR should add some detail about the need for ANPR signs to be displayed which clearly state how the data collected by the cameras is to be used. Look at this POPLA win in post #66; aim to encompass this argument, POPLA seem to like it (this is hot off the presses!):

http://forums.pepipoo.com/index.php?showtopic=101390&st=60

And point #6 needs changing to talk instead about the Consumer Rights Act 2015 because the UTCCRs is out of date. There are examples on the forum but if you can't find them, drop that appeal point as you don't need it!! You have enough to win.

I like your 'winging it' wording about the confusion of the two contracts/two agents/two penalties. I would change the heading of point #7 from 'Other points' to 'Existence of two agents, two contradicting contracts, two different tariff rates and two different 'penalties' on one site.'

Then explain that:

' No clear contract can possibly have been created nor accepted. Drivers are confused and misled by the conglomoration of signs shown in my pictures, which invite them to pay £10 for 'all day parking' as offered (without caveat nor penalty) at the entrance. Under the Consumer Rights Act 2015, if terms are ambiguous then the interpretation which most favours the consumer MUST prevail. '

Other posters may have comments as this is quite an epic! Can you show us tomorrow or later this week, how it looks with the changes?

keekstuff

Coupon mad - can't express how appreciative I am of your time, especially since I may have gone overboard. I spent quite a bit of time trying to absorb the threads, still nowhere near how you seem to manage to reference most up to date & relevant info. I'll try and upload changes before the evening ends.

Coupon-mad

I could see you spent time on it - and you didn't go overboard by my well-known 'War and Peace' appeal standards!!

We'll always spend time helping newbies who research and try to get their heads around it all and you certainly did and you deserve to win.

keekstuff

Draft 2 changes:
- Operator/Parking Eye name changes. Referred to Parking-Here as other Agent
- Point 4 content changed to reflect Aldi-Leek example
- Point 5 added detail on Signage not clear on what ANPR is used for
- Point 6 - Unfair items removed
- Point 7 (now new point 6) title changed and re-arranged to focus on two agent confusion, added Coupon-mad's wording for a finisher.
- Noticed a few formatting issues with additional punctuation after copying/pasting to forum - may have to run this through word processor before submitting.

Summary of evidence to be attached
1. Photo of Car Park Entrance (£10 per date, no POPLA compliant sign)
2. Picture approaching ticket machine - £10 per date or £2 per hour
3. Picture of sign - Parking ticket Machine.... pay-by-phone £10
4. Picture of ticket purchased by the driver - £10 paid on date.!
5. E-mail print out from Parking-Here (Agent)

=======
Dear POPLA Assessor,

I am the registered keeper of vehicle registration XXXX XXX and I wish to appeal a recent parking charge number XXXXXXX issued by ParkingEye (Operator) for parking at Regency Car Park Swiss Cottage / Parking-Here (other Agent) using POPLA appeal code XXXXXX!
I submit the reasons to show that I am not liable for the parking charge as per following points:

1. No Keeper Liability
2. Ambiguous, inadequate and non-compliant signage Signage
3. No standing or authority to pursue charges, nor form contracts with drivers!
4. The Charge is not a genuine pre-estimate of loss.
5. Inadequate accuracy of ANPR camera!
6. Existence of two agents, two contradicting contracts, two different tariff rates and two different 'penalties' on one site.


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 Parking Charge Notice (PCN) 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 of the Protection of Freedoms Act, 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 PCN, it only states that the car was in the car park for a certain amount of time and that the contravention was either not purchasing a valid pay and display ticket, remaining at the car park for longer than was made permitted or by not entering registration details via the terminal.

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 ParkingEye 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 PCN 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...'

The PCN specifically fails on all counts. In addition, the PCN omits the 'date sent' or 'date given', instead choosing to print a confusing 'date issued' which is neither. It was certainly not the date sent because the PCN arrived a week later and in any case, it is known that ParkingEye use iMail which queues their prepared documents for posting for up to 3 working days. So the 'date sent' in the post is always days later than any date on a ParkingEye PCN and therefore, this breaches paragraph 9(2):!'The Notice MUST:
(i) specify the date on which the notice is sent (where it is sent by post) or given (in any other case).'


The registered keeper is submitting this appeal and ParkingEye does not have the identity of the driver, who is not the registered keeper.

As ParkingEye 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 ParkingEye 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.!

– ParkingEye has 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. The Act states that the reason for the charge is made clear and again ParkingEye has failed to comply with the requirements of the Act and consequently cannot rely on its provisions.


2. Ambiguous, inadequate and non-compliant signage

The alleged breach took place in a car park, which advertises a £10 per date rate clearly visible just outside the car park premises and clearly designed to inform customers of the rate (Evidenced 1). Furthermore, signs throughout the car park and the Parking Ticket Machine, upon approaching it, also advertise this £10 per date rate along with one tall sign regarding a £2 per hour rate (or part hour) (Evidence 2). From this, it can be reasoned that a motorist may either park for £2 per hour, pro rated hour or pay £10 for the remainder of the date. The keeper draws particular attention to the following sign (Evidence 3), which reads:

Parking Ticket Machine……
Pay-By-Phone.!
Just £10.00 all day.!
Stay as long as you like!
Up to 23:55, today.


The BPA Code of Practice states:
“18.1 A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.”!
“18.3 Specific parking terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving.”!

With reference to above code, the signage is ambiguous, unclear and does not make it easy for the motorist to understand what the terms and conditions are upon entering the car park, nor at the Parking Ticket Machine. Contractual information made easily available on any of the signs when entering the car park such that it is unclear that a contract between the driver and ParkingEye would allegedly be formed. As a consequence, the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied.

Furthermore, the BPA Appendix B, with regards to Entrance signs states:


• "There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision".
• “Ideally the AOS logo should be incorporated on the entrance sign as it will show motorists that the site is managed by an organisation who have signed up to a recognised Code of Practice. However exemptions will be considered by the BPA Compliance Team if a legitimate reason is given.”
• “The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”

Upon inspecting the site, keeper concludes that the ParkingEye failed to adhere to the entrance sign guidelines, due to their signs using a varying colour scheme, no AOS logo being clearly visible at the car park entrance and that the only sign referencing the ParkingEye is located leading down the ramp to the raised car park barrier. While driving on the street, the sign is obstructed, greater than 10 degrees away from the view of the road ahead and illegible or, while going down the ramp, legible only at a 90 degree angle.!

POPLA is requested to check the ParkingEye'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.


3. No standing or authority to pursue charges, nor form contracts with drivers

I, as the keeper, believe that this ParkingEye 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, ParkingEye 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 neither 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 the ParkingEye to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between ParkingEye 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 the ParkingEye.


4. Not a genuine pre estimate of loss - case can be distinguished from ParkingEye v Beavis Unfair term

In its parking charge notice, ParkingEye has failed to provide sufficient evidence to justify the £100 loss the landowner might have incurred for the alleged contravention.
The contract entered into between the driver and ParkingEye is a simple consumer contract. An offer of parking if the driver enters their registration number and pays a tariff of £10 per day or £2 per hour or part thereof.

This makes plain that the sum of £100 being demanded is nothing other than a penalty clause designed to profit from inadvertent errors, and is consequently unenforceable.!

As this is a simple 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, their demand should be for any unpaid tariff as that would be their only loss. The vehicle was parked for an authorised stay. £100 is quite clearly not a genuine pre estimate of their loss and is clearly extravagant and unconscionable compared to the supposed parking tariff of £10 per day or £2.00 per hour or part thereof. If ParkingEye believe their charge is a genuine pre-estimate of their loss I demand they produce a detailed and itemised breakdown of this. 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.!

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 ParkingEye 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.

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 admin error was made 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 carry out an admin task 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 ParkingEye 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.


5. Inadequate accuracy of ANPR camera

ParkingEye is obliged to ensure their ANPR equipment is maintained as described in the BPA Code of Practice that states under paragraph 21.3, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I question the entire reliability of the system and require ParkingEye to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this ParkingEye must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the ParkingEye could not rebut the point.!

Furthermore, as described in the BPA Code of Practice under paragraph 21.1, “You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner.Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.”

Additionally, expanding from point 2 above, Section 18.3 of the BPA Code of Practice states that any “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”.

Considering the observations made in point 2 (Ambiguous, inadequate and non-compliant signage) above, I argue that Parking Eye has failed to meet the minimum standards set out in sections 21.1 and 18.3 of the BPA Code of Practice. While the available sign advises that the “car park (is) monitored by ANPR systems”, it does not inform the motorist what it is using “the data captured by ANPR cameras” for, as required under Section 21.1 of the BPA Code of Practice nor is it therefore “easy to understand”, as required under Section 18.3 of the BPA Code of Practice.


6. Existence of two agents, two contradicting contracts, two different tariff rates and two different 'penalties' on one site.

Upon contact with the other Agent (Parking-Here) with regards to the PCN, they can be quoted (Evidence 5) as offering a!“late payment option”!to the sum of!£35.00!and!“therefore avoid paying the penalty”. To quote:

“Now for the good news;

We do have a late payment option which enables customers to pay late for the parking and therefore avoid paying the penalty.

Please call us and make a late payment option of £35.00. TL;0207 586 6581(payment can be made by Credit/Debit card over the phone).

Upon receiving your payment, we will appeal to ParkingEye and request the cancellation of the PCN.

A confirmation of the cancellation and the payment will be e-mailed to you.

Parking-here.com”

a. This casts further doubt in ParkingEye’s claim, as the above statement raises the following:
(i) It contradicts the £100 charge claimed to be due by ParkingEye and thus is not a genuine pre-estimate of loss.
(ii) It is evidenced by the description used by the other Agent that the ParkingEye’s PCN is considered a penalty and thus unenforceable in a consumer contract.

b. While the other Agent can be quoted as stating that the £10.00 rate is only applicable for pay-by-phone and internet payments, keeper argues, with reference to the ambiguous signage, that this condition is unclear and that yet still, an exchange of £10.00 for parking at the premise has been made. The other Agent / ParkingEye, through the parking ticket machine, receives the same amount of money at the time or parking regardless of method and thus a genuine pre estimate of loss cannot be made to the sum of £35 or £100.

c. As evidenced by the purchased ticket (Evidence 4), the information provided includes car registration, purchase time and date the ticket is valid for. It does not state expiry time, and thus it can be reasoned, given the £10.00 per date advertised that an adequate payment for the advertised price has been made, as the ticket would not be valid for the following day and date.

To summarise, no clear contract can possibly have been created nor accepted. Drivers are confused and misled by the conglomoration of signs shown in my pictures, which invite them to pay £10.00 for 'all day parking' as offered (without caveat nor penalty) at the entrance. Under the Consumer Rights Act 2015, if terms are ambiguous then the interpretation which most favours the consumer MUST prevail.!


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

Coupon-mad

Go for it! Submit that as a PDF attached under 'other' only, just with a one-liner saying: 'I am the registered keeper and I am not liable for this charge for the reasons shown in the attached appeal.'

forgotmyname

Save it as a BMP file and send as a 200mb+ attachment?

Trying to think where i read that? A site owner received some dodgy threat claiming ownership to the site owners work. Sent from a fake solicitors name, so they replied back on large red font and saved as a bmp which was massive...

keekstuff

Dear All - Thank you for taking the time to help me with this. I hadn't reported back when I submitted the appeal (What a crummy system), but it's been a success. From the e-mail, it seemed as though Parking Eye didn't even put up a fight, so I have no idea what worked.

Thanks again specifically to...
Coupon-mad - for being so thorough in your editing suggestions. Madness.
Guys Dad - suggesting a workaround for presenting the evidence here
nigelbb - posting links to my photos
hoohoo - focusing me towards my "winging it" appeal point
forgotmyname - trolling suggestion!



==================================
Dear xxxx

Thank you for submitting your parking charge Appeal to POPLA.

An Appeal has been opened with the reference

---

.

Parking Eye Ltd have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

Yours sincerely

POPLA Team

ET6116/001

dazster

Report that disgracefully misleading signage to Trading Standards.

Ralph-y

well done ..... :j


and thanks for letting us know the outcome .....

can I please ask if you have signed the petition yet ?

https://petition.parliament.uk/petitions/111925

Ralph:cool: