ParkingEye PCN, goldent ticket, rental vehicle - POPLA stage [withdrawn by PE at POPLA stage]

galexplorer

Hello everyone! It's my first time dealing with a case like this and I'm so grateful that a community like this exists...
I've spent some time reading up on the world of PCN appeals and think I know what to do next but I still have a couple of questions regarding my particular case - maybe it will be useful to someone in the future. Apologies if it's been answered before!

My case first: A postal PCN, no text about POFA 2012 and keeper liability at the bottom, was issued (dated 06/10/2018) for overstaying (despite extending the time period) at Adelphi Hotel car park, Liverpool on 14/04/2018. Yes, nearly six months later. The vehicle was a rental from Avis Budget, I got a letter from them a couple of days before the PCN arrived basically saying that they've passed on my details to Parking Eye and charging £30 for the service (I'm disputing that atm).
I appealed with a fairly standard template from another thread by Edna Basher which does not identify the driver, that's posted below in blue. That appeal was rejected with a standard reply. So I'm at the POPLA stage now. I am considering of using a much shorted than usual appeal from another case of a golden ticket, that's also posted below in blue.
One difference in my case is that the vehicle is a rental, so PE would have had to request details from Avis Budget to identify me. I'm aware that in this case the initial 14 day period to issue a notice to keeper is extended. By how long, though? Is there a limit at all? Surely there must be as no one in their right mind is going to keep random parking receipts for six months.

Secondly, do you think a short appeal on just two points is the right thing to do here? I'm concerned that if I'm wrong about the time constraints, and PE has more time to process everything due to the hire company being involved, I'm left appealing on just one point.

Any advice would be greatly appreciated!

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First appeal to ParkingEye:
Dear Sir,

Parking Charge Notice [00000000000]: Vehicle Registration [XXXXXX]

I refer to the above-detailed Parking Charge Notice (“PCN”) issued to me by ParkingEye Ltd (“ParkingEye”) as a Notice to Hirer. I confirm that as the hirer of this vehicle, I am its keeper for the purpose of the corresponding definition under Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”) and I write to formally challenge the validity of this PCN.

You will no doubt be familiar with the strict requirements of Schedule 4 of POFA to be followed in order for a parking operator to be able to invoke keeper liability for a Parking Charge. There are a number of reasons why Highview’s Notice to Hirer did not comply with POFA; in order that you may understand why, I suggest that you carefully study the details of Paragraphs 13 and 14 of Schedule 4 in particular.

Given that Highview has forfeited its right to keeper liability, please confirm that you shall now cancel this charge. Alternatively, should you choose to reject my challenge, please provide me with details of the Independent Appeals Service (POPLA), their contact details and a unique POPLA appeal reference so that I may escalate the matter to POPLA.

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Intended POPLA appeal:

ADDRESS
EMAIL
CAR LICENSE PLATE
DATE

Dear POPLA,

On the DATE, ParkingEye Ltd. issued a parking charge to myself (as keeper of the vehicle) highlighting that the above mentioned vehicle had been recorded via their automatic number plate recognition system for “remaining at the car park longer than the stay authorised”. There was no windscreen ticket on the vehicle - the notice to keeper was sent via post.

As the registered keeper I wish to refute these charges and have this PCN cancelled on the following grounds:
1. The Notice to Keeper does not comply with sub-paragraph 9 (2 & 5) and is not POFA compliant - ParkingEye’s own documentation (attached) shows that the event to which they refer occurred on DATE, but they did not issue the PCN until DATE, over a month later.
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

Please see below for details
1) This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used.

Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions are met as stated in paragraphs 5, 6, 11 & 12.ParkingEye have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording:-

’’The notice must be given by— (a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.’’

The applicable section here is (b) because the NTK was delivered by post. Furthermore, paragraph 9(5) states: ’’The relevant period...is the period of 14 days beginning with the day after that on which the specified period of parking ended’’

The NTK sent to myself as Registered Keeper arrived 53 days after the alleged event. - see the attached PDF from ParkingEye with the ‘event date’ of DATE and the issue date of DATE (ie, over one full month later!)


2)The operator has not shown that the individual who it is pursuing is in fact liable for the charge.
At no point have ParkingEye provided any proof as to the identity of the driver of the vehicle; nor have I provided them with the identity of the driver (nor do I intend to).

I have contested this with ParkingEye with regards to their PCN reference REFERENCE, but they have written to me (dated DATE) to say I have been unsuccessful and provided POPLA reference REFERENCE.

I sincerely hope you are able to help me.

Many thanks,

NAME

Fruitcake

Why did you mention Highview in your initial appeal?

The POFA itself tells you the timelines the scammers comply with for a NTH to be valid, as well as the documentation they must include with the NTH itself.

You should actually detail how the NTH has failed PoPLA by quoting what it says and showing that the scammers have not complied with it rather than just saying, it fails on Para X, Section Y.
All they have to do is say, no it doesn't and the assessor might believe them.
We've seen some ever increasing daft decisions from PoPLA so I would suggest you need to be more exact in what you put in your appeal.

It's up to you what you put in your PoPLA appeal, but the more points you put, the more hurdles they have to jump over.

KeithP

It's the time taken for the Registered Keeper to receive the NtK that counts.

Do you know if the hire company received the NtK within fourteen days?

Coupon-mad

On the DATE, ParkingEye Ltd. issued a parking charge to myself (as keeper of the vehicle)

There was no windscreen ticket on the vehicle - the notice to keeper was sent via post.

It is not a Notice to keeper, it was meant to be a Notice to HIRER

The NTK sent to myself as Registered Keeper

As the registered keeper I wish to refute these charge

You are not the registered keeper - make it clear you are the HIRER/LESSEE and say it was rented from Avis.

Remove this begging and thanks at the end:

I sincerely hope you are able to help me.

Many thanks,

And forget everything about para 9. Remove all of that. Quote para 14 and state that the required documents were not enclosed (go read that section and use it).

The_Deep

Write about this on Facebook, TripAdvisor, Booking,com, Trivago et al. Many people will not stay at hotels which employ these scammers

Read/watch these.

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

Parking Eye, CPM, Smart, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week, hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

The problem has become so widespread that MPs have agreed to enact a Bill to regulate these scammers. It has even been suggested that some of these companies have links with organised crime.

Watch the video of the Second Reading and committee stage in the House of Commons recently. MPs have a very low opinion of this industry.

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

https://hansard.parliament.uk/commons/2018-07-19/debates/2b90805c-bff8-4707-8bdc-b0bfae5a7ad5/Parking(CodeOfPractice)Bill(FirstSitting)

and complain in the most robust terms to your MP. With a fair wind they will be out of business by in the not too distant future..

galexplorer

Thank you all for taking your time to look at this!!
@Fruitcake Sorry, I used someone else's first appeal text to Highview, changing that to ParkingEye, but forgot to save it. While making a quick edit for the forum I forgot to remove that instance.
Regarding timelines, does POPLA tell me the dates things were submitted after I submit my appeal? PE haven't sent me anything other than the initial PCN and a follow-up (I now know there should have been more documents). I've also done some more searching and found a case similar to mine which spells out the relevant text. I have no legal background or familiarity with any of the legislation and fear I'll make a mess of it if I try to write anything myself.

@KeithP I have no idea. I received a letter from Avis 8 days before getting the first PCN, and that only stated the rental period, vehicle, and the PE reference number. Basically, just letting me know that they've passed on my details and a PCN was on its way. It's possible Avis took several months to process things or they got the NTK after the initial 14 day period - I haven't been told.

@Coupon-mad Thank you for your comments. I've rewritten (re-copied, really) all of the appeal to be about lease/hire and appeal on the basis of paragraph 14, stressing the absence of any documents they should have included.
I've also added two more sections regarding their authority to pursue charges and the consumers rights act.
Is there anything else you would recommend to include? I haven't said anything about the dates, the fact that there is a gap of 6 months between the incident and me receiving the PCN. Is all this invalidated simply because the car was a hire?

Could you please have another look at it? I really appreciate your input!

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The second version of POPLA appeal

POPLA Ref.xxxx
ParkingEye PCN Ref. xxxx
Vehicle Reg xxx

I write to lodge details of my dispute with ParkingEye Limited (henceforth described as 'ParkingEye') in respect of the above-detailed Parking Charge Notice xxxxx issued by ParkingEye in respect of an alleged breach of terms and conditions of parking at xxxx Car Park on xxxx2017.

The above-detailed vehicle was on a short-term lease to me and I confirm that I am its hirer for the purpose of the corresponding definitions under the Protection of Freedoms Act 2012

I set out below why I am not liable for this parking charge:

A) ParkingEye failed to comply with the strict requirements of POFA
ParkingEye have not shown that the individual who it is pursuing is in fact the driver who was liable for the charge.
C) ParkingEye has no standing or authority to pursue charges or to form contracts with drivers using this particular car park.
D) 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.



A) ParkingEye failed to comply with the strict requirements of POFA

In the case of a PCN issued in respect of a hire vehicle, in order to have the right to use the provisions of Schedule 4 of POFA to claim unpaid parking charges from a vehicle's hirer, an operator must:

1) deliver a Notice to Keeper to the vehicle-hire firm in full compliance with POFA, Schedule 4, Paragraph 8 or 9 (as the case may be);

2) be provided with the documents specified under POFA, Schedule 4, Paragraph 13 (2) and;

3) deliver a Notice to Hirer to the vehicle's hirer in full compliance with POFA, Schedule 4, Paragraph 14.

POPLA has promised that my case will be independently reviewed by one of its professional assessors taking into consideration the relevant law, guidance and standards and the BPA Code of Practice. The requirements set out in Schedule 4 of POFA are quite straightforward for any reasonable professional to understand and I expect that all POPLA assessors shall have a clear understanding of this particular piece of relevant law. It should therefore be very obvious to POPLA that ParkingEye has failed to comply with Schedule 4 of POFA.

The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4, POFA; the conditions that the Creditor must meet in order to be able to hold the Hirer liable for the charge are set out in Paragraph 14.

Paragraph 14 (2) (a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the Hirer with a copy of the documents mentioned in paragraph 13(2) (i.e.
(a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;
(b) a copy of the hire agreement and
(c) a copy of a statement of liability signed by the hirer under that hire agreement), together with a copy of the Notice to Keeper (i.e. the notice that had originally been sent to the lease company (as Registered Keeper)). ParkingEye did not provide me with a copy of any of these documents.

Further, ParkingEye’s Notice to Hirer did not comply with the requirements of Paragraph 14(5) including:

Contrary to the requirements of Paragraph 14(5)(a), ParkingEye’s PCN to me did not inform the hirer that by virtue of this paragraph any unpaid parking charges (being parking charges specified in the Notice to Keeper) may be recovered from the hirer;
Contrary to the requirements of Paragraph 14(5)(b), ParkingEye’s PCN to me did not refer the hirer to the information contained in the Notice to Keeper; Contrary to the requirements of Paragraph 14(5)(c), ParkingEye’s PCN to me did not warn the hirer that if, after the period of 21 days beginning with the day after that on which the notice to hirer is given, the amount of unpaid parking charges referred to in the notice to keeper under Paragraph 8(2)(f) or 9(2)(f) (as the case may be) has not been paid in full, the creditor will (if any applicable requirements are met) have the right to recover from the hirer so much of that amount as remains unpaid.

POPLA must not attempt to presume that the hirer is appealing this PCN on behalf of the driver. For the avoidance of doubt, I am simply exercising my right as hirer to appeal this PCN in my own name in exactly the same way as any other vehicle keeper or hirer is entitled to do.



The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

In cases with a keeper or hirer appellant, yet no POFA 'keeper/hirer 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. Even a hired/leased vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured, which can be under their own fully comprehensive policy. 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.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be), and 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 hirer without a valid Notice to Hirer with the accompanying documentation required under statute.

As the hirer 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 because the fact remains I am only the hirer, and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a hirer appellant to be deemed to be the liable party.

The burden of proof rests with the Operator, because they cannot use the POFA in this case, 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 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as hirer of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where 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.''


C) ParkingEye has no standing or authority to pursue charges or to form contracts with drivers using this particular car park.

As this operator does not have proprietary interest in the land then I require that they produce an un-redacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. 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 also authorised 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 information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

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

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 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

e) the definition of the services provided by each party to the agreement



D) 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.

This situation is an 'ordinary' contract, a simple consumer/trader transaction with a ticket for parking being purchased in good faith and produced by a faulty set of machines 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 in 'ParkingEye Ltd v Beavis' 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: “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.” ''

And at the Supreme Court it was held at 14. ''…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;’ ''

At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated complex cases (Beavis) from ordinary contracts with a transaction and tariff: ''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’s four tests would usually be perfectly adequate to determine its validity.''

Clearly a charge out of all proportion to the tariff - which was paid in any case for the time actually parked and the driver left before expiry of the ticket - is an unfair penalty to the mind of any reasonable man, regardless of whether in the small print, the sign may have said somewhere 'enter the full registration'. A huge charge arising under the excuse of such a minor term 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 (the CRA, enacted after the Beavis parking event) supports a consumer's position: - Under Schedule 2 'Consumer contract terms which may be regarded as unfair' it includes: ''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.''

As 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 turned on completely different facts and related only to that car park with its own unique complexity of commercial justification.

galexplorer

A couple of weeks after submitting the appeal posted above, PE withdrew from the process. Yay!
I'd like to thank you all for your help here and, especially, for putting together the guides for newbies. It seems so much more intimidating at first, the resources here is what got me through. Thank you again!

Coupon-mad

Perfect - well done!

beamerguy

galexplorer wrote: »

A couple of weeks after submitting the appeal posted above, PE withdrew from the process. Yay!
I'd like to thank you all for your help here and, especially, for putting together the guides for newbies. It seems so much more intimidating at first, the resources here is what got me through. Thank you again!

Good news :beer:

Proving that yet once again, Parking Eye were trying to scam you

The BPA should really get to grips with their scammers

The_Deep

Now would be a good time to complain to your MP about this gross waste of your time.