Appealed a penalty charge at a car park run by parking eye.

[Cfcdoc]

I normally use paybyphone but on this occassion forgot. I admit this but contested the penalty on account of the fact that I felt the charge was excessive and isnt a representation of loss of earnings. £100 to be reduced to £60 if within14 days. Its £9 to pay for the period I was present. Appealed and rejected with them quoting HHJ moloney and beavis stating the charges were fair etc . I want to appeal to POPLA but unclear which category to appeal under or do I simply pay it.

[mystery1]

Re: Appealed a penalty charge at a car park run by parking eye.

I wish to appeal this parking charge on the following grounds.








1. The charges are penalties and not a contractual charge, breach of contract or trespass. They are not a genuine pre estimate of loss either.




2. In order to form a contract the signs need to be clear so that they must be seen by an average person. They were not. There was no breach of contract.




3. Parking Eye do not hold sufficient interest in the land to offer a motorist a contract to park. They have no locus standi.




4. Parking Eye have failed to adhere to the BPA code of practice.




5. Unreliable, unsynchronised and non-compliant ANPR system.








1.The charges are penalties.




The charges are represented as a failure to pay which would be indicative of non agreement between the parties. According to the BPA code "If the parking charge that the driver is being asked to pay is for a act of trespass, this charge must be proportionate and commercially justifiable. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance"




£100 is clearly not proportionate to a stay in a car park in which the vehicle could have purchased a ticket for £9 Neither is it commercially justified because it would make no sense. If the charge should have been £9 then £100 is clearly a penalty. The £100 is not a genuine pre estimate of loss as the loss of revenue being £9 is crystal clear nor is it a genuine offer to park for £100. It is a penalty. It is not an attempt to claim liquidated damages which should be a genuine pre estimate of loss. £100 cannot be so as the figures quoted include business costs. Parking Eye lost in court on this very point in Parking Eye v Cargius.




I require ParkingEye to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. Parking Eye cannot lawfully include their operational day to day running costs (e.g. provision of signs, ANPR and parking enforcement) in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement ' would still remain the same.




According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the landowner imposes a parking fee for the area in question, there is only the limited loss to whoever it is due. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.''




In Parking Eye v Beavis it was found that the charges were penalties although specific to that car park they were commercially Justifiable which clearly can't be in the case or trespass. Parking Eye v Cargius distinguished Beavis in relation to paid parking. Beavis is also subject to appeal in any case.




When one looks at the sign one sees that non blue badge holders are not allowed to park in disabled bays and are charged £100 if they do then it becomes even clearer that £100 is to deter people from misusing disabled bays and that £100 is an arbitrary amount charged for all transgressions and as such is an unenforceable penalty.








2. Unclear and non-compliant signage, forming no contract with drivers.




I require signage evidence in the form of a site map and dated photos of the signs at the time of the parking event. I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. As such, the signs were not so prominent that they 'must' have been seen by the driver - who would never have agreed to pay £100 in a carpark where they could have paid £9 had they seen the signs which they did not. It was not a genuine attempt to contract for unlimited parking in return for £100.




As the PCN had no VAT content to it, it cannot be for a service. It must therefore be a penalty.








3.. Contract with landowner - no locus standi








Parking eye do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that Parking eye has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow Parking eye to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.




In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.




So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between Parking eye and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 (Transcript linked):http://nebula.wsimg.com/0ce354ec6697...essKeyId=4CB8F 2392A09CF228A46&disposition=0&alloworigin=1






I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges.




It was stated that, "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be."








The ruling of the Court stated, "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services."








In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated losses, as set out above.












4. Failure to adhere to the BPA code of practice.




The signs do not meet the minimum requirements in part 18. They were not clear and intelligible as required.




The BPA Code of Practice states under appendix B, entrance signage:








“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”








For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not. Upon returning to the car park after receiving this unjustified 'charge notice' to check the alleged terms at a later date, I had to get out of my car to even read the larger font on the signs, and the smaller font was only readable when standing next to a sign. They were also very brightly coloured but too busy, confusing and unclear. Everything except the 'welcome' heading is too unreadable to be compliant (photo attached).








Furthermore Parking Eye state that:








"The signs within the car park comply with the recommendations in the Code of Practice"








When with reference to the BCP Code of Practice, it actually states:








"There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision"












The BPA code of practice dictates that all appeals should be answered within 35 days or a holding letter should be issued. No such letter was received and it took 8 months from appeal to rejection and popla code.






5. ANPR ACCURACY




This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to 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 to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator inParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as 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 the Operator in this case to show evidence to rebut this point: 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 this Operator in this car park is just as unreliable as the ParkingEye system and I put this Operator to strict proof to the contrary.








M1

[Cfcdoc]

Re: Appealed a penalty charge at a car park run by parking eye.

these are the grounds on the POPLA website:
I was not improperly parked.


The parking charge (ticket) exceeded the appropriate amount.


The vehicle was stolen

I am not liable for the parking charge.

Do you recommend I simply cut and paste this into the reasons for appeal box on the POPLA website?

[mystery1]

Re: Appealed a penalty charge at a car park run by parking eye.

Tick not liable.

M1

[Cfcdoc]

Re: Appealed a penalty charge at a car park run by parking eye.

Many thanks m1, will keep you posted as to reply from popla

[Cfcdoc]

Re: Appealed a penalty charge at a car park run by parking eye.

Many thanks m1, will keep you posted as to reply from popla

So what next since the beavis ruling, I have appealed and waiting to hear, do I now pay if they reject the appeal ?

[mystery1]

Re: Appealed a penalty charge at a car park run by parking eye.

Maybe, it's in a bit of a contemplation period as the landscape has changed. I would look out the notice to keeper and see if there are further submissions to make here.

http://www.legislation.gov.uk/ukpga/...dule/4/enacted


9 (1) A notice which is to be relied on as a notice to keeper for the purposes of
paragraph 6(1)(b) is given in accordance with this paragraph if the following
requirements are met.
(2) The notice must—
(a) specify the vehicle, the relevant land on which it was parked and the period
of parking to which the notice relates;
(b) inform the keeper that the driver is required to pay parking charges in respect
of the specified period of parking and that the parking charges have not been
paid in full;
(c) describe the parking charges due from the driver as at the end of that period,
the circumstances in which the requirement to pay them arose (including the
means by which the requirement was brought to the attention of drivers) and
the other facts that made them payable;
(d) specify the total amount of those parking charges that are unpaid, as at a time
which is—
(i) specified in the notice; and
(ii) no later than the end of the day before the day on which the notice
is either sent by post or, as the case may be, handed to or left at a
current address for service for the keeper (see sub-paragraph (4));
(e) state that the creditor does not know both the name of the driver and a current
address for service for the driver and invite the keeper—
(i) to pay the unpaid parking charges; or
Protection of Freedoms Act 2012 (c. 9)


7
Status: This is the original version (as it was originally enacted).
(ii) if the keeper was not the driver of the vehicle, to notify the creditor
of the name of the driver and a current address for service for the
driver and to pass the notice on to the driver;
(f) warn the keeper that if, after the period of 28 days beginning with the day
after that on which the notice is given—
(i) the amount of the unpaid parking charges specified under
paragraph (d) has not been paid in full, and
(ii) the creditor does not know both the name of the driver and a current
address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met)
have the right to recover from the keeper so much of that amount as remains
unpaid;
(g) inform the keeper of any discount offered for prompt payment and the
arrangements for the resolution of disputes or complaints that are available;
(h) identify the creditor and specify how and to whom payment or notification
to the creditor may be made;
(i) specify the date on which the notice is sent (where it is sent by post) or given
(in any other case).
(3) The notice must relate only to a single period of parking specified under subparagraph
(2)(a) (but this does not prevent the giving of separate notices which each
specify different parts of a single period of parking).
(4) The notice must be given by—
(a) handing it to the keeper, or leaving it at a current address for service for the
keeper, within the relevant period; or
(b) sending it by post to a current address for service for the keeper so that it is
delivered to that address within the relevant period.
(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days
beginning with the day after that on which the specified period of parking ended.
(6) A notice sent by post is to be presumed, unless the contrary is proved, to have
been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second
working day after the day on which it is posted; and for this purpose “working day”
means any day other than a Saturday, Sunday or a public holiday in England and
Wales.
(7) When the notice is given it must be accompanied by any evidence prescribed under
paragraph 10.
(8) In sub-paragraph (2)(g) the reference to arrangements for the resolution of disputes
or complaints includes—
(a) any procedures offered by the creditor for dealing informally with
representations by the keeper about the notice or any matter contained in it;
and
(b) any arrangements under which disputes or complaints (however described)
may be referred by the keeper to independent adjudication or arbitration.



I am hopeful that the period of parking is a winning point, after all the use cameras at the entrance/exit and you cannot be parked at these points. Until some rulings come in we will remain unsure of how effective it is though.

M1