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  • Pottsy292
    Hey again guys

    Just to keep you updated, I received excels appeal yesterday. Just thought I will pick out a few points from it just to help people write stronger POPLA appeals in the future. Also so people know what excel may reply to their POPLA appeals....

    "a genuine pre-estimate of loss"

    "We consider the amount on the PCN as a reasonable charge for liquidated damages in respect of a breach of the parking contract and contend that it is not ‘unreasonable, excessive or punitive’ or a ‘penalty’ for a number of reasons;

    1. We have calculated this sum as a genuine pre-estimate of our losses as we incur significant costs in managing the parking location to ensure compliance to the stated terms & conditions and to follow up on any breaches of these identified. The parking charge in this instance was established after consideration of the following costs which we incur on each ticket issued;

    • PCN Issue £5.60
    The cost of supplying and installing the ANPR Camera System hardware.
    The cost of maintenance and the communication costs associated with the operation of the system.
    • Central Payments Office (CPO) - Indirect Overheads £1.05
    The cost of purchasing, hiring and maintaining the computer hardware and software for accessing ticketing software.
    • PCN Process £14.50
    Handling of ANPR Camera images and the process to capture and review contraventions. The obtaining of DVLA data in order to generate a PCN that
    is sent out to the vehicle keeper.
    • 1st Appeal £12.78
    Receiving, logging, reviewing, writing and sending a written response to an appeal from the motorist.
    • 2nd Stage Process £7.99
    Receiving, logging, reviewing, writing and sending a written response to a further appeal from the motorist.
    • Notice to Driver Re-Issue £3.08
    Re-issuing the PCN, if through the appeal process the keeper identifies the keeper is not the driver.
    • Write-Off allowance £13.87
    An allowance that takes account of the costs incurred for following the process
    where the motorist’s appeals against a PCN is allowed, which may include mitigating circumstances, and also cancellation requests from the client or other interested parties, DVLA holds no Keeper records, gone away/not known at this address etc.

    DISCOUNTED STAGE TOTAL £58.87

    • Final Reminder Process £4.41
    The cost of issuing a final written letter to allow the motorist to pay before further action is taken.
    • Debt Recovery Process £28.42
    The cost and time associated with obtaining a debtors background check,
    and managing and monitoring the debt recovery process in association with
    a third party debt collection agency. Note this is only the internal costs as the debt collection agency adds their costs to the outstanding debt.
    • Write-Off allowance £4.78
    An allowance that takes account of the costs incurred for following additional process steps such as late appeals, cancellation requests from the client or other interested parties, DVLA holds no Keeper records, gone away/not known at this address etc.

    UNDISCOUNTED STAGE TOTAL ** £96.48

    ** value excludes costs associated with administration of POPLA, including preparation and transmission of evidence packs.

    2. In October 2012, after significant pressure from Government and motoring/consumer organisations, the BPA reduced the maximum recommended charge that a motorist should be expected to pay for a breach of the parking contract or for an act of trespass, from £150 to £100. Despite the BPA being unable, due to prevailing OFT legislation, to fix prices at this level; the actions of the Association were welcomed by all stakeholders. In this instance the charge being levied is within (well within) the recommendations set out within Clause 19 of the BPA Code of Practice.

    3. This sum, and the calculations which have been made in setting it, has been approved and agreed by the landowner and/or his agent of the site.

    4. Parking Charges are fair and reasonable, and have been tested at the Court of Appeal. A charge of £75 was found by HHJ Hegarty QC in the case of ParkingEye v Somerfield Stores (2011) to be a reasonable charge, by which the motorist (when exceeding the specified time limit) would be contractually bound. See also Combined Parking Solutions v Dorrington (2012) and Combined Parking Solutions v Blackburn (2007). Further evidence, that parking charges cannot be viewed as penalties, can be found in Mayhook v National Car Parks and Fuller [2012], Combined Parking Solutions v Mr Stephen James Thomas [2008] and Combined Parking Solutions v De Brunner [2007]. Reference is also made to Dunlop Pneumatic Tyre Co Ltd v New Garage Motor Ltd [1915] in which it was held that a charge would be deemed as a penalty if the sum stipulated is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach. Also, in the case of Alfred McAlpine Projects Limited v Tilebox Limited [2005] it was suggested that the pre-estimate must be ‘reasonable’ as oppose to ‘genuine’. In the case of Parking Eye Ltd v Mr Keven Shelley the costs were deemed as commercially justifiable.

    5. We have provided clear evidence that by staying at the location, the motorist has accepted all of the prevailing terms & conditions of the parking contract; including the charges for breach of that contract. There are a large number of signs at the parking location, both at the entrance and throughout the site which offers the parking contract to the motorist, and sets out the terms and conditions of the parking area on which the operator will rely and on which the motorist has agreed to be bound by; these terms and conditions clearly show the amount which will become payable if the parking charge is breached.

    6. We would contend that it is too late now to indicate that he is unhappy with the parking charge; this should have been done at the time of accepting the ‘parking contract’. If the motorist was unhappy with the contract terms, he should not have remained at the location."

    Contract

    "The appellant asks if Excel Parking Services has “propriety interest in the Peel Centre car park” and questions the right to issue a parking charge notice and requests a copy of the contract with the landowner. A redacted copy of that contract can be found in Section G and is marked ‘Confidential’ this is provided for the sole purpose of evaluation of the information submitted herewith. In consideration of receipt of this document, the recipient agrees to maintain such information in confidence and not to reproduce or otherwise disclose this information to any person."

    there is a contract that has been blanked out in parts. if people want to see this contact me and ill send the PDF across.

    ANPR Camera

    • "The appellant also questions the use of ANPR cameras at the Peel Centre and its compliance with the BPA Code of Practice.
    • Signage at the entrance to the car park informs drivers: “This site may be monitored by ANPR parking enforcement cameras for the purpose of ensuring compliance with the terms and conditions of the car park by Excel Parking Services Ltd.
    • Section 21 of the BPA Code of Practice states “You may use camera technology to manage, control and enforce parking in private car parks, as long as you do so in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you use the data captured by ANPR cameras for.
    • Section 21 has numerous sub sections which regulate quality checks, maintenance of equipment and use of data in relation to ANPR images. Excel Parking Services complies with all sections and subsections as detailed in the Code of Practice.
    • The ANPR cameras at the Peel Centre car park have an onboard clock which is synchronised using standard Network Time Protocol (NTP) process over an internet based link to the time signal provided by the National Physical laboratories in the UK, which is the UK’s National Measurement Institution.
    • The Network Time Protocol, or NTP, is the most widely used method for transmitting time information across the Internet. NTP takes as its time reference the international atomic time scale, Coordinated Universal Time (UTC), which is kept within 0.9 seconds of the astronomical time scale Greenwich Mean Time by the insertion of leap seconds when necessary."



    I hope this helps. My appeal will be considered on or soon after 19 November 2013. I will let you know the outcome next week.

    Thanks for your help
    Last edited by Pottsy292; 14-11-2013 at 9:46 AM.
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