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#Post#: 39616--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: Rightbak
Date: October 6, 2024, 3:16 pm
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As a lay person I would say PE still failed to provide
sufficient evidence in all five points raised
1. The Notice to Keeper (NtK) still fails to comply with
Paragraph 9(2)(e)(i) of PoFA 2012.
2. PE did not provide evidence of the vehicles exact parking
location, therefore cannot say with certainty the signage was
sufficient and clear.
3. The operator has still not shown that the individual being
pursued is the driver.
4. No contract could be formed due to prohibitive signage.
5. The evidence of landowner authority was redacted and
illegible and therefore cannot be used.
I will draft some better words and post them here for review.
Thank you
#Post#: 39617--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: DWMB2
Date: October 6, 2024, 3:20 pm
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--- Quote from: Rightbak link ---
>
> I can upload the original word doc if there is a way to do
that?
>
--- End Quote ---
Try PNG rather than JPG, that sometimes yields better quality
with images that contain text. Otherwise, if you could upload
those pages of the Word doc that would be useful - you'd need to
use DropBox or Google Drive or similar.
There are a couple of points I'd like to check on the contract.
#Post#: 39619--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: Rightbak
Date: October 6, 2024, 3:45 pm
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Here is the contract as PNG images
HTML https://imgur.com/a/MpRHHa9
And here uploaded to google drive
HTML https://docs.google.com/document/d/1PUYVPqkV6v4KJPoCH3rWM_NIHxze9PSr/edit?usp=drive_link&ouid=107001667705145103993&rtpof=true&sd=true
#Post#: 39621--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: DWMB2
Date: October 6, 2024, 4:11 pm
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A couple of key points to expand on about the contract in your
reply:
- The contract is dated 23 March 2021. The 'Initial Term' is for
36 months, beginning on the 'Service Commencement Date' - the
contract doesn't state when this is. Assuming it is 36 months
from the date the contract is signed (a reasonable assumption in
lieu of any evidence to the contrary), the contract they have
provided expired on 22 March 2024, before the parking event in
question. They have therefore not demonstrated that they had a
valid contract in force on the date the parking event took place
- They have provided a poor quality copy of the document - so
poor in fact that it is impossible to read some of the terms
- Whole sections are redacted - some of the redacted sections,
including the Termination clause, for example, might contain
details relevant to the case.
I'd make the biggest deal about the first of these points
personally.
#Post#: 39624--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: Rightbak
Date: October 6, 2024, 4:48 pm
---------------------------------------------------------
--- Quote from: DWMB2 link ---
>
> A couple of key points to expand on about the contract in your
reply:
>
>
>
- The contract is dated 23 March 2021. The 'Initial Term' is for
36 months, beginning on the 'Service Commencement Date' - the
contract doesn't state when this is. Assuming it is 36 months
from the date the contract is signed (a reasonable assumption in
lieu of any evidence to the contrary), the contract they have
provided expired on 22 March 2024, before the parking event in
question. They have therefore not demonstrated that they had a
valid contract in force on the date the parking event took place
>
- They have provided a poor quality copy of the document - so
poor in fact that it is impossible to read some of the terms
>
- Whole sections are redacted - some of the redacted sections,
including the Termination clause, for example, might contain
details relevant to the case.
>
>
>
> I'd make the biggest deal about the first of these points
personally.
>
--- End Quote ---
Thank you very much for highlighting the issues with the
contract!
I have drafted a response as follows:
Re: Parking Charge Notice Issued by Parking Eye
Appellant: [name]
I am writing in response to Parking Eye case summary submitted
to POPLA regarding the above parking charge notice (PCN). The
operator has failed to address all the issues raised in my
appeal. I request that POPLA consider the following points in
support of my appeal and dismiss the PCN.
1. The Notice to Keeper (NtK) fails to comply with Paragraph
9(2)(e)(i) of PoFA 2012.
In my appeal, I emphasised that the Notice to Keeper (NtK)
issued by ParkingEye does not comply with the stringent
requirements outlined in Schedule 4, Paragraph 9(2)(e)(i) of the
Protection of Freedoms Act (PoFA) 2012. This provision requires
that the NtK "invite the keeper" to either pay the unpaid
parking charge or provide the driver's details. Specifically,
the notice must contain the word "invite" or a similar
expression that clearly indicates the keeper is being requested
or encouraged to take action.
As previously noted, the NtK omits the word "invite" or any
appropriate synonym, representing a clear breach of the
statutory requirements under PoFA. Given ParkingEye's failure to
comply with Paragraph 9(2)(e)(i) and their inability to provide
contrary evidence in their case summary, the registered keeper
cannot be held liable for the parking charge.
2. The signage was insufficient and unclear, and there is no
evidence of the vehicle's location in relation to the signs.
The case summary provided by ParkingEye lacks evidence
identifying the precise location where the vehicle was parked.
Consequently, it is unclear how the vehicle's position relates
to any signage between the parking space and the KFC entrance.
Specifically, it remains uncertain whether the vehicle passed by
Sign Type 1, Sign Type 2, both, or neither. As a result, the
parking charge was not communicated in a clear and transparent
manner, as required by law.
3. The operator has not shown that the individual being pursued
is the driver.
Since ParkingEye has not fully complied with the strict
conditions laid out in PoFA to hold the keeper liable,
ParkingEye are put to strict proof that the person they are
pursuing is the driver. Unless ParkingEye can provide
unequivocal evidence that I was the driver at the time, or
demonstrate full compliance with PoFA (which they have not),
they cannot lawfully hold me liable for this charge.
4. No contract could be formed due to prohibitive signage.
The argument presented in my appeal is that no valid contract
could be formed for parking because the signage at the car park
was prohibitive rather than an offer of terms. The sign
specifies a 2-hour maximum stay between 10:00 am and 11:00 pm,
and since the vehicle was parked before 10:00 am, no offer to
park was available. For a contract to exist, there must be a
clear offer and acceptance, which is not possible when parking
is prohibited before 10:00 am.
Furthermore, the Consumer Rights Act 2015 (CRA) supports this
position. Under Section 62, contract terms must be fair, and
prohibitive signage that penalizes parking outside allowed hours
creates an unfair imbalance. Section 68 of the CRA also requires
transparency, which the signage fails to meet, as it does not
clearly communicate parking restrictions in a way a reasonable
consumer would understand.
In summary, ParkingEye cannot enforce a parking charge because:
1. No contract was formed before 10:00 am.
2. The signage was prohibitive, not offering parking terms
before 10:00 am.
3. The terms are unfair and lack transparency under the
Consumer Rights Act 2015.
5. No evidence of landholder authority.
I would like to draw attention to several critical aspects of
the contract that warrant further elaboration:
Contract Duration and Expiration: The contract in question is
dated 23 March 2021, and it specifies an 'Initial Term' of 36
months, commencing on the 'Service Commencement Date.' However,
the contract does not indicate what this commencement date is.
For the sake of argument, if we assume that the service
commencement date is the same as the signing date, then the
contract would logically be considered valid until 22 March
2024. Given that the parking event occurred after this
expiration date, ParkingEye has failed to demonstrate that a
valid contract was in effect at the time of the incident.
Quality of the Document Provided: The copy of the contract
submitted is of notably poor quality, rendering many of the
terms unreadable. This lack of clarity raises significant
concerns about the enforceability of the contract, as key
provisions may be obscured, hindering a complete understanding
of the agreement's terms and conditions.
Redacted Sections: Additionally, there are extensive redactions
throughout the document, including critical sections such as the
Termination clause. The information that has been withheld could
contain essential details relevant to this case, potentially
impacting the determination of liability. Without access to this
information, it is challenging to assess the implications of the
contract fully.
In light of these points, it is evident that ParkingEye has not
adequately substantiated their claim regarding the validity of
the contract at the time of the parking event.
Conclusion:
For the reasons outlined above and in my initial appeal, the PCN
has been issued incorrectly and I request that POPLA uphold my
appeal and cancel the parking charge.
#Post#: 39626--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: b789
Date: October 6, 2024, 8:14 pm
---------------------------------------------------------
As the response is limited to 20,000 characters or less, here is
the response, with the points in order of priority:
--- Quote ---
> 1. Invalid and unclear landholder authority:
>
> In my appeal, I put ParkingEye to strict proof of a valid
contract with the landowner, which they have failed to provide.
The landowner authority document ParkingEye submitted is dated
23 March 2021, with an 'Initial Term' of 36 months starting from
the 'Service Commencement Date.' However, the contract does not
specify this commencement date. In the absence of any evidence
to the contrary, it is reasonable to assume the term began on
the date the contract was signed, meaning it would have expired
by 22 March 2024. Since the parking event occurred after this
date, ParkingEye has not demonstrated that a valid contract was
in place at the time of the incident.
>
> Additionally, the copy of the contract provided by ParkingEye
is of such poor quality that several terms are unreadable. This
lack of clarity raises serious concerns about the enforceability
of the document. Furthermore, whole sections of the contract,
including the Termination clause, have been redacted. These
redacted sections may contain crucial information relevant to
this case, such as specific terms about the contract’s validity
or conditions for its termination. ParkingEye has failed to
address these issues in their operator response, leaving
significant doubts about their authority to issue PCNs at the
time of the alleged breach.
>
> 2. Prohibitive signage – No contract formed:
>
> In my original appeal, I argued that the signage at the car
park was prohibitive, particularly before 10:00 am, meaning no
offer to park was available during the time the vehicle was
parked. Consequently, no contract could have been formed under
basic principles of contract law, which require a clear offer
and acceptance. Additionally, the signage does not meet the
fairness and transparency requirements under the Consumer Rights
Act 2015. ParkingEye has failed to rebut this critical point in
their response, ignoring the argument that prohibitive signage
precludes the formation of a contract. They have also not
addressed the CRA violations concerning the fairness and
transparency of their terms.
>
> 3. Non-compliance with PoFA (Paragraph 9(2)(e)(i)):
>
> My appeal specifically highlighted that the Notice to Keeper
(NtK) issued by ParkingEye does not comply with Paragraph
9(2)(e)(i) of the Protection of Freedoms Act (PoFA) 2012, as it
fails to "invite the keeper" to either pay the parking charge or
provide the driver's details. This omission is a fundamental
breach of PoFA. Despite this, ParkingEye has not provided any
evidence or argument in their operator response to rebut or
rectify this critical point. As such, they cannot hold the
registered keeper liable for the parking charge.
>
> 4. No proof the keeper is the driver:
>
> In my appeal, I stressed that ParkingEye had not shown that
the individual being pursued is the driver. Since they failed to
comply with the conditions of PoFA to hold the keeper liable,
they are required to prove that the person they are pursuing was
the driver at the time of the event. In their operator response,
ParkingEye has completely failed to rebut this point. They have
not provided any evidence identifying the driver, nor have they
shown full compliance with PoFA, meaning they cannot pursue the
keeper in place of the driver.
>
> 5. Insufficient signage and no evidence of vehicle location:
>
> In my appeal, I raised concerns about the lack of evidence
showing where the vehicle was parked in relation to the signage.
ParkingEye's case summary does not provide details about the
exact location of the vehicle in relation to the signage, making
it unclear if the driver had any reasonable opportunity to see
or read the terms. In their operator evidence, ParkingEye has
failed to rebut this point, offering no further proof to
demonstrate that the signage was clear, visible, or properly
located in relation to where the vehicle was parked.
>
> Conclusion:
>
> ParkingEye has failed to rebut the main points raised in my
initial appeal. They have not demonstrated compliance with PoFA,
provided sufficient evidence of the vehicle’s location relative
to signage, or proven that they have valid landholder authority.
For these reasons, I respectfully request that POPLA uphold my
appeal and cancel the parking charge.
--- End Quote ---
#Post#: 39636--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: Rightbak
Date: October 7, 2024, 3:52 am
---------------------------------------------------------
Dear b789 and DWMB2
Thank you so much once again for your continued help and support
on this case. I am so grateful for your contributions.
I have now submitted the response to the operator summary and
await the outcome.
As an aside, I did also just note that the contract states that
the parking time limit is a 2 hour max stay between 11am and
11pm. This differs from all the signage at the site that state
the 2 hour max stay is between 10am and 11pm. I am unsure if
this difference between the contract and signage renders the PCN
unenforceable however.
Thanks once again
#Post#: 39639--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: DWMB2
Date: October 7, 2024, 4:07 am
---------------------------------------------------------
--- Quote from: Rightbak link ---
>
> I am unsure if this difference between the contract and
signage renders the PCN unenforceable however.
>
--- End Quote ---
Whether or not it was 10am or 11am, the vehicle entered shortly
after 9am, so would have breached either version of the T&Cs. If
that issue were in dispute, you'd have a strong argument to be
able to rely on the terms communicated via the signage on the
site. I think a far bigger issue in this case is they've not
demonstrated that they hold a valid contract.
#Post#: 39641--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: b789
Date: October 7, 2024, 4:35 am
---------------------------------------------------------
If POPLA don't uphold the appeal, it isn't the end of the
matter. The POPLA decision has no bearing whatsoever on going
forward to fight this.
#Post#: 49881--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: Rightbak
Date: December 15, 2024, 6:48 am
---------------------------------------------------------
Just a quick update on this.
The POPLA appeal was unsuccessful. I can add their response here
if its important but otherwise I won't (note POPLA did say that
the contract automatically renews, I could not find this in the
contract myself)
I understand that any debt collection letters can be ignored.
What should I be looking out for that cannot be ignored?
Thanks!
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