Parking eye Manchester airport hotel

Kevmanc

Thanks I'll check all this out and proof read again. Thanks for your help on this. What do you think my chances are as the machine was not working as it should have been nor the text service.

Redx

no idea because I have never seen a popla appeal that won on "frustration of contract" - plus popla can give some strange decisions at times , but I did include it in the appeal point list earlier

we all thought that BARRY BEAVIS would win in court against PE , he lost , 3 times

all you can do is the research and appeal based on what I said and anything else people tell you to appeal on , but as I said , you must ACCEPT NOTHING BELIEVE NOTHING , CHECK EVERYTHING (A B C) and then scrutinise their evidence pack when popla receive it

nobody said you would win , all we can do is tell you what you can appeal on and why, once we know certain facts

if you wish to know what people win on , look through the popla decisions sticky thread at the top of this forum, working from the last page backwards

Kevmanc

This may seem a daft question but I have today received the parking fine in my name and address it seems my partner has given PE my details. So I still write the appeal as if it's from the keeper or from myself as the driver now?

Redx

as the driver has been outed then the driver appeals as a driver (meaning no references to the keeper or POFA2012)

Kevmanc

here is my final draft of appeal for you to have a read. the rejection letter was dates 27th July does this mean i should send this appeal to Popla on day 31 (Sunday 26th August)


I am writing to you to lodge a formal appeal against a parking charge notice sent to myself as the driver of the vehicle xxxx xxx
I contend that I am not liable for this parking charge on the basis of the below points:


!!!8226; ParkingEye has no standing or authority to form contracts with drivers in this particular car park,
nor to pursue charges.

!!!8226; On this day there were issues with the parking machine.

!!!8226; Breach of the BPA Code of Practice on ANPR.

!!!8226; The charge is a penalty, breaches the Consumer Rights Act 2015 and is prohibited/unfair under
the CPUTRs. It is not saved by ParkingEye v Beavis.

!!!8226; The signs are not prominent, clear or legible from all parking spaces



1) ParkingEye has no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges.

I do not believe that this operator has any proprietary interest in the land such that it has no standing to make contracts with drivers or to pursue charges for breach in its own name. I contend that they merely hold an agreement to maintain signs and to issue 'tickets' as a deterrent to car park users. I put the operator to strict proof otherwise because it cannot be assumed that any agent on site has any more than a bare licence.
I require an unredacted, contemporaneous copy of the landowner contract (including the User Manual which forms a vital part of that contract). This is required so that I may see the definition of services provided by each party to the agreement, as well as any exclusions (e.g. exempt vehicles, users, days or times) as well as defined grace periods; the land boundary and the areas or specific bays enforced; the various contraventions and confirmation of the agreed !!!8216;charge!!!8217; which may or may not be £100.
I do not believe that the contract allows ParkingEye to charge visitors £100 for a system or machine error. It is submitted that to charge for this event is highly unlikely to be a feature of the agreement with the landowner. That is why a generic, bland witness statement with a lack of definition of contraventions will NOT counter this argument.
Regarding Section 7.3 of the BPA Code of Practice, I require evidence of full compliance:
!!!8220;The written authorisation must also set out:
a) The definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b) Any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c) Any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) Who has the responsibility for putting up and maintaining signs and maintaining machines
e) The definition of the services provided by each party to the agreement.!!!8221;

2) On this day there were issues with the parking machine.
The driver parked and upon trying to pay for parking had problems with the machine not accepting card payment. The driver then tried to use to text pay option and sent VRN twice to the number stated to which no reply was received. There was no clear instruction as to what to expect after the text was sent.
The system was complicated because drivers are expected to recall what time they arrived. Such systems have been criticised as unfair and not consumer-friendly. If a machine fault when this machine was certainly malfunctioning caused the system not to accept the pay by text or a fault with the card payment system then that is a matter within ParkingEye!!!8217;s control, not the driver!!!8217;s fault, as was found in Claim No C0FC15W4, ParkingEye v Ms G. before Judge Middleton at Bodmin County Court on 26/10/16:
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In this case under appeal now, in all probability, there was a machine failure as in the above similar court case.


3) Breach of the BPA Code of Practice on ANPR.
It is submitted that this charge was not properly given because it breaches the BPA Code of Practice regarding ANPR which requires checks to be made to ensure that a charge is !!!8216;appropriate!!!8217; before issuing a PCN.
It would in fact be very easy to identify if this operator had carried out the necessary checks required in the BPA CoP, so I suggest these checks were not made and that the operator has contravened the requirements of professional diligence; a duty of consumer-facing service providers.
I put this operator to strict proof that these checks were made including CCTV of myself at the machine trying to pay so as to prove i didn!!!8217;t make an effort to pay for parking at the machine by card.
And the situation is fully within this operator!!!8217;s control. As when the manager of the Manchester airport pub was contacted he confirmed that this fault with the machine had been known a while and had been reported.
To charge under these circumstances with a faulty machine, was not !!!8216;appropriate!!!8217; or fair and contravenes the ANPR requirements of the BPA CoP.
Further, the signs fail to inform a driver what the ANPR data will be used for. When trying to pay in good faith, having tried to use the card payment option and texting the Vehicle Registration Number to the number shown, i had no idea that secret camera data would later be used against me to bind me to a charge i knew nothing about and did not agree to. I thought the cameras were there for security, due to the lack of any other information (a black icon showing a camera communicates nothing).
Failure to tell a driver how the data will be used is an ICO breach AND a !!!8216;misleading omission!!!8217; of a material fact !!!8211; prohibited by consumer law, bringing me to my next point:
ParkingEye is contravening the BPA Code of Practice in their appeals rejection letter. In the appeals letter written to me on 27th July 2018, ParkingEye state that if I chose to pursue the POPLA appeals process, I will not be entitled to pay the discounted amount that they currently are invoicing me. This is a contravention of the BPA Code of Practice, which requires no undue influence, or coercion to be put on the consumer to pay their parking fine.


4) The charge is a penalty, breaches the Consumer Rights Act 2015 and is prohibited/unfair under the CPUTRs. It is not saved by ParkingEye v Beavis.

On the day in question the machine was not working properly. No evidence has been produced either way by this operator as to the cause of the issue nor any consistently-stated facts that made £100 charge payable.

This situation is an 'ordinary' contract involving no overstay and no breach of the legitimate interests of the landowner. This was a simple consumer transaction, trying to purchase a ticket for parking in good faith and produced by a machine and can be very easily distinguished from the case of ParkingEye Ltd v Beavis.

Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position. At 47 in the Court of Appeal Judgment, it was held:
''When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: !!!8220;But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.!!!8221; !!!8216;!!!8217;

And at the Supreme Court it was held at 14. ''!!!8230;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!!!8230; ''

At 22, the Supreme Court explored Lord Dunedin!!!8217;s speech in Dunlop and separated complex cases (Beavis) from ordinary/standard contracts with a transaction and tariff paid at a machine: ''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''

This is NOT a 'more complex' case by any stretch of the imagination. At 32, 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!!!8217;s four tests would usually be perfectly adequate to determine its validity.''

Clearly a charge !!!8216;out of all proportion!!!8217; to the tariff - is an unfair penalty to the mind of any reasonable man. A huge charge arising under the excuse of an unexplained event such as a machine or system error is unjustified and unfair, if the remedy is out of all proportion with the 'breach' and the (completely different) Beavis case does NOT apply to this argument.

The Consumer Rights Act 2015 supports my position that the failure in performance of the ticket machine and/or failure by the operator to diligently carry out the necessary checks to ensure charges are not issued inappropriately, is unfair and unenforceable:
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- Schedule 2: 'Consumer contract terms which may be regarded as unfair':
!!!8217;!!!8217;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!!!8230;!!!8217;!!!8217;
''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.''

This charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which does NOT supersede other defences. It turned on completely different facts and related only to that car park with its own unique complexity of commercial justification. This case is not comparable.
The Consumer Protection from Unfair Trading Regulations 2008 also supports my position that this commercial practice of charging for their own system failure is unfair:

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!!!8217;!!!8217;Prohibition of unfair commercial practices!!!8217;!!!8217;: 3.!!!8212;
(1) Unfair commercial practices are prohibited.
(2) Paragraphs (3) and (4) set out the circumstances when a commercial practice is unfair.
(3) A commercial practice is unfair if!!!8212;
(a) it contravenes the requirements of professional diligence; and
(b) it materially distorts or is likely to materially distort the economic behaviour of the average consumer...
(4) A commercial practice is unfair if!!!8212;
(a) it is a misleading action under the provisions of regulation 5;
(b) it is a misleading omission under the provisions of regulation 6; !!!8216;!!!8217;

I have shown that ParkingEye have failed all of the above tests (my bold) which makes a charge under these circumstances prohibited and unenforceable. The Beavis case established that the penalty rule was certainly deemed !!!8216;engaged!!!8217; in parking charge cases. Even if POPLA cannot consider consumer law (whyever not?) then the evidence shows that this charge is the very essence of !!!8216;unconscionable!!!8217; which was the Beavis case definition of an unrecoverable penalty.

5) The signs are not prominent, clear or legible from all parking spaces
The signs and the machine tariff board (and the small screen itself on the malfunctioning machine) were contradictory and crowded with different terms, so this is not an example of !!!8216;plain intelligible language!!!8217;, contrary to the Consumer Rights Act 2015:
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68 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.
It is submitted that the driver did not have a fair opportunity to read any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case where the terms were concise and far clearer with no tariff lists which is the primary prominent information on the board. In the Beavis case, the signs were unusually clear. The Supreme Court were keen to point out within hours of their decision that it related to that car park and those signs and facts only so it certainly does not supersede any other appeal/defence about a different car park:-

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The terms appear to be displayed inadequately at the machine, where only the tariffs are in comparatively large font. I put the operator to strict proof as to the size of the wording of the terms, which seem to be no larger than .40 font size going by this guide:-

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As evidence that this is inadequate notice, Letter Height Visibility is discussed here:-
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''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. However, if you!!!8230;want drivers on a nearby highway to be able to see them, design your letters at 3!!!8221; or even larger.''

...and the same chart is reproduced here:-
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''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''. ''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

Under Lord Denning's Red Hand Rule, the parking terms should have been simpler and effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear, concise and prominent in large lettering, as was found to be the case in the car park in 'Beavis'.
I put this operator to strict proof of where the car was parked and how their signs appeared on that date, at that time, from the angle of the driver's perspective when parked. 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

Coupon-mad

Send it sooner if you are ready by the end of this week, for peace of mind.

Looks like you have covered all the bases you can, in a case where the driver is already admitted.

the letter I got back was headed dear sir/madam and no name.

It must have had a name and address, or was this by email?

Did you do this appeal in your own name, not in the name of the keeper then?

Kevmanc

Yes it was by email when I recieved it but it was my ex partner that recieved the notice to keeper I originally appealed as her but she has since rang parking eye and give my details (snake) so I recieved it to my address after so I changed the whole appeal as the driver not the keeper.

Coupon-mad

Ah OK so you are appealing as the driver, definitely!

Looks like the POPLA appeal has what is needed, but I would give the complaint one last try first, seeing as PE do win some POPLA appeals, then they sue people, fairly successfully.

I have spoke to the manager and expressed my view as I've been since this visit and paid for parking in a different car though. He said there is nothing they can do?

Is there a Head Office of that Hotel Group?

Or a Facebook page, Twitter?

Complain about PE and the unhelpful manager and ask them to cancel it because they can, but only BEFORE you try POPLA and you are pushed for time so you need them to please step in and 'restore your faith' in their Hotel group...

Don't do POPLA first. PE will refuse their request after POPLA starts.

Kevmanc

It's just a pub not a hotel but it is owned by Robinsons brewery so would you suggest contacting them?

Quentin

Of course!