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  • FIRST POST
    • AS_Textiles
    • By AS_Textiles 13th Sep 16, 1:45 PM
    • 8Posts
    • 7Thanks
    AS_Textiles
    Excel Parking - poor worded signage
    • #1
    • 13th Sep 16, 1:45 PM
    Excel Parking - poor worded signage 13th Sep 16 at 1:45 PM
    Good afternoon

    Background:
    3AM - saw a sign "All day parking £5"
    Parked and caught a train to London.
    Returned after 18 hours to find a PCN claiming I over-parked.
    Supposedly the parking was meant to be for 12 hours only.

    I responded to their claim as per below with evidence:

    1. The charges are penalties.
    The charges are represented as a breach of contract. Whilst it is disputed that a valid contract was entered into (see point 8.1) according to the IPC code "All Parking Charges issued by you must be reasonable and enforceable under any applicable legal provisions. If your charges amount to damages you should be able to demonstrate how such charges are calculated as a ‘genuine preestimate
    of loss’ in order to be able to justify the amounts."

    £100 is clearly not proportionate when the claimant is justifying their “Penalty” whilst claiming that the overstay charge unpaid is valued at £5. Neither is it commercially justifiable because there is a revenue stream from pay and display charges. As this is clearly a trespass scenario, although not described as such, the charges in law need to be a genuine pre estimate of loss.

    I require Excel to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. Excel cannot lawfully include their operational day to day running costs in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement ' would still remain the same.

    According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there.

    As the landowner does not impose a parking fee for the area in question, there is no loss to Excel or the landowner. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.''

    I contacted Excel Parking on 31st May 2016 (email attached), asking them to reconsider their charge as it was unjustifiable and solely based on their poor signage. Excel's attempted explanations for the £100 charge are not adequate or satisfy a genuine pre-estimate of the loss. I do not accept Excel's contention that their own continued commercial existence is an acceptable or justifiable reason for them to enforce disproportionate parking charges without alternative evidence of to justify a genuine loss.

    2. Unclear and non-compliant signage, forming no contract with drivers and poorly detailed. I have provided a picture of their signage in big banner outside the car park inviting in unwary drivers, marked unabashedly – “All day parking £5.00” - also other images show that the car has hardly any other signage at all. If it is indeed the case that Excel Parking charges £ 5.00 for 12 hours only, as per their claim, then their signage is wrong for two reasons:

    First, a “day” by any reasonable definition is 24 hours. When parking at night – how can Excel Parking justify “all day” to mean 12 hours for even those parking at night?
    Second, Excel Parking has made no reasonable effort to point out that “all day” is restricted to 12 hours.

    The IPA should take serious note, as drivers feel hoodwinked and tricked in to this commercial trap. The IPC and BPA will also be notified.

    I would also contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts,2011. As such, the signs were not so prominent that they 'must' have been seen by the driver - who would never have agreed to pay £100 in a car park with much lower tariffs available.

    3. Contract with landowner - no locus standi
    Excel do not own nor have any interest or assignment of title of the land in question. Excel has no necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner.

    I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between Excel and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 In that case the Judge found that, as the Operator did not own any title in the car park: 'The decision to determine whether it is damages for breach...or a penalty...is really not for these Claimants but...for the owners. We have a rather bizarre situation where the Claimants make no money apparently from those who comply with the terms...and make their profit from those who are in breach of their contract. Well that cannot be right, that is nonsense. So I am satisfied that...the
    Claimants are the wrong Claimants. They have not satisfied this court that they have suffered any loss...if anything, they make a profit from the breach.'

    I challenge this Operator to rebut my assertion that their business model is the same 'nonsense', and is unenforceable. Excel cannot build their whole business model around profiting from those they consider to be in breach of a sign, on land where they have no locus standi, and then try to paint that profit as a perpetual loss.

    I refer to the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be."

    In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges

    are in fact damages, or penalties, for which the Operator must demonstrate his actual, or preestimated losses, as set out above.

    4. Failure to adhere to the IPC code of practice.
    The signs do not meet the minimum requirements in “Schedule 1 – Signage”. They were not clear
    and intelligible as required and proven by the evidence attached.
    Last edited by AS_Textiles; 13-09-2016 at 1:53 PM.
Page 1
    • AS_Textiles
    • By AS_Textiles 13th Sep 16, 1:50 PM
    • 8 Posts
    • 7 Thanks
    AS_Textiles
    • #2
    • 13th Sep 16, 1:50 PM
    • #2
    • 13th Sep 16, 1:50 PM
    However, they have now rebutted the claim (seems like a copy/paste job) -

    1. The Fazeley Street Car Park is private land and motorists are allowed to enter that land to park their vehicle provided that they abide by any displayed Terms and Conditions. The signs on site clearly state, “A valid Pay & Display ticket must be displayed inside the front windscreen of your vehicle with the date and time clearly visible at all times”.

    2. There are 3 x highly prominent signs on site: 1 x Entrance Sign (1220mm x 660mm), 1 x Tariff Board (1200mm x 1000mm) and 1 x £5 All Day Parking Sign (2000mm x 1000mm), which is situated on wooden posts facing out of the car park on Fazeley Street. Photographs confirming that signage can clearly be observed throughout the car park, including at the entrance, are supplied herewith.

    3. When the Parking Attendant issued the Parking Charge Notice (PCN) they stated, “Expired Ticket. Not on Ringo”. The Parking Attendant observed the vehicle in situ for 10 minutes from 15:46 until 15:56 before issuing the PCN. We refer to the reverse of the PCN where the Parking Attendant has completed the PO’s checklist and they have signed their statement as a true and accurate statement of fact.

    4. Contravention Photos supplied show the appellant’s vehicle parked as observed by the Parking Attendant with an expired ticket on display. These photos are time and date stamped. The appellant’s ticket had expired at 15:46; 10 minutes before the PCN was issued.

    5. In their appeal, the appellant has stated that they arrived at night, and purchased the incorrect ticket, lasting for 12 hours rather than the 24 they intended.

    6. Site signage, proofs of which have been provided, makes it clear that a valid Pay & Display ticket must be displayed inside the front windscreen at all times. It is the motorist’s responsibility when entering the site to make themselves aware of the Terms and Conditions of parking and to comply with them or accept liability for a PCN. Our signage meets all current IPC requirements.

    7. In their appeal, the appellant has further stated that they could not read the expiry time on the P&D due to the darkness. The appellant purchased their ticket at 03:46.

    8. The time of expiry is clearly shown on the appellant’s P&D ticket, as can be seen in the contravention photographs supplied. Irrespective of the time of purchase, and whether this was during the hours of darkness it was solely the appellant’s responsibility to check their ticket for it’s expiry time.

    9. In their appeal, the appellant also stated that the site signage is unclear as to what constitutes a ‘day’ for £5 with regards to the Pay & Display tickets offered on site. We refer the adjudicator to the tariff board (supplied) which clearly shows that on Mondays to Saturdays a parking period of 5-12 hours is charged at £5 and a full 24 hours is charged at £10. This tariff board makes the charges for parking on site clear to users and it is their responsibiilty to ensure they have read and are happy to abide by the Terms and Conditions displayed.

    10. The appellant refers to the case of Excel Parking Services Ltd vs. Martin Cutts of 2011 in relation to our signage. The case referred to by the appellant relates to another car park, in another town, was 5 years ago and is not relevant to this appeal.

    11. There is a helpline number located at the bottom of all the signage on site which is available to all motorists who have any queries or are experiencing difficulties. The appellant did not make use of this helpline. Had the appellant contacted us on the date of contravention provision could have been made for them, which could have prevented the PCN.

    12. In response to the appellant’s comments in relation to the amount of the PCN charge, our charges are neither extravagant nor unconscionable and as such, are commercially justified and legitimately enforceable. We would refer to the recent judgment by the Supreme Court in the case of ParkingEye v Beavis [2015].

    13. The appellant has raised as an issue that we do not have the required authority to operate on this site. We would refer the Adjudicator to the signs which form the basis of this charge. It will be noted that the charge arises out of a relationship in contract and that we are the principal (not an agent) in the contract. Whilst we maintain that we do in fact have the authority of the landowner to operate upon this site (being the principal in the contract), the existence of this document has no legal bearing on the contract with the motorist. See Vehicle Control Services v HMRC [2013] EWCA Civ 186, para 22 per Lewison LJ.

    14. The appellant has requested a copy of the contract between the landowner and Excel Parking Services. As this is a commercially sensitive document, and is irrelevant to the issues at hand, this is not provided as evidence in this appeal, which may be accessed and circulated by the appellant.

    15. The signage makes it clear that any motorist who parks in contravention of the Terms and Conditions of parking displayed will be liable for a PCN.

    16. The appellant became liable for a Parking Charge Notice by parking after the expiry of their pay and display ticket.

    -

    Could someone give me some assistance to rebut their ridiculous response please? Thank you.
    • Coupon-mad
    • By Coupon-mad 14th Sep 16, 1:15 AM
    • 40,580 Posts
    • 52,470 Thanks
    Coupon-mad
    • #3
    • 14th Sep 16, 1:15 AM
    • #3
    • 14th Sep 16, 1:15 AM
    Are you saying you are actually trying the pointless IAS 'service'? Why? Most posters here do not recommend you go near it because it is considered biased and you WILL almost certainly lose the appeal (barring a miracle) then you will feel on the back foot and they will proceed to court. No point handing them an IAS 'win' at the alleged kangaroo court.

    Your argument is out of date, this does not work in court:
    Excel's attempted explanations for the £100 charge are not adequate or satisfy a genuine pre-estimate of the loss. I do not accept Excel's contention that their own continued commercial existence is an acceptable or justifiable reason for them to enforce disproportionate parking charges without alternative evidence of to justify a genuine loss.
    ...the Supreme court in ParkingEye Ltd v Beavis (November 2015) thought in their infinite wisdom that ParkingEye's own continued commercial existence is an acceptable or justifiable reason for them to enforce disproportionate parking charges without alternative evidence of to justify a genuine loss. SHOCKING, isn't it?! The 'loss' argument is in the bin thanks to the Supreme Court - whose decision insulted consumers and frankly beggared belief they way long-established case law was bent and changed for 'Capita'.

    Now in 2016, parking companies are having a feeding frenzy in court claims (quelle surprise).

    if this was an IAS appeal, wait to be told you have lost, because you will lose that stage. If this is pre-IAS stage then DO NOT GO THERE.

    Sit tight and you will receive the BW Legal letters everyone else is talking about on every 5 or 6 new thread posts every day on here and on pepipoo forum. Please read them in advance and you will then know exactly how to respond and to report BW Legal to the CSA and SRA to delay matters and possibly end the possibility of a claim.

    Search the forum and pepipoo, for 'BW LEgal' and you will be here for a fortnight reading all the threads! You'll know exactly what to do.
    Last edited by Coupon-mad; 14-09-2016 at 1:19 AM.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • AS_Textiles
    • By AS_Textiles 15th Sep 16, 12:16 AM
    • 8 Posts
    • 7 Thanks
    AS_Textiles
    • #4
    • 15th Sep 16, 12:16 AM
    • #4
    • 15th Sep 16, 12:16 AM
    Thanks for your reply.

    It does sound depressing the the SC has screwed us bigtime..lol

    I thought I had a case because it was a genuine mistake - their sign is clearly marked "All day parking £5" and yet they claim all day refers to 12 Hours - how they can justify that when I parked at night, I have no idea!

    Below is the image (Okay seems I cant upload it or even link to it. )

    Anyway, I guess I will have to pay it.
    • Coupon-mad
    • By Coupon-mad 16th Sep 16, 9:19 AM
    • 40,580 Posts
    • 52,470 Thanks
    Coupon-mad
    • #5
    • 16th Sep 16, 9:19 AM
    • #5
    • 16th Sep 16, 9:19 AM
    No, that is not what I said at all! Who said to pay it? If you do that you support the scam and fund the next PCNs against yet more innocent ordinary drivers, ripped off on some jumped up excuse for moneymaking.

    Where does the NEWBIES thread say that? It tells everyone to ignore IAS stage and everyone here happily does that. Look, here's someone given the same advice as you were, that same evening, who totally got it and didn't make a strange leap to thinking 'no appeal worth trying, so sit tight & ignore them' suddenly means 'better pay it then'(!):

    http://forums.moneysavingexpert.com/showthread.php?p=71301443#post71301443

    And why didn't you just look at other threads to see how to show images as everything has been discussed before and newbies can just search for the answer. All you need to do is break the link...
    Last edited by Coupon-mad; 16-09-2016 at 10:11 AM.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • AS_Textiles
    • By AS_Textiles 12th Oct 16, 1:23 AM
    • 8 Posts
    • 7 Thanks
    AS_Textiles
    • #6
    • 12th Oct 16, 1:23 AM
    • #6
    • 12th Oct 16, 1:23 AM
    I reviewed my option to pay and I realised you are completely right and it would be best to fight it. Not worth paying without a fight, especially when their charge is wrong and unlawful.

    Okay, so I went through the appeal process over the past few weeks - giving amply evidence and challenging the nonsense claims by Excel Parking. However, IAS has just dismissed my appeal -

    Could you kindly let me know what I should do next or what do I expect?
    "The Operator has provided evidence of the signs at the site, which make it clear that any driver parking for more than ten minutes without clearly displaying a valid ticket in the windscreen agrees to pay the parking charge. The Operator has also provided photographic evidence of the Appellant’s vehicle parked on land they manage, in close proximity to a sign advertising the terms, and without a ticket displayed as it had expired. I am therefore satisfied the charge was lawful.

    The Appellant has raised numerous grounds of appeal.

    1. The charge is not a penalty but a contractually agreed fee. Even if the claim were for breach the decision of the Supreme Court in Beavis v Parking Eye makes it clear that such charges are not penal; therefore loss is irrelevant.

    2. The Appellant claims there was no valid contract as there is a sign stating “all day parking is £5.” They interpret this as twenty-four hours. I am not sure how the Appellant reaches this conclusion. I accept this is not a clear term as it could mean the working day or the day on which you were parked, but each day is distinct from the next. Consequently, I cannot interpret all day as meaning twenty-four hours other than perhaps when the ticket is purchased at midnight.

    Whilst the term requires definition this is provided. A driver might read the advert and park on that basis. On doing so they would read at the ticket machine that the Operator’s definition is twelve hours. If the driver is disgruntled at this they are entitled to leave and park elsewhere. This is not hidden from the driver. The Appellant in this case was given notice that the payment of £5 would entitle them to twelve hours of parking. They were then given a ticket confirming the same. It is always the driver’s responsibility to check the terms and their ticket.

    3. The Operator’s contractual relationship with the landowner has no bearing on the driver’s ability to freely enter into a contract with the Operator.

    4. Having considered the signs I am satisfied they are perfectly clear.

    In relation to the other points raised, the Appellant’s photographs show an entrance sign and other signs within the site; therefore I am satisfied there was sufficient notice. The provisions regarding other vehicles are irrelevant. The Appellant has failed to provide details of the judgment in the case they rely on. The Appellant has failed to provide evidence to satisfy me the car park is not sufficiently lit at night time to provide adequate notice of the terms.

    The appeal is dismissed.
    • Umkomaas
    • By Umkomaas 12th Oct 16, 7:46 AM
    • 11,025 Posts
    • 16,464 Thanks
    Umkomaas
    • #7
    • 12th Oct 16, 7:46 AM
    • #7
    • 12th Oct 16, 7:46 AM

    Okay, so I went through the appeal process over the past few weeks - giving amply evidence and challenging the nonsense claims by Excel Parking. However, IAS has just dismissed my appeal -

    Could you kindly let me know what I should do next or what do I expect?
    That's what CM very accurately forecast. This is what she said:

    Are you saying you are actually trying the pointless IAS 'service'? Why? Most posters here do not recommend you go near it because it is considered biased and you WILL almost certainly lose the appeal (barring a miracle) then you will feel on the back foot and they will proceed to court. No point handing them an IAS 'win' at the alleged kangaroo court.
    The rest is now pretty predictable. Excel, with an IAS win against you as evidence that the ticket was correctly issued, are more than likely to issue proceedings against you - they're on a litigation rampage currently, via their solicitors, BW Legal.

    You need to read up on the processes to defend a small court claim. Read the part of the NEWBIES FAQ sticky headed 'Small Claim?' and the Crabman sticky section on Letters Before County Court Claim, so should a LBCCC or real court papers drop through your letterbox you will be one step ahead in terms of preparation.

    One point to remember is that the IAS decision is not binding on you (unless you paid them £15 for their 'special' adjudication), but it's likely to have to take a judge now to come down on your side to get rid of this from your life.

    Excel have 6 years to press a court case against you.
    NEWBIES - wise up - DO NOT IGNORE A PARKING CHARGE NOTICE - you have been warned!

    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.

    Please note: I am NOT involved in any 'paid for' appeals service.
    • Coupon-mad
    • By Coupon-mad 12th Oct 16, 9:26 AM
    • 40,580 Posts
    • 52,470 Thanks
    Coupon-mad
    • #8
    • 12th Oct 16, 9:26 AM
    • #8
    • 12th Oct 16, 9:26 AM
    Yep, read BW Legal threads and be ready to reply to their balderdash and report them to the CSA and SRA. As seen in LoveNorfolk's BW Legal thread.

    Also please join this campaign, write to your MP and Theresa May this week/at the weekend, as the DCLG are considering private parking firms right now!

    http://forums.moneysavingexpert.com/showthread.php?t=5524754&page=6

    You can show that IAS decisions are seemingly biased...after all the Assessor has conceded that ''I accept this is not a clear term'' and is apparently legally qualified (yet remains anonymous, quelle surprise!). The CRA 2015 and trite law for many years has held the doctrine of contra proferentem - namely that, if a term is ambiguous, it MUST be interpreted in the way that most favours a consumer. No ifs, no buts.

    And you should write from the heart and tell your MP and Mrs May how this threat of credit clamping for SIX YEARS is a hundred times worse than car clamping ever used to be and the entire industry needs reigning in from their greed and aggression. Please write this week, seeing as there are no other steps to be taken right now while you are ignoring the daft decision.
    Last edited by Coupon-mad; 12-10-2016 at 9:28 AM.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

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