POPLA appeal draft Excel

Just after some feedback to check I've got enough points before submiting....
I have left out ANPR as I'm not sure there is any? (Iceland CP, windscreen ticket)


Dear POPLA adjudicator,

I am writing to appeal against a parking charge levied by Excel Parking Services Ltd on xx/xx/2014. 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 authority to pursue charges nor form contracts with drivers
3. No Creditor identified on the Notice to Keeper
4. Unclear and Non-compliant Signage







• 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 did not believe their charge to be a genuine pre-estimate of loss, Excel replied stating that the charge is in line with BPA code of practice. 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 “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.

If Excel claim that the charge is 'commercially justified' and cite 'Parking Eye v Beavis & Wardley', I put forth that such a claim is 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. POPLA Assessor Chris Adamson has stated in June 2014 upon seeing Excels latest effort at a loss statement - their latest attempt to get around POPLA - 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 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.''

If Excel have since changed their GPEOL calculations from the version presented to the POPLA Assessor in June, then I contend that the calculation still fails as it is not a genuine PRE-estimate and in fact is a 'post-estimate' after the event, of figures designed to match the charge. Indeed, in the 2014 Annual Report prepared by the lead assessor, Mr Greenslade, he stated, “However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."




2. No standing or authority to pursue charges nor form contracts with drivers

I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Excel must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. This has not been produced by the operator in their rejection statement so I have no proof that such a document is in existence. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice.
I strongly believe Excel are paid an annual sum for their 'service' like having the machines, signage, etc at that car park. If they have included those same business costs again in the 'GPEOL' calculation, Iceland already covers that cost as far as I can ascertain. In the case of Filmcilik-v-UIP and McAlpine-v-Tilebox, these are commercial cases between two large companies of equal bargaining power whereas I am a consumer & no contract was ever negotiated with me. Consumer law prevails; there can be no 'commercial justification'.

I therefore put Excel to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Excel and the landowner. This is required so that POPLA and myself can check that it allows this Operator to make contracts with drivers themselves and provides them with full authority to pursue charges, including a right to pursue them in court in their own name. Please note that a witness statement to the effect that a contract is in place will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.).



3. No Creditor identified on the Notice to Keeper

Failing to include specific identification as to who “the Creditor” may be is misleading and not compliant in regard to paragraph 9(2)(h) of Schedule 4 of the Protection of Freedoms Act 2012. Whilst the Notice has indicated that the operator requires a payment to VCS there is no specific identification of the Creditor who may, in law, be VCS or some other party. The Protection of Freedoms Act requires a Notice to Appellant to have words to the effect that “The Creditor is…” and the Notice does not.




4. Unclear and Non-compliant Signage

This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not Excel's customers and are not parties of equal bargaining power, nor are they even aware that any 'contract' is possible. Therefore all terms are required to be so prominent and the risk of a charge so transparent that the information in its entirety must have been seen/accepted by the driver.

Accordingly I contend that any signs must have been unclear to the point that any core parking terms Excel are relying on were not sufficiently prominent for the driver to discern before parking. Signage must also fail to comply with the BPA Code of Practice requirements. I put Excel to strict proof of clear signs at the entrance and all around this car park. Any photographic evidence must be taken at a similar time of day/light level as in my case.

I contend that the signs in that car park (wording, position, and clarity) do not comply and failed to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. Terms are only imported into a contract if they are clear and so prominent that the party 'must' have known of it and agreed.

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). Lord Denning continued: '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.'

I therefore respectfully request that my appeal is upheld and the charge dismissed.
Yours faithfully