Lost at POPLA against Parking Eye - what next?

C4WRX

I've had a reply from POPLA to my formal complaint marked for the attention of John Gallagher.
I was fobbed off again with the response below:

Thank you for contacting POPLA.



As previously advised, while we note you are unhappy with our decision, we have now reached the end of our process and there is no opportunity to appeal.



As such, any further correspondence regarding your appeal will be noted on our system but we will not respond.



Yours sincerely,



Siobhan Gooley

POPLA Team

Should I keep complaining to them, or should I now leave it in the hands of ISPA?
I just can't seem to get past the semi-trained monkeys on the front line at POPLA.

Coupon-mad

Take it to ISPA but what you need to show is not that PE have breached the KADOE contract but that other POPLA appeals recently have found that charges are not properly given where there are no signs saying what the ANPR is used for.

You need to show inconsistency by POPLA. Your email read more ike an appeal again and didn't explain what the issue was with POPLA.

C4WRX

The email regarding PE breaching the KADOE contract was the one I sent to the BPA and DVLA, as per advice given on the newbies thread.

I sent a different email to ISPA regarding POPLA being inconsistent, and quoted another POPLA case as an example.

C4WRX

I have now had a response from FOI. They have sent me a copy of the contract between Parking Eye and Barnet Hospital.
Here it is:

https://drive.google.com/file/d/0BxmmU2Q1BBSack1kRXBaOXBYR3c/view?usp=drivesdk

It says on the email below that I can appeal. Are there any key points that I can appeal against regarding the contract?
The contract looks to be rather heavily redacted, is this something I can raise with them?


This is the email they sent along with the contract:

Further to your request for information please see the response below.



Your question



Please supply me with a copy of the contract Barnet Hospital has with Parking Eye.

If you have not used the NHS Standard Contract (Supply of Goods & Provision of Services March 2015) The document/ minutes of the meeting, where it was approved, that a different contract may be used.

Reports produced stating & evidence produced that Parking Eye are complying with the Terms & Condition's of the contract.



The response



Please find enclosed a copy of the contract. Redactions relate to information which is either exempt under S40 (personal data) or S43 (commercial).



The trust reviews parking charge notices which are referred to the trust and any appeals are carried out via the procedure detailed in the staff hand book which reception and administration staff work to.



The trust’s contract manager has instigated quarterly reviews of the contract commencing April 2016.



Your appeal rights



We hope that you will be satisfied with our response to your request, if not you may ask us to review our decision in which case you should write to Ms Emma Kearney, director of corporate affairs and communications, Royal Free London NHS Foundation Trust, Pond Street, London NW3 2QG, explaining what you would like us to review and including your reference number. If you are not satisfied with the internal review, you can appeal to the Information Commissioner. The contact details are: Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF, telephone 01625 545 700 or see https://www.ico.org.uk


Yours sincerely


Alison Macdonald

Board Secretary

Coupon-mad

It says on the email below that I can appeal. Are there any key points that I can appeal against regarding the contract?

Depends on the circumstances. For example if a driver was using the drop off area and was only there a total of 30 minutes including driving time then it could be a similar scam to this one:

http://parking-prankster.blogspot.co.uk/2016/03/parkingeye-lose-in-court-accuse-drivers.html

Do the photos look like they are from the same entrance/exit within the site? Or unfairly cherry-picked to mislead the position?

You could pay £10 to PE for a SAR including everything they hold on you and your data including your registration (like in that link). That would help you if they sue later, because it might show that the ANPR cameras picked the car up all over the place in the site and then cherry-picked two different car park points to allege a breach.

I did find Barnet cases I knew of, in recent months, went to debt collector letters more often than not rather than court but whether that's to do with the fact it's a NHS contract PE want to keep and are less likely to sue, I'm not sure.

The contract looks to be rather heavily redacted, is this something I can raise with them?

The twelve different car park areas with 12 different restrictions and parking start/end times, as shown in one of the Schedules, would be worth using in your complaint to the NHS Trust if you do believe the car was merely picked up several times by several ANPR cameras and PE have 'selected' two images that do not correspond.

Also the 'User Manual' is not shown at all and yet that is the part which tells how a client (the Trust) can cancel a PCN and has a right to do so. I would press them on that point, you KNOW the Trust must be able to cancel a certain number of PCNs because they are the principal in the contract - yet they've hidden that from you.

If there are mitigating circumstances about the visit re a patient, state them and remind the NHS Trust about the Government imposed Car Parking Principles which are being flagrantly breached by the Royal Free and Barnet Hospitals, to the significant detriment and finanicial loss of patients.

https://www.gov.uk/government/publications/nhs-patient-visitor-and-staff-car-parking-principles/nhs-patient-visitor-and-staff-car-parking-principles

Barnet will say that PE are not 'incentivised' to issue fines (in their book, meaning they do not encourage or pay PE more, like a reward, per fine issued). They completely miss the point, the incentive to issue fines exists purely because PE are allowed carte blanche to just spurt out hundreds of PCNs every week based on no more eveidence than two photos somewhere within the huge site.

There is an incentive in issuing MORE, of course, because the PCN money goes to PE, it is that simple - that's the reward for PE which incentivises them to just fine people! It's ALL about profit and doesn't even police disabled bays; a woeful state of affairs. The Government Principles are being ignored, which is a scandal.

C4WRX

After receiving a LBCCC from PE's legal dept, i have informed them of who the driver was in order to take the heat off me as registered keeper and reset the POPLA clock.

PE have confirmed in writing that I will no longer be pursued as RK, and the driver has now received the PCN.

The driver will appeal the PCN, but having searched this forum I cannot find any POPLA appeals from the driver, only appeals from registered keepers.

This PCN has been issued to the driver 6 months after the parking incident because PE were too busy chasing me as RK. Is this something that can be used as an appeal point to POPLA? How can the driver be expected to have a parking ticket stub 6 months after the date of parking etc.

Also, could the driver make reference to my POPLA appeal, where the assessor of my POPLA appeal had pointed out that Parking Eye had breached paragraph 21.1 of the BPA Code of Practice, which states:
'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."

Any advice for what points to include in a POPLA appeal coming from the driver would be appreciated.

Coupon-mad

This PCN has been issued to the driver 6 months after the parking incident because PE were too busy chasing me as RK. Is this something that can be used as an appeal point to POPLA? How can the driver be expected to have a parking ticket stub 6 months after the date of parking etc.

No I don't think it matters that 6 months has passed. PE would argue (and it's true) they are one of the few PPCs which would back down at LBCCC stage and start again allowing a driver to appeal, despite PE already going through that process once. Quite funny really, this will cost them loads of man hours and two x £27 POPLA fees before they even get anywhere near thinking of suing the driver.

So, let's start again from scratch, now the driver has been named the gloves are off.

What happened? Was the driver staff or a patient or a visitor?

In a drop off bay or overstayed pay and display time? By how long exactly (to the minute please)?

Which NHS site is this?

Is it a very large hospital site like Barnet where this happened:

http://parking-prankster.blogspot.co.uk/2016/03/parkingeye-lose-in-court-accuse-drivers.html

Many NHS car parks have lots of smaller car parks within and plenty of different signs all over the place - and unless it's a very small site, PE won't have shown where the car was in each photo/which signs applied or were near (if any).

C4WRX

I do love the fact PE have been chasing this invoice for over 6 months now

The driver was attending an antenatal class at Barnet Hospital.

They parked in a Pay and Display car park and stayed for 2 hours and 2 minutes.

A ticket had not been purchased, but I believe the driver didn't see the signs.

The photos show one picture of the car entering, and one of the car leaving. But none of the photos make it clear where the car was as they are quite zoomed in.

Coupon-mad

OK, so it's like the Prankster's one.

A POPLA appeal was won with an appeal that pointed out the multitude of signs at the entrance and the fact the cameras do not evidence where in the site the car was/which area the car was in:

https://forums.moneysavingexpert.com/discussion/comment/70461877#Comment_70461877

It will be fun to start the entire process again, starting with the driver sending a scan of the (new) PCN to Barnet NHS Trust, NOT mentioning how old the parking event is (they might not notice, seeing as the PCN is new) stating she was at an ante-natal class and surely they are not intending to penalise pregnant women to the tune of £100 when this breaches the maternity section of the Equality Act 2010? Ask things like, why did the information about the ante-natal class not mention anything about payment being required for parking and why are the signs so unclear as to be completely unseen by so many people - she can say she's found newspaper articles and evidence galore of people getting fined. And why are Barnet allowing this when it is against the Government policy which says NHS Trusts must NOT operate their car parks with private firms getting the money from fines.

She could finish by offering £10 to the Hospital to cover the tariff that was never communicated and the admin involved in cancelling the charge as a goodwill gesture, please.

You never know - it would be amusing if Barnet cancel it if she asks nicely!

C4WRX

Barnet NHS Trust fobbed off the letter, so now the driver will appear to POPLA. Here is the draft of the appeal. Please may I have feedback before they submit it:


As the driver of the vehicle, registration number XXXX XXX, I wish to appeal against the parking charge issued by Parking Eye.

My appeal is based on the following grounds:

1. No indication where the photos were taken

2. ANPR usage

3. Unreliable, unsynchronised and non-compliant ANPR system.

4. Unclear and non-compliant signage, forming no contract with driver.

5. Not a genuine pre estimate of loss - case can be distinguished from Parking Eye v Beavis

6. Contract with the landowner – no locus standi.

7. Proof of planning consent for current parking conditions, chargeable regime and ANPR system

To expand on these points:


1. No indication where the photos were taken - at the entrance or within the site - ParkingEye have several cameras here in different places.

No evidence has been shown to prove where the photos were taken, nor even that the 'in' and 'out' images are from corresponding cameras. This is not speculation; this exact kind of misleading evidence was submitted by ParkingEye to a court recently regarding a Hospital site with multiple cameras, car parks and routes:

07/03/2016 Case B7FC00H1 – Parking Eye v Mrs B, before District Judge McKinnell at St Albans

ParkingEye's own evidence in that similar case was essentially worthless. Their pictures showed the vehicle entering the Patient & Visitor Car Park but leaving a completely different car park. I submit this may be the case here and I put ParkingEye to strict proof of which camera the 'in' and 'out' photos were taken from, including map evidence showing the markings on the road and/or visible barriers or buildings in the photographs, to prove their assertion.

I also require their complete listing of every time my vehicle was captured that day, since the car was driving around - and even circled round and revisited and re-read the entrance signs to locate the drop-off area.

The vehicle was not parked in the pay & display area nor any permit bay, at all. ParkingEye need to prove this was the case or their PCN is not properly given.

If these photographs were taken at the main entrance to an area which contains 'permit/authorised vehicles', 'pay and display, and free 20 minutes parking in a drop off bay, then it is unclear as to which contravention is alleged. On the PCN it only states that the car was in the grounds 2 hours and 2 minutes and the two photos do not show where the timings were captured.

It is evident, that when entering the site in question, there are multiple routes for a vehicle to take. As the operator is issuing a parking charge on the basis that the driver did not comply with the terms and conditions of a particular car park (one of several on site) the burden of proof rests with the operator in showing that a contravention of the terms and conditions in a particular car park took place (i.e. that the car actually parked there in a place where permits or P&D was a requirement).

The BPA even mention this as an inherent problem with ANPR on their website:

https://www.britishparking.co.uk/How-does-ANPR-work

The BPA's view is:

'As with all new technology, there are issues associated with its use...Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'


2. ANPR usage
Under paragraph 21.1 of the BPA Code of Practice it is stated: '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.'

In POPLA case 6060186304, the assessor made a finding of fact that the signage at Barnet Hospital car park did not comply with paragraph 21.1 of the BPA Code of Practice, as it did not state what the ANPR system is used for.

Clearly Parking Eye fails to operate the system in a 'reasonable, consistent and transparent manner'. As Parking Eye uses inadequate signage on arrival, there is no opportunity for drivers in moving traffic at the entrance to be 'informed that this technology is in use and what the Operator will use the data captured by ANPR cameras for'. I contend that as well as being unreliable, this is a non-compliant ANPR system, essentially being a secret high-up spy camera, far from 'transparent', unreasonably 'farming' the data from moving vehicles at the entrance & exit and neither 'managing, enforcing nor controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any parking event at all.


3. Unreliable, unsynchronised, non-compliant ANPR system.
Under paragraph 21.3 of the BPA Code of Practice, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I require Parking Eye 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. As the parking charge is founded entirely on 2 photos of my vehicle entering and leaving the car park at specific times, it is vital that Parking Eye produces evidence in response to these points.

In addition to showing their maintenance records, I require Parking Eye to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The Operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence, without a synchronised time stamp, there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR evidence from the cameras in this car park is just as unreliable and unsynchronised as the evidence put forward in the case of ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge deemed the evidence from ParkingEye to be fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point. As its whole charge rests upon two timed photos, I put Parking Eye to strict proof to the contrary.


4. Unclear and non-compliant signage, forming no contract with drivers.
Due to their awkward position and the barely legible size of the smallprint, the signs in this car park are very hard to read. I contend that the signs and any core parking terms that Parking Eye are relying upon were too small for the driver to discern when driving in and that the signs around the car park also fail to comply with the BPA Code of Practice. I require signage evidence in the form of a site map and dated photos of the signs at the time of the parking event. I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. As such, the signs were not so prominent that they 'must' have been seen by the driver - who would never have agreed to pay £100 in a free car park - and therefore I contend the elements of a contract were conspicuous by their absence.


5. Not a genuine pre estimate of loss - case can be distinguished from Parking Eye v Beavis
The contract supposedly entered into between the driver and Parking Eye is a simple financial consumer contract. An offer of parking for a set sum was made in return for payment. This makes plain that the sum of £100 being demanded is nothing other than a penalty clause designed to profit from inadvertent errors or minor underpayment, and is consequently unenforceable. As this is a simple financial contract any claim for liquidated damages for breach of contract must represent a genuine pre-estimate of loss. If Parking Eye believe that inadequate payment was made, their demand should be for any unpaid tariff as that would be their only loss. £100 is quite clearly not a genuine pre estimate of their loss and is clearly extravagant and unconscionable compared to the supposed unpaid tariff. If Parking Eye believe their charge is a genuine pre-estimate of their loss I demand they produce a detailed and itemised breakdown of this.

I would refer the POPLA adjudicator to the persuasive remarks of Sir Timothy Lloyd in the judgment handed down by the Court of Appeal in the case of 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. It was determined that the contract was not a financial one in that there was no economic transaction between ParkingEye and the motorist.

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

This car park is no different to any other commercial enterprise. There can be no argument of commercial justification allowing what would otherwise be a clear penalty, simply because a small payment was purportedly not made 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.


6. Contract with landowner - no locus standi
Parking Eye do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that Parking Eye has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow Parking Eye to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between Parking Eye and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013.

In that case the Judge found that, as the Operator did not own any title in the car park: 'The decision to determine whether it is damages for breach...or a penalty...is really not for these Claimants but...for the owners. We have a rather bizarre situation where the Claimants make no money apparently from those who comply with the terms...and make their profit from those who are in breach of their contract. Well that cannot be right, that is nonsense. So I am satisfied that...the Claimants are the wrong Claimants. They have not satisfied this court that they have suffered any loss...if anything, they make a profit from the breach.'

I challenge this Operator to rebut my assertion that their business model is the same 'nonsense', and is unenforceable. Parking Eye cannot build their whole business model around profiting from those they consider to be in breach of a sign, on land where they have no locus standi, and then try to paint that profit as a perpetual loss.



7. Proof of planning consent for current parking conditions, chargeable regime and ANPR system
Some parking companies do not have the necessary planning permissions and consent from the local authorities for their current parking conditions, chargeable regimes and installation of ANPR systems. I put Parking Eye to strict proof to provide evidence that it has the necessary planning permissions/consent from the local authorities for the current parking conditions, chargeable regimes and installation of the ANPR cameras that are used on the site in question.

Based on the above arguments, I therefore respectfully request that my appeal is upheld and the charge dismissed.

Regards,