Parking Eye and hotel carpark

[nanna58]

Re: Parking Eye and hotel carpark

Good luck CA hope it goes the same way as Jane xxx

[cymruambyth]

Re: Parking Eye and hotel carpark

Hi ca, follow mystery1's guidance as he is excellent on parking problems.

[julian]

Re: Parking Eye and hotel carpark

It is a bit shortsighted of these people to put a 2:30 limit on parking in a retail outlet, especially if one has a restaurant or café. Even if you move spaces to in front of the firm you are patronising, you find the eye is only at the entrance/exit with a 'no return' statement.

Once had a flat battery in a Homebase car park and went 8 mins over the allotted 2 hours. We had told the Customer Service we were waiting for the AA, and they said not worry. The units l closed an hour before the AA arrived, and we got a fine. We went back to Homebase but we had to show them the AA report and our purchase receipt for them to cancel. So pity the poor person that the was just browsing.

Good luck.

[cardiac arrest]

Re: Parking Eye and hotel carpark

Post them up in redacted form but leave the dates on them.

M1

ok...the car was a loan car from a garag while mine was being serviced .the wording seems a bit flannelly doesn't it

[mystery1]

Re: Parking Eye and hotel carpark

Did you sign a hire agreement ?

M1

[cardiac arrest]

Re: Parking Eye and hotel carpark

Did you sign a hire agreement ?

M1

for the car...it was a free courtesy car...but i signed a waiver....

[cardiac arrest]

Re: Parking Eye and hotel carpark

for the car...it was a free courtesy car...but i signed a waiver....

interestingly..i met my daughter in the carpark..she was there before me, and left at the same time but didn't receive a penalty notice...................i'm being victimised !!

[mystery1]

Re: Parking Eye and hotel carpark

Dear Sirs,

I, as keeper, wish to invoke your appeals procedure. The driver was a genuine customer and did not see any signs. In any event your charges are penal in nature and not a genuine pre estimate of loss.

Should you reject my appeal please supply a popla code.

Yours etc

When you get a popla code let me know.

M1

[julian]

Re: Parking Eye and hotel carpark

You may wish to edit/remove the photos with the car VRN as t identifies you.

[PlanB]

Re: Parking Eye and hotel carpark

You may wish to edit/remove the photos with the car VRN as t identifies you.

Thanks for the heads up Julian.

I've temporarily deleted the member's post while we tidy up the details.

Plan B x

[cardiac arrest]

Re: Parking Eye and hotel carpark

Dear Sirs,

I, as keeper, wish to invoke your appeals procedure. The driver was a genuine customer and did not see any signs. In any event your charges are penal in nature and not a genuine pre estimate of loss.

Should you reject my appeal please supply a popla code.

Yours etc

When you get a popla code let me know.

M1

thank you..i have sent this off via their website appeals section this morning. Will let you know when I get a response...

[cardiac arrest]

Re: Parking Eye and hotel carpark

Dear Sirs,

I, as keeper, wish to invoke your appeals procedure. The driver was a genuine customer and did not see any signs. In any event your charges are penal in nature and not a genuine pre estimate of loss.

Should you reject my appeal please supply a popla code.

Yours etc

When you get a popla code let me know.

M1

received a reply from parking eye this morning.

They have rejected my appeal, quoting the case PE v Barry Beavis and Martin Wardly (2014), in which they say there is a contract, it's not aq penalty charge and the amounts are reasonable.

they have given me a POPLA code and basically said,do your best mate.... but if i do appeal the 'discounted offer' would be withdrawn...

[mystery1]

Re: Parking Eye and hotel carpark

I bet they failed to mention they still don't win at popla with a good appeal.

Could do with the dates of the event and date of notice.

Sort you one later.

M1

[cardiac arrest]

Re: Parking Eye and hotel carpark

I bet they failed to mention they still don't win at popla with a good appeal.

Could do with the dates of the event and date of notice.

Sort you one later.




M1

the event was 22 May, and the date of notice was 12 June,then a reminder on 21 June..I didn't get back from my hols until 16 July.. The appeal was made the day after..i received the appeal rejection today (letter dated 24 July)..they say as a 'gesture of good will' they have extended the discount period by 14 days from 24 July..even though I have 28 days to appeal, anyway...POPLA say don't pay if you are appealing..

[mystery1]

Re: Parking Eye and hotel carpark

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 an overstay. The driver on the day did not see any signs. 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 free. 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. The longer a driver stays in the various shops then the more profit is made. £100 is clearly a penalty. The £100 is not a genuine pre estimate of loss and is 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. If parking without a blue badge is not allowed then there can be no intent to contract to do so for £100.





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 £85 in a carpark where they could have paid nothing. It was not a genuine attempt to contract for unlimited parking in return for £85.

As the PCN had no VAT content to it, it cannot be for a service. It must therefore be a penalty. In any event, you are not allowed to park in a disabled bay without a blue badge so it is crystal clear the intent was not to contract.


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 the person who was driving the keeper cannot 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. The NTK was late.



It appears however that Parking eye are contending that the car was a hired vehicle. It was not. In any event if it was the stautory conditions of PoFA for hire vehicles have not been met.

Hire vehicles


13(1)This paragraph applies in the case of parking charges incurred in respect of the parking of a vehicle on relevant land if—


(a)the vehicle was at the time of parking hired to any person under a hire agreement with a vehicle-hire firm; and


(b)the keeper has been given a notice to keeper within the relevant period for the purposes of paragraph 8(4) or 9(4) (as the case may be).


(2)The creditor may not exercise the right under paragraph 4 to recover from the keeper any unpaid parking charges specified in the notice to keeper if, within the period of 28 days beginning with the day after that on which that notice was given, the creditor is given—


(a)a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;


(b)a copy of the hire agreement; and


(c)a copy of a statement of liability signed by the hirer under that hire agreement.


(3)The statement of liability required by sub-paragraph (2)(c) must—


(a)contain a statement by the hirer to the effect that the hirer acknowledges responsibility for any parking charges that may be incurred with respect to the vehicle while it is hired to the hirer;


(b)include an address given by the hirer (whether a residential, business or other address) as one at which documents may be given to the hirer;


(and it is immaterial whether the statement mentioned in paragraph (a) relates also to other charges or penalties of any kind).
(4)A statement required by sub-paragraph (2)(a) or (c) must be in such form (if any) as may be prescribed by the appropriate national authority by regulations made by statutory instrument.


(5)The documents mentioned in sub-paragraph (2) must be given by—


(a)handing them to the creditor;


(b)leaving them at any address which is specified in the notice to keeper as an address at which documents may be given to the creditor or to which payments may be sent; or


(c)sending them by post to such an address so that they are delivered to that address within the period mentioned in that sub-paragraph.


(6)In this paragraph and paragraph 14—


(a)“hire agreement” means an agreement which—


(i)provides for a vehicle to be let to a person (“the hirer”) for a period of any duration (whether or not the period is capable of extension by agreement between the parties); and


(ii)is not a hire-purchase agreement within the meaning of the Consumer Credit Act 1974;


(b)any reference to the currency of a hire agreement includes a reference to any period during which, with the consent of the vehicle-hire firm, the hirer continues in possession of the vehicle as hirer, after the expiry of any period specified in the agreement but otherwise on terms and conditions specified in it; and


(c)“vehicle-hire firm” means any person engaged in the hiring of vehicles in the course of a business.


14(1)If—


(a)the creditor is by virtue of paragraph 13(2) unable to exercise the right to recover from the keeper any unpaid parking charges mentioned in the notice to keeper, and


(b)the conditions mentioned in sub-paragraph (2) below are met,


the creditor may recover those charges (so far as they remain unpaid) from the hirer.
(2)The conditions are that—


(a)the creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;


(b)a period of 21 days beginning with the day on which the notice to hirer was given has elapsed; and


(c)the vehicle was not a stolen vehicle at the beginning of the period of parking to which the unpaid parking charges relate.


(3)In sub-paragraph (2)(a) “the relevant period” is the period of 21 days beginning with the day after that on which the documents required by paragraph 13(2) are given to the creditor.


(4)For the purposes of sub-paragraph (2)(c) a vehicle is to be presumed not to be a stolen vehicle at the material time, unless the contrary is proved.


(5)The notice to hirer must—


(a)inform the hirer that by virtue of this paragraph any unpaid parking charges (being parking charges specified in the notice to keeper) may be recovered from the hirer;


(b)refer the hirer to the information contained in the notice to keeper;


(c)warn the hirer that if, after the period of 21 days beginning with the day after that on which the notice to hirer is given, the amount of unpaid parking charges referred to in the notice to keeper under paragraph 8(2)(f) or 9(2)(f) (as the case may be) has not been paid in full, the creditor will (if any applicable requirements are met) have the right to recover from the hirer so much of that amount as remains unpaid;


(d)inform the hirer of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;


(e)identify the creditor and specify how and to whom payment may be made; and


(f)specify the date on which the notice is sent (if it is sent by post) or given (in any other case).


(6)The documents mentioned in sub-paragraph (2)(a) must be given by—


(a)handing them to the hirer;


(b)leaving them at an address which is either—


(i)an address specified in the statement of liability mentioned in paragraph 13(2)(c) as an address at which documents may be given to the hirer; or


(ii)an address at which documents relating to civil proceedings could properly be served on the hirer under Civil Procedure Rules; or


(c)sending them by post to such an address so that they are delivered to that address within the relevant period for the purposes of sub-paragraph (2)(a).


(7)In sub-paragraph (5)(d) 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 hirer 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 hirer to independent adjudication or arbitration.


No hire information is included at all which as it wasn't hired as defined by the act is hardly surprising.

M1