Parking Eye ALDI Leek - POPLA - Parking Eye have provided evidence.... what now?!

Emma-LouiseMurphy

Hi everyone!

I'm in the middle of trying to get myself out of this parking ticket I got at ALDI in Leek for 33 minutes in a 2 hour free parking car park.

I have appealed to POPLA and Parking Eye have now responded with their evidence and I have to respond within 7 days.

I'm really at a loss as to what to do now? If anyone could help me (again!) that would be amazing.

Thank you

beamerguy

Emma-LouiseMurphy wrote: »

Hi everyone!

I'm in the middle of trying to get myself out of this parking ticket I got at ALDI in Leek for 33 minutes in a 2 hour free parking car park.

I have appealed to POPLA and Parking Eye have now responded with their evidence and I have to respond within 7 days.

I'm really at a loss as to what to do now? If anyone could help me (again!) that would be amazing.

Thank you

Hi, what is their evidence and what is yours ?

Please take time to read the Newbies thread

Ralph-y

hi .... Emma-LouiseMurphy



the newbies thread is here ...

https://forums.moneysavingexpert.com/discussion/4816822

as above we would need to see you popla appeal and what parkinglie have said ...

you can host copy's .... redacted of course some where like tinny pic or photobucket ...

then post a link.... but change the http: bit to hxxp: and we will fix it for you ....

do you have receipts for Adldi that day ?

have you complained to Aldi yet ?

lastly is that your real name ?

if so after reading some of the newbie thread please start a new thread under an different username .

really lastly this time

if you are using a phone to browse ...

then you will find it far easer to use a laptop/ PC when dealing with such....

good luck

Ralph:cool:

Emma-LouiseMurphy

Ralph-y wrote: »

hi .... Emma-LouiseMurphy



the newbies thread is here ...



as above we would need to see you popla appeal and what parkinglie have said ...

you can host copy's .... redacted of course some where like tinny pic or photobucket ...

then post a link....

do you have receipts for Adldi that day ?

have you complained to Aldi yet ?

lastly is that your real name ?

if so after reading some of the newbie thread please start a new thread under an different username .

really lastly this time

if you are using a phone to browse ...

then you will find it far easer to use a laptop/ PC when dealing with such....

good luck

Ralph:cool:

Hi Ralph!

Firstly i'm going to answer your questions.....

do you have receipts for Adldi that day ? - No I don't unfortunately.... I spent about £3 and paid cash, Didnt bother saving the receipt for my lunch lol

have you complained to Aldi yet ? - I went into the store to ask for a copy of the receipt.... they weren't interested in the slightest, so I thought I'd see how you guys could help.

lastly is that your real name ? - Nope, I set up a new account so i'm in disguise lol! :T

I always use PC on this forum, as you say, its much easier

Anyway.... I'll post my appeal below and then i'll upload their 'evidence' on photobucket and post a link.

Any help would be amazing.

Thank you all so much

'Emma-Louise' xx

Emma-LouiseMurphy

My appeal......

I will start this appeal by explaining the situation of how I was, as a keeper of the vehicle ???????, issued with a £70 parking charge notice (PCN) from ParkingEye. I am the registered keeper of the vehicle and this appeal will prove that I am not liable for the parking charge.

The driver parked in the Aldi car park in Leek. The driver then used the store and left accordingly.

Some weeks later I received a PCN of £70 for the parking time of 33 minutes.

I have spent several hours researching about the charges from ParkingEye and found this appears to be an all-too-common, misleading trap set by this specific private parking company, as widely reported online by other victims and I feel strongly enough to exercise my right to appeal this to POPLA.

The grounds for this appeal are the following:

1. The Charge is not a genuine pre-estimate of loss.
2. Unfair Terms
3. Unclear Signage
4. No contract with the Landowner
5. ANPR Accuracy and Compliance
6. Keeper Liability


1. The charge is a penalty and not a genuine pre-estimate of loss.
In its parking charge notice, ParkingEye has failed to provide sufficient evidence to justify the £70 loss the landowner may have incurred while the car 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 car being parked at this car park, is required and should add up to £70. Normal expenditure the company incurs to carry out 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.

This charge from ParkingEye is a third party business agent and is an unenforceable penalty. The charge is extortionate, extravagant and unrelated to local Penalty Charge levels in this area.

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 a 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

The contract entered into between the driver and ParkingEye is a simple consumer contract. An offer of free parking was made if the driver enters their registration number.

Please note that being a customer of the supermarket (Aldi) is not a requisite as planning was only given to the supermarket on the basis they provided free parking at the site

This makes plain that the sum of £70 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. £70 is quite clearly not a genuine pre estimate of their loss and is clearly extravagant and unconscionable compared to the supposed free parking tariff. If ParkingEye 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.

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 was administrative 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 administrative 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 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. On this occasion, the driver was alleged to have been parked for 33 minutes, and therefore would have been well within the 2 hours free parking rule.

2.Unfair Terms
The charge is quite clearly an unfair contractual term under UTCCR 1999 and is consequently unenforceable.
a. The charge of £70 is clearly grossly disproportionate to any purported loss which would be nothing if the driver had entered their registration number.
b. The contract causes an imbalance in the rights and obligations of the parties to the detriment of the motorist.
c. The word ‘stay’ is ambiguous and must be read in the manner most favourable to the consumer. In this situation the start of the stay is most advantageous when read as the moment payment was made.
d. 'The unfairness of two timings and the operator favouring the one which is unfairly and secretly backdated and acts disadvantageously to consumers is clearly contrary to the concepts of fair dealing, openness, reasonableness and good faith'


3. Signage
I decided to visit the car park in question to check the signage and concluded that the signage is sporadic and the VRN machine is well hidden up a corner in the store so this is considered to be a trap for Aldi customers, on this occasion the driver saw neither the signs or the machine.

In addition, it is believed that the majority of the signs at this site do not even mention the £70 charge at all so it is argued that the driver never at any point saw any clearly prominent information about a £70 'parking charge'. These are not the same signs as were considered by the judges in the Beavis case, the sum of the parking charge was found to be on all signs in 'large lettering'. This is not the case at Leek Aldi.

Further, the 'machine' which I now understand required a VRN to be entered was never drawn to the attention of drivers - is hidden in a corner by the window, away from the tills I believe - and comes far too late to form part of any parking contract. Unless ParkingEye made it clear at the point of the driver parking that the VRN had to be entered into a machine and that the consequences of not doing so would result in a charge of £70, then they have failed to create a contract. I argue they have failed in this regard because the entrance sign mentions neither and it is then easily possible to drive into this car park without passing ANY signs which mention £70.

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.”

There was no contract between the driver and ParkingEye as the driver did not see any contractual information on any of the signs when entering the car park and therefore at that time had no idea that any contract or restrictions applied. As a consequence, the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied.

Most importantly, there are no signs telling a driver how the data captured by ANPR cameras will be used in conjunction with secret VRN keyboards to decide who is an 'Aldi customer' when in fact that is very obviously fallible. And the signs do not say that the data will be used to obtain the keeper of the vehicle's details from the DVLA in order to try to hold a keeper liable under the POFA 2012. Such a lack of information about the data use is contrary to the operator's ICO registration and breaches the BPA CoP.

4. No contract with the Landowner
Parking Eye does not own the car park and I dispute that they have the authority to enter into contracts regarding the land or to pursue alleged charges.

ParkingEye has also not provided any evidence that it is lawfully entitled to demand money from the driver or keeper. They do not own nor have any proprietary or agency rights or assignment of title or share of the land in question. I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park they do not own, or indeed the lawful status to allege a breach of contract in their name.

Parking Eye must provide the POPLA Adjudicator with documented evidence in the form of a copy of the actual site agreement/contract with the landowner/occupier. Specifically, to comply with the Code of Practice, the contract needs to specifically grant Parking Eye the right to pursue parking charges in the courts in their own name, as creditor. Please note that a 'Witness Statement' to the effect that a contract is in place between Parking Eye and the landowner will be insufficient to provide all the required information, and will therefore be unsatisfactory.

5. ANPR Accuracy and Compliance
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 the vehicle entering and exiting at specific times. It is vital that this Operator 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 operator could not rebut the point.

6. Keeper Liability Requirements and the Protection of Freedom Act
As keeper of the vehicle, I decline, as is my right to provide the name of the driver of the vehicle at the time in question. As the parking company have neither named the driver nor provided any evidence as to who the driver was I submit that I am not liable to any charge. In regards to the notices I have received ParkingEye has made it clear that it is operating under Schedule 4 of the Protection of Freedom Act but has not fully met all the keeper liability requirements and therefore keeper liability does not apply. The parking company can therefore in relation to this point only pursue the driver.

I would like to point out that Schedule 4 paragraphs 8 and 9 of the Protection of Freedoms Act stipulates that some mandatory information must be included in the Notice to Keeper. If all of this information is not present, then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with.

The Notice has no 'date sent' nor a 'date given' which immediately renders it non-compliant with Schedule 4. It has what the operator describes as a 'date issued' which is neither of the two dates the Act requires. It might just about scrape through if the 'date issued' was in fact synonymous with the date of posting but it is not. The Notice did not arrive for at least a week after the supposed 'date issued' because it is known that ParkingEye use iMail which only actually posts letters several days after the documents are prepared. The Notice must have been posted some three working days after their 'date issued' so the Notice does not comply with the statute as it omits either a 'date sent' or 'date given'.

The Notice also fails to explain the circumstances which caused the charge to arise, instead it says 'either' this happened 'or' that happened which to a keeper creates no certainty at all.

The Notice also fails to describe the parking charges which were due from the driver as at the day BEFORE the date of posting of the Notice. The meaning of 'parking charges' in this section of the Act cannot be £70 because there was no mechanism for a driver to pay this sum, therefore it cannot be described as 'unpaid' before the PCN was even posted to me, which was the first I knew of the matter.

I would also like to point out that the Act stipulates that the parking company must provide me with the period the car was parked. I would strongly argue that the format of evidence provided (photographs from a number plate recognition camera showing the vehicle enter and leave the car park) is not actually valid or sufficient on its own as a form of evidence.

With all of this in mind, I request that my appeal is upheld and for POPLA to inform ParkingEye to cancel the PCN.

Yours faithfully,
Mrs ‘Emma-Louise Murphy’

Emma-LouiseMurphy

and here is their 'evidence'

hxxp://s1244.photobucket.com/user/Emma-LouiseMurphy/library/

Obviously I've edited it slightly so you cant see all my details lol

I have until Friday to reply eeeeek!!

'Emma-Louise' xx

Browntoa

http://s1244.photobucket.com/user/Emma-LouiseMurphy/library/?sort=3&page=1

Emma-LouiseMurphy

Thank you Browntoa ^^ x

Fruitcake

Not a GPEOL is a waste of time unless you spend a lot of effort on how your case differs from Beavis. Even then it may fail. Either delete it or put it last; it is unlikely to get you anywhere.

UTCCR 1999 has been replaced with CRA 2015 (Consumer Regulations Act.)

I think you may have used an "old" PoPLA case to base yours on. You should use the most recent successful cases from the POPLA Decisions thread. Nothing earlier than this year.

Don't mention, some of the machines don't display the 70 quid charge, just take pictures of the ones that don't, plus hidden signs especially entrance signs that don't immediately import a contract.

ANPR - The signs must state what the data will be used or. If they don't it is a BPA and ICO offence.

Emma-LouiseMurphy

Thanks Fruitcake...

Should I mention the ANPR as part of my evidence in reponse to theirs? Also is there anything else do you think I could put?

Thanks

Fruitcake

Emma-LouiseMurphy wrote: »

Thanks Fruitcake...

Should I mention the ANPR as part of my evidence in reponse to theirs? Also is there anything else do you think I could put?

Thanks

Assuming they are relying on ANPR then absolutely make best use of this in your PoPLA appeal. I seem to recall a fairly recent appeal was successful where the parking operator's signs didn't mention what the ANPR data would be used for, so add that in where you have also mentioned that ANPR in and out times are not parking times, or in inadequate signage.
If you can find the appeal in the POPLA Decisions thread then quote that PoPLA case number, the decision, and the assessor's name.

Pictures of the signs not mentioning this breach will back up your points.