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    • FFairy
    • By FFairy 24th May 15, 2:09 PM
    • 11Posts
    • 6Thanks
    Parking Eye Appeal Refused, now POPLA
    • #1
    • 24th May 15, 2:09 PM
    Parking Eye Appeal Refused, now POPLA 24th May 15 at 2:09 PM
    Hi, hope it’s OK to post a new thread I have read the sticky and various other threads but needed some advice...
    A PCN by Parking Eye was issued to a family member in April for a short overstay in Ilford retail park, I am dealing with the paperwork.
    It was after 7pm, the driver was not using the retail stores (so appeal to retailer to cancel charge did not seem beneficial), but parked in the car park because its short walk to a nearby restaurant (which does recommend customers use this carpark). Parking is free for 2 hours, after which you are required to pay. The over stay was by 12 minutes, as captured by the cameras.
    The registered keeper has been issued the PCN (£100 down to £60 if I'd paid early), I appealed to Parking Eye using the template from the sticky and got a refusal letter with POPLA Ref, giving another 14 days at the discounted rate. The relevant part of the refusal seems to be: Whilst the Consumer Contracts Regs 2013 apply to contracts which were entered into after June 2013, this type of parking contract is excluded from the regulations due to the “automated commercial premises” exemption. As a result, the right to cancel the Parking Contract you entered into on 10th April 2015 does not apply.
    I propose using the following POPLA appeal template from a recent thread, would this be OK according to recent decisions or do I need something more?

    Re: Parking Eye PCN: xxxxxxxxxx
    POPLA Code:
    I am the registered keeper and I wish to appeal a recent parking charge from ParkingEye. I submit the points below to show that I am not liable for the parking charge:
    1) No genuine pre-estimate of loss
    2) No standing or authority to pursue charges nor form contracts with drivers
    3) The signage was inadequate so there was no valid contract formed
    4) The ANPR system is unreliable and neither synchronised nor accurate
    1) No genuine pre-estimate of loss
    This car park is a free shopping car park limited to 2 hours parking . It is alleged I overstayed in this car park by the total time of 12minutes. The adjoining shops were all closed and the car park was empty as a result, therefore there can be no loss of a result of this parking event.

    In ParkingEye v Smith at Manchester County Court in 2011, claim number 1XJ81016, the original claim of £240 was deemed an unrecoverable penalty, unrelated to damages incurred and the only sum that could be recovered was deemed to be £15 (the amount of the pay and display fee for more than one visit). The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. As the PCN sum is massively inflated, I require ParkingEye to submit a breakdown of how this sum was calculated prior to the parking event, as being capable of directly flowing from a minor alleged breach.

    The ParkingEye Notice to Keeper alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This might be, for example, a reasonable sum based purely upon the alleged lost parking revenue, or even loss of retail revenue at a shopping centre if another car was prevented from parking. However, this is not the case because the occupants of the car recall that the car park was almost empty on arrival and when the driver left.

    The Operator cannot reasonably claim a broad percentage of their entire business running costs as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. Given that ParkingEye charge the same lump sum for a 30 minute overstay as they would for 3 hours, and the same fixed charge applies to any alleged contravention (whether serious/damaging or trifling), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss caused by this incident in this car park.

    The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. ParkingEye cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some subsequently penned 'commercial justification' statement they may have devised afterwards (since this would not be a pre-estimate):

    The British Parking Association Code of Practice uses the word 'MUST':
    "19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.''

    Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:

    ''In each case that I have seen from the higher courts, is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.

    This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

    2) No standing or authority to pursue charges nor form contracts with drivers

    On receipt of the PCN I visited the adjoining shops to establish who owned the land and if it would be possible to speak with them, I was told by the manager of one of the shops, Farm Foods, that following a high amount of complaints the land owner and their landlord had instructed Parking Eye to remove signage from the car park and they would no longer be managing it.

    I therefore believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, ParkingEye must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. This has not been produced by the operator in their rejection statement so I have no proof that such a document is in existence. I contend that ParkingEye merely did hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice.

    I therefore put ParkingEye to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between ParkingEye and the landowner. This is required so that POPLA and myself can check that it allows this Operator to make contracts with drivers themselves and provides them with full authority to pursue charges, including a right to pursue them in court in their own name. Please note that a witness statement to the effect that a contract is or was in place will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.). In any case, ParkingEye's witness statements have been exposed as photocopy templates from clients who may well have no knowledge of any individual parking event and the signatory may never even have seen the contract.

    3) The signage was inadequate so there was no valid contract formed

    The occupants of the car recall seeing no signs on entrance to the car park. The date and time of the alleged incident would also have meant daylight would have been fast fading meaning that any signs in the car park may have been difficult to see and read. I have already alluded to returning to the car park following receipt of the PCN and all signs having been removed so I am unable to check on the contract Parking Eye claim to have been formed by themselves and the driver.

    Any photos supplied by ParkingEye to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera & flash and the angle may well not show how high the signs are. As such, I require ParkingEye to state the height of each sign in their response and to show contemporaneous photo evidence of these signs in the dark without the aid of flash photography. Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. This would include the signs being lit - and it can be seen from ParkingEye's own photos of an isolated numberplate in the dark, that the entrance (where signs must be clear) was in fact pitch black. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied

    4) The ANPR system is unreliable and neither synchronised nor accurate

    If ParkingEye's ANPR records are completely reliable (which I contest) then this Operator claims the car was parked for around 12 minutes more than the free time allocated. And yet their evidence shows no parking time, merely photos of a car driving in and out which does not discount the possibility of a double visit that evening.

    This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice and to have signs stating how the data will be stored/used. I say that Parking Eye have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. It was approaching darkness and if there was such a sign at all then it was neither lit nor prominent, since the driver did not see it. I have also seen no evidence that they have complied with the other requirements in that section of the code in terms of ANPR logs and maintenance and I put this Operator to strict proof of full ANPR compliance.

    In addition I question the entire reliability of the system. I require that ParkingEye present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
    So, in addition to showing their maintenance records, I require ParkingEye to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from the cameras in this car park is just as unreliable as the evidence in the Fox-Jones case.
    I request that my appeal is allowed.
    Yours faithfully,

    I am well within the 28 days to appeal to POPLA but would appreciate advice asap.

    Many thanks!
Page 2
    • Half_way
    • By Half_way 16th Oct 16, 12:46 PM
    • 4,087 Posts
    • 5,791 Thanks
    Complaint to he retail park now Wright Hassle is anything but impartial or independent demand they cancel the charge.

    Also they have used the Beavis case in what can only be asumed to be a manner to deliberatly defraud you of moeny, the Supreme court stated this about the case

    Also see the Theresa may thread
    From the Plain Language Commission:

    "The BPA has surely become one of the most socially dangerous organisations in the UK"
    • FFairy
    • By FFairy 16th Oct 16, 12:47 PM
    • 11 Posts
    • 6 Thanks
    A further letter has now been received (dated 10 Oct, received 14 Oct) from ParkingEye, entitled Letter Before County Court Claim. It gives 14 days to pay £100.

    I am unsure whether it is safe to ignore, but a read of the recent sticky and similar sounding cases etc suggests ParkingEye do not let the matter go and will continue to chase to court level. Would be very grateful for advice, as this has bee hanging over the keepers head since April 2015...
    • pappa golf
    • By pappa golf 16th Oct 16, 12:49 PM
    • 8,706 Posts
    • 9,295 Thanks
    pappa golf
    had you have said WH were doing the appeal , we could have told you the outcome

    they have simply not read the BPA code of conduct

    13 Grace periods
    13.1 Your approach to parking management must allow a
    driver who enters your car park but decides not to park,
    to leave the car park within a reasonable period without
    having their vehicle issued with a parking charge notice.
    13.2 You should allow the driver a reasonable !!!8216;grace period!!!8217;
    in which to decide if they are going to stay or go. If the
    driver is on your land without permission you should still
    allow them a grace period to read your signs and leave
    before you take enforcement action.
    13.3 You should be prepared to tell us the specific grace period
    at a site if our compliance team or our agents ask what it is.
    13.4 You should allow the driver a reasonable period to leave
    the private car park after the parking contract has ended,
    before you take enforcement action.

    as your time PARKED was less than the time shown on the ANPR cameras , you have simply used the grace period that you are allowed
    Save a Rachael

    buy a share in crapita
    • Half_way
    • By Half_way 16th Oct 16, 12:58 PM
    • 4,087 Posts
    • 5,791 Thanks
    Pakring eye will not let go, you must complain to the landowner now.
    From hwta i understand its possible to have the landowner joined to the claim, so that any costs that you incur will have to be paid for by the landowner
    From the Plain Language Commission:

    "The BPA has surely become one of the most socially dangerous organisations in the UK"
    • FFairy
    • By FFairy 16th Oct 16, 1:10 PM
    • 11 Posts
    • 6 Thanks
    Many thanks for the quick replies, I had no idea WH were doing the POPLA appeal, the POPLA appeal letter suggested an assessor would look at the case and reply. I only became aware once the POPLA response was received with the WH name on.

    The keeper wants an end to the matter and I simply have no time to continue researching/appealing and chasing this up. If, as I understand, PE are so litigious and use so many bullying tactics, we have no wish to go before court if that is now likely. Therefore I think it may be best to pay up and end it for all.
    • Coupon-mad
    • By Coupon-mad 17th Oct 16, 10:23 AM
    • 56,131 Posts
    • 69,780 Thanks
    Unless the landowner will cancel it...which if it's retail, MANY WILL.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

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