Parking Eye = Crown Wharf Walsall

Adzenca

So what now?

Rejected appeal received.

How can a POPLA appeal be successful if Crown Wharf is a notorious Parking Eye hotspot and many have appealed to POPLA? Surely they'd have gone to lengths to ensure they are above law so as to win POPLA appeals?

Secondly this is keeping the driver and me awake. Overwhelmed with stress.

safarmuk

@Adzenca ... PE were always going to reject your appeal. You only did it to get a POPLA code.

Now you have your POPLA code you build a POPLA appeal as Coupon-Mad has said by researching other peoples successful POPLA appeals and creating one yourself - that people here (especially Coupon-Mad) will then review and help you complete - you will have to do the leg work though.

When ready and approved by someone reputable on here, you submit your POPLA appeal and if it is successful this is over and done with. Finished. No payment to make.

So please don't stress now, relax a bit and start reading up about all the people on here before you who thought exactly as you did but then won their POPLA appeal ...

Coupon-mad

The driver doesn't want to reveal their name or address details - sending medical information would do this? They're unlikely to accept it without details??

Think it through, this NEEDS proactive action. Cover up the driver's name and submit the letter by email with an explanation asking if they will cancel based on the further info that the driver struggled to get out of the car and hobble to the machine due to a mobility condition (see attached proof).

Also, is that still possible now the rejected appeal has been received?

Of course. Why faff about wondering - we know what we are doing - PE even cancel some charges at pre-court stage if shown further evidence (much later!). You have 30 days to use the POPLA code so why not spend a week trying to get it cancelled first?

Adzenca

Found this on a 2014 thread for the same car park , so no sure if it's the right template but please take a look... (much appreciated!)

Re: ParkingEye PCN, reference code xxxxxxxxxx
POPLA Code:

I am the registered keeper and I wish to appeal a recent parking charge from ParkingEye. I submit the points below to show that I am not liable for the parking charge:

1) No genuine pre-estimate of loss
2) No standing or authority to pursue charges nor form contracts with drivers
3) No valid contract formed between ParkingEye and the driver
4) The ANPR system is unreliable and neither synchronised nor accurate

1) No genuine pre-estimate of loss

This car park is Pay and Display. The Parking Charge Notice records the duration of stay at 1hr 18 minutes, whilst the tariff set by the operator for a 2 hour stay is just £1.40, the only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge = £0.40 at the most. Parking Eye are asking for a charge of £85. This far exceeds the cost to the landowner for the time my car was present within the boundary of the car park. The charge cannot be construed as anything but a punitive penalty.

In ParkingEye v Smith at Manchester County Court in 2011, claim number 1XJ81016, the original claim of £240 was deemed an unrecoverable penalty, unrelated to damages incurred and the only sum that could be recovered was deemed to be £15 (the amount of the pay and display fee for more than one visit). The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. As the PCN sum is massively inflated over and above £1.40, I require ParkingEye to submit a breakdown of how this sum was calculated prior to the parking event, as being capable of directly flowing from a minor alleged breach.

The ParkingEye Notice to Keeper alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This might be, for example, a reasonable sum based purely upon the alleged lost parking revenue, or even loss of retail revenue at a shopping centre if another car was prevented from parking. However, this is not the case because the occupants of the car recall that the car park was less than quarter full on arrival.

The Operator cannot reasonably claim a broad percentage of their entire business running costs as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. Given that ParkingEye charge the same lump sum for a 30 minute overstay as they would for 3 hours, and the same fixed charge applies to any alleged contravention (whether serious/damaging or trifling), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss caused by this incident in this car park.

The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. ParkingEye cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some subsequently penned 'commercial justification' statement they may have devised afterwards (since this would not be a pre-estimate):

The British Parking Association Code of Practice uses the word 'MUST':
"19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.''

Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:

''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.

This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''


2) No standing or authority to pursue charges nor form contracts with drivers

I believe that this 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, ParkingEye must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. This has not been produced by the operator in their rejection statement so I have no proof that such a document is in existence. I contend that ParkingEye merely hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. 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 ParkingEye to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between ParkingEye and the landowner. This is required so that POPLA and myself can check that it allows this Operator to make contracts with drivers themselves and provides them with full authority to pursue charges, including a right to pursue them in court in their own name. Please note that a witness statement to the effect that a contract is in place will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.). In any case, ParkingEye's witness statements have been exposed as photocopy templates from clients who may well have no knowledge of any individual parking event and the signatory may never even have seen the contract.


3) No valid contract formed between ParkingEye and the driver

Given that the entrance road from which the car park is accessed falls into the 15mph approach speed in accordance with the BPA CoP Appendix B (June 2013), the lack of a clear indication of charges being applicable to a ‘Reasonable Person’ driving past the sign is insufficient to form any contract.
There is no mention on the entrance sign that the site is “Managed By” ParkingEye, as is required in appendix 2 of the aforementioned Code of Practice.
There is also no notification on the entrance sign that there is a ‘Free Period’ during which there is time allowed to park, read the terms and decide whether to enter into any contract or not, which is a requirement under Contract Law.
The only signs are up on poles (away from any of the shops / restaurants a customer may be visiting, which is not a 'sign' nor does it communicate full contractual terms & conditions). Any upright signs were not clear and were not seen by the occupants of the car.
I believe that ParkingEye place their signs so high that terms would only be legible if a driver got out of a car and climbed a stepladder to try to read them: This mechanism is believed to be deliberate.
Any photos supplied by ParkingEye to POPLA will no doubt show the signs with the misleading aid of a close up camera & flash and the angle may well not show how high the signs are. As such, I require ParkingEye to state the height of each sign in their response.

Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. The driver was not aware of any charges as there was no clear signage anywhere near the restaurant visited. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

4) The ANPR system is unreliable and neither synchronised nor accurate
If ParkingEye's ANPR records are completely reliable (which I contest) then this Operator claims the car was parked for around 37 minutes, yet their evidence shows no parking time, merely photos of a car driving in and out which does not discount the possibility of a double visit that afternoon. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all and has not been shown to be synchronised to the pay and display machine clock nor even to relate to the same parking event that afternoon.

This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice and to have signs stating how the data will be stored/used. I say that Parking Eye have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. If there was such a sign at all then it was not prominent, since the driver did not see it. I have also seen no evidence that they have complied with the other requirements in that section of the code in terms of ANPR logs and maintenance and I put this Operator to strict proof of full ANPR compliance.

In addition I question the entire reliability of the system. I require that ParkingEye present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any 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 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.

So, in addition to showing their maintenance records, I require ParkingEye 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 in the Fox-Jones case. As their whole charge rests upon two timed photos, I put ParkingEye to strict proof to the contrary and to show how these camera timings are synchronised with the pay and display machine.

I request that my appeal is allowed.

Yours faithfully,

Coupon-mad

Found this on a 2014 thread for the same car park

No, very very out of date. The idea of 'no loss' was chucked out in 2015 by the Supreme Court in the Beavis case so you are on a hiding to nothing looking at a POPLA appeal older than 2016. Never, never have 'no pre-estimate of loss'.

Anyway, spend this coming week doing the further evidence email to try to get it cancelled.

Then POPLA much closer to the 28 days for the code to be used. You need to simply find a decent late-2016 POPLA appeal including Grace Periods. Try searching the forum for 'Grace Period Kelvin'.

Adzenca

Hello,

I've just been on to the Parking Eye web page to see how much the fine is now that I have to pay. I input the reference details. However the details don't exist. Not heard any word from Parking Eye to say it's been voided. I have been in contact with a number or retailers on the shopping park - could it have been voided/cancelled?

safarmuk

Firstly, it's not a fine, it's an invoice for breach of contract!

As far as I know if PE have voided/cancelled a PCN they send you a letter. If you haven't received one then you can't be sure the PCN is cancelled. Looking above you were at POPLA stage.
How are you getting on with your draft POPLA appeal?

Adzenca

safarmuk wrote: »

Firstly, it's not a fine, it's an invoice for breach of contract!

As far as I know if PE have voided/cancelled a PCN they send you a letter. If you haven't received one then you can't be sure the PCN is cancelled. Looking above you were at POPLA stage.
How are you getting on with your draft POPLA appeal?

Hello Safarmuk - thanks for the reply.

Yes an invoice!

I put to bed the appeal since I was advised to write to retailers etc. and persuade them to help me waive the invoice. One retailer wrote to me and said they were doing just that - which is really great. However I haven't heard anything from PE. I've been looking out for emails - nothing! As I said before, I even put the reference number in to pay today (to see the reference number worked) and the reference number can't be found. It was on the system a few weeks ago when I was stressed and on the very brink of paying them as I was the registered keeper (not driver) of the car at the time.

Can you help me draft the appeal - I don't think I'm too late am I?

Adzenca

Just tried again... it states:

"No Balance can be found for the reference entered."

RyanPosh

I'm sorry to hijack this thread, and I know there is a lot of more specific guidance. However, my situation is this:-

I overstayed parking by 29 minutes due to a train delay. I didn't see signage which says I could pay the balance, but didn't look very hard if I am being honest. It was late and I just wanted to get home. The words are there (pictures have been sent, even if they are not very big)but I didn't even give much thought to me being late. I have appealed to both PE and via POPLA and it has been turned down. I have neither the time nor inclination to get involved in a battle - is my only realistic option to pay up, to avoid any further action?

Many thanks. Again, apologies for hijacking.