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  • FIRST POST
    sirmoosealot
    Parking Eye - Popla Won
    • #1
    • 17th Jan 14, 7:18 PM
    Parking Eye - Popla Won 17th Jan 14 at 7:18 PM
    Hi All,

    Won my POPLA today, just thought I'd post my email and the response as a thanks for all the help I've gleaned from the forum.

    Letter:

    Operator: ParkingEye
    PCN Reference: XXXXX
    POPLA Reference: XXXXX
    Vehicle Registration: XXXXX
    Date of Event: XXXXX
    Location: ALDI, XXXXX

    Dear Sir/Madam
    I am afraid I was unable to tick a box as to why I am appealing as I am objecting on a number of grounds. Please find below the points for consideration of my appeal against the Parking Charge Notice.

    1 Contractual Authority to Issue the PCN

    ParkingEye is a member of the British Parking Association, and the BPA Code of Practice states, in Section 7.1, that the operator must have written authority from the landowner to recover parking charges, including pursuing through court action. I therefore put ParkingEye to strict proof that they have the necessary authorisation at the location.

    Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between ParkingEye and the owner/occupier, containing nothing that ParkingEye can lawfully use in their own name as a mere agent, that could impact on a third party customer.

    2 Pre-Estimation of Actual Losses

    ParkingEye state in their letter of rejection that the parking charge represents a contractual breach. Under established contract law a party can only claim for their actual or pre-estimated losses arising directly from a breach of contract.

    ParkingEye have not supplied any evidence or breakdown of such losses, and the blanket charge for any contravention of the terms in the signage suggests no such calculation has been considered. Further to this, as ParkingEye are not the landowner there can be no other material loss to them for any contravention of the parking terms stated in the signage.

    In light of the above points this charge is clearly a punitive penalty charge, which ParkingEye have no authority to issue. The £70 charge is clearly an arbitrary value and not a fair calculation representing true losses arising from this breach. Based on the most expensive car park in the town of XXXXX(£1.40 for three hours, source: XXXXX) this charge represents a 5000% higher loss of earning than could be expected from the cost of parking alone, evidently grossly disproportionate. Without any proof of loss of earning from the store I contest that this charge is punitive and evidently outside of contract law.

    If the Parking Charge is instead argued to be a contractually agreed sum (which the wording of the appeal rejection letter implies it is not; it is citing breach of terms and conditions), the BPA Code of Practice states this cannot be punitive or excessive, which a charge of the amount stated clearly is.

    3 Car Park Signage

    Upon investigation of the car park signage the wording is ambiguous in relation to the explanation of the Parking Charge upon non-compliance with the terms. The statement “failure to comply with this…” does not clearly explain what “this” relates to, as it is stated under bullet points relating only to entering vehicle registration and displaying a ticket, and not in regards the value paid for the duration of stay in the car park. Indeed, as the term “tariffs apply” is explicitly stated under disabled parking only, it is unclear if there charges apply to general parking.

    If this signage is deemed to constitute a contract with the driver of the vehicle, it should be clear which contraventions to Parking Charge actually relates to.

    Further to this, the signage upon entry to the car park is inadequate for a driver at the speed and direction of entry to understand the terms of staying in the car park.

    4 Camera Compliance with BPA Code of Practice

    BPA Code of Practice part 21 requires ParkingEye to both keep any ANPR equipment in good working order and ensure data is held securely and unable to be tampered with. The condition of upkeep and maintenance of the equipment in the above car park are questionable and I challenge the operator to provide full proof to POPLA of manual checks, satisfactory maintenance levels and full compliance with section 21 of the Code

    5 Consumer Contracts Regulations

    Private Parking Company charges are unfair terms (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations (1999). In particular, Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer" and 5(2) states: "A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the outcome”.


    Thank you for considering this appeal and I expectantly await your decision. If you have any further questions, please do not hesitate to get in contact with me.

    Regards,
    XXX




    I won on the pre-estiamte of loss, as does everyone!

    Part of reply:

    The Operator’s case is that there is clear signage at the site informing motorists that the site allows a maximum stay of 2 hours. The operator submits that the appellant breached the terms and conditions of the site by overstaying the maximum stay by 27 minutes.

    The Appellant’s case is that the amount of the parking charge notice is disproportionate and exceeds that potential cost or consequential loss to the landowner by the alleged breach.

    The signage produced in evidence by the operator states that a parking charge notice would be issued for “failure to comply”. This wording appears to indicate that the parking charge represents damages for a breach of the parking contract. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss flowing from a breach of the parking terms.

    The operator submits that the amount of the parking charge is legally enforceable on the following three grounds;
    1. That there is a strong commercial justification for the charge,
    2. That there is ample case law to suggest that the value of such a
    parking charge is not punitive and,
    3. That the charge is a genuine pre- estimate of loss.

    The operator has cited case law to find that the charge is commercially justifiable and that the charge cannot be considered a penalty. The operator submits that the private management of car parks is commercially necessary for landholders. The operator further submits that landholders have a right to commercially manage their private land as they see fit to allow motorists to use the land for parking under certain terms and conditions. The operator states that this is commercially necessary as the landholder needs to manage their land in order to ensure that their business can run successfully.

    It seems that the courts have accepted a third category of liquidated damages, a sum which is commercially justified – in cases where the sum is neither a penalty nor is it strictly a genuine pre-estimate of loss – where the Operator has substantiated the loss incurred, or the loss that might reasonably be incurred, by the breach. However, I do not accept the Operator’s submission that the inclusion of costs which in reality amount to the general
    business costs incurred for the provision of their car park management services is commercially justified. I am not minded to accept that the charge is justified commercially and so must be shown to be a genuine pre-estimate of loss in order to be enforceable against the Appellant.

    I find that the whole business model of an operator in respect of a particular car park operation cannot in itself amount to commercial justification.

    The operator has cited case law in order to submit that the value of the parking charge is reasonable and not punitive. I find that each case is different on its facts and it is not possible for me to allow an appeal based on these short summaries.

    The operator submits that that the pre-estimate of loss will depend on the losses to themselves and the landholder. The operator submits that this will vary on the time of the day, the day of the week and even upon the weather. The operator submits that the losses incurred by them include, but are not restricted to:
     Erection and maintenance of the signage
     Installation
     Monitoring and maintenance of the automatic number plate
    recognition (ANPR) systems
     Employment of office based administrative staff
     Membership and other fees required to manage the business effectively including those paid to the BPA, DVLA and ICO, general
    costs including stationary, postage etc.

    The Operator has produced a list of costs; however, a substantial proportion of these appear to be general operational costs, and not losses consequential to the Appellant’s breach. The aim of damages for breach of contract is to put the parties in the position they would have been in had the contract been performed. Accordingly, the Operator cannot include in its pre-estimate of loss costs which are not in fact contractual losses, but the costs of running its business and which would have been incurred irrespective of the Appellant’s conduct and not as a result of the Appellant’s breach.

    Considering carefully, all the evidence before me, I find that, the parking charge sought is a sum by way of damages. I also find that the damages sought on this particular occasion do not amount to a genuine pre- estimate of loss or fall within commercial justification.

    Accordingly, this appeal must be allowed.


    Hope this helps someone else, and thanks everyone for all the help!
Page 1
    • bod1467
    • By bod1467 17th Jan 14, 7:51 PM
    • 14,794 Posts
    • 13,463 Thanks
    bod1467
    • #2
    • 17th Jan 14, 7:51 PM
    • #2
    • 17th Jan 14, 7:51 PM
    Well done.

    I wish people would include the assessor's name - that way we can get a better idea of how each assessor is handling things, which could be useful. One newer assessor was rejecting GPEoL appeals, but has now started allowing them in the last couple of days.
  • android26
    • #3
    • 17th Jan 14, 10:46 PM
    • #3
    • 17th Jan 14, 10:46 PM
    This appeal rejection seems a little more thorough in its explanation than usual too (or is it my imagination?), so it would be interesting to see who the adjudicator was.
    • Coupon-mad
    • By Coupon-mad 17th Jan 14, 11:13 PM
    • 73,748 Posts
    • 85,932 Thanks
    Coupon-mad
    • #4
    • 17th Jan 14, 11:13 PM
    • #4
    • 17th Jan 14, 11:13 PM
    My guess is that's Marina Kapour!
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
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