This was the BPA ltd's reply.
"Thank you for your e-mail.
Please be advised Parking Eye are within their rights in regards to their parking charge notices and their pre-estimate of loss.
Parking Eye would have calculated the sum as a genuine pre-estimate of their losses as they incur significant costs in managing the parking location to ensure compliance to the stated terms and conditions and to follow up on any breaches of these identified, including but not restricted to the following examples:
· Employment of parking attendants to patrol the parking location to include supervisory staff and vehicles, training, uniforms, etc.
· Ad-hoc mobile patrols of the parking location
· Supply & installation ANPR equipment, monitoring and maintenance
· Erection and maintenance of the site signage
· Parking payment and enforcement equipment to include the pay & display machines, hand held devices, cameras, etc.
· Membership and other fees requiring payment in order to manage the business effectively including those paid to BPA, DVLA and ICO
· General costs including stationery, postage etc
· Employment of office based administrative staff along with systems and software
· Contribution to Head Office overheads
Please note that this sum will be clearly laid out on the signage at the parking location which offers the parking contract to the motorist, and by remaining at the site, Parking Eye will contend that the motorist has accepted all of the prevailing terms and conditions of that contract including the charges for breach of contract, and furthermore accepts that they are reasonable.
We do not feel it is right to seek to change the terms of an established contract after it has been breached. If the motorist was unhappy with the contract terms, then the motorist should not have remained at the location.
Parking Eye’s breakdown of costs does not breach our code of practice and therefore we are unable to investigate the matter further.
Thank you for bringing this matter to our attention.
Kind regards,
AOS Investigations Team"
As you can see, the BPA Ltd are confusing costs with losses. For a genuine pre-estimate of loss, only amounts that arise directly as a result of the incident are allowed. Running costs of the business are not.
You can think of it like this. If the motorist travelled back in time, killed his own grandfather and therefore ceased to exist, would the amount still need to be paid? If so, it is a running cost of the business and therefore not allowed.
These costs listed by the BPA Ltd clearly fall in that category:
· Employment of parking attendants to patrol the parking location to include supervisory staff and vehicles, training, uniforms, etc.· Ad-hoc mobile patrols of the parking location
· Supply & installation ANPR equipment, monitoring and maintenance
· Erection and maintenance of the site signage
· Parking payment and enforcement equipment to include the pay & display machines, hand held devices, cameras, etc.
· Membership and other fees requiring payment in order to manage the business effectively including those paid to BPA, DVLA and ICO
· General costs including stationery, postage etc
· Employment of office based administrative staff along with systems and software
· Contribution to Head Office overheads
All of the above costs would still need to be paid if the entire population of the UK decamped to Greece for the summer, leaving the car parks and the rest of the country totally empty apart from a few bewildered ParkingEye employees. Thus they are not allowed as pre-estimate of loss calculations
These costs, listed by the BPA Ltd do not fall in that category and therefore can be charged
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...oops, there weren't any!
The Prankster is always glad to lend a hand to the BPA Ltd and so can help out here. Here are some examples of charges that are pre-estimates of loss.
- DVLA fee of £2.50 to get keeper details
- Postage and printing costs of say 50p to send out NtK
- Unpaid parking charge. £0 in a free car park. Perhaps £1-£5 otherwise.
- Loss to shops because genuine shoppers cannot park. This is a theoretical cost. in practice, it would be almost impossible to estimate this correctly and to prove the estimate was genuine
Sum total? £3 to £8!
The Prankster is also pleased to note that POPLA have got this correct too. All recent appeals to ParkingEye asking them to justify their pre-estimate of loss have been upheld because ParkingEye have failed to do this.
The Prankster wonders why POPLA are constantly upholding appeals on this basis while the BPA Ltd bury their head in the sand and ignore this.
The Prankster would therefore like to give this one line guide to winning a POPLA appeal against ParkingEye.
The amount charged is not a genuine pre-estimate of loss, which I calculate to be approximately £5
You may add other reasons if you wish, but right now this one line appeal will always win.
The BPA can of course freely ignore ParkingEye's little indiscretions. After all, ParkingEye are one of the BPA Ltd's biggest customers and so annoying them would not be good for business. However, The Prankster would like to point out that each POPLA appeal costs the BPA Ltd over £100 pounds so until they get this sorted out they are going to get stung time after time for this amount.
Finally, there is plenty of case law regarding this. [Edit. Thanks for the links! The Prankster is currently off to a barbeque in the near future so does not have time to provide links right now; he hopes to in the future. If anyone can help out by emailing or commenting with links, that would be very useful.]
The cases in question:
A Retailer v Ms B and Ms K
A shop tried to charge a shoplifter part of the cost of running the security department, but was not allowed to.
VCS v Ibbotson 16 May 2012
A parking company tried to charge the cost of uniforms but was not allowed to.
ParkingEye v Smith
Judge awards actual loss of £15. Refuses anything else.
From VCS v Ibbotson
JUDGE MciLWAINE: I will allow you to ask questions, Mr Ibbotson, in a moment, but just in
order that I can be clear on this, I believe that Mr Ibbotson says that £80 is not a fair reflection of your
pre-agreed damages; it is a penalty which he says in relation to contract law is unenforceable.
MISS COATES: We disagree. You can see if you turn to page 21 of the bundle ...
JUDGE MciLWAINE: Thank you. Yes.
MISS COATES: ... this is our losses.
JUDGE MciLWAINE: No, they are not your losses. They are the costs of your pursuance of
this case, is it not?
MISS COATES: If the driver of the vehicle is to pay up within 14 days it only costs us the £80
whereas if it is pursued after 14 days and they have not paid up, it costs £120.
JUDGE MciLWAINE: Okay. Let's have a look here. Image processing costs you £2 per item,
image transfer costs you 52 pence, PCN costs, costs you 62 pence, a wallet costs you 37 pence and a
PA uniform ... What is a PA uniform?
MISS COATES: The uniform of the parking attendant on site.
JUDGE MciLWAIN: What has that got to do with this gentleman's parking? That is a cost to
the business, is it not?
MISS COATES: That is the overall cost of issuing a parking charge notice.
JUDGE MciLWAINE: No, it is not. It is a cost to the business. Do you claim tax against the
uniforms provided to staff?
MISS COATES: I cannot answer that question.
JUDGE MciLWAINE: I am afraid if you are not, you need a new accountant. Let us have a
look a little bit further on, shall we? Office provision, rates, insurance, service charge, are they costs
to the business? It is your evidence. You tell me.
MISS COATES: These are what we believe are our costs for having to issue a parking charge
notice or the portion that was attributed to issuing a parking charge notice.
JUDGE MciLWAINE: That would depend upon how many notices are issued and at how many
sites, over how long and what your income and expenditure is, and I am certainly not going to go into
a detailed analysis of your company accounts. That is not my job. Mr Ibbotson says, if I find that
your case is correct, that the amount I should award should reflect the loss of the space that he took,
not his contribution to the running of your business. That has, I think, on any interpretation a degree
of force, does it not?
MISS COATES: Had Mr Ibbotson not parked in breach of the terms and conditions of Wickes'
car park we would not have had to issue the parking charge notice.
JUDGE MciLWAINE: I hear what you say about a contract. The point is about the amount of
damages. The point that Mr Ibbotson has raised is that it is a penalty. You say, "No, it is a pre-agreed
amount of loss". I have looked at the figures which you say are the pre-agreed amount of loss and a
lot of them are, frankly, the costs of the business which are tax deductible or can be written off against
profit, so I again come back to where is your loss, and we will come back to that in a minute because
Mr Ibbotson .. . Is there anything else you would like to say?
MISS COATES: No, sir
A shop tried to charge a shoplifter part of the cost of running the security department, but was not allowed to.
VCS v Ibbotson 16 May 2012
A parking company tried to charge the cost of uniforms but was not allowed to.
ParkingEye v Smith
Judge awards actual loss of £15. Refuses anything else.
From VCS v Ibbotson
JUDGE MciLWAINE: I will allow you to ask questions, Mr Ibbotson, in a moment, but just in
order that I can be clear on this, I believe that Mr Ibbotson says that £80 is not a fair reflection of your
pre-agreed damages; it is a penalty which he says in relation to contract law is unenforceable.
MISS COATES: We disagree. You can see if you turn to page 21 of the bundle ...
JUDGE MciLWAINE: Thank you. Yes.
MISS COATES: ... this is our losses.
JUDGE MciLWAINE: No, they are not your losses. They are the costs of your pursuance of
this case, is it not?
MISS COATES: If the driver of the vehicle is to pay up within 14 days it only costs us the £80
whereas if it is pursued after 14 days and they have not paid up, it costs £120.
JUDGE MciLWAINE: Okay. Let's have a look here. Image processing costs you £2 per item,
image transfer costs you 52 pence, PCN costs, costs you 62 pence, a wallet costs you 37 pence and a
PA uniform ... What is a PA uniform?
MISS COATES: The uniform of the parking attendant on site.
JUDGE MciLWAIN: What has that got to do with this gentleman's parking? That is a cost to
the business, is it not?
MISS COATES: That is the overall cost of issuing a parking charge notice.
JUDGE MciLWAINE: No, it is not. It is a cost to the business. Do you claim tax against the
uniforms provided to staff?
MISS COATES: I cannot answer that question.
JUDGE MciLWAINE: I am afraid if you are not, you need a new accountant. Let us have a
look a little bit further on, shall we? Office provision, rates, insurance, service charge, are they costs
to the business? It is your evidence. You tell me.
MISS COATES: These are what we believe are our costs for having to issue a parking charge
notice or the portion that was attributed to issuing a parking charge notice.
JUDGE MciLWAINE: That would depend upon how many notices are issued and at how many
sites, over how long and what your income and expenditure is, and I am certainly not going to go into
a detailed analysis of your company accounts. That is not my job. Mr Ibbotson says, if I find that
your case is correct, that the amount I should award should reflect the loss of the space that he took,
not his contribution to the running of your business. That has, I think, on any interpretation a degree
of force, does it not?
MISS COATES: Had Mr Ibbotson not parked in breach of the terms and conditions of Wickes'
car park we would not have had to issue the parking charge notice.
JUDGE MciLWAINE: I hear what you say about a contract. The point is about the amount of
damages. The point that Mr Ibbotson has raised is that it is a penalty. You say, "No, it is a pre-agreed
amount of loss". I have looked at the figures which you say are the pre-agreed amount of loss and a
lot of them are, frankly, the costs of the business which are tax deductible or can be written off against
profit, so I again come back to where is your loss, and we will come back to that in a minute because
Mr Ibbotson .. . Is there anything else you would like to say?
MISS COATES: No, sir
Any references or other examples are welcomed!
Finally, thanks to the mystery guest who sent me the email.
Happy Parking
The Parking Prankster
Would love the links, got a case at the moment with under payment. stayed 2.5 hours, paid for 2 hours. might go all the way. No POPLA done, straight to MCOL......
ReplyDeleteAnother example is a court case which was actually won by PE (PE v Smith). PE claimed hundreds of pounds for two unpaid P&D tickets and went mob-handed to court with four legal reps from Pannone. In the event they were awarded just £15 (the cost of the two P&D tickets plus the DVLA fee). They also claimed over £4,000 in legal costs and were awarded just under a £100. There again the judge recognized that the true loss was just that £15.
ReplyDeleteI don't think the BPA did a proper investigation because they say "Parking Eye will contend" which rather implies some guesswork about what stance they would take if asked rather than "Parking Eye contend" which would be a definite statement of what PE think (if they do think, that is, other thoughts than how they can shaft motorists to the maximum)
ReplyDeleteIf it were me I would also be writing back to the BPA saying that if the BPA wish to support their member's genuine pre-estimate of loss then they need to provide an actual calculation, not just a vague list of business operating costs.
The toothbrush case was indeed VCS vs Ibbotson where they tried to claim that running costs of their business amounted to the losses claimed for in the parking charge notice.
ReplyDeleteThat's the one. The full judgement is on Pepipoo. I will add that the £2.50 to DVLA, stationery, postage, etc are not losses but the resultant cost of the parking weasel pursuing the victim. The parking weasel chose to pay those costs and was not forced to by the victim. Would it be reasonable to request the details of every vehicle using the car park and claim from them that loss, regardless of how they parked? Would it be reasonable to hire a QC who charged £4000 to pursue a vehicle's keeper and claim that as a loss?
ReplyDelete"Parking Eye would have calculated the sum as a genuine pre-estimate of their losses as they incur significant costs in managing the parking location"
ReplyDeletePerhaps Parking Eye should have considered this when investing so much money in their ANPR set-up.
I fail to see how the fact they have to spend a lot of money on their business costs is anyone's problem but their own.
Also, shoplifting case you mention is A Retailer v Ms B & Ms K (Oxford CC, May 2012)
ReplyDeleteAnother good case where pre-estimate of loss was debated was Excel Parking vs Hetherington-Jakeman. Excel and VCS are both owned by Simon Renshaw-Smith who has been kind enough to provide many legal precedents showing that parking charges are actually penalties. He eventually became the Parking Prankster to carry on this good work. Gotcha!
ReplyDeleteSurely the difference should be would the company have had to pay this anyway??
ReplyDeleteThe staff would have to have uniforms if no one ever "needed" a ticket! They didn't buy the uniform to go after the driver.