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POPLA appeal letter ref EXCEL parking
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modesty46
Posts: 16 Forumite
hi
I have appealed to excel regarding a parking charge and have had my rejection letter and have my POPLA code for my second appeal. below is my first draft of my appeal to POPLA. I was hoping someone could give it a look and give me any tips before I send it please.
many thanks
M.
Name-
Address-
Date-
POPLA Verification code-ten digit number.
Dear POPLA adjudicator,
I am writing to appeal against a parking charge levied by Excel Parking Services Ltd on 05/08/14. I am the registered keeper of the vehicle concerned.
The grounds for my appeal are as follows :
1) No genuine pre-estimate of loss
The charge of £100 is punitive and unreasonable, contravening the British Parking Association’s Code of Practice section 19. Excel Parking Services Ltd (Excel) must therefore be required to explain their 'charge' by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention. However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused so Excel have no cause of action to pursue this charge. I specified in my original appeal that I would like to see a breakdown of the costs incurred by Excel as a result of the alleged breach. Excel have failed to provide this information, stating that the charge is in line with BPA guidelines and therefore “deemed reasonable”. This reply completely fails to demonstrate that the whole charge is a genuine pre-estimate of loss. The fact that the recommended maximum level in section 19.5 (“we would not expect this amount to be more than £100”) has not been exceeded merely means that the operator does not have to justify the amount in advance. In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge can “cannot be punitive or unreasonable”.
Excel cannot include their operational tax-deductible business running costs - for example, costs of signage, staffing and dealing later with the appeals, or hefty write-off costs. This would not represent a loss resulting from a breach of the alleged parking contract and in any case I believe Excel are likely to be paid by their client - so any such payment income must be balanced within the breakdown Excel supply and must be shown in the contract.
Nor is the charge 'commercially justified'. If Excel cite 'ParkingEye v Beavis & Wardley' it's irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, POPLA Assessor Chris Adamson has stated in June 2014 upon seeing VCS' latest effort at a loss statement - their latest attempt to get around POPLA and likely to be broadly similar to any effort made by their sister firm, Excel - that:
''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.
This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''
My case is the same and Excel contracts are nothing like ParkingEye's contract in the Beavis case anyway, where Parking Eye paid £1000 per week for what was in effect a 'fishing licence' to catch victims and where the Operator made out they were the principal. In my case, Excel are merely agents at best, with a bare contractor's licence to put up signage and 'issue tickets' and they are known to be paid by their client so they have no standing nor loss to claim in their own right anyway. Of course money changing hands will affect any calculations of so-called 'loss' and is one of several reasons why I will require the landowner contract in full (unredacted).
2) No standing or assignment of rights to enforce this charge in the courts
Excel have no proprietary interest in the land concerned and have not responded to a request for a copy of the contract with the landowner in which authority to pursue outstanding parking charges is granted, as required by the BPA Code of Practice, Section 7. In particular, the issue of the requirement set out in section 7.2 paragraph (f) : “whether or not the landowner authorises you to take legal action to recover charges from drives charged for unauthorised parking” has not been addressed. In the absence of this evidence, I believe that Excel do not have the legal capacity to enforce such a charge.
I require the unredacted landowner contract including any payments made between the parties, names & dates & details of all terms included. I suspect Excel are merely an employed site agent and this is nothing more than a commercial agreement between the two parties. There is nothing that could enable Excel to impact upon visiting drivers in their own right, for their own profit. For the avoidance of doubt, I will not accept a mere “witness statement” instead of the relevant contract. There would be no proof that the alleged signatory can act on behalf of the landowner or has ever seen the relevant contract. Also a letter or statement would fail to show any payments made between the parties, and would omit dates & details of all terms in the actual contract - and so would fail to rebut my appeal point about the Operator's lack of standing & assignment of any rights.
3) ANPR - Inaccuracy and Non-compliance, including lack of ANPR data usage signs
I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times and yet I contend the driver was a customer of Subway.
In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:
''21 Automatic number plate recognition (ANPR)
21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this 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 will use the data captured by ANPR cameras for.
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''
No signs at the car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here. Unless the Operator can show documentary evidence otherwise, then this BPA Cop breach would also point to a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary with records and photos.
4) Unfair terms
The terms that the Operator is alleging create a contract, were not reasonable, not individually negotiated and caused a significant imbalance - to my potential detriment. Therefore, this charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says: ‘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.’
Further, the charge contravenes The Unfair Terms in Consumer Contract Regulations 1999 :
Schedule 2 : Indicative and non-exhaustive list of terms which may be regarded as unfair”
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.”
5(1) ''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. (2) 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.''
From the Office of Fair Trading’s 'Guidance for the Unfair Terms in Consumer Contract Regulations 1999':
Group 5 : Financial penalties – paragraph 1(e) of Schedule 2:
5.1 “It is unfair to impose disproportionate sanctions for a breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law.”
Group 18(a): Allowing the supplier to impose unfair financial burdens
'18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However, as already noted, transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.
19.14 The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term...will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term.'
I contend the above describes the charge exactly as an 'unfair financial burden'. The charge is designed ostensibly to be a deterrent, but is in fact a disguised penalty, issued by a third party agent which is not the landowner and has no assignment of title. Such a charge would normally be restricted to the landowner themselves claiming for any damages or loss.
yours,
I have appealed to excel regarding a parking charge and have had my rejection letter and have my POPLA code for my second appeal. below is my first draft of my appeal to POPLA. I was hoping someone could give it a look and give me any tips before I send it please.
many thanks
M.
Name-
Address-
Date-
POPLA Verification code-ten digit number.
Dear POPLA adjudicator,
I am writing to appeal against a parking charge levied by Excel Parking Services Ltd on 05/08/14. I am the registered keeper of the vehicle concerned.
The grounds for my appeal are as follows :
- 1) No genuine pre-estimate of loss
- 2) No standing or assignment of rights to enforce this charge in the courts
- 3) ANPR - Inaccuracy and Non-compliance, including lack of ANPR data usage signs
- 4) Unfair terms
1) No genuine pre-estimate of loss
The charge of £100 is punitive and unreasonable, contravening the British Parking Association’s Code of Practice section 19. Excel Parking Services Ltd (Excel) must therefore be required to explain their 'charge' by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention. However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused so Excel have no cause of action to pursue this charge. I specified in my original appeal that I would like to see a breakdown of the costs incurred by Excel as a result of the alleged breach. Excel have failed to provide this information, stating that the charge is in line with BPA guidelines and therefore “deemed reasonable”. This reply completely fails to demonstrate that the whole charge is a genuine pre-estimate of loss. The fact that the recommended maximum level in section 19.5 (“we would not expect this amount to be more than £100”) has not been exceeded merely means that the operator does not have to justify the amount in advance. In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge can “cannot be punitive or unreasonable”.
Excel cannot include their operational tax-deductible business running costs - for example, costs of signage, staffing and dealing later with the appeals, or hefty write-off costs. This would not represent a loss resulting from a breach of the alleged parking contract and in any case I believe Excel are likely to be paid by their client - so any such payment income must be balanced within the breakdown Excel supply and must be shown in the contract.
Nor is the charge 'commercially justified'. If Excel cite 'ParkingEye v Beavis & Wardley' it's irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, POPLA Assessor Chris Adamson has stated in June 2014 upon seeing VCS' latest effort at a loss statement - their latest attempt to get around POPLA and likely to be broadly similar to any effort made by their sister firm, Excel - that:
''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.
This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''
My case is the same and Excel contracts are nothing like ParkingEye's contract in the Beavis case anyway, where Parking Eye paid £1000 per week for what was in effect a 'fishing licence' to catch victims and where the Operator made out they were the principal. In my case, Excel are merely agents at best, with a bare contractor's licence to put up signage and 'issue tickets' and they are known to be paid by their client so they have no standing nor loss to claim in their own right anyway. Of course money changing hands will affect any calculations of so-called 'loss' and is one of several reasons why I will require the landowner contract in full (unredacted).
2) No standing or assignment of rights to enforce this charge in the courts
Excel have no proprietary interest in the land concerned and have not responded to a request for a copy of the contract with the landowner in which authority to pursue outstanding parking charges is granted, as required by the BPA Code of Practice, Section 7. In particular, the issue of the requirement set out in section 7.2 paragraph (f) : “whether or not the landowner authorises you to take legal action to recover charges from drives charged for unauthorised parking” has not been addressed. In the absence of this evidence, I believe that Excel do not have the legal capacity to enforce such a charge.
I require the unredacted landowner contract including any payments made between the parties, names & dates & details of all terms included. I suspect Excel are merely an employed site agent and this is nothing more than a commercial agreement between the two parties. There is nothing that could enable Excel to impact upon visiting drivers in their own right, for their own profit. For the avoidance of doubt, I will not accept a mere “witness statement” instead of the relevant contract. There would be no proof that the alleged signatory can act on behalf of the landowner or has ever seen the relevant contract. Also a letter or statement would fail to show any payments made between the parties, and would omit dates & details of all terms in the actual contract - and so would fail to rebut my appeal point about the Operator's lack of standing & assignment of any rights.
3) ANPR - Inaccuracy and Non-compliance, including lack of ANPR data usage signs
I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times and yet I contend the driver was a customer of Subway.
In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:
''21 Automatic number plate recognition (ANPR)
21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this 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 will use the data captured by ANPR cameras for.
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''
No signs at the car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here. Unless the Operator can show documentary evidence otherwise, then this BPA Cop breach would also point to a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary with records and photos.
4) Unfair terms
The terms that the Operator is alleging create a contract, were not reasonable, not individually negotiated and caused a significant imbalance - to my potential detriment. Therefore, this charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says: ‘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.’
Further, the charge contravenes The Unfair Terms in Consumer Contract Regulations 1999 :
Schedule 2 : Indicative and non-exhaustive list of terms which may be regarded as unfair”
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.”
5(1) ''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. (2) 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.''
From the Office of Fair Trading’s 'Guidance for the Unfair Terms in Consumer Contract Regulations 1999':
Group 5 : Financial penalties – paragraph 1(e) of Schedule 2:
5.1 “It is unfair to impose disproportionate sanctions for a breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law.”
Group 18(a): Allowing the supplier to impose unfair financial burdens
'18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However, as already noted, transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.
19.14 The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term...will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term.'
I contend the above describes the charge exactly as an 'unfair financial burden'. The charge is designed ostensibly to be a deterrent, but is in fact a disguised penalty, issued by a third party agent which is not the landowner and has no assignment of title. Such a charge would normally be restricted to the landowner themselves claiming for any damages or loss.
yours,
0
Comments
-
Would this be ok to send as it is or would I need ot make a few changes somewhere on it.?
many thanks
martin0 -
Lots of big gaps.
Do you have anything on the signage you can use? Not essential, but good to throw everything at them!
Apart from that looks ok to me.Newbie thread: go to the top of this page and find these words: Main site > MoneySavingExpert.com Forums > Household & Travel > Motoring > Parking Tickets, Fines & Parking. Click on words Parking Tickets, Fines & Parking. Newbie thread is the first post. Blue New Thread button is just above it to left.0 -
Hi. I have added an extra point as advised, so I was hoping someone could cast their eyes over it to see if it makes sence before I send it.
many thanks. M.
I will adjust the gaps if it all read ok .
Name-
Registration number-
Address-
Date-
POPLA Verification code-ten digit number.
Dear POPLA adjudicator,
I am writing to appeal against a parking charge levied by Excel Parking Services Ltd on 05/08/14. I am the registered keeper of the vehicle concerned.
The grounds for my appeal are as follows :- 1) No genuine pre-estimate of loss
- 2) No standing or assignment of rights to enforce this charge in the courts
- 3) ANPR - Inaccuracy and Non-compliance, including lack of ANPR data usage signs
- 4) Unfair terms
- 5) Misleading Signs
1) No genuine pre-estimate of loss
The charge of £100 is punitive and unreasonable, contravening the British Parking Association’s Code of Practice section 19. Excel Parking Services Ltd (Excel) must therefore be required to explain their 'charge' by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention. However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused so Excel have no cause of action to pursue this charge. I specified in my original appeal that I would like to see a breakdown of the costs incurred by Excel as a result of the alleged breach. Excel have failed to provide this information, stating that the charge is in line with BPA guidelines and therefore “deemed reasonable”. This reply completely fails to demonstrate that the whole charge is a genuine pre-estimate of loss. The fact that the recommended maximum level in section 19.5 (“we would not expect this amount to be more than £100”) has not been exceeded merely means that the operator does not have to justify the amount in advance. In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge can “cannot be punitive or unreasonable”.
Excel cannot include their operational tax-deductible business running costs - for example, costs of signage, staffing and dealing later with the appeals, or hefty write-off costs. This would not represent a loss resulting from a breach of the alleged parking contract and in any case I believe Excel are likely to be paid by their client - so any such payment income must be balanced within the breakdown Excel supply and must be shown in the contract.
Nor is the charge 'commercially justified'. If Excel cite 'ParkingEye v Beavis & Wardley' it's irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, POPLA Assessor Chris Adamson has stated in June 2014 upon seeing VCS' latest effort at a loss statement - their latest attempt to get around POPLA and likely to be broadly similar to any effort made by their sister firm, Excel - that:
''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.
This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''
My case is the same and Excel contracts are nothing like ParkingEye's contract in the Beavis case anyway, where Parking Eye paid £1000 per week for what was in effect a 'fishing licence' to catch victims and where the Operator made out they were the principal. In my case, Excel are merely agents at best, with a bare contractor's licence to put up signage and 'issue tickets' and they are known to be paid by their client so they have no standing nor loss to claim in their own right anyway. Of course money changing hands will affect any calculations of so-called 'loss' and is one of several reasons why I will require the landowner contract in full (unredacted).
2) No standing or assignment of rights to enforce this charge in the courts
Excel have no proprietary interest in the land concerned and have not responded to a request for a copy of the contract with the landowner in which authority to pursue outstanding parking charges is granted, as required by the BPA Code of Practice, Section 7. In particular, the issue of the requirement set out in section 7.2 paragraph (f) : “whether or not the landowner authorises you to take legal action to recover charges from drives charged for unauthorised parking” has not been addressed. In the absence of this evidence, I believe that Excel do not have the legal capacity to enforce such a charge.
I require the unredacted landowner contract including any payments made between the parties, names & dates & details of all terms included. I suspect Excel are merely an employed site agent and this is nothing more than a commercial agreement between the two parties. There is nothing that could enable Excel to impact upon visiting drivers in their own right, for their own profit. For the avoidance of doubt, I will not accept a mere “witness statement” instead of the relevant contract. There would be no proof that the alleged signatory can act on behalf of the landowner or has ever seen the relevant contract. Also a letter or statement would fail to show any payments made between the parties, and would omit dates & details of all terms in the actual contract - and so would fail to rebut my appeal point about the Operator's lack of standing & assignment of any rights.
3) ANPR - Inaccuracy and Non-compliance, including lack of ANPR data usage signs
I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times and yet I contend the driver was a customer of Subway.
In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:
''21 Automatic number plate recognition (ANPR)
21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this 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 will use the data captured by ANPR cameras for.
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''
No signs at the car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here. Unless the Operator can show documentary evidence otherwise, then this BPA Cop breach would also point to a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary with records and photos.
4) Unfair terms
The terms that the Operator is alleging create a contract, were not reasonable, not individually negotiated and caused a significant imbalance - to my potential detriment. Therefore, this charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says: ‘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.’
Further, the charge contravenes The Unfair Terms in Consumer Contract Regulations 1999 :
Schedule 2 : Indicative and non-exhaustive list of terms which may be regarded as unfair”
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.”
5(1) ''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. (2) 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.''
From the Office of Fair Trading’s 'Guidance for the Unfair Terms in Consumer Contract Regulations 1999':
Group 5 : Financial penalties – paragraph 1(e) of Schedule 2:
5.1 “It is unfair to impose disproportionate sanctions for a breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law.”
Group 18(a): Allowing the supplier to impose unfair financial burdens
'18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However, as already noted, transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.
19.14 The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term...will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term.'
I contend the above describes the charge exactly as an 'unfair financial burden'. The charge is designed ostensibly to be a deterrent, but is in fact a disguised penalty, issued by a third party agent which is not the landowner and has no assignment of title. Such a charge would normally be restricted to the landowner themselves claiming for any damages or loss.
4) Misleading Signs
Terms are only imported into a contract if they are clear and so prominent that the party 'must' have known of it and agreed. The terms are misleading, with wording that dresses up the charge as a 'contractual' fee. It is not.
There was no agreement to pay. No consideration/acceptance flowed to and from both parties, so there was no contract formed. This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not 'customers' of Excel and not expecting to read a contract when they park. It would be necessary for any signs to be so prominent that the terms must have been seen/accepted by the driver. That is not the case.
No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal): 'The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.'
The signs there now are certainly not 'startling'. The restrictions were not obvious and nor were the terms drawn to the driver's attention - and certainly not the risk of any hefty 'charge'.
The driver says that they don't recall seeing any notices - without that, there is no contract at all.
The sign and the Notice to Keeper are ambiguous and contradictory. On the Notice to Keeper the sum is stated as a 'contravention' for 'breaching the terms and conditions' yet the sign misleadingly alleges a 'contractual' sum. If so, there would be a payment mechanism and a VAT invoice. There is none. This is not a transparent contract and is a disguised penalty. Terms must be clear otherwise under the doctrine of contra proferentem, the interpretation that favours the consumer applies.
Also no photo of the car park entrance and signs have been provided, that would duplicate like for like conditions. I am sure that you would agree a sign in darkness is very difficult to notice, let alone read small misleading details on. No evidence of suitable lighting on such signs have been provided.
yours,
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Hi
would someone be able to have a quick look at this revised letter of appeal before I send it please.
many thanks
martin0 -
hi. would anyone be able to give my second draft letter a quick look over before I send it please.many thanks. martin0
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hi. would anyone be able to give my second draft letter a quick look over before I send it please.many thanks. martin
The problem you've created here is to have two threads running on the one parking event and copying and pasting the same appeal in both threads asking for critique causes confusion. And in this particular thread with no background information there is no context against which to make meaningful comment.
I've skim read it (best I can do with the number of lengthy drafts that appear each day asking for us to pick through the minutiae; doing this daily for the past 18 months can become pretty wearing!).
On the basis you've got three of the key points covered - GPEOL, Standing and Signage - if you are happy you've copied and pasted these correctly (and they are contextually accurate) from previous winning appeals, then they should be OK.
Just 2 specific points:
1. After 'VCS' in the Chris Adamson point about GPEOL you could add - 'Excel's sister company'.
2. There is a mention of Subway in your appeal. Having checked through this thread and your other one, I've not spotted reference to Subway previously. Is this the location of your parking event, or is it a copy and paste from another appeal where you've inadvertently not edited Subway out?
HTHPlease note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
hi
I have received excels reply to this appeal, which I shall try and put below. just wanted to know if anyone can help as to what to do next and if a responses is required.
the have sent a lot of photos of the signs on the car park in daylight. they have also sent a breakdown of a pre estimated loss statement.
here is their summary.
Signage and Machines:
The prominent signage clearly states, “This is a 24 Hour Pay and Display Car Park”. Our signs are located at the entrance and at regular intervals around the car park.
There are a total of 15 highly prominent signs on site including 1 x Entrance Sign (660mm x 1250mm) 8 x Information Signs (660mm x 1250mm), 2 x Tariff Boards (1200mm x 1000mm) and 4 x P&D Machines with “Pay Here” cones at a height of 2.5 metres.
The signage clearly states, “Ticket/Permit must be purchased at time of parking” and, “Entry to and/or use of this car park is subject to current Terms and Conditions of Excel Parking Services Ltd. Any persons utilising this car park hereby accept these Terms and Conditions”.
The signage also states, “Parking Charge Notices will be issued for: - Failure to purchase and/ or clearly display a valid ticket/permit”.
It should also be noted that the P&D machines at the Moor Centre Car Park communicate audibly with motorists and state, “Please ensure that you enter your full vehicle registration number when purchasing your ticket. I repeat, please enter your full vehicle registration number when purchasing your ticket. Thank you” (audio file in Section: G).
Summary of Evidence:
1) The Moor Centre Car Park is private land and motorists are allowed to enter that land for the purpose of parking their vehicle provided that they abide by any clearly displayed conditions of parking. It is clear that the terms of parking stated that a Pay and Display ticket must be purchased and displayed or the motorist would face liability for a Parking Charge Notice. Signage states, “This is a 24 Hour Pay and Display Car Park”.
2) Management of The Moor Centre Car Park is conducted by ANPR cameras, which record vehicle registration numbers as vehicles enter and leave the car park. The VRM images are compared with tickets purchased at the P&D machines and any vehicle that remains on the car park for 15 minutes and fails to purchase a valid P&D ticket will result in a Parking Charge Notice being issued.
1) A reasonable grace period of 15 minutes is allowed on site to allow motorists to park, read the Terms and Conditions and either leave the site or purchase a valid Pay and Display ticket.
2) The Parking Charge Notice issued to the appellant clearly states; “If, after 28 days from the date of this Parking Charge Notice payment has not been made in full, or we have not been provided with the name and a serviceable address for the driver/hirer, under Schedule 4 of the Protection of Freedoms Act 2012, we do have the right to recover from the Registered Keeper of the vehicle the amount that remains unpaid”.Under Schedule 4 of the Protection of Freedoms Act 2012; by failing to provide those details, the appellant became liable for the Parking Charge Notice.
3) In his appeals to Excel Parking Ltd, at no time does the appellant address the key point that his vehicle entered a P&D car park and failed to purchase a ticket, as required by the Terms and Conditions displayed, and he offers no mitigation or reason in respect of that contravention.
4) We conducted a comprehensive search of our P&D Database which shows details of P&D Tickets purchased at The Moor Centre Car Park using the appellant’s VRM ‘xxxxxxx’. As can be seen no ticket was purchased on the date of the contravention. (Section G)
5) The appellant questions the signage within the car park and claims that it is inadequate. However, as established members of the British Parking Association, we adhere to their Code of Practice for Private Enforcement on Private Land and Unregulated Car Parks. This Code of Practice gives recommendations in regards to the signage within the car park.
6) There are a total of 15 highly prominent signs on site including 1 x Entrance Sign (660mm x 1250mm) 8 x Information Signs (660mm x 1250mm), 2 x Tariff Boards (1200mm x 1000mm) and 4 x P&D Machines with “Pay Here” cones at a height of 2.5 metres.
7) The prominent signage clearly states, “This is a 24 Hour Pay and Display Car Park”, “Ticket/Permit must be purchased at time of parking” and, “Entry to and/or use of this car park is subject to current Terms and Conditions of Excel Parking Services Ltd. Any persons utilising this car park hereby accept these Terms and Conditions”. Our signs are located at the entrance and at regular intervals around the car park.
8) We must stress that there is a helpline telephone number located at the bottom of all signage on site which is available to all motorists who are experiencing difficulties or have any queries. This was not utilised by the appellant.
9) The document referred to by the appellant was not an invoice as stated, but was a Parking Charge Notice which correctly identified the VAT Number and registered company details. We would also refer to the recent case of VCS vs. HMRC and suggest the appellant read the verdict upon appeal; VCS succeeded in their appeal on 04.03.2013.
10) In his appeal the appellant questions the use of ANPR cameras at The Moor Centre and its compliance with Section 4 of the Protection of Freedoms Act 2012 (PoFA).
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 log 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
1) technology and what you use the data captured by ANPR cameras for”.
2) Signage states, “ANPR – Automatic Number Plate Recognition Cameras are in operation in the car park”
3) 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.
4) It should also be noted that two levels of human conducted validation checks are made for each and every ANPR contravention before any parking charge notice is issued.
5) Signage states, “ANPR – Automatic Number Plate Recognition Cameras are in operation in the car park” and, “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. Vehicle keepers should be aware that their name and address may be requested from the DVLA if they have contravened these Terms and Conditions which may result in a parking charge notice being issued through the postal service”.
6) The ANPR cameras and Pay and Display machines 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.
7) The Network Time Protocol 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. NTP aims to provide the best attainable synchronisation to UTC by using a hierarchy of time servers. At the top are those servers, known as stratum 1, that obtain their time from an external source of UTC such as an off-air receiver for GPS or radio time signals. Servers synchronised to one or more stratum 1 servers are known as stratum 2, and so on.
8) The ANPR cameras and Pay and Display equipment are daily synchronised to the same time source at the National Physical Laboratory using NTP by running client software within the equipment operating system. The client sends periodic time requests across the internet and each call to a server results in an exchange of time-stamped packets of data that allow the client software to estimate the network delay and the rate offset between the client computer’s clock and the server, and uses this information to adjust the clock.
9) In doing this process daily the system ensures that the time held upon the camera correlates to the time held on the Pay and Display machines such that any natural drift inherent within any electrical device is minimised to milliseconds within any day. At each synchronisation of the time service, the equipment reports a successful log of the connection with the NTP and this is used to verify that the equipment is operating with normal parameters.
10) The cameras at the site are networked into a monitoring system, which records and alerts real-time any problems seen with any of our devices or cameras and this is then used to address faults or action repairs.
1) All P&D machines periodically connect to the Excel Parking Services ASLAN monitoring system which is located on a physical Windows Server located in the secure IT. The ASLAN server is synchronised automatically using the Network Time Protocol. When P&D machines connect they report activities such as open doors, faults and cash collections. As part of the scheduled connections the devices synchronise their time on each connection which can be upwards of 15 times per day.
2) The appellant questions the rights of Excel Parking Services Ltd to issue Parking Charge Notices at the Moor Centre Car Park and requests a copy of the contract with the landowner.
3) Excel Parking are the lawful occupiers of The Moor Centre Car Park which is leased by them: as the lawful occupier of the site, they entitled to exercise the same rights over the land as the Landowner and have the lawful right to undertake parking management activities, issue Parking Charge Notices and enforce those charges as if they were the landowner. The Operator is an accredited member of the British Parking Association (BPA) and adheres to the BPA Code of Practice.
4) In his appeal the appellant states that the parking charge is “not a genuine pre-estimate of loss”.
5) There is a long and detailed process put in place to enforce terms & conditions at a car park or restricted areas/roadways (private land) . If we did not enforce breaches of the terms and conditions this would lead to a loss of control of the private land, where vehicles park/stop without consideration to others and/or block access routes etc. Without enforcement, motorists may not adhere to the terms and conditions which would lead to a loss of revenue, which would not be sustainable for a parking/enforcement operator or an acceptable loss to their clients. Also the operator’s inability to control the site could lead to a failure to keep, for example, allotted disabled bays, available for those in most need of it. If operators cannot regulate the private land, their clients would not require their services and the company would cease to exist. It is therefore commercially justifiable that the operator seeks to enforce its terms and conditions.
6) The Parking Charge Notices (PCNs) that we issue represent a claim for liquidated and ascertained damages in respect of a breach of contract’ which is deemed to have been offered by our signage at the location, and accepted by the motorist in that he opted to remain. The breach of the stated terms & conditions has been proved by other evidence elsewhere in this submission. When a motorist uses the private land and is in breach of the terms and conditions of use of the private land, a loss is incurred by us and also impacts on our ability to effectively manage the site.
The appellant has not offered any evidence as to why the charge exceeded the appropriate amount; they have simply stated that in their opinion it does. We contend that that the onus is on the motorist to lay out their reasons with supporting evidence as to why the charge is not appropriate. That said we aim to set out our position in the remainder of this document as to why our charges are based on a genuine pre-estimate of the losses incurred by us due to the breach of the stated terms and conditions. Excel Parking Services Ltd would draw the adjudicator’s attention to the Parking Operators response to the appellant’s argument, contained in our statement, contained within Section G and represents an updated version. It is important to note
: the costs outlined in our statement reflect only those costs which are directly incurred as a result of
1) issuing and processing a Parking Charge Notice and do not include any costs, or apportionment of costs, associated with general company overheads.
2) We would contend that it is too late now for the motorist to indicate that they are unhappy with the parking charge as this should have been done at the time of accepting the contract. When using the private land in question, the motorist freely enters into an agreement to abide by the terms and conditions applicable in return for permission to use that land. It is the motorist’s responsibility to ensure that he/she abides by the advertised terms and conditions of that private land. If the motorist was unhappy with the contract terms, they should not have remained or stopped on the land.
3) The amount of our charge has been calculated in advance and is clearly set out on the notices and signage. As such it is accepted on staying or stopping on the private land and the driver cannot claim that there are any Trading Standards or Consumer Regulation breaches as they have accepted the conditions at the point of opting to remain or stop on that private land. On accepting the contractual terms and conditions, we assert that the appellant cannot now seek to effectively renegotiate them or to dismiss them in their entirety. The charge of £100 reduced to £60 is as advertised and within BPA guidelines (Para. 19.5 of the BPA Code of Practice).
4) We would state that a simple statement from a motorist that in their ‘opinion’, a parking charge is ‘unreasonable, excessive or punitive or not a genuine pre-estimate of loss’is insufficient in itself; the argument needs to be qualified with supporting evidence, as is done by the parking operator. If, in the adjudicator’s opinion, such evidence has not been adequately supplied by either party, then we request that further clarification should be sought, before the case is finally adjudicated upon. In any event, if the adjudicator considers that our pre-estimate of loss calculation is too high, or requires further clarification on any aspect, relevant details should be requested from the operator.
5) We would also highlight to the assessor the following clauses in Schedule 1 of POPLA’s Charter which states:
6) 11.1 An Assessor or Adjudicator shall consider all of the submissions made by both parties before making a decision on the appeal.
7) 11.2 If the Assessor or Adjudicator considers that further evidence is required before a decision can be made then such evidence shall be sought in writing from the relevant party.
8) In law a person can enter into a contract either by expressly agreeing to do so or by acting in such a way that he/she can be said to have implied agreement to enter into a contract. Where notice is given to a motorist of the consequences of parking in a particular area, by implication a motorist enters into a contract with Excel Parking Services Ltd and accepts the terms set out in the Notice by proceeding to park.
9) When parking on private land a motorist freely enters into an agreement to abide by the conditions of parking in return for permission to park. It is the motorist’s responsibility to ensure that he or she abides by any clearly displayed conditions of parking. It is clear that the terms of parking stated that a Pay and Display ticket must be purchased and displayed or the motorist would face liability for a Parking Charge Notice.
The driver failed to purchase a valid Pay and Display ticket and the appellant became liable for the Parking Charge Notice under Schedule 4 of the Protection of Freedoms Act 2012.
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 log 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
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We consider the amount of the Parking Charge Notice (PCN) as a reasonable charge for liquidated damages in respect of a breach of contract and contend that it is not ‘[FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma]unreasonable, excessive or punitive[/FONT][/FONT]’ and is therefore not a ‘[FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma]penalty[/FONT][/FONT]’ for the following reasons:
[FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma][/FONT][/FONT][FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma][/FONT][/FONT][FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma]1. [/FONT][/FONT]We have calculated this sum as a genuine pre-estimate of our losses as we incur significant costs in ensuring 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 costs which may be incurred as a result of a breach in the operator’s terms and conditions; a breakdown of these costs are listed on page 2 of this statement.
[FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma][/FONT][/FONT][FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma][/FONT][/FONT][FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma]2. [/FONT][/FONT]The terms and conditions displayed on site clearly state that if the motorist failed to adhere to the advertised terms and conditions they agreed to pay a Parking Charge Notice of £100.
[FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma][/FONT][/FONT][FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma][/FONT][/FONT][FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma]3. [/FONT][/FONT]Where a motorist enters a private car park or land and by his or her own actions, breaches the advertised terms and conditions, a series of events are initiated that require addressing by the parking operator in order to recover its losses. This necessitates the parking operator to follow up that breach and consequentially, costs are incurred in identifying the person responsible, correctly issuing the relevant parking charge notices and subsequently following due process in order to recover the costs incurred in respect of that breach.
[FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma][/FONT][/FONT][FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma][/FONT][/FONT][FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma]4. [/FONT][/FONT]In October 2012, after significant pressure from Government and motoring/consumer organisations, 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, was reduced from £150 to £100. In this instance the charge being levied is within the recommendations.
[FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma][/FONT][/FONT][FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma][/FONT][/FONT][FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma]5. [/FONT][/FONT]The accredited operator codes of practice recommend that the maximum Parking Charge shall not exceed £100.00 and whilst our pre-estimate of loss calculations are slightly above the maximum, our charges follow this guideline.
[FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma][/FONT][/FONT][FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma][/FONT][/FONT][FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma]6. [/FONT][/FONT]This sum, and the calculations which have been made in setting it, has been approved and agreed by the landowner/lawful occupier and/or his agent of the site.
[FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma][/FONT][/FONT][FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma][/FONT][/FONT][FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma]7. [/FONT][/FONT]Parking Charges are not penalties merely because the clause operates upon a breach of contract. The leading authority on penalties was set by Lord Dunedin in [FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma]Dunlop Pneumatic Tyre Co Ltd v New Garage Motor Ltd [1915] [/FONT][/FONT]in which it was held that a charge would only 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’. This principle was upheld in [FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma]Alfred McAlpine Projects Limited v Tilebox Limited [2005] [/FONT][/FONT]and further stated that the pre-estimate of loss need be ‘reasonable’ as oppose to ‘genuine’. Furthermore, in the case of [FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma]Dunlop Pneumatic Tyre Co Ltd v New Garage Motor Ltd [1915] [/FONT][/FONT]Lord Dunedin states that "the consequences of the breach are such as to make precise pre-estimation almost an impossibility". See also [FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma]Combined Parking Solutions v Dorrington (2012) [/FONT][/FONT]and Combined Parking Solutions v Blackburn (2007). Other cases in which parking charges have been held not to be penalties include [FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma]Mayhook v National Car Parks and Fuller [2012], Combined Parking Solutions v Mr Stephen James Thomas [2008] [/FONT][/FONT]and [FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma]Combined Parking Solutions v De Brunner [2007]. [/FONT][/FONT]We have provided clear evidence that, by staying at the location and making use of the operator’s facilities, the motorist has accepted all of the prevailing terms & conditions including the charge for breaching said terms and conditions. There is sufficient signage both at the entrance and throughout the site setting out the terms and conditions. If the motorist did not agree to the terms and conditions, they had the option to leave the site.
PCN Creation & Issue
[FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma][/FONT][/FONT][FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma]Quality assurance and review of ANPR/CCTV camera images used in the processing of contraventions following a breach of the terms & conditions. Obtaining, matching and checking vehicle data and vehicle keeper details from the DVLA data in order to generate a PCN along with associated postage and stationery costs. [/FONT][/FONT]
[FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma][/FONT][/FONT][FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma]8.12 [/FONT][/FONT]
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1st Representations (appeals and challenges to the operator)
[FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma][/FONT][/FONT][FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma]Receiving, logging, reviewing, writing and sending a written response to representations from the motorist. [/FONT][/FONT]
[FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma][/FONT][/FONT][FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma]12.68 [/FONT][/FONT]
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2nd Stage Process
[FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma][/FONT][/FONT][FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma]Receiving, logging, reviewing, writing and sending a written response to further representations and/or evidence from the motorist and/or corresponding where the motorist is not the registered keeper. [/FONT][/FONT]
[FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma][/FONT][/FONT][FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma]32.92 [/FONT][/FONT]
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Notice to Drivers, Follow-up and Reminder Notices
[FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma][/FONT][/FONT][FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma]Re-issuing the PCN where, for example, the keeper names another person as the driver. The issue of standard and ad-hoc reminder notices. [/FONT][/FONT]
[FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma][/FONT][/FONT][FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma]2.75 [/FONT][/FONT]
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Evidence Packs for Independent Adjudication Service
[FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma][/FONT][/FONT][FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma]The cost of producing, reviewing and submitting evidence packs. The cost of monitoring and tracking the outcome and complying with the outcome of the appeals process. The fees associated with the Independent Adjudication Service are excluded from these costs. [/FONT][/FONT]
[FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma][/FONT][/FONT][FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma]49.69 [/FONT][/FONT]
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Final Reminder Process
[FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma][/FONT][/FONT][FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma]The cost of issuing a final written letter to allow the motorist to pay before further action is taken. [/FONT][/FONT]
[FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma][/FONT][/FONT][FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma]2.72 [/FONT][/FONT]
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Debt Recovery Process
[FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma][/FONT][/FONT][FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma]This cost relates to two elements of debt recovery. Firstly, the cost and time associated with obtaining a debtors background check, provision of data sets (including quality assurance), 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). Secondly, a provision for consideration of late appeals and cancellations arising from appeals allowed and requests [/FONT][/FONT]0 -
So...search the forum again, that's what it's here for, that's how forums work best. You didn't need to copy all that out - it's best not to just sit on your own thread posting about what happens next and asking for help at each stage. That letter is not unique - PPCs use generic responses. Read other threads and see what to do next.
'Excel rebuttal GPEOL' as keywords put into 'search this forum' next to 'forum tools' (the line above the sticky threads) should find results of what people have said as their last reps to POPLA before winning. Try the search - that's how to use a forum for any subject you want to research, not just posting on a thread. But do tell us when you win!PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top of this/any page where it says:
Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
I have tried to read all the related posts but none seem to match the reply I have had from excel. I have spent the last day with a pounding head not too sure what to do next but I have drafted the below to send to popla. im not too sure if im on the right lines or not, but if anyone can give me any helpful advice I would be very grateful.
To Popla appeals.
I have received Excels statement with regard to my appeal and would like to answer it in the following way please.
My main point revolves around the fact that the charge is not a genuine pre-estimate of loss:
The charge is not a genuine pre-estimate of loss incurred by Excel Parking Limited and is punitive, contravening the Unfair Contract Terms Act 1997. I also consider the Parking Charge Notice to be a penalty because Excel Parking Limited have alleged a breach of terms and conditions and yet have not quantified their alleged loss (which cannot include business running costs nor the POPLA fee).I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bank of Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”. This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.'' As for the actual GPEOL "calculation": Nearly all of it consists of (implausible) expenses arising, supposedly, from handling this PoPLA appeal. But (i) the supposed loss was originally claimed when the charge notice was first issued, and at that point there was no appeal; the alleged loss needs to be justified as it was then, it cannot be retro-fitted with convenient costs which hadn't been incurred at the time of the original demand and, at that time, might never have been incurred; and (ii) it is in any case the position of both the government and BPA Ltd. that PoPLA should be a free service to the motorist, therefore the motorist cannot be charged for the costs of PoPLA appeals. BPA Ltd. has recently instructed operators to cease this practise. They have also claimed for a debt recovery process for some reason. The alleged loss also includes staff and admin costs which are day-to-day operational costs which the operator would have incurred regardless of the parking "event" and which the operator doubtless offsets against tax. There is no Genuine Pre-estimated of Loss breakdown to how they have come up with £123.82, as business costs are not losses and therefore should not be passed down to the motorist. Nowhere have they stated a value of how much they propose that the driver failed to pay for the time they claim they were at the car park. This would surely be the actual “loss”.
A parking charge cannot be used to manufacture a loss where none existed, and yet this is exactly what Excel has attempted. It is circular, it is specious, and it most certainly isn't genuine.
Signage and machines.
No image had been submitted for a like for like image as to the time the PCN was issued. It was not made clear that there was no waiting allowed. The print was too small on the signs to allow for a contract to be made between a driver and excel. The signage which is designed to inform drivers of no stopping is entirely inadequate, in that it requires drivers to stop to be able to read safely, and in my opinion is not clear. the fact that the PCN was issued when the signs were in darkness makes the signage even more unclear.
This is a definition of parking taking from the English dictionary- is(of a vehicle) stopped and left in a place for a period of time. This never occurred. The area was entered for the safety of the driver but the engine was left running and the vehicle was defiantly not parked, as Excel has stated in most of their evidence. Can they provide proof that the vehicle was parked, or only that it merely entered the area. Signage does not make clear that when someone is in danger they may not enter the area.
There seems to be no unredacted contract, which could include information about 'money changing hands' in the contract, hiding information that could be relevant to the costs calculation fails to meet the strict proof of contract terms needed.
Summary of evidence.- No parking occurred, the driver was waiting for a dangerous situation to pass, and did not leave the vehicle or stop the engine.
- These cameras do not prove that parking occurred, or cannot tell why the driver entered the car park.
- The car had its engine running the whole time and was not parked, whilst waiting for a dangerous situation to pass.
- The driver was in a situation of danger.
- A dangerous situation occurred to which the police have a record of.
- No parking occurred
- The signage was inadequate as the driver was not aware of the full nature of the contract being offered.
- Having a large quantity of something is no proof of its quality.
- No parking occurred and in dark conditions the sign did not make clear that entry was not allowed.
- No parking occurred.
- At first appearance it appears as an official penalty notice, designed to scare the individual into paying an unrealistic charge. After re-reading it, it does appear to be an invoice to me.
- Signs were not clear in dark conditions.
- Signs were not clear in dark conditions.
- Sign was not clear in dark conditions
- Signs are not clear in dark conditions.
- There is no proof of this.
- Sign not clear in dark conditions.
- No parking occurred.
- No actual proof of accuracy in this case.
- No actual proof in this case.
- No proof offered in this case.
- No proof offered in this case.
- No actual proof offered.
- Full contract has not been supplied for inspection.
- Full contract has not been supplied for inspection.
- Correct.
- A parking charge cannot be used to manufacture a loss where none existed, and yet this is exactly what Excel has attempted. It is circular, it is specious, and it most certainly isn't genuine.
- A parking charge cannot be used to manufacture a loss where none existed, and yet this is exactly what Excel has attempted. It is circular, it is specious, and it most certainly isn't genuine. What losses were actually caused at this time is not stated in real terms.
- I think anyone who was asked would conclude that the charge is not a true reflection of any loss incurred by Excel.
- The signage which is designed to inform drivers of no stopping is entirely inadequate, in that it requires drivers to stop to be able to read safely, and in my opinion is not clear.
- The signage which is designed to inform drivers of no stopping is entirely inadequate, in that it requires drivers to stop to be able to read safely, and in my opinion is not clear. A parking charge cannot be used to manufacture a loss where none existed, and yet this is exactly what Excel has attempted. It is circular, it is specious, and it most certainly isn't genuine. I would also need evidence that this was actually calculated in advance of the PCN being issued.
- A parking charge cannot be used to manufacture a loss where none existed, and yet this is exactly what Excel has attempted. It is circular, it is specious, and it most certainly isn't genuine.
- A parking charge cannot be used to manufacture a loss where none existed, and yet this is exactly what Excel has attempted. It is circular, it is specious, and it most certainly isn't genuine.
- A parking charge cannot be used to manufacture a loss where none existed, and yet this is exactly what Excel has attempted. It is circular, it is specious, and it most certainly isn't genuine.
- A parking charge cannot be used to manufacture a loss where none existed, and yet this is exactly what Excel has attempted. It is circular, it is specious, and it most certainly isn't genuine.
- No parking took place. The signage which is designed to inform drivers of no stopping is entirely inadequate, in that it requires drivers to stop to be able to read safely, and in my opinion is not clear. A parking charge cannot be used to manufacture a loss where none existed, and yet this is exactly what Excel has attempted. It is circular, it is specious, and it most certainly isn't genuine.
- No parking took place. The signage which is designed to inform drivers of no stopping is entirely inadequate, in that it requires drivers to stop to be able to read safely, and in my opinion is not clear. A parking charge cannot be used to manufacture a loss where none existed, and yet this is exactly what Excel has attempted. It is circular, it is specious, and it most certainly isn't genuine.
- No parking took place. The signage which is designed to inform drivers of no stopping is entirely inadequate, in that it requires drivers to stop to be able to read safely, and in my opinion is not clear. A parking charge cannot be used to manufacture a loss where none existed, and yet this is exactly what Excel has attempted. It is circular, it is specious, and it most certainly isn't genuine.
xxxxx
any help would be great thanks.
0
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