Red Funnel at Southampton Friday 13th nightmare!!

**mystery1** · 25th June 2014, 22:00:PM

Re: Red Funnel at Southampton Friday 13th nightmare!!

Dear sirs,

I, as registered keeper, wish to invoke your appeals procedure. The driver attempted to pay but was thwarted by your machines restrictive nature. In any event your charges are penal and not a genuine pre estimate of loss.

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

If you reject my appeal please provide a popla code.

Yours etc

If they reject it, as normally happens, adapt http://www.legalbeagles.info/forums/...-Appeal-Letter to suit.

M1

**60quid?** · 26th June 2014, 06:34:AM

Re: Red Funnel at Southampton Friday 13th nightmare!!

Hi M1,

Many thanks for the reply (BTW, no need to apologise in the other thread you are obviously a busy person!).

I will let you know how things go

**60quid?** · 14th July 2014, 13:08:PM

Re: Red Funnel at Southampton Friday 13th nightmare!!

So I got the letter from Parking eye saying I've been unsuccessful. They go on to mention some judge had backed their charges previously and therefore set a presidence of what they are doing being ok. It all looks quite generic "we notice a number of your queries are generic" - well I only copied and pasted your words above so...!?

Anyway, I'm looking at the letter I need to adapt and am stumped due to the signage comments - as I don't recall the signs (or wording) shall I just remove those parts? Also is it work my mentioning the fact that to buy the ticket I wanted was £12 and yet the machine did not take notes therefore I was unable to make payment?

Thanks again for any advice

**paulajayne** · 14th July 2014, 13:48:PM

Re: Red Funnel at Southampton Friday 13th nightmare!!

Did they give a POPLA number ?

**60quid?** · 14th July 2014, 14:22:PM

Re: Red Funnel at Southampton Friday 13th nightmare!!

well theres a popla form with a verification code

**mystery1** · 14th July 2014, 14:30:PM

Re: Red Funnel at Southampton Friday 13th nightmare!!

[QUOTEshall I just remove those parts? Also is it work my mentioning the fact that to buy the ticket I wanted was £12 and yet the machine did not take notes therefore I was unable to make payment?

][/QUOTE]

Yes remove them.

Probably not worth it but will do no harm :okay:

M1

**60quid?** · 14th July 2014, 15:13:PM

Re: Red Funnel at Southampton Friday 13th nightmare!!

ok, I got this...does it seem ok? Minor tweaks with the added paragraph at the end...

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.

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.” 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), 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,”

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.

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.

In any case, a parking location that charges in excess of £10 for a parking period but fails to offer change or accept bank notes/credit card makes paying for the required time restrictive in nature and unfairly leaving people unable to pay the full amount if they wanted to. I would happily have paid for the full term if I had the extra 3 £1 coins or of the machine took notes - alas I was unable to even through my best efforts and intentions.

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

**mystery1** · 14th July 2014, 15:37:PM

Re: Red Funnel at Southampton Friday 13th nightmare!!

That'll win.

M1

**60quid?** · 14th July 2014, 16:04:PM

Re: Red Funnel at Southampton Friday 13th nightmare!!

cheers

which option do I select on the website? I assume "I am not liable for the parking charge"?

**mystery1** · 14th July 2014, 16:29:PM

Re: Red Funnel at Southampton Friday 13th nightmare!!

I don't know what the options are as popla doesn't apply in sunny Scotland

Seems like a good option to me though.

M1

**ostell** · 15th July 2014, 07:24:AM

Re: Red Funnel at Southampton Friday 13th nightmare!!

Every option apart from Stolen?

**60quid?** · 15th July 2014, 09:11:AM

Re: Red Funnel at Southampton Friday 13th nightmare!!

oh well, too late now - but I think it's more of a way of filtering the claim anyway, the letter should be good enough! lol

fingers crossed!

**60quid?** · 1st August 2014, 12:53:PM

Re: Red Funnel at Southampton Friday 13th nightmare!!

So...I've heard nothing (bar the confirmation from POPLA), I assume I just keep waiting? :tinysmile_hmm_t2:

**mystery1** · 1st August 2014, 14:17:PM

Re: Red Funnel at Southampton Friday 13th nightmare!!

Yes.

M1

Red Funnel at Southampton Friday 13th nightmare!!

Red Funnel at Southampton Friday 13th nightmare!!

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