ParkingEye PCN

[greglane]

Hi all,

Wondering if anyone can help.

I just received (well my wife did as the registered keeper but I was in fact driving) a PCN from ParkingEye (lovely lot) at a local hospital. It appears (the notice isn't totally clear) that I parked (I think) within a staff car park. This is what the start of the letter states:-

"On July xx vehicle xx entered the xx Hospital - Staff B car park at 10.57 and departed at 11.54.

The signage which is clearly displayed at the entrance to and throughout the car park, states that this is private land etc etc as a permit/authorised vehicle only car park and that those parking without the appropiate permit/authorisation will incur the charge displayed etc etc etc"

I paid for parking but from the above it seems that I parked in an area only for staff??? I certainly didn't notice this - the car park was absolutely packed and while driving throughout the car park I spotted a space (almost the furthest away space from the entrance) and parked there in the end. It certainly wasn't intentional if I parked in a Staff only area - I am not convinced there was anything there as I know by A&E where I was the night before (in the dark) that there was a Staff area and a usual pay area.

Can I put this down to a simple mistake or are they in fact saying I haven't paid (i have the receipt still luckily!) - or when it says Staff car park is this likely to mean it was only for staff. What doesn't make sense to me is that in the letter above it says the signage is displayed at the entrance clearly and throughout the car park - would they really show signs for a staff car park at the entrance? Surely it should say the signange is clearly shown at the entrance to the staff car park?

Also - the times on the PCN. Where it shows the entrance and departure time - is that to the MAIN car park or for what I am assuming is a staff car park? Do they have separate cameras for the staff car park?

I want to appeal anyway (it is £100 or reduced to £60 if paid within 14 days even though it was issued ont he 11th but we only got it on the 16th!!) - anyhow my other question is whether I am still able to pay the reduced fee if I am unsuccessful with my appeal and I choose not to take it any further?

Any advice would be great!!

Many thanks.

- - - Updated - - -

Sorry I have just realised it looks like this is in the wrong forum - can I move or should I start a new one back a few forums?

[Kati]

Re: ParkingEye PCN

Sorry I have just realised it looks like this is in the wrong forum - can I move or should I start a new one back a few forums?

I've moved it for you

Definitely appeal ... [MENTION=5354]mystery1[/MENTION] (our resident parking guru) will be able to advise you better. Is there any chance you can post up redacted copies of the PCN and possibly photos of the signage etc...? If you have problems uploading anything, email it to me and I'll pop them up kati@legalbeagles.info xx

[greglane]

Re: ParkingEye PCN

Thanks for moving this Kati - and thanks for the advice.

As soon as I get a chance (tonight!) - will send the redacted copy of the PCN. Re the signage I don't think I any photos and it wasn't included in the PCN. Surely if I have got the right end of the stick, they should show the signs at the entrance to the staff car park?

Sorry that I missed signs while I was rushing to the hospital to get to my 12 week old daughter who had just had a lumbar puncture!! Hopefully if I include that also they should have no choice but to cancel!!

[greglane]

Re: ParkingEye PCN

Find attached the PCN and the ticket I purchased - I can't get hold of anyone to find out whether the PCN is simply for not paying for a ticket (which I did, see attached) or if it was for parking in a Staff car park.

[mystery1]

Re: ParkingEye PCN

It is for parking in a staff car park with no permit.

Dear Sirs,

I, as registered keeper, wish to invoke your appeals procedure. The driver did not see any signs. I am under no statutory obligation to name the driver and will not do so.

Your notice to keeper fails to comply with PoFA 2012 schedule 4 para 9.

Should you reject my appeal please provide a popla code.

Yours etc.

If you get a popla code let me know.

M1

[greglane]

Re: ParkingEye PCN

Many thanks for the info M1. I will also add some text re actually purchasing a ticket and the urgency of having to get to see my daughter.

Am I right in thinking I will always be able to pay the reduced fee however long I appeal for?

[mystery1]

Re: ParkingEye PCN

Leave out about your daughter as it won't make any difference and it would be "the driver" who bought a ticket. We don't want to identify the driver by implication.

M1

[greglane]

Re: ParkingEye PCN

hi guys,

Surprisingly the appeal was unsuccessful - due to the fact that valid/sufficient evidence was not provided to prove you were authorised to use this car park/area. Blah blah the signage clearly states that this car park is for authorised vehicles /permit holders only.

So we have 14 days to pay still at the discounted rate - after then the full price will need to be paid even if we go to POPLA.

I have a POPLA number now - do you want this?

Thanks for all the help so far!!

[mystery1]

Re: ParkingEye PCN

Keep it to yourself. I'll sort an appeal soon.

M1

[greglane]

Re: ParkingEye PCN

Thanks M1 - appreciate it!

When you say you will sort an appeal, what do you mean? you'll ask me for the number at some point?
Cheers

[mystery1]

Re: ParkingEye PCN

I'll post what i'd appeal with and you copy & paste (or amend if you like) then lodge the appeal. The number is only needed to lodge the appeal and that's your job

M1

[greglane]

Re: ParkingEye PCN

Ah ok cool - thought so but wasn't sure whether you could see anything I couldn't from POPLA!!

Cheers

[mystery1]

Re: ParkingEye PCN

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.

6. Keeper liability.


1.The charges are penalties.


The charges are represented as a failure to display a permit. The driver on the day parked in the car park and subsequently bought a ticket. 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 was allowed to park for a small hourly sum. Neither is it commercially justified because it would make no sense and in any event in was only ruled so in Parking Eye v Beavis in a car park where the operator paid £1000 per week, a case which in any event is being appealed to the supreme court. It is also noted that the judge in Beavis did rule it was a penalty although in that particular car park it was commercially justified due to the £1000 per week paid by the operator. £100 is clearly a penalty. The £100 is not a genuine pre estimate of loss and is extravagant and unconscionable. The driver having agreed to pay £2 would certainly not have thought that £100 was fair and reasonable but rather extravagant and unconscionable. 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.


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 allows free parking for shoppers and several hundred pounds were spent then there is no loss. 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.''


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.

It was held in Parking Eye v Cargius that Beavis does not apply in a paid car park and that the charge is a 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 £2 as they in fact did. There was clearly signage which indicated there was a £2 charge which was paid and it is disputed that there was any signage on, what must be it is assumed, a segregated area for staff. 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/0ce354ec669790b4b7d83754d8ca32e5?AccessKeyId=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.


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"


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.


6. Keeper liability.

The protection of freedoms act 2012 schedule 4 allows the opportunity for parking companies liable for the actions of the driver but only if full compliance is achieved. In the case of an ANPR situation compliance with section 9 is required.

Right to claim unpaid parking charges from keeper of vehicle


4(1)The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.
(2)The right under this paragraph applies only if—
(a)the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met ....

6(1)The second condition is that the creditor (or a person acting for or on behalf of the creditor)—


(b)has given a notice to keeper in accordance with paragraph 9.


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
(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 sub-paragraph (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.






The notice to keeper does not specify a period of parking. The notice merely indicates a time of entry in to the car park and an exit time from the car park. The BPA code of practice makes reference to the fact that entry is not parking and dictates a grace period must be allowed partly for this very reason. As the keeper is not always the person who was driving the keeper may not know what the period of parking is and the legislation dictates it must be specified, presumably for that very reason. In Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998) it was held that the specified information required to be provided by legislation should indeed be accurate and that the failure made the relevant notice invalid. It was also the deciding factor in Parking Eye v Mrs X Case No: 3JD08399 IN THE ALTRINCHAM COUNTY COURT.
http://nebula.wsimg.com/c289944f81b4...&alloworigin=1

Sections E & F has not been complied with at all. Other sections are not totally complied with either. The keeper is not invited to pay.



M1

[greglane]

Re: ParkingEye PCN

wow M1 - thanks very much, looks pretty comprehensive!! So is that ok for me to simply copy/paste?

Couldn't do this without you so really appreciate the help!! Hope they agree with the arguments as the penalty will be full price!! Do you know how quickly these are reviewed and a decision made with POPLA?

[mystery1]

Re: ParkingEye PCN

Yes c/p.

Sometimes in a few weeks but some are being held until Beavis is decided at the supreme court and they are on holiday so won't come back before October.

M1