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randell
Hi all, I'm an occasional reader of the forums that up until now hasn't required the excellent services of your forum members!

I have today received a Parking Charge Notice from Parking Eye for staying 6 hours after only paying for 4. I fully accept this is entirely my responsibility for not paying the required amount, and would happily reimburse them for the difference, but fell the £100 "fine" they are attempting to recover from me seems hugely excessive.

I have read a few topics around these private parking charges and it appears the consensus (certainly for Parking Eye) is to appeal to through PE's own process, then to POPLA. However, I'm not entirely clear what grounds the appeal is based on. I certainly don't want to support these kind of business practices by paying up, but equally would accept the easy route if the likelihood of further costs through a lost court case was high (I suspect not?).

Any help would be greatly appreciated...




EDIT

OK, having read a few more cases, it appears that the first appeal to PE themselves can be very short and to the point to this sort of effect:

"I am writing to you regarding parking charge xxxxxxxxxxx issued to vehicle xxxx xxx on xx/xx/2013, your charge is punitive and unenforceable. I require you to either cancel the charge forthwith or provide me with a popla code so that I can refer the matter to popla."

I'm keen to reword it, just to avoid it looking like a "template" kind of response, but is something similar to this the way to go in the first instance? Or is it better to ask a few questions around the legitimacy of their right to make the charge as in some other cases?

Then if it comes round to a POPLA appeal, this is where I would need to understand what I'm actually appealing in relation to?
SchoolRunMum
Yep you have got it - and if you do reword that short challenge just make sure all sentences are written in the third person so as not to imply who was driving, who was there.

And POPLA appeals aren't actually that hard to understand IMHO. The good ones are pretty long but each paragraph makes sense and covers a fully understandable point, each debunking things they have to comply with the BPA Code of Practice on such as their signage, cameras, Notices, deadlines, wording, contract, status, shoe size, etc!
randell
I didn't want to go for one of the full on detailed letters, but felt it better to at least ask for some justification of the charge and their legal right to make a contract with me as registered keeper - to show I've made reasonable attempt to establish facts with PE.

Does anyone have any comments regarding the below as a first appeal to PE? Also, is there any reason to reply quickly / take more time to respond, or is it just a case of getting it to them ahead of the stated 28 day deadline? Is recorded delivery suggested?
QUOTE
I am writing to you in regards to the invoice, reference XXXX/XXXX issued in relation to vehicle registration XXXXXX on XX/XX/XX, which has been sent to me as registered keeper of said vehicle.

Upon research of the car park in question, this charge represents over 1400% of the very maximum possible loss to the landowner. Please provide calculations that justify this as recovery of actual loss sustained, otherwise it will be considered a punitive and unenforceable charge.

I also kindly request that you forward details of the supposed contract that exists between us, and proof of your legal right to make such a contract wth me. Without this information I am unable to consider any liability for the alleged breach of contract.

Therefore I request that you cancel this charge and confirm this to me. Alternatively, within 35 days of this letter, provide me with a POPLA reference to allow me to pursue a robust appeal with this independent service.

Kind Regards
XXXXXXXXXXX

Feel free to rip it apart of it's not appropriate...
Salmosalaris
I would reword " should you not issue a POPLA validation code within 35 days ( as you are required to ) it is on the understanding that you accept my challenge and have cancelled your charge.
randell
Thanks for the feedback.

Should I send this recorded delivery? And is there any benefit delaying, or should I get it sent as soon as possible?
Umkomaas
QUOTE (randell @ Tue, 18 Jun 2013 - 19:00) *
I didn't want to go for one of the full on detailed letters, but felt it better to at least ask for some justification of the charge and their legal right to make a contract with me as registered keeper - to show I've made reasonable attempt to establish facts with PE.

Does anyone have any comments regarding the below as a first appeal to PE? Also, is there any reason to reply quickly / take more time to respond, or is it just a case of getting it to them ahead of the stated 28 day deadline? Is recorded delivery suggested?
QUOTE
I am writing to you in regards to the invoice, reference XXXX/XXXX issued in relation to vehicle registration XXXXXX on XX/XX/XX, which has been sent to me as registered keeper of said vehicle.

Upon research of the car park in question, this charge represents over 1400% of the very maximum possible loss to the landowner. Please provide calculations that justify this as recovery of actual loss sustained, otherwise it will be considered a punitive and unenforceable charge.

I also kindly request that you forward details of the supposed contract that exists between us, and proof of your legal right to make such a contract wth me. Without this information I am unable to consider any liability for the alleged breach of contract.

Therefore I request that you cancel this charge and confirm this to me. Alternatively, within 35 days of this letter, provide me with a POPLA reference to allow me to pursue a robust appeal with this independent service.

Kind Regards
XXXXXXXXXXX

Feel free to rip it apart of it's not appropriate...


Personally, I'd omit paragraphs 2 and 3 as it's a waste of your typing time and your printer ink. I can guarantee the questions will not be answered and, with or without those two paragraphs, you will receive the EYE01 template rejection full of legal cross-references.

Just get your POPLA verification code. It's at that point you ask POPLA to ask those questions of PE on your behalf. They have to answer them to POPLA - or lose their case, as they are seemingly increasingly doing.
randell
I've now received my generic appeal rejection letter from Parking Eye (it's amazing how they try to state the charge is a fair representation of loss "because look at this one other case", without actually justifying it in any way!).

So what next? Any guidance on how to word the appeal to POPLA? I assume my appeal will be based around the 2 points of (a) do PE have the right to issue tickets on the land and (b) if the charge is a genuine pre-estimate of loss?
Salmosalaris
They have been the killer blows in recent appeals , largely because PE doesn't want to produce details of either . It is without question that they and BPA Ltd will be working on a way to get round these points and your appeal won't be heard for months .
It will also be interesting if things change after the first raft of court cases . They're going to have to justify both points there and IMO they've been deliberately holding back from developing any "loss" argument at POPLA that could then work against them in court . Once they have a few court successes let's see .
In other words use a full and contemporaneous POPLA appeal as yours will be heard after these first court cases , and detail as many points of attack as possible .
Was the PCN sched 4 compliant ( presuming you didn't disclose who was driving ) ?
Umkomaas
QUOTE (randell @ Wed, 3 Jul 2013 - 20:10) *
I've now received my generic appeal rejection letter from Parking Eye (it's amazing how they try to state the charge is a fair representation of loss "because look at this one other case", without actually justifying it in any way!).

So what next? Any guidance on how to word the appeal to POPLA? I assume my appeal will be based around the 2 points of (a) do PE have the right to issue tickets on the land and (b) if the charge is a genuine pre-estimate of loss?


Also signage compliance, legibility, siting, ANPR accuracy and check records, identification of 'the Creditor', Punitive charge, so a penalty, the 'either/or' nature of their NtK in stating the 'offence', Unfair Terms in Consumer Contract Regulations, 1999.

So there's a few more to do a bit of research on, so you understand the points before threading them into your POPLA Appeal. Put PE to strict proof in the relevant ones; they have to provide POPLA with that proof, you don't have to prove them wrong.

HTH
randell
Thanks for the responses. I have gone away, read a vast number of other appeals and tried to understand as best I can the reasons for appeal.

Below is my first stab at an appeal - much of it is plagiarised from various other appeals! I'm happy for it to be ripped apart and welcome any suggestion, as I would be very surprised if I'd caught everything with this first shot!


QUOTE
Operator: ParkingEye
PCN Reference: XXXXXXXXX
POPLA Reference: XXXXXXXX
Vehicle Registration: XXXXXXXXXXXX
Date of Event: XXXXXXXXXX
Location: XXXXXXX

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. Indeed, ParkingEye, in their rejection letter, specifically state a number of costs that relate to the administrative costs of running their business, which would be payable in any case and bare no relation to the act of incorrect parking. 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 (representing over 1400% of the maximum possible loss in terms of the stated car park fees) is clearly a punitive penalty charge, which ParkingEye have no authority to issue. The £100 is clearly based upon the maximum guideline expressed in the BPA Code of Practice and not a fair calculation representing true loss.

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 is citing breach of contract), 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 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.
SchoolRunMum
That's a good draft. How about adding something like this that I just copied from another PE POPLA appeal from a few weeks ago, you can add an appropriate heading:

''I further contend that Parking Eye have failed to show me any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR) and would require POPLA to consider that particular section of the Code in its entirety and decide whether the Operator has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence.


randell
QUOTE (SchoolRunMum @ Thu, 4 Jul 2013 - 22:50) *
That's a good draft. How about adding something like this that I just copied from another PE POPLA appeal from a few weeks ago, you can add an appropriate heading:

''I further contend that Parking Eye have failed to show me any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR) and would require POPLA to consider that particular section of the Code in its entirety and decide whether the Operator has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence.


Thanks SchoolRunMum, I had considered adding something about the cameras meeting BPA requirements but wasn't sure how to approach it. That sounds good, I'll add it in!
randell
Any further suggestions before I go ahead with this appeal?

Which of the 4 options do I tick for the reason for appeal? Is it "I am not liable for the parking charge"?

And is it best to use POPLA's online facility for submitting this?
Jlc
You've hit the main points - scour the Code of Practice for any other 'contraventions'.

Yes.

Yes.
randell
OK, I've had a thorough look through the BPA CoP and can't see any other points to target. ParkingEye also appear to have been fully compliant with Schedule 4.

I guess this is to be my final appeal wording, unless anyone has any other suggestions?

After I submit the appeal, how long would I expect to wait to hear the result from POPLA?

QUOTE
Operator: ParkingEye
PCN Reference: xxxxxxxxxxxx
POPLA Reference: xxxxxxxxxxxxx
Vehicle Registration: xxxxxxxxxxx
Date of Event: xxxxxxxxx
Location: xxxxxxxx

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. Indeed, ParkingEye, in their rejection letter, specifically state a number of costs that relate to the administrative costs of running their business, which would be payable in any case and bare no relation to the act of incorrect parking. 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 (representing over 1400% of the maximum possible loss in terms of the stated car park fees) is clearly a punitive penalty charge, which ParkingEye have no authority to issue. The £100 is clearly based upon the maximum guideline expressed in the BPA Code of Practice and not a fair calculation representing true loss.

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 is citing breach of contract), 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.
frankel
you need to remove references and reg number QUICKLY
randell
QUOTE (frankel @ Wed, 10 Jul 2013 - 21:49) *
you need to remove references and reg number QUICKLY


Thanks, can't believe I missed them this time!
TRX75
QUOTE (randell @ Wed, 10 Jul 2013 - 21:31) *
After I submit the appeal, how long would I expect to wait to hear the result from POPLA?


It may well be 2014 the way things are going - see Parking Prankster's blog here:
http://parking-prankster.blogspot.co.uk/20...-still-its.html

randell
QUOTE (TRX75 @ Thu, 11 Jul 2013 - 03:15) *
QUOTE (randell @ Wed, 10 Jul 2013 - 21:31) *
After I submit the appeal, how long would I expect to wait to hear the result from POPLA?


It may well be 2014 the way things are going - see Parking Prankster's blog here:
http://parking-prankster.blogspot.co.uk/20...-still-its.html


Wow, unbelievable! Especially as it suggests they are receiving less appeals than expected and still struggling!

I think I will get mine added to the backlog then, as I've not had any other issues or amendments mentioned!!
randell
Received a considerable wad of paper from PE today - I can see why they try to claim £100 per ticket with these substantial printing costs!!

They included all information they have sent to POPLA relating to my appeal.
A few highlights:

- For the first time actually points out what the offence is! (a tariff level was paid that allowed parking for a shorter time than the vehicle was recorded as being there) This isn't a surprise to me, but was never actually highlighted until now.

- Lots of pictures of various signage at the car park, plus a birds-eye photo of the site with all signage locations marked. I can't confirm or deny, not knowing the car park well, but this plan actually implies that the entrance to the car park has only 2 signs, a simple "HAVE YOU PAID AND DISPLAYED" sign and a "To avoid a parking charge you can purchase additional time (if required) at the pay and display machines before leaving" sign. Surely the entrance requires the main sign that defines the parking tariffs and the "Parking Charge" that the driver is contractually accepting, which are only situated deeper in to the car park? In fact, it appears that only 4 of 11 total signs present on the site indicate the actual terms!

- Attempted justification of genuine pre-estimate of loss, stating ordinary operational costs of their business including erection and maintenance of signage and ANPR equipment, employment of admin staff, membership and other fees for BPA, DVLA and ICO, general costs including stationery and postage. The sum and calculations are all apparently approved and agreed by the landowner (or landowner's agent).

- Authority to issue and pursue Parking Charge apparently justified by a Witness Statement, not a contract. This is signed by the Operations Manager of the landowning authority and suggest:
-"The Operator has written authority from the Landowner to undertake parking management, control and enforcement at the site" and for the date stated,
-"The Operator is authorised by the Landowner to issue parking charge notices where vehicles are parked on the site in a manner not permitted under the terms and conditions of parking",
-"The Operator is authorised to issue a parking charge notice for breach of any of the terms and conditions referred to above" and
-"The Operator is authorised by the Landowner to pursue the outstanding parking charges in accordance with the BPA Approved Operator COP".


The confirmation email from POPLA I received after submission estimated the appeal to be considered on or soon after 15th September, so I shall have to patiently wait to see whether this bundle of bluff is accepted as evidence by POPLA!
nigelbb
QUOTE (randell @ Wed, 31 Jul 2013 - 22:41) *
-"The Operator is authorised by the Landowner to pursue the outstanding parking charges in accordance with the BPA Approved Operator COP".

They keep using this form of words in their 'witness statements'. There must be some reason why they don't use the actual form of words that we put in the appeals & that is contained in the CoP i.e. "In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges, through the courts if necessary". Could it be that their contract doesn't actually say this? In particular that they do not "have the authority to pursue outstanding parking charges, through the courts if necessary". You could try pressing them on this point e.g. " in accordance with the BPA Approved Operator COP" is very wooly & you will have made a very specific point in the appeal that PE do not have "have the authority to pursue outstanding parking charges, through the courts if necessary" & that this 'witness statement' does not confirm that they have that authority.

Secondly their 'witness statement' would never be admissible in court for a whole raft of reasons including:-

1) Not in the witness's own words
2) Not in the first person
3) Doesn't have the full name & address of the witness or as the statement is made in a professional capacity the address at which the witness works
4) Doesn't state whether the witness is party to the proceedings or is an employee of such a party
5) Doesn't indicate which of the statements in it are made from the witness's own knowledge and which are matters of information and belief indicating the source for any matters of information and belief
6) Doesn't include a statement by the witness that the witness believes that the facts stated in it are true
etc etc


randell
The verdict is in....

QUOTE
Mr XXXXXXXX (Appellant)
-v-
ParkingEye Ltd (Operator)
The Operator issued parking charge notice number XXXXXXXX arising out of the presence at XXXXXXX, on XXXXXXX, of a vehicle with registration mark XXXXXXX.
The Appellant appealed against liability for the parking charge.
The Assessor has considered the evidence of both parties and has determined that the appeal be allowed
The Assessor’s reasons are as set out.
The Operator should now cancel the parking charge notice forthwith.

Reasons for the Assessor’s Determination
It is the Operator’s case that a parking charge notice was correctly issued, given that the Appellant parked on site in a clear contravention of the terms and conditions for parking.
These terms and conditions for parking clearly state that this is a pay and display car park.
It is the Appellant’s case that, amongst other things, the Operator can only claim for their actual, or pre-estimated losses arising from the breach.
The parking charge appears to be a sum sought for liquidated damages, in other words, compensation agreed in advance. Accordingly, the charge must represent a genuine pre-estimate of the loss any breach may cause. The Appellant has requested that the Operator show a loss of income. The estimate must be based upon loss flowing from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of retail revenue at a shopping centre.
The Operator submitted that the charge “is a genuine pre-estimate as we incur significant costs in managing this car park to ensure motorists comply with the stated terms and conditions and to follow up any breaches of these.” The Operator gave examples of such costs, including the cost of erecting site signage and the cost of membership of the Driver and Vehicle Licensing Authority.
The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. However, some of the costs referred to do not represent a loss resulting from the alleged breach. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same.
I must allow the appeal on this ground.
I need not decide on any other issues.


Quite interesting to decide based on the pre-estimate of loss part and stating that the the charge was correctly issued, despite other points around how legitimate the signage was etc. Although I suspect that, due to the backlog of cases they are dealing with, they pretty much stop looking at it as soon as they find one element of the appeal in your favour?

Interesting also the comment that "the Appellant parked on site...", when it was never stated anywhere who the actual driver of the vehicle was!

A huge thanks to everyone who helped me out with this. As the parking was actually for a charity event, it only seems fair that the charity in question gets an extra donation thanks to the money saved by me not having to pay this unlawful "fine"!
ManxRed
It cheers me up no end to see that POPLA 'get it' about the difference between losses and operating costs.

Well done.
trubster
Very good result.

PE are taking a POPLA battering.
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