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.
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.
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