Parking Eye have cancelled/been obliged to cancel two 'tickets' for me so far. The first (an out of town shopping area car park) went through the full POPLA process, the second (Asda car park) was just cancelled by Parking Eye after I lodged an appeal to Parking Eye online. Here is the text I used (all gleaned from the CAG forums - thanks very much, everyone). I hope it helps someone.
********* INITIAL ONLINE APPEAL TEXT (both appeals) **************
Dear Sir or Madam
re: PCN number XXXXXX/XXXXXX
I have received your parking invoice impersonating a 'parking ticket'. It is clear that your operation is some sort of 'parking space maximisation scheme' and your aim is clearly to maximise profits.
I decline your invitation to pay or name the driver, neither of which are required of me as the keeper of the vehicle. This is my appeal and all liability to your company is denied on the following basis:
A The amount is neither a genuine tariff/fee for parking, nor is it based upon any genuine pre-estimate of loss.
B You are not the landowner and do not have locus standi.
C Your signage was not sufficiently prominent nor clearly worded and consideration did not flow from both parties, so there was no contract.
If you choose not to cancel this invoice you must issue a rejection letter in reply to my appeal, explaining:
1 The legal basis of your charge (i.e. breach, trespass or contractual fee). As keeper, I cannot be expected to guess the basis of your allegation.
If you try to rely upon ParkingEye v Beavis at POPLA, I will point out that it was a flawed decision, it is not binding, and it is set for the Court of Appeal. There is clearly no commercial justification for this punitive charge and no case law to support it.
2 Proof of your locus standi to offer contracts to drivers at this site.
3 Your explanation of the consideration that you believe flowed from the driver, and from yourselves.
4 A copy of the signage site map and close-up pictures of the signs in situ at the time, taken at a comparable time of day in similar light conditions.
5 The means to make an appeal to POPLA or the IAS.
Please note that I intend to claim my costs when I prevail.
********* FULL POPLA APPEAL TEXT **************
I am the registered keeper of the vehicle related to the parking charge notice XXXXXX/XXXXXX. I have researched the matter and contend that I am not liable for the parking charge on the following grounds and would ask that each is considered:
1. Unclear, Inadequate and Non-Compliant Signage
2. Contract with the Landowner is not Compliant with the BPA code of Practice and No LegalStatus to Offer Parking or Enforce Charges
3. No Contract with the Driver
4. Unfair Terms
5. ANPR Accuracy
6. No Breach of Contract and No Genuine Pre-Estimate of Loss
Below are the detailed appeal points.
UNCLEAR,INADEQUATE AND NON-COMPLIANT SIGNAGE
Due to their high position, overall small size and the barely legible size of the small print, the signs in this car park are very hard to read, understand, and no notices at all are positioned near the entrance, the parking space used or exits to any of the shops.
I contend that the signs and any core parking terms ParkingEye are relying upon were too small for any driver to see, read or understand. I request that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs on this land (wording, position, clarity and frequency) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v MartinCutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]
CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODEOF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES
ParkingEye do not own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, ParkingEye have not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.
It has also been widely reported that some parking companies have provided“witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require,if such a witness statement is submitted, that it is accompanied by a letter,on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory is, indeed, authorised to act on behalf of the landowner, has read and the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company
I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS)v HMRC ( EWCA Civ 186 ): 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 was that "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. TheAppellant 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, asset out above.
The Operator, either through the original correspondence, nor reply to appeal make no reference to the recovery of monies for the Landlord at all.
NO CONTRACT WITH THE DRIVER
There is no contract between ParkingEye and the driver, but even if there were a contract then it is unfair as defined in the Unfair Terms in Consumer ContractsRegulations 1999. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc. were not satisfied.
The charge that was levied is an unfair term (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 atSchedule 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 substance of the term."
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 in ParkingEye 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.
NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS
There was no parking charge levied, the car park is “free”. On the date of the claimed loss it was only at approximately 20% capacity and there was no physical damage caused. There can have been no loss arising from this incident.Neither can ParkingEye lawfully include their operational day-to-day running costs in any 'loss' claimed. I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.
The charge that was levied is punitive and therefore void (i.e. unenforceable)against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges for all day parking. This is all the more so for the additional charges which operator states accrues after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by 40% by early payment that it is unreasonable to begin with.
UNLAWFUL PENALTY CHARGE
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket.This is similar to the decisions in several County Court cases such as ExcelParking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December2011) and UKCPS v Murphy (April 2012) .
The operator could state the letter as an invoice or request for monies, but chooses to use the wording “PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.
On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with basic contract law.