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ParkingEye - Popla stage - help needed
Trifled
Posts: 24 Forumite
I've plagiarised and !!!!!!!ised someone else's successful appeal on this (my situation was pretty much the same).
The original appeal was by parking charge crusader and was about 10 pages long with maps and photos.
The appeal was successful because PE did not wish to contest. I'm wondering whether this was due to the contents or the length.
Your constructive opinions would be appreciated on my much shorter version.
Many thanks.
Dear Sir / Madam
Re:POPLA Ref:
PCN number
As the keeper of the vehicle xxxxxxx I write to appeal the 'Parking Charge' on the grounds that no legally binding contract has been formed. As you will be aware, to form a legally binding contract, there must (as a minimum) be an “offer” and “acceptance” and a “consideration” and “consensus ad idem” ie an “agreement to the same thing”. In this case, insufficient conditions exist to enable such a contract to be formed.
Specifically: The ”ParkingEye Ltd’s offer comes in the form of the signage within the boundary of the car park and/or on the outside of the perimeter fence. I dispute that those signs constitute an offer capable of acceptance. The signage was either inappropriately positioned, not illuminated, or was otherwise obscured and/or obstructed, to the extent it could not be seen and/or read with the naked eye. The driver did not leave the vehicle and was stationary at the entrance to the car park on DATE the day of the event; there were no lights on at all and the area was in pitch blackness. The pitch black conditions are clearly evidenced in ParkingEye Ltd’s own photographs.
“Reasonable notice” of the terms should be given before or during the agreement of a contract and “reasonable steps” must be taken by the party who forms the term to bring it to the attention of the other party. These criteria have not been fulfilled. If the driver can’t see the offer they cannot accept it!
One of ParkingEye Ltd’s terms on their signage states that, “by parking, waiting or otherwise remaining” in the Airport Retail Park car park, then the driver agrees to pay them £100 (or an undisclosed reduced sum for early payment). There is no maximum free waiting period specified, before such a charge is raised.
Therefore, conceivably, a driver entering the car park and getting out to read signs, rejecting the offer and getting straight back into the vehicle and leaving immediately, could still find themselves liable to a charge up to £100. That is simply not fair. That said, my contention is that that term cannot be relied upon, since the driver was not given a fair opportunity to read / learn about key terms and conditions of the offer that applied, which gives rise to the £100 Parking Charge, which I attribute mainly to the dark conditions and also the inadequacy of the signage which was not fit for purpose at this location.
After reading the Parking Charge Notice, the driver felt the need to understand what contract notice terms had been infringed to give rise to the charge and why those notices had not been seen. A re-visit to the site was therefore conducted to examine whatever signage was in place. The only way that was possible without incurring further charge was by parking approximately a quarter of a mile from the scene and approaching it on foot. This enabled plenty of time to understand the scene, the lighting and what notices existed.
The site visit revealed that, of the 5 signs inside, and 2 signs outside the car park, only 1 sign was truly “visible” by a driver after entering. That sign however was confusingly positioned, which suggests to users of the car park that it applies to the loading bay area only, and not to the entire area, so cannot be relied upon for the purpose of forming a contract; all 7 signs were NOT “appropriately located” (nor “ample, clear and visible “as claimed in ParkingEye Ltd’s FAQ document).The signs were too small and innocuous to be seen from the centre of the car park, too high to be read (even up close), and /or obscured (by vehicles or other car park furniture). Furthermore, there were no signs at all on the perimeter fence near the parking bays most likely to be used by vehicles entering the car park.
All signs were not clear, ie. none of the signs and terms and conditions which constitute the offer can be physically read before the point at which ParkingEye Ltd allege a contract has been formed, ie by simply entering the area regardless of duration of stay.
For all the reasons set out above, an offer was not fairly presented. For the avoidance of doubt, now that the driver has retrospectively reviewed the terms and conditions of contract and are now aware of ParkingEye Ltd’s offer, we reject it outright. On this point alone, a legally binding contract has not been formed and the Parking Charge is therefore unenforceable in law.
I believe that any reasonable person would NOT accept the £100 charge ParkingEye Ltd is claiming entitlement to, even if the charge were “discounted to £60.00 if paid within 14 days of the date [the Parking Charge Notice was] issued”. That charge is extravagant and unconscionable for a stay of between 0 to 13 minutes in a car park. It is entirely disproportionate to any service ParkingEye Ltd offered in return for waiting or parking and /or damages that were otherwise incurred by the driver whilst in the carpark (which, for the avoidance of doubt, were nil).
If the circumstances which gave rise to such a Parking Charge had been properly brought to the attention of the driver, under no circumstances would the driver have been in acceptance of those terms, nor would they have offered a consideration of £100/£60. Had that been known to the driver prior to entry to the car park, the driver would not actually have entered the car park at all.
ParkingEye Ltd, in their FAQs document, appear to place reliance on the case of ParkingEye v Beavis and Wardley [2014] which states that a “contract can be made with the driver via an “...offer, in the form of terms and conditions set out in the notice, and acceptance in the form of one’s car in the space provided”. Since the offer was not sufficiently communicated in the first instance, acceptance of it was not possible. English Law places a high value on ensuring people have truly consented to the deals that bind them in court. The driver has not consented to this deal.
Therefore, in the absence of acceptance, on this point alone, a legally binding contract has not been formed and the Parking Charge is therefore unenforceable in law.
Even though the driver was not given a fair opportunity to read and accept ParkingEye Ltd’s “Parking Contract” offer (as per signage) for reasons stated above, it is worth noting that even if the driver wanted to enter into a contract with ParkingEye Ltd (which they do not) or had a fair opportunity to read the terms and conditions (which was not afforded them): ParkingEyeLtd’s “Parking Contract” notice’s terms and conditions (taken from the sign) are confusing at best and misleading. Specifically, they state “By parking, waiting or otherwise remaining within this car park, you agree to comply with the Parking Contract, including making payment as required and entering your vehicle registration details via the payment and / or terminals.” This instruction does not make grammatical sense. Further, there were in fact no such “terminals” in the car park, nor other machines / mechanism present, nor means to enter the vehicle details and pay a consideration at that time.
Therefore, ParkingEye Ltd has not taken due care and diligence to ensure transparency of its terms to the extent that they are in plain and intelligible language so that any party to their contract can reasonably comply with this condition. As such ParkingEye Ltd cannot therefore rely on this unclear term.
You will see that ParkingEye Ltd, states in its letter dated DATE 2019 that: “As a gesture of goodwill, we have extended the discount period for a further 14 days from the date of this correspondence.” For the avoidance of doubt, no such consideration has been paid to ParkingEye Ltd, because (as previously stated) even the reduced amount of £60 is not commensurate with the services it offered by way of 13 minutes of parking time. Accordingly ParkingEye Ltd’s further offer is rejected and therefore no contract has been formed. No consensus ad idem (or “agreement to the same thing”). You may be aware that even if two parties think they reach agreement, if their offer and acceptance concerns two entirely different things, a court will not enforce a contract. In this case, the driver’s understanding was that they were entering a car park that was closed.
I trust you will also take the following matters into account in your deliberations: there is so much more ParkingEye Ltd could do to improve compliance and make the signs fit for purpose at this particular location. For example: make the signs at the entrance to the car park larger and simpler to understand at a glance eg. “No entry for unauthorised vehicles”, “No access for airport drop-off / pick/up”, “Enforcement cameras in operation”, etc; make the signs inside the car park less inconspicuous by making them larger, allowing for larger/legible print, placing them at head height in places and at angles where they can be more clearly seen by approaching motorists especially when sitting in a car, etc; ensure signage has fluorescent backgrounds, and/or illuminating the signs so they can be seen from anywhere in the in the car park after dark - the latter being a major obstacle to the driver being given reasonable notice and understanding the restrictions. All of these improvements could be effected with minimal cost and are entirely affordable for an organisation such as this, given the revenue yield from this site I suspect. A cynic might conclude, therefore that those reasonable steps have not been taken by ParkingEye Ltd. because it is not actually interested in preventing airport users from entering this site. On the contrary, they seem to be operating this car park as a rather lucrative „honey-trap” for unsuspecting motorists, which I believe most people would consider an unethical, unfair and an inequitable way of conducting a business in the modern age.
The original appeal was by parking charge crusader and was about 10 pages long with maps and photos.
The appeal was successful because PE did not wish to contest. I'm wondering whether this was due to the contents or the length.
Your constructive opinions would be appreciated on my much shorter version.
Many thanks.
Dear Sir / Madam
Re:POPLA Ref:
PCN number
As the keeper of the vehicle xxxxxxx I write to appeal the 'Parking Charge' on the grounds that no legally binding contract has been formed. As you will be aware, to form a legally binding contract, there must (as a minimum) be an “offer” and “acceptance” and a “consideration” and “consensus ad idem” ie an “agreement to the same thing”. In this case, insufficient conditions exist to enable such a contract to be formed.
Specifically: The ”ParkingEye Ltd’s offer comes in the form of the signage within the boundary of the car park and/or on the outside of the perimeter fence. I dispute that those signs constitute an offer capable of acceptance. The signage was either inappropriately positioned, not illuminated, or was otherwise obscured and/or obstructed, to the extent it could not be seen and/or read with the naked eye. The driver did not leave the vehicle and was stationary at the entrance to the car park on DATE the day of the event; there were no lights on at all and the area was in pitch blackness. The pitch black conditions are clearly evidenced in ParkingEye Ltd’s own photographs.
“Reasonable notice” of the terms should be given before or during the agreement of a contract and “reasonable steps” must be taken by the party who forms the term to bring it to the attention of the other party. These criteria have not been fulfilled. If the driver can’t see the offer they cannot accept it!
One of ParkingEye Ltd’s terms on their signage states that, “by parking, waiting or otherwise remaining” in the Airport Retail Park car park, then the driver agrees to pay them £100 (or an undisclosed reduced sum for early payment). There is no maximum free waiting period specified, before such a charge is raised.
Therefore, conceivably, a driver entering the car park and getting out to read signs, rejecting the offer and getting straight back into the vehicle and leaving immediately, could still find themselves liable to a charge up to £100. That is simply not fair. That said, my contention is that that term cannot be relied upon, since the driver was not given a fair opportunity to read / learn about key terms and conditions of the offer that applied, which gives rise to the £100 Parking Charge, which I attribute mainly to the dark conditions and also the inadequacy of the signage which was not fit for purpose at this location.
After reading the Parking Charge Notice, the driver felt the need to understand what contract notice terms had been infringed to give rise to the charge and why those notices had not been seen. A re-visit to the site was therefore conducted to examine whatever signage was in place. The only way that was possible without incurring further charge was by parking approximately a quarter of a mile from the scene and approaching it on foot. This enabled plenty of time to understand the scene, the lighting and what notices existed.
The site visit revealed that, of the 5 signs inside, and 2 signs outside the car park, only 1 sign was truly “visible” by a driver after entering. That sign however was confusingly positioned, which suggests to users of the car park that it applies to the loading bay area only, and not to the entire area, so cannot be relied upon for the purpose of forming a contract; all 7 signs were NOT “appropriately located” (nor “ample, clear and visible “as claimed in ParkingEye Ltd’s FAQ document).The signs were too small and innocuous to be seen from the centre of the car park, too high to be read (even up close), and /or obscured (by vehicles or other car park furniture). Furthermore, there were no signs at all on the perimeter fence near the parking bays most likely to be used by vehicles entering the car park.
All signs were not clear, ie. none of the signs and terms and conditions which constitute the offer can be physically read before the point at which ParkingEye Ltd allege a contract has been formed, ie by simply entering the area regardless of duration of stay.
For all the reasons set out above, an offer was not fairly presented. For the avoidance of doubt, now that the driver has retrospectively reviewed the terms and conditions of contract and are now aware of ParkingEye Ltd’s offer, we reject it outright. On this point alone, a legally binding contract has not been formed and the Parking Charge is therefore unenforceable in law.
I believe that any reasonable person would NOT accept the £100 charge ParkingEye Ltd is claiming entitlement to, even if the charge were “discounted to £60.00 if paid within 14 days of the date [the Parking Charge Notice was] issued”. That charge is extravagant and unconscionable for a stay of between 0 to 13 minutes in a car park. It is entirely disproportionate to any service ParkingEye Ltd offered in return for waiting or parking and /or damages that were otherwise incurred by the driver whilst in the carpark (which, for the avoidance of doubt, were nil).
If the circumstances which gave rise to such a Parking Charge had been properly brought to the attention of the driver, under no circumstances would the driver have been in acceptance of those terms, nor would they have offered a consideration of £100/£60. Had that been known to the driver prior to entry to the car park, the driver would not actually have entered the car park at all.
ParkingEye Ltd, in their FAQs document, appear to place reliance on the case of ParkingEye v Beavis and Wardley [2014] which states that a “contract can be made with the driver via an “...offer, in the form of terms and conditions set out in the notice, and acceptance in the form of one’s car in the space provided”. Since the offer was not sufficiently communicated in the first instance, acceptance of it was not possible. English Law places a high value on ensuring people have truly consented to the deals that bind them in court. The driver has not consented to this deal.
Therefore, in the absence of acceptance, on this point alone, a legally binding contract has not been formed and the Parking Charge is therefore unenforceable in law.
Even though the driver was not given a fair opportunity to read and accept ParkingEye Ltd’s “Parking Contract” offer (as per signage) for reasons stated above, it is worth noting that even if the driver wanted to enter into a contract with ParkingEye Ltd (which they do not) or had a fair opportunity to read the terms and conditions (which was not afforded them): ParkingEyeLtd’s “Parking Contract” notice’s terms and conditions (taken from the sign) are confusing at best and misleading. Specifically, they state “By parking, waiting or otherwise remaining within this car park, you agree to comply with the Parking Contract, including making payment as required and entering your vehicle registration details via the payment and / or terminals.” This instruction does not make grammatical sense. Further, there were in fact no such “terminals” in the car park, nor other machines / mechanism present, nor means to enter the vehicle details and pay a consideration at that time.
Therefore, ParkingEye Ltd has not taken due care and diligence to ensure transparency of its terms to the extent that they are in plain and intelligible language so that any party to their contract can reasonably comply with this condition. As such ParkingEye Ltd cannot therefore rely on this unclear term.
You will see that ParkingEye Ltd, states in its letter dated DATE 2019 that: “As a gesture of goodwill, we have extended the discount period for a further 14 days from the date of this correspondence.” For the avoidance of doubt, no such consideration has been paid to ParkingEye Ltd, because (as previously stated) even the reduced amount of £60 is not commensurate with the services it offered by way of 13 minutes of parking time. Accordingly ParkingEye Ltd’s further offer is rejected and therefore no contract has been formed. No consensus ad idem (or “agreement to the same thing”). You may be aware that even if two parties think they reach agreement, if their offer and acceptance concerns two entirely different things, a court will not enforce a contract. In this case, the driver’s understanding was that they were entering a car park that was closed.
I trust you will also take the following matters into account in your deliberations: there is so much more ParkingEye Ltd could do to improve compliance and make the signs fit for purpose at this particular location. For example: make the signs at the entrance to the car park larger and simpler to understand at a glance eg. “No entry for unauthorised vehicles”, “No access for airport drop-off / pick/up”, “Enforcement cameras in operation”, etc; make the signs inside the car park less inconspicuous by making them larger, allowing for larger/legible print, placing them at head height in places and at angles where they can be more clearly seen by approaching motorists especially when sitting in a car, etc; ensure signage has fluorescent backgrounds, and/or illuminating the signs so they can be seen from anywhere in the in the car park after dark - the latter being a major obstacle to the driver being given reasonable notice and understanding the restrictions. All of these improvements could be effected with minimal cost and are entirely affordable for an organisation such as this, given the revenue yield from this site I suspect. A cynic might conclude, therefore that those reasonable steps have not been taken by ParkingEye Ltd. because it is not actually interested in preventing airport users from entering this site. On the contrary, they seem to be operating this car park as a rather lucrative „honey-trap” for unsuspecting motorists, which I believe most people would consider an unethical, unfair and an inequitable way of conducting a business in the modern age.
0
Comments
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each appeal point should be numbered with a short header description
then all of those numbered header points are reproduced in a bullet point menu , just prior to the first appeal point
if this is an alleged overstay, then invoke clause #13 of the BPA CoP and include the 2 grace periods, one before parking and one afterwards, to leave the car park
so include
NO LANDOWNER CONTRACT
POOR AND INADEQUATE SIGNAGE
GRACE PERIODS
any POFA 2012 issues
any other BPA CoP issues
ANPR and PDT timings
etc0 -
For completeness, here is a link to parking charge crusader's thread:The original appeal was by parking charge crusader and was about 10 pages long with maps and photos.
The appeal was successful because PE did not wish to contest. I'm wondering whether this was due to the contents or the length.
Your constructive opinions would be appreciated on my much shorter version.
forums.moneysavingexpert.com/showthread.php?t=5915967
Without reading it, I also suspect that one reason PE decided not to contest parking charge crusader's very long PoPLA appeal was simply because it is very long.
Why have you chosen to to make your appeal 'much shorter'?
There are some example PoPLA appeals linked from post #3 of the NEWBIES thread that are over twenty pages long.
Have a look at this twenty-nine page fully illustrated appeal:
www.dropbox.com/s/p7ltb9rcr6zy7kn/Appeal_stage2_POPLA_ECP_draft5.pdf?dl=0
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Thanks both.
Looks like I'll be able to use some things from the link you provided Keithp.
I am like a rabbit in headlights with these sort of things; I'd probably be better off just paying it. I guess that's what a lot of people do.
Thanks again.0 -
Looks like I'll be able to use some things from the link you provided Keithp.
I am like a rabbit in headlights with these sort of things; I'd probably be better off just paying it. I guess that's what a lot of people do.
You're surely not considering giving up now are you??!! You seem to have researched very efficiently for a rabbit in the headlights!0 -
Hi MistyZ. I can't afford to give up unfortunately.
If there's ever a next time, I'll use one of the services. I have cognitive issues and just can't do lots of words and screens anymore (simplified version so as not to be boring!?)0 -
My final version includes the following headings using others, appeals (thank you immensely).
1. No contract formed
2. Grace period
3. No evidence of landowner authority
4. The ANPR system is neither reliable nor accurate
5. The signs fail to warn drivers of what the ANPR data Erik be used for.
The facts are..the driver entered the area, turned the vehicle, and sat in the vehicle at the exit to the car park for 13 minutes. Definitely did not see signage.
It was dark, the airport pick up area was cordoned off, female alone, 10.30 at night. Service yard empty, dark, shut for the night.
Should i include any of that in the appeal?0 -
POPLA won't be interested in mitigating circumstances, so best to stick to the well known and oft pointed to POPLA appeals in the NEWBIE thread post # 3, however you seem to have listed as your bullet points the most commonly used ones.0
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No, you won't.If there's ever a next time, I'll use one of the services.
Not if you mean a company 'appeals service' - CATEGORICALLY NEVER EVER use one.
At least two of them have the most shocking TrustPilot reviews you have ever seen, and believe me, I know why. Absolutely avoid.
You main point will be the unlit signs:It was dark,
So, have you got photos taken in darkness from that site, to embed into your POPLA appeal? Unlit signs should be your first point, with photos.
No grace period second, then no landowner authority.
Your first point in your draft goes into good detail about the woeful signs but doesn't actually tell the Assessor in a clear, standalone line:
''It was pitch black, 10.30 at night in bad visibility and any signs there are not lit.''
What pics have you got, as you went back?PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Cheers coupon mad.
I didn't go back to the site, it's too far. I don't know why that's in there. It isn't in my final version. :doh:
I notice that the long appeals have photos maps etc. I don't have any photos and can't seem to rip them from drop box.
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You still need a clear, standalone line:
''It was pitch black, 10.30 at night in bad visibility and any signs there are not lit.''PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0
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