POPLA critique please

Myriddin

I would be grateful for comments before I submit.

POPLA Code: ………..
PCN: ……….. from ParkingEye Ltd
VRN: ………..
As the registered keeper of the vehicle I wish to appeal against the issue of this ParkingEye Ltd PCN on the following grounds:
1.) Lack of Landowner authority
2.) BPA Code of Practice compliance
3.) Invalid Notice to Keeper as per POFA (2012)
4.) Flawed methodology for timing Parking events
5.) Confusing and inadequate signage leading to lack of contract
6.) Disproportionate and extravagant parking charge

1.) In order to enter into a contract with a driver in their own right, and in order to issue and pursue parking charge notices in their own name, ParkingEye Ltd must either have a proprietary interest in the land or an assignment of rights from the true landowner.
In order to demonstrate these conditions, I require that ParkingEye Ltd provide evidence of proprietary interest or an unredacted, contemporaneous copy of the contract between Parking Eye and the landowner which must meet the requirements set out in the BPA Code of Practice, to which ParkingEye Ltd are a signatory, at section 7. A witness statement will not be acceptable in this instance as neither the requirements of the contract nor the context of its conditions will be demonstrated.
If ParkingEye Ltd cannot meet this requirement then this appeal must be upheld.

2.) It is evident from the attached photograph (1a) of the site signage that PartkingEye Ltd fail to adhere to the BPA Code of Practice set out at section 21.1, specifically:
“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...”
ParkingEye Ltd’s signage shows only a crude representation of a CCTV camera with the words in small print ‘Car Park monitored by ANPR system’ but fails to provide information on what the captured data will be used for.

3.) The Protection of Freedoms Act, Schedule 4 (2012) sets out specific and binding statutory conditions before a registered keeper of a motor vehicle can be held responsible, and pursued, for parking charges. The Notice to Keeper issued by ParkingEye Ltd, (attached as 1b), is deficient concerning the following conditions at paragraph 9., specifically:
‘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...'
[FONT=&quot]As the Parking site in question is a 24 hour pay and display operation, and the driver had paid for a period of parking time, this condition is relevant but is not adhered to by ParkingEye Ltd in their notice to keeper. ParkingEye Ltd should have specified the amount of the parking tariff that [/FONT][FONT=&quot][FONT=&quot]alleg[FONT=&quot]e[/FONT]dly[/FONT] remained unpaid but they do not. Further, their generic template NTK does not state the exact reason for the issue of this parking charge, rather it describes an either/or situation and is unprecise: 'By either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted.'[/FONT]
As the driver has neither been admitted nor is known to ParkingEye Ltd, I assert that ParkingEye Ltd has no statutory right to pursue the registered keeper in this instance and consequently this appeal must be upheld.

4.) The parking site is monitored by ANPR cameras which record the time a vehicle enters and leaves the site and parking time is then purchased at a pay and display machine once the driver has parked the car and walked to the machine. There is an inconsistency between these two timings as the two systems are not synchronised. ParkingEye Ltd relies on the time between entry and exit and not on the time from the pay and display machine.
The user may feel he/she has purchased sufficient time to park only to find at a later date that they are being held accountable for an overstay which is not a genuine record of parking time but rather a record of time on the site. ParkingEye Ltd fails to inform the user on their entrance signage of this anomaly and I assert that this is again a breach of the BPA code of practice (21.1.)

5.) As can be seen from the photograph of the site signage there is reference to a parking charge of £100 if the terms and conditions are not adhered to. The signage is unclear as to what the full extent of these terms and conditions are. At the bottom of the sign are 3 very clear conditions:
a) Park only within marked bays
b) Blue badge holders only on marked bays: parking tariffs apply
c) strictly no parking on double yellow lines.
There is also a polite request to enter a vehicle registration number which may, or may not, be considered a requirement of the T&Cs.
There is no indication that an unpaid overstay, or indeed any failure to pay the tariff, is a breach of the terms and conditions, and as this is not stated it cannot be implied and, therefore, cannot be relied upon as a term and condition of a contract. As ParkingEye Ltd are pursuing a charge for an alleged unpaid overstay this can only be limited to the amount of tariff not paid and/or damages for trespass, which in this case is not specified by ParkingEye Ltd.
I would also add that the signage is a mass of small print placed at a height (approx. 6-7 feet) that is difficult, if not impossible to read, unless one’s eyesight is perfect or one is exceptionally tall.

6.) ParkingEye Ltd will rely heavily on the outcome of the recent ParkingEye Vs Beavis case heard at the Supreme Court to justify their charge. However, as this case involves a 24 hour pay and display carpark it differs significantly from the Beavis case.
In the Beavis case, the land in question was specifically for the use of customers for a limited and free amount of time with a parking charge issued for an overstay beyond that limit. There was a specific commercial justification for this approach, which was recognised by their Lordships, as it purported to ensure that only genuine customers would use the carpark and that there would be sufficient parking space for new customers. There is no such requirement at the ………………. car park as it is a 24 hour pay and display site with no indication that it is reserved for customers only. There is no indication on signage to this affect.
Further, ParkingEye Ltd paid the landowner to operate on the site argued in Beavis Vs ParkingEye and because of this their Lordships were persuaded to allow a margin of recovery of these fees within the charge. I do not believe a similar arrangement applies at the ……………….. car park.
In this case, as the site does not have the function of serving retail outlets, I assert that the landowner or ParkingEye Ltd does not have a legitimate interest in
enforcing a parking charge to ensure parking availability and, therefore, a charge of £100 can only be seen as a penalty.
If ParkingEye Ltd insists that this charge is not a penalty then they must demonstrate a genuine pre-estimate of loss which can only be for the sum of any alleged unpaid tariff in this case. Clearly a charge of £100 is clearly extravagant and unconscionable compared to an alleged unpaid tariff.

Guys_Dad

Pretty clear and well written, but I don't understand point 3 and why PE failed to meet NtK requirements. I suspect you are correct, but it doesn't explain ow they failed clearly enough.

Myriddin

Guys_Dad wrote: »

Pretty clear and well written, but I don't understand point 3 and why PE failed to meet NtK requirements. I suspect you are correct, but it doesn't explain ow they failed clearly enough.

I see what you mean - I need to be more specific in explaining that this was an overstay beyond time paid for and PE have not specified how much was owing from the tariff as is required by POFA.

Coupon-mad

At the end you could add more specific stuff from the Beavis case because PE like to quote from it so I would add some relevant quotes from the SC decision in your favour first. Something like:



ParkingEye are keen to submit that the Supreme Court Judgment provides ''clarity'' and ''supports the position that our Parking Charges are fair, reasonable and legally enforceable.'' This is not the case; there is no blanket application of that judgment to ANY other car parks and certainly not those less complex sites without the same 'common practice' regime mentioned by Lord Hodge when discussing the 'complex' contract in question: ''it is common practice in the United Kingdom to allow motorists to stay for two hours in such private car parks and then to impose a charge of £85''.

That is as maybe - but here at this location, that is not the practice.

There are no free hours to park, thereafter offset by a high charge seen by the Judges as 'quid pro quo' for the valuable free parking licence at that specific car park. I put ParkingEye to strict proof to show clear evidence about their interest and commercial justification to charge more than the sum that a landowner could claim in damages for breach at this car park.

Further, I state that the Beavis case has no relevant application at all as regards other types of car park regimes, especially standard consumer contracts involving tariffs. In the material case involving my vehicle, this is a 'standard' economic contract, where the small tariff arguably due cannot increase tenfold or higher because that would fall foul of the Consumer Rights Act 2015 in charging a 'disproportionately high sum in compensation for an alleged non-payment of a much smaller charge'.

My position in saying this regime is not supported by the Beavis case is based upon the comments of the Judges at both the Court of Appeal stage and the Supreme Court. Firstly, analysis of paragraphs 43-51 from the Court of Appeal stage hearing, clearly demonstrates that the Judges would have considered the charge in this case as an unenforceable penalty. The Judges were only discussing ''a contract such as we are concerned with'' which was a far more complex one than ''all the previous cases shown to us {which} have concerned contracts of a financial or at least an economic nature.'' Moore-Bick LJ at the Court of Appeal, remarked the contract and interests under consideration were 'entirely different' from a 'standard' financial contract flowing from alleged non-payment of a quantifiable sum.

Then at Supreme Court stage, it was held at 32:

''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the {parking operator} in the enforcement of the primary obligation. The innocent party can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.''

I submit that this is certainly a straightforward 'damages clause' where interest cannot extend beyond the small tariff allegedly unpaid (whatever that is, because the PCN fails to inform me). There can be no legitimate interest in influencing the conduct of the contracting party which can give this operator in these particular circumstances in THIS car park, a right to charge such a high sum which exceeds any restitutionary damages.

The Judges at the SC also commented:

'the penalty rule is plainly engaged' and 'The question whether a contractual provision is a penalty turns on the construction of the contract.'

Finally, the Supreme Court were at pains to rush out a Tweet within 24 hours of the Beavis Judgment being handed down, making it clear that the judgment was unique and applicable only to that case:

https://mobile.twitter.com/UKSupremeCourt/status/661846322417397760

UK Supreme Court– Verified account ‏@UKSupremeCourt

Parking charge “neither extravagant nor unconscionable… taking into account use of this particular car park & clear wording of the notices”

It is worth noting that the previous POPLA Lead Adjudicator, when adjourning cases for the Beavis outcome, stated in 2015:

''It does remain the position that it is for the party seeking to rely on any authority from a case in the higher courts, to explain how they submit it relates to the appeal in question and in particular the matter to be determined.''

I contend that the penalty rule remains firmly engaged and cannot be unlocked merely by ParkingEye throwing the Beavis case into the ring.