ParkingEye - more than 14 days before notification

NorfolkNewboy

Perhaps this is something new?

"Thank you for contacting ParkingEye, we acknowledge receipt of your appeal.

We endeavour to respond to all appeals as soon as possible. Whilst we consider an appeal the parking charge amount will not increase. Please note that a full written response may take up to 28 days.

Kind Regards,

ParkingEye Appeals Team"

Coupon-mad

Yes that is new.

NorfolkNewboy

Despite using the phrase
"Service of any rejection letter/POPLA code and/or any legal documents by email is expressly disallowed. All responses to me from this point forward must be made by the Royal Mail postal service."
I have been contacted 3 times by emails from PE! I guess I may receive a postal response in the next few days.

Firstly I was informed that
"We can confirm that your request has been passed to our privacy team."

Then
"We can confirm that your name and address were provided by the DVLA as the registered keeper of vehicle"
and
"Please note that you can access the Driver Portal on the ParkingEye website to view evidence relating to your Parking Charge. This includes ANPR images as they relate to the parking event. To access these images, you will need to enter your Parking Charge Reference and vehicle registration number as found on the correspondence issued by us."
plus
"In addition, we wish to confirm that information about the right of an individual to request access to the data we hold about them has been available to all individuals, both pre and post the coming into force of the General Data Protection Regulation, via the privacy policy on our website. This policy has now been updated in line with the GDPR. For more information, please visit (website given) where you can make a request for access using our online privacy form or via the postal address provided.

We can confirm that we have now passed your appeal back to our Appeals Team for consideration and they will be in touch in due course."

Today I have received the third email notification
"We are writing to advise you that your recent appeal has been unsuccessful and that you have now reached the end of our internal appeals procedure"
and a POPLA code is included.

So, help me please:
Do I simply stand on the grounds of "Event = 11/5/18, Notice = 31/5/18" so beyond the 14 days allowed for remote capture of data under POFA2012?
Do I additionally state the facts covered in my earlier post eg machine stating "not in use"?
Do I additionally object to the amount of the PCN on the grounds that £100 was deemed "not excessive" [where this was the only source of income for the parking enforcement agency] BUT I thought I had seen somewhere that it was successfully argued that if parking charges existed [as they do in this case], then £100 is excessive (unfortunately I cannot recall where that information came from)?

Many thanks

NorfolkNewboy

Apologies: after my initial "panic" reaction, I've done some searching and can see that I need to compose a long response, preferably incorporating some legal precedences and post it as an attachment.

Thanks to all supporters of this website.

NorfolkNewboy

I am the registered keeper of this vehicle and am appealing a PCN which was issued for a breach against terms and conditions on [DATE]. An appeal to the operator was submitted and acknowledged on [date] but subsequently rejected by email dated [date]. Therefore, I am now elevating this appeal to POPLA on the following grounds:

1. A compliant Notice to Keeper was never served - no Keeper Liability can apply.
2. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge
3. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself
4. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.
5. The paystation automated device displayed the notice “not in use” and so was deemed to offer free parking.
6. This charge is unconscionable and offends against the penalty rule which was 'plainly engaged' in the case of ParkingEye Ltd v Beavis
7. The Charge levied is not a Genuine Pre-Estimate Of Loss, nor is it proportionate or commercially justifiable, and is nothing more than a disguised penalty.


1. A compliant Notice to Keeper was not served - no Keeper Liability can apply.

This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
6(1) 'The second condition is that the creditor (or a person acting for or on behalf of the creditor) - (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further 'If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.'

Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.

Additionally, DVLA state in their Guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012: Recovery of Unpaid Parking Charges
6.2 “Where a contravention is detected remotely (such as by cameras), the landholder may request registered keeper data from the DVLA immediately and must write to the registered keeper within 14 days seeking details of the driver or payment of the parking charge.”
ParkingEye’s “Parking Notice Charge” states clearly that Date of Event = 11/05/2018 and that Date of Issue = 31/05/2018. This represents a breach of the above noted statement, as it is clearly 20days. The notice was not received by me, the Registered Keeper, until 02/06/2018, a total of 22days.
On these grounds alone, this Parking Charge Notice should be rejected.

2. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. As there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015.

A similar finding was made in 6061796103 against ParkingEye in September 2016, here POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

3. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. No evidence has been provided relating to the signage at this site so I must assume that it fails to comply with any measure of reasonableness and it may be of minuscule font or does not appear at all at the entrance. It is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.
Additionally, at the time in question, Mayflower Terminal was extremely busy, with passengers disembarking from the MS Ventura. Multiple coaches were parked on the quayside, as were numerous taxis and private cars. Traffic was flowing in all directions and pedestrians were crossing the road in both directions. Entering the carpark, as directed by a member of ABP staff, required the full attention of the driver to be focussed on the safety of other road users, NOT on terms and conditions of an unevidenced sign.

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

This case, by comparison, does not seem to demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here no evidence has been provided of the placing nor visibility of the parking notices, so it is reasonable to assume that they are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is possibly hidden in small print (and may not feature at all on some of the signs). Areas of this site are probably unsigned and it is possible that no full terms are displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

4. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner.

The contract and any 'site agreement' or 'User Manual' setting out details - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is authorised on the material date, to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

5. The paystation automated device displayed the notice “not in use” and so was deemed to offer free parking.

When the driver eventually found a space in this very crowded carpark an enquiry was made of an adjacent occupant as to whether it was necessary to pay or if free parking was provided by the cruise operator. This other person stated that they were regular visitors to these events and that parking charges were suspended during disembarkation. Not accepting this statement as evidence, the driver walked to the nearest paystation where the automated device displayed the message “Not In Use” on its LCD screen. The driver therefore believed that parking charges had, in deed, been removed for this limited period and proceeded to collect a family member from the arrivals hall. If it had been clear that a parking fee was expected, then the driver would have complied. The cost would have been approximately £2 but no record of this was made.

6. This charge is unconscionable and offends against the penalty rule which was 'plainly engaged' in the case of!ParkingEye Ltd v Beavis

The operator makes much of the Beavis case, yet they are well aware that the circumstances of the Beavis case were entirely different. Essentially, that case was about the abuse of a free, time-limited public car park where signage could be used to create a secondary contract arising from a relevant obligation and where there was a 'legitimate interest' flowing from the landowner, in charging more than could normally be pursued for trespass.!

In this case, we have an authorised user using the car park appropriately and the loss or detriment caused to the owner is in the region of £2. While the courts might hold that a large charge might be appropriate in the case of a public car park, essentially as a deterrent, there is nothing in the case to suggest that a reasonable person would accept that this 'fine' is a conscionable amount to be charged under these circumstances.

At the Supreme Court in Beavis, it was held “where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty ''

This is NOT a 'more complex' case by any stretch of the imagination. Iin the Beavis decision, it was held that a trader, in this case a parking company ''...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.''

Therefore, any putative contract needs to be assessed on its own merits. Consumer law always applies and no contract “;falls outside” The Consumer Rights Act 2015; the fundamental question is always whether the terms are fair:

Schedule 2: “Consumer contract terms which may be regarded as unfair”: …”A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations”
''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

In this case the specific question is whether a reasonable person would agree to a term where parking in a place that they have been granted rights of access and egress would also accept a further unknown/not agreed liability. I would suggest that a court would not accept this is reasonable and indeed my next appeal point shows that a Senior Circuit Judge in a 2016 appeal case supports my view.
Unreasonable/Unfair Terms

The Charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:

“These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances.”

It goes on to state:

“Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a “disguised penalty”, that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.”

Confusing, ambiguous, poorly placed, and contradictory signage is far from transparent or obvious to drivers, as is disguising a penalty as a tariff. Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e)

"Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation."

Furthermore, Regulation 5(1) states that:

"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"

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that:

"A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness”


7. The Charge levied is not a Genuine Pre-Estimate Of Loss, nor is it proportionate or commercially justifiable, and is nothing more than a disguised penalty.

This operator must prove the Charge to be a Genuine Pre-Estimate Of Loss(es) that arose directly from the alleged parking event, and not a penalty.

However, I argue that ParkingEye are making the claim that the Charge is due to a contractual breach and thus the Charge must represent a Genuine Pre-Estimate Of Loss. I also argue that ParkingEye should not take any potential “recovery costs”; into account calculating their Genuine Pre-Estimate Of Loss, as those costs have not and indeed may not ever be incurred.. I have received no proof of how they calculate their Genuine Pre-Estimate Of Loss and/or how it relates to the amount of the Charge levied in the illegitimate Parking Charge Notice To Keeper.

I consider any one of the above reasons as sufficient for you to uphold my appeal. I look forward to your positive response.

I am a little uncertain about including my comments in Section5, as potentially the driver should have devoted time to perusing the t&cs.

Coupon-mad

ParkingEye!!!8217;s !!!8220;Parking Notice Charge!!!8221; states clearly that Date of Event = 11/05/2018 and that Date of Issue = 31/05/2018. This represents a breach of the above noted statement, as it is clearly 20days. The notice was not received by me, the Registered Keeper, until 02/06/2018, a total of 22days.
On these grounds alone, this Parking Charge Notice should be rejected.

Great - you will win this!

You might want to look at 'POPLA Decisions' and read the very recent post there from the past day, where a person showed a single point appeal for POPLA, to beat a PE 'golden ticket' like yours.

You would have to try very hard to lose this one!

NorfolkNewboy

I've just received a 42page document from POPLA giving ParkingEye's responses to my appeal, much of it being copies of the correspondence which has already passed between us or photos of signs: is this normal?

The most relevant pages are these:

Rules and Conditions This site is a Paid Parking car park as clearly stated on the signage (enclosed). We have included a signage plan showing that there are signs situated at the entrance, exit and throughout the car park displaying the terms and conditions of the site.
The facility to pay by phone is also available at this site on the provision of the full, correct vehicle registration and payment card details.
Evidence G System generated print out showing that the motorist’s vehicle registration number does not appear in our systems on the date of the event.
Please find enclosed a witness statement signed on behalf of the landowner showing that on the date of the parking event ParkingEye had authority to issue and pursue a Parking Charge to this vehicle.
Authority ParkingEye can confirm that the above site is on private land, is not council owned and that we have written authority to operate and issue Parking Charge Notices at this site from the landowner (or landowner’s agent).
It must also be noted that any person who makes a contract in his own name without disclosing the existence of a principal, or who, though disclosing the fact that he is acting as an agent on behalf of a principal, renders himself personally liable on the contract, is entitled to enforce it against the other contracting party. (Fairlie v Fenton (1870) LR 5 Exch 169). It follows that a lawful contract between ParkingEye and the motorist will be enforceable by ParkingEye as a party to that contract.
Grace Period ParkingEye operates a grace period on all sites which gives the motorist time to enter a car park, park, and establish whether they wish to be bound by the terms and conditions of parking.
There is a sufficient grace period in place at this site which is fully compliant with the BPA code of practice. All grace periods in place are a minimum of 10 minutes or more in line with the BPA Code of Practice.’
Further Information ParkingEye ensures that all its signage is clear, ample, and in keeping with the British Parking Association (BPA) regulations.
The signage at this site demonstrates adequate colour contrast between the text and the backgrounds advised in the BPA Code of Practice, you will note the colour contrast at this site is black text on white background.
Please be advised, this Parking Charge was not issued under the Protection of Freedoms Act 2012.
You have stated that you do not believe that the Parking Charge amount is a pre-estimation of loss, or that it is extravagant, unfair or unreasonable. In this regard, ParkingEye relies upon the Supreme Court decision in the matter of ParkingEye v. Beavis [2015] UKSC 67, which was found in ParkingEye’s favour and concerned the value of our Parking Charges.
The Supreme Court considered the Defendant’s submissions that the Parking Charge should be considered to be penal and unfair, but the Justices supported the findings of the lower courts, where the charge was found to be neither ‘extravagant’ nor ‘unconscionable’.
In terms of the amount of the Parking Charge, this Judgment, along with the British Parking Association Code of Practice at paragraph 19.5, support the level of Charge issued by ParkingEye, and the Justices note that, “The charge is less than the maximum above which members of the BPA must justify their charges under their code of practice”.

Lord Hodge states that, “…local authority practice, the BPA guidance, and also the evidence that 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, support the view that such a charge was not manifestly excessive […] the fact that motorists entering the car park were given ample warning of both the time limit of their licence and the amount of the charge also supports the view that the parking charge was not unconscionable.”
ParkingEye submits that the Judgment provides clarity and delivers a binding precedent to support the position that our Parking Charges are fair, reasonable and legally enforceable.
Whilst the Consumer Contracts (Information, Cancellation & Additional Payments) Regulations 2013 apply to consumer contracts which were entered into after June 2013, this type of parking contract is excluded from the regulations due to the “automated commercial premises” exemption. As a result, the right to cancel the Parking Contract you entered into on 11/05/2018 does not apply.

My greatest interest lies in the sentence "Please be advised, this Parking Charge was not issued under the Protection of Freedoms Act 2012. "

What are the implications of this please?

How strenuously do I need to respond?

Am I correct in thinking that Beavis was about overstaying a free parking place so that PCNs were the only source of revenue but that there was a different case whereby parking charges were in place, thus providing income, and the amount of PCN was therefore deemed excessive? Does anyone have a reference to this please?

Thanks in advance.

nosferatu1001

The implications are: we admit we cannot use Keeper liability, but hope POPLA dont notice
SO your comments HAVE to say this.

42 pages is their usual copy and paste.

Coupon-mad

Am I correct in thinking that Beavis was about overstaying a free parking place so that PCNs were the only source of revenue but that there was a different case whereby parking charges were in place, thus providing income, and the amount of PCN was therefore deemed excessive? Does anyone have a reference to this please?

Don't even mention the Beavis case, just point POPLA to the fact that the operator has not issued a POFA version NTK, and as such, the appellant can't be liable.

NorfolkNewboy

SUCCESS: POPLA issued an acceptance of my appeal on 20Sep.

I hadn't anticipated the process taking quite so long but good news. Thanks for the advice and help.