Parking Eye PCN - PayByPhone Error - 1st Appeal Rejected

daveg08

Hello,

Thank you to all of you who post such helpful information on this site.

The driver recently parked at barnet Hospital and paid for parking using the PayByPhone App. During my visit the driver realised they would be there longer than they thought and went to pay for extra parking using the app but received the error 'PayByPhone is unavailable'. They have a screenshot of this. They stayed 45 minutes longer than paid for.

I have written a letter for a POPLA appeal based on the information and references I have found on the site. Please see below, any advice would be greatly appreciated.

Also when appealing via the website should I choose '5. Extreme circumstance prevented me from parking correctly' or '6. Other'

Many Thanks in Advance

Dear Sir/Madam,

Re PCN number:

THIS IS MY APPEAL AND SUMMARY OF THE INCIDENT:

On xxMay2018 at xxam the driver of the vehicle parked at Barnet Hospital and paid for 6 hours parking using the PayByPhone app (receipt attached). It was made clear by the PayByPhone app that the driver could pay for additional time using the app if needed. Whilst in the hospital, the driver realised they needed to extend the time. They tried to pay for additional parking multiple times using the app as they could not leave the hospital, only to receive the error !!!8216;PayByPhone is unavailable!!!8217; (screenshot attached, timestamped). The driver eventually left the hospital and returned to the car at x:xxpm.

OTHER POINTS AGAINST AND IN RELATION TO THIS CHARGE

PARKING EYE SERVICES UNCLEAR AND NON-COMPLIANT SIGNAGE
I contend that the signs and any core parking terms Parking Eye are relying upon were too small for any driver to see, read or understand whilst simultaneously being in motion driving into the car park.

I contend that the signs and machines in that car park (wording, position, and clarity) do not comply and fail to properly warn/inform the driver of the full terms and any consequences for breach, as in this case of !!!8216;Excel Parking Services Ltd v Martin Cutts, 2011!!!8217;

CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE TICKETS
Parking Eye have not provided me with any evidence that they are 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 Parking Eye 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.

It is also well known that some contracts between landowner and a parking company have authority limit clauses that specify that parking companies are limited in the extent to which they may pursue motorists. One example from a case in the appeal court is Parking Eye v- Somerfield Stores (2012) where Somerfield attempted to end the contract with Parking Eye as Parking Eye had exceeded the limit of action allowed under their contract.
In view of this, and the British Parking Association (BPA) Code of Practice section 7 that demands that valid contract with mandatory clauses specifying the extent of the parking company authority, I require Parking Eye to produce an actual copy of the contract with the landowner that shows POPLA that they do, indeed have such authority.

NO CONTRACT WITH THE DRIVER AND UNFAIR TERMS
There is no contract between Parking Eye and myself but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999:

Unfair Terms
(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.''

Parking Eye's reason for rejecting my original appeal is that it is the driver's responsibility to pay before leaving car unattended. I did pay for parking before leaving the car so that part of any contractual obligation was fulfilled. I have also proved that I attempted to pay the additional amount but technical reasons to do with their third party payments provider prevented me from doing so. This is clearly not a breach of possible parking conditions that would entitle Parking Eye to claim the monies for breach of any alleged contract.



This 'charge' is unfair and punitive and, as such, I respectfully request that this appeal be allowed.


Yours faithfully,

KeithP

Do not send that appeal. In fact you would be wise to remove it from your post. It gives away the identity of the driver and at this stage it is best not to do that. It is also hopelessly out of date, e.g. NO GENUINE PRE-ESTIMATE OF LOSS hasn't been relevant for years and UTCCR 1999 was repealed in 2015.

daveg08

Hi Keith, thanks for the reply. So would it be best to appeal using the template letter rather than using the approach that the payment system error meant the driver was unable to pay?

KeithP

Your thread title seems to say you have already appealed to PE and that has been rejected.

You now have the opportunity to appeal to POPLA.
PE have supplied a POPLA code, haven't they?

You now need to read post #3 of the NEWBIES FAQ sticky thread where you will find good guidance on how to create a POPLA appeal.
There are even sample texts in there specifically tailored for ParkingEye.

This quote from post #3 of the NEWBIES will help too:

ParkingEye (make sure you search it as ONE word as shown) can be best handled by searching for the relevant place as a keyword, so 'ParkingEye POPLA Aire Street' or 'ParkingEye Tower Road POPLA' or 'ParkingEye POPLA Hospital' would be good choices of keywords to find very recent examples.

You also need to edit your opening post to remove clues to the driver's identity.

For example, perhaps your first substantial paragraph should start something like:

The driver recently parked at barnet Hospital and paid for parking using the PayByPhone App. During his visit the driver realised he would...

Review and adjust the rest of your post similarly.

The parking companies trawl forums like this just waiting for people to trip themselves up and can use your posts against you.

The_Deep

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

Hospital car parks and residential complex tickets have been especially mentioned.

The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas.

daveg08

Hi Keith, yes I already appealed to Parking Eye, which was of course rejected and they provided me with a POPLA code.

I've read through post 3 and searched for 'Parkingeye POPLA Hospital'. I've found a few previous letters which have been helpful. Just to clarify a few point:
1. The PCN does have the 2012 POFA paragraph on the back
2. The PCN was sent through the post within 14 days

After reading through the information, I believe I should use the following arguments.
1. The driver bought a valid ticket for the main duration of the stay
2. A payment system error prevented the driver from paying to extend their stay
3. ParkingEye has no contractual authority
4. No Contract was entered into between the ParkingEye and the Driver or Registered keeper
5.The car park had unclear, non-BPA compliant signage
6. No evidence of Landowner Authority
7. No planning permission from Barnet Council for Pole-Mounted ANPR Cameras and no Advertising consent for signage

Have I missed anything or anything that isn't relevant?

Many Thanks