Parking Eye and hotel carpark

[tastyjane]

Had a dreadful day at work, it was the funeral of a very dear colleague and much loved friend this morning and have felt wiped out since; got home only to be confronted by a £100 parking fine! They do say they will reduce it to £60 if I pay by the end of the month. I stupidly went to meet my MD at a local hotel after work to review a big presentation we were giving the next day - we have used the hotel many times and usually they have barriers down and you get a code from reception to exit - I noticed on my way in that the barriers were up and I remember thinking that they must raise them in the evening for hotel guests. Parked and thought no more of it - jumped in my car a couple of hours later and drove out through the open barriers. It was dark and I didn't notice any signs anywhere. Anyway today I have received a parking charge notice - I will write to them and appeal as I can substantiate I was with a hotel guest - there were 4 of us, the MD got a round of drinks from the bar and put it on his room bill - it was 3 pints of beer and a diet coke for me about 10 minutes after I arrived - do you think this will be enough to get them to drop the charges? Just don't have the fight in me at the moment Jane x

[mystery1]

Re: Parking Eye and hotel carpark

2 letters will see this done.

1st appeal to them and they'll refuse it. As long as you get a popla code that's fine.

Once you get a popla code put in an appeal which includes genuine pre estimate of loss and you'll win. Drop me a pm if you get this far and i miss your thread.

M1

[tastyjane]

Re: Parking Eye and hotel carpark

Thank you so much, thought I would write and appeal stating who I was visiting at the hotel, his room number etc so I will do that tomorrow, I have just spoken to the other two who were there that night and neither of them got a code either. They both have company cars so their tickets will go to the leasing companies first.

If I have to send the second letter I will pm you if you don't mind.

Jane x

[mystery1]

Re: Parking Eye and hotel carpark

Dear Sirs,

I, as registered keeper, wish to invoke your appeals procedure. The driver saw no signs and was a customer in the hotel bar. In any event the charges are penal and not a genuine pre estimate of loss.

I am under no statutory duty to name the driver and will not do so.

Should you reject my appeal please supply a popla code.

Yours etc

M1

[PlanB]

Re: Parking Eye and hotel carpark

2 letters will see this done.

1st appeal to them and they'll refuse it. As long as you get a popla code that's fine.

Once you get a popla code put in an appeal which includes genuine pre estimate of loss and you'll win. Drop me a pm if you get this far and i miss your thread.

I was about to post that M1 is the Parking Eye expert but he/she beat me to it. I know M1 has template letters if you come unstuck

[Never-In-Doubt]

Re: Parking Eye and hotel carpark

Thanks M1 - looks good.

We usually refer to pepipoo but won't bother now

[tastyjane]

Re: Parking Eye and hotel carpark

Oh thank you so much, I take it this is the first letter I should send?

Jane x

[mystery1]

Re: Parking Eye and hotel carpark

Oh thank you so much, I take it this is the first letter I should send?

Jane x

Correct.

M1

[PlanB]

Re: Parking Eye and hotel carpark

We usually refer to pepipoo

Definitely no need to do that. I followed M1's advice on another forum and I got shot of my unlawful "Penalty Charge Notice". The bottom line is these people send out "PCNs" which mimic the real deal to frighten people into paying.

These private "PCNs" have nothing whatsoever to do with the Road Traffic Act (or whatever it's called)

[tastyjane]

Re: Parking Eye and hotel carpark

Well I've received a response to my initial letter - over 7 pages of case law saying why I have to pay! I have PM'd Mystry1 - any help would be much appreciated. Jane x

[mystery1]

Re: Parking Eye and hotel carpark

Write back to them (email is free !!)

Dear Sirs,

I received your letter dated xxxx, the contents of which are noted. I have no further information to give in these matters.

Please either cancel the ticket or supply a popla code as per the BPA code.

Yours etc


You could complain about the lies, such as, the driver is required to pay but nobody will listen.

M1

[tastyjane]

Re: Parking Eye and hotel carpark

I love this site thank you will send tomorrow.

Jane x

[tastyjane]

Re: Parking Eye and hotel carpark

Mystery1 they have replied extend my period to appeal by a further 14 days and giving me a popla code! What do I do next?

Thanks

jane x

[mystery1]

Re: Parking Eye and hotel carpark

Double check for accuracy and submit to popla. Undefeated to the best of my knowledge so far.

Dear Sir/Madam,




I appeal against the decision of Parking Eye Ltd because they have failed to follow the BPA code of practice and attempted to impose a penalty charge for either breach of contract or trespass.


The operator does not appear to 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, The operator has 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.


I require the operator to provide a full copy of the actual contemporaneous, signed & dated contract with the landowner.


Contracts are complicated things, so a witness statement signed by someone is not good enough, neither is a statement that a person has seen it. A copy of the original, showing the points above, is the only acceptable item as evidence that a contract exists and authorises the Operator the right, under contract, to write numerous letters to an appellant chasing monies without taking them to Court, to pursue parking charges in their own name, to retain any monies received from appellants and to pursue them through to Court.


I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.


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 [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.


The Operator also make reference in their appeal refusal of (date) to “seek to recover the monies owed to us” and makes no reference to the Landlord at all.


7.1 of the BPA code of practice makes it a requirement that Parking Eye either own the land, or have the written authorisation of the land owner to enable them to operate on the land. I, as registered keeper, put Parking Eye to strict proof that a valid contract exists that enables them to act in this manner on behalf of the landowner. It is not an onerus task to produce the contract as secttion 8.1 of the code means it has to be available at all times.




The BPA Code of Practice indicates at paragraph 13.4 that the Respondent should, “allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.” The signage in the car park provides no indication of the period of time it allows and this is unreasonable, especially as Parking Eye rely on pictures taken of a vehicle at first arrival and then when leaving (not showing any evidence at all of actual parking time). So, there is no evidence that the respondent can produce to indicate that my vehicle was parked for more than the arbitrary time limit they are relying upon, and no breach of contract by the driver can be demonstrated by their evidence at all. On that basis the sum claimed fails to meet the standards set out in paragraph 19 of the BPA Code of Practice.




19.5 of the code of practice states, “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,”


There was no parking charge levied, the car park is “free”. On the date of the claimed loss it was nearly empty and there was no physical damage caused. There can have been no loss arising from this incident. Neither can Parking Eye lawfully include their operational day-to-day running costs in enforcing parking restrictions at the site (for example, by erecting signage and employing administration staff) in any 'loss' claimed. See VEHICLE CONTROL SERVICESLIMITED -v- MR R IBBOTSON and A Retailer v Ms B and Ms K, Oxford County Court. This does not represent a loss resulting from a breach of the alleged parking contract. In other words, were no breach to have occurred, the cost of parking enforcement would still have been the same. This has been quoted by PoPLA itself in adjucation.


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 Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .


The operator is either charging for losses or it is a penalty/fine.


The operator could state the letter as an invoice or request for monies, but chooses to use the wording “CONTRACTUAL PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.


The signage on site states that parking is limited to 2 hours with no return within 1 hour. There is no option to stay for longer by paying. A clear penalty.




NO CONTRACT WITH THE DRIVER


There is no contract between PCC and the driver, but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999.. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc, were not satisfied.


UNFAIR TERMS


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 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 substance of the term."


UNREASONABLE


The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”


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. I, as registered keeper, contend that these cameras and their operation do not meet the standards laid down in the BPA code of practice.


I would contend that this appeal should be allowed for these reasons.


M1

[tastyjane]

Re: Parking Eye and hotel carpark

Oh my god! I take it I send this to popla or email it I am a little bit in love with you!

jane x