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ParkingEye POPLA Appeal
IhateFines
Posts: 59 Forumite
Hi just some background on a PCN I have received from ParkingEye for overstaying the allowed duration in the car park at Westcross Shopping Centre, Oldbury - Main. The contravention date was 07/06/2019 at with the ANPN camera showing entrance at 17:56pm and exit at 20:09pm. The first NTK arrived within the 15 days of the contravention.
Whilst the signage states that the maximum allowed duration in the car park is 1 hour and overstaying will result in a £100 fine, the business I was attending (William Hill) advised me that the actual grace period for parking is 3 hours for patrons which can be done by visiting F1 Pizza and Kebab (4 doors down) and inputting the vehicle registration number into the iPad, which in turn I did straight away.
So when I received the PCN obviously I was a bit shocked and confused to say the least as I was only at the business for a total of 2 hours and 13 minutes (below the 3 hours set for patrons). I have been a regular patron to the business I visited, and in fact spoke to the employees of the business who have told me this is becoming a regular occurrence from ParkingEye.
I submitted an appeal to ParkingEye on the 24/06/2019. The appeal stated that as a patron of the onsite-business I was told by the employees that the maximum stay was 3 hours which was available upon entering the registration into the iPad located in a business 4 doors down. I even stated that the employees of the business I visited would be more than happy to make an evidence statement. The appeal was rejected on the 16/06/2019 through an emailed response. ParkingEye rejected the appeal on the following basis:
This site is a maximum stay car park, as per the terms and conditions as detailed on the signage. Your appeal has been rejected on the basis that the maximum time allowed was exceeded.
Now having read through the Newbies post I have found a similar thread (thanks Coupon Mad) and copied most of the relevant parts as a draft appeal which I will use on the POPLA appeal. Could I get some advice on what I have written below please? I have a bank statement which can prove purchase at the onsite business.
Background - the driver was an authorised patron of the onsite business
1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt arising from the driver's alleged breach of contract, which is denied. It is further denied that there was any agreement to pay the Claimant a punitive £100 'parking charge notice' (PCN) for the lawful conduct described below.
2. The allegation appears to be that the 'vehicle was not authorised to use the car park' based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit and is no evidence of 'No Authorisation' or not being a patron of the facility.
3. The Defendant has already proved that patronage, and it is the Claimant's own failure, caused by their deliberately obscure terms and iPad that catches out far too many victims at this location, that has given rise to a PCN that was not properly issued from the outset.
Unclear terms - unconscionable penalty relying upon a hidden keypad
4. According to the sparse signs in this car park, it now transpires that to avoid a Parking Charge and despite there being no Pay & Display machines or similar, visitors were expected to know to input their Vehicle Registration Number (VRN). This was far from clearly signed and the purported keypad was nowhere to be seen.
4.1. It is contended that the Claimant failed to alert regular local visitors to an onerous change and unexpected obligation to use an iPad, or risk £100 penalty. The Claimant is put to strict proof, with the bar being set by Denning LJ in J Spurling Ltd v Bradshaw [1956] in the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient.''
5. Upon receiving the claim, the Defendant researched this all too common issue and was advised to complain to the landowner. Unsurprisingly, this was conspicuous by its absence as an option offered by ParkingEye in their signs or paperwork, prior to commencing proceedings. The Manager was incensed that these complaints were becoming a daily occurrence, blighting the business and upsetting customers ever since the ill-advised contract began, yet the business was now stuck with it for the time being.
5.1. The Manager stated that the staff now have to take time out to verbally prompt the customers that come in because the iPad used for signing in VRN details, and the sign used to indicate this, are far from obvious. The Manager expressed his disgust with the Claimant suing their patrons and driving away business.
5.2. The only route offered was a supposed 'appeal' to ParkingEye themselves, but the Defendant knew that no offence or mischief had occurred and honestly believed from initial research, that private parking charges and the appeals systems were unlikely to be fairly weighted in favour of consumers.
5.3. This fact was later confirmed in all readings of the Private Parking Code of Practice Bill, from February 2018 to date, where MPs universally condemned the entire industry as operating 'an outrageous scam' typically relying upon hidden, punitive terms that purposely rely on drivers not seeing an unexpected obligation. Both the British Parking Association ('BPA') Trade Body and indeed, ParkingEye themselves were specifically named and shamed more than once in Parliament and the Bill was introduced purely because the industry is out of control, self regulation has failed, and in many cases any 'appeal' is futile.
No legitimate interest - the penalty rule remains engaged
6. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices in these circumstances, and to pursue payment in the court in their own name. Even if they hold such authority, the Claimant is put to strict proof that this authorisation expressly allows litigation against patrons even when the business in fact supports the Defendant in wanting an unfair charge to be cancelled.
7. Even if the Claimant is able to produce such a landowner contract, it is averred that there can be no legitimate interest arguable by the Claimant in this case. When - all too often at this location - ParkingEye unfairly harvest the data of a registered keeper to charge a genuine patron, any commercial justification in the form of landowner support for such unfair ticketing is de facto absent.
7.1. Further, there was no overstay nor any mischief to deter, nor was there any misuse of a valuable parking space by the Defendant, whose car was parked in good faith, not in contravention nor causing an obstruction, and was certainly not 'unauthorised'. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant's claim is reduced to an unrecoverable penalty and must fail.
7.2. This case is fully distinguished in all respects from ParkingEye Ltd v Beavis [2015] UKSC 67. That Supreme Court decision sets a high bar for parking firms, not a blanket precedent, and the Beavis case essentially turned on a 'complex' and compelling legitimate interest and very clear notices, where the terms were held not to involve any lack of good faith or 'concealed pitfall or trap'. Completely unlike the instant case.
8. In addition, there can be no cause of action in a parking charge case without a 'relevant obligation' and/or 'relevant contract' (the Protection of Freedoms Act 2012, Schedule 4 refers). Expecting a driver to somehow realise they need to input their VRN into an unseen keypad, in what the consumer is confident is an unrestricted free car park for patrons with no visible machines of any description, is indisputably a 'concealed pitfall' and cannot be described as a 'relevant obligation'.
9. This Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information' (the ICO Code). This is both a specific Data Protection and BPA Code of Practice breach. The Supreme Court Judges in Beavis held that a Code of Practice is effectively 'regulation' for this blatantly rogue industry, full compliance with which is both mandatory and binding upon any parking operator.
9.1. The ICO Code applies to all ANPR systems, and states that the private sector is required to follow it, in order to meet its legal obligations as a data processor. Members of the BPA are required to comply fully with the Data Protection Act (DPA) and all ICO rules and guidelines, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land. At this location, the Claimant has failed on all counts and the data gathered about patrons of the site is unconscionable and excessive, given the lack of transparency about the risk of a charge for failing to do something that the driver never knew was a requirement.
Lack of good faith, fairness or transparency and misleading business practices
10. If a parking firm was truly acting in good faith and keeping the interests of consumers at the heart of their thinking, they would concentrate on ensuring firstly, that patrons could not miss the keypad(s) and secondly, could not miss the fact that, if they did receive an unfair PCN as a genuine customer, they had a right to ask the landowner/Managers to cancel it. Clearly the Claimants interest is purely in misleading and punishing customers and extracting as much money as possible in three figure penalties, given that this is the only way ParkingEye make any money.
11. The Claimant's negligent or deliberately unfair business practice initially caused the unfair PCN to arise, then the Claimant's silence regarding the simple option of landowner cancellation rights, directly caused these unwarranted proceedings. This Claimant cannot be heard to blame consumers for not trying a futile 'appeal' to them, whilst themselves hoping the Defendant does not discover that ParkingEye withheld the option of landowner cancellation all along.
11.1. By failing to adequately alert patrons to the keypad, and then withholding from the registered keeper any/all information about the 'user agreement' with the landowner which would have enable an immediate route of cancellation, are 'misleading omissions' of material facts. These are specific breaches of the Consumer Protection from Unfair Trading Regulations 2008 and transgress the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015 (this relatively untested legislation was enacted after the final hearing in Beavis and not actively considered in that case). As such, this claim must fail.
Inflation of the parking charge and double recovery - an abuse of process
12. This claim inflates the total charges in a clear attempt at double recovery. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable conduct as a gross abuse of process. It was held in the Supreme Court in Beavis (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters. Thus, there can be no 'costs' to pile on top of any parking charge claim.
I confirm that the facts in this defence are true to the best of my knowledge and belief.
Here is an image of the signage at the car park. To say the least it is not clear in stating the terms and conditions in a font that can hardly be read!
[IMG]htp://i66.tinypic.com/eqtkq9.png[/IMG] (Cant post links)
Whilst the signage states that the maximum allowed duration in the car park is 1 hour and overstaying will result in a £100 fine, the business I was attending (William Hill) advised me that the actual grace period for parking is 3 hours for patrons which can be done by visiting F1 Pizza and Kebab (4 doors down) and inputting the vehicle registration number into the iPad, which in turn I did straight away.
So when I received the PCN obviously I was a bit shocked and confused to say the least as I was only at the business for a total of 2 hours and 13 minutes (below the 3 hours set for patrons). I have been a regular patron to the business I visited, and in fact spoke to the employees of the business who have told me this is becoming a regular occurrence from ParkingEye.
I submitted an appeal to ParkingEye on the 24/06/2019. The appeal stated that as a patron of the onsite-business I was told by the employees that the maximum stay was 3 hours which was available upon entering the registration into the iPad located in a business 4 doors down. I even stated that the employees of the business I visited would be more than happy to make an evidence statement. The appeal was rejected on the 16/06/2019 through an emailed response. ParkingEye rejected the appeal on the following basis:
This site is a maximum stay car park, as per the terms and conditions as detailed on the signage. Your appeal has been rejected on the basis that the maximum time allowed was exceeded.
Now having read through the Newbies post I have found a similar thread (thanks Coupon Mad) and copied most of the relevant parts as a draft appeal which I will use on the POPLA appeal. Could I get some advice on what I have written below please? I have a bank statement which can prove purchase at the onsite business.
Background - the driver was an authorised patron of the onsite business
1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt arising from the driver's alleged breach of contract, which is denied. It is further denied that there was any agreement to pay the Claimant a punitive £100 'parking charge notice' (PCN) for the lawful conduct described below.
2. The allegation appears to be that the 'vehicle was not authorised to use the car park' based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit and is no evidence of 'No Authorisation' or not being a patron of the facility.
3. The Defendant has already proved that patronage, and it is the Claimant's own failure, caused by their deliberately obscure terms and iPad that catches out far too many victims at this location, that has given rise to a PCN that was not properly issued from the outset.
Unclear terms - unconscionable penalty relying upon a hidden keypad
4. According to the sparse signs in this car park, it now transpires that to avoid a Parking Charge and despite there being no Pay & Display machines or similar, visitors were expected to know to input their Vehicle Registration Number (VRN). This was far from clearly signed and the purported keypad was nowhere to be seen.
4.1. It is contended that the Claimant failed to alert regular local visitors to an onerous change and unexpected obligation to use an iPad, or risk £100 penalty. The Claimant is put to strict proof, with the bar being set by Denning LJ in J Spurling Ltd v Bradshaw [1956] in the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient.''
5. Upon receiving the claim, the Defendant researched this all too common issue and was advised to complain to the landowner. Unsurprisingly, this was conspicuous by its absence as an option offered by ParkingEye in their signs or paperwork, prior to commencing proceedings. The Manager was incensed that these complaints were becoming a daily occurrence, blighting the business and upsetting customers ever since the ill-advised contract began, yet the business was now stuck with it for the time being.
5.1. The Manager stated that the staff now have to take time out to verbally prompt the customers that come in because the iPad used for signing in VRN details, and the sign used to indicate this, are far from obvious. The Manager expressed his disgust with the Claimant suing their patrons and driving away business.
5.2. The only route offered was a supposed 'appeal' to ParkingEye themselves, but the Defendant knew that no offence or mischief had occurred and honestly believed from initial research, that private parking charges and the appeals systems were unlikely to be fairly weighted in favour of consumers.
5.3. This fact was later confirmed in all readings of the Private Parking Code of Practice Bill, from February 2018 to date, where MPs universally condemned the entire industry as operating 'an outrageous scam' typically relying upon hidden, punitive terms that purposely rely on drivers not seeing an unexpected obligation. Both the British Parking Association ('BPA') Trade Body and indeed, ParkingEye themselves were specifically named and shamed more than once in Parliament and the Bill was introduced purely because the industry is out of control, self regulation has failed, and in many cases any 'appeal' is futile.
No legitimate interest - the penalty rule remains engaged
6. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices in these circumstances, and to pursue payment in the court in their own name. Even if they hold such authority, the Claimant is put to strict proof that this authorisation expressly allows litigation against patrons even when the business in fact supports the Defendant in wanting an unfair charge to be cancelled.
7. Even if the Claimant is able to produce such a landowner contract, it is averred that there can be no legitimate interest arguable by the Claimant in this case. When - all too often at this location - ParkingEye unfairly harvest the data of a registered keeper to charge a genuine patron, any commercial justification in the form of landowner support for such unfair ticketing is de facto absent.
7.1. Further, there was no overstay nor any mischief to deter, nor was there any misuse of a valuable parking space by the Defendant, whose car was parked in good faith, not in contravention nor causing an obstruction, and was certainly not 'unauthorised'. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant's claim is reduced to an unrecoverable penalty and must fail.
7.2. This case is fully distinguished in all respects from ParkingEye Ltd v Beavis [2015] UKSC 67. That Supreme Court decision sets a high bar for parking firms, not a blanket precedent, and the Beavis case essentially turned on a 'complex' and compelling legitimate interest and very clear notices, where the terms were held not to involve any lack of good faith or 'concealed pitfall or trap'. Completely unlike the instant case.
8. In addition, there can be no cause of action in a parking charge case without a 'relevant obligation' and/or 'relevant contract' (the Protection of Freedoms Act 2012, Schedule 4 refers). Expecting a driver to somehow realise they need to input their VRN into an unseen keypad, in what the consumer is confident is an unrestricted free car park for patrons with no visible machines of any description, is indisputably a 'concealed pitfall' and cannot be described as a 'relevant obligation'.
9. This Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information' (the ICO Code). This is both a specific Data Protection and BPA Code of Practice breach. The Supreme Court Judges in Beavis held that a Code of Practice is effectively 'regulation' for this blatantly rogue industry, full compliance with which is both mandatory and binding upon any parking operator.
9.1. The ICO Code applies to all ANPR systems, and states that the private sector is required to follow it, in order to meet its legal obligations as a data processor. Members of the BPA are required to comply fully with the Data Protection Act (DPA) and all ICO rules and guidelines, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land. At this location, the Claimant has failed on all counts and the data gathered about patrons of the site is unconscionable and excessive, given the lack of transparency about the risk of a charge for failing to do something that the driver never knew was a requirement.
Lack of good faith, fairness or transparency and misleading business practices
10. If a parking firm was truly acting in good faith and keeping the interests of consumers at the heart of their thinking, they would concentrate on ensuring firstly, that patrons could not miss the keypad(s) and secondly, could not miss the fact that, if they did receive an unfair PCN as a genuine customer, they had a right to ask the landowner/Managers to cancel it. Clearly the Claimants interest is purely in misleading and punishing customers and extracting as much money as possible in three figure penalties, given that this is the only way ParkingEye make any money.
11. The Claimant's negligent or deliberately unfair business practice initially caused the unfair PCN to arise, then the Claimant's silence regarding the simple option of landowner cancellation rights, directly caused these unwarranted proceedings. This Claimant cannot be heard to blame consumers for not trying a futile 'appeal' to them, whilst themselves hoping the Defendant does not discover that ParkingEye withheld the option of landowner cancellation all along.
11.1. By failing to adequately alert patrons to the keypad, and then withholding from the registered keeper any/all information about the 'user agreement' with the landowner which would have enable an immediate route of cancellation, are 'misleading omissions' of material facts. These are specific breaches of the Consumer Protection from Unfair Trading Regulations 2008 and transgress the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015 (this relatively untested legislation was enacted after the final hearing in Beavis and not actively considered in that case). As such, this claim must fail.
Inflation of the parking charge and double recovery - an abuse of process
12. This claim inflates the total charges in a clear attempt at double recovery. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable conduct as a gross abuse of process. It was held in the Supreme Court in Beavis (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters. Thus, there can be no 'costs' to pile on top of any parking charge claim.
I confirm that the facts in this defence are true to the best of my knowledge and belief.
Here is an image of the signage at the car park. To say the least it is not clear in stating the terms and conditions in a font that can hardly be read!
[IMG]htp://i66.tinypic.com/eqtkq9.png[/IMG] (Cant post links)
0
Comments
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For a PoPLA appeal you are the 'Appellant', not the 'Defendant'.
Similarly, PE are not the 'Claimant' and there is no 'Claim'.
The statement of truth, again referring to a Defence, is not needed for PoPLA.0 -
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Well no, not really.IhateFines wrote: »Okay apart from those changes is the rest fine?
Even your last paragraph, paragraph 12, is talking about a 'presiding judge' and 'double recovery'.
I was sort of hoping that my earlier comments would lead you towards looking for a PoPLA appeal without me being too harsh.
Can I suggest that you look at some of the example PoPLA appeals linked from post #3 of the NEWBIES thread?
The structure, and the points being made are significantly different for PoPLA to those being made for the court.0 -
Parking Eye's signs are rubbish, read this
https://forums.moneysavingexpert.com/discussion/5972164
Nine times out of ten these tickets are scams so consider complaining to your MP.
Parliament is well aware of the MO of these private parking companies, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.
Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.
http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted
Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.You never know how far you can go until you go too far.0
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