Excel lose in court. Again.

trisontana

It's worth repeating this posted by the defendant on the Manchester Evening News article:-


Thanks to (almost) everyone for their messages of support. As I was the defendant in this case, maybe I can just add a few notes here about the evidence - after all, even the best newspaper article tends to simplify things a lot.

Excel were suing me for breach of contract. They claimed I had accepted their terms and conditions of contract simply by driving into their car park. So my argument was all about the nature of this alleged contract. For a contract to exist in English law, there have to be several elements, one of which is 'agreement' (offer and acceptance). For there to be agreement in law, Excel must have made reasonable efforts to show me I was entering into a contract. At the point where the supposed contract was made - the entrance - I argued that the relevant parts of the notice were illegible to me as a typical motorist. Not illegible to a fantasy motorist who gets out of his car, locks it, leaves it in front of a pedestrian crossing on a double yellow line, and goes to read the notice from a foot away; but illegible to a real motorist who's driving past at 10mph, 7 metres away, concentrating on the roadway ahead (including people on a pedestrian crossing).

The relevant parts of the notice were the words 'Pay and display', which was in lettering only 13mm high and surrounded by lots of other visual clutter; and a mish-mash of terms and conditions and other messages, most of which were in lettering only 5mm high. From 7 metres away, driving at 10mph, you just don't see or read this stuff. What you see is large text saying 'Welcome to the Peel Centre' and a big 'P' for parking. This gives you the mindset that the car park is free, as so many car parks near big stores are (at least where I live). There is no barrier or ticket machine at the entrance.

The judge visited the site twice to see the set-up for herself. She probably also looked at nearby car parks. For example, at Sainsbury's, the words 'Pay and display' are at least 10 times bigger and on an uncluttered notice board directly in the motorist's line of sight. I showed the court photographic evidence of numerous other car parks in the area where the signs are very large and clear. The words 'Pay and display' are typically 65mm high at the entrance to municipal car parks, ie, six times bigger than at the Peel Centre.

The entrance I used was, I believe, cunningly got up to look like the entrance to a free car park. The fact that 11,498 people had fallen into the same trap in the previous three years, according to Excel's own figures, shows how easy it is to make this mistake. So why didn't Excel do something about it, say by painting 'Pay and display' in large lettering on the entrance roadway? Do the maths: 11498 x £60 = £689,880. And if people don't pay up within 7 days: 11498 x £100 = £1.15 million. Harry Stafford (above), says this has been going on for at least ten years! So there's big money in unclear signs: big money that's being ripped out of the local economy from the pockets of hapless motorists.

The Office of Fair Trading guidance about regulation 7 of the Unfair Contract Terms Act (which relates to standard-form consumer contracts like this one) says that terms and conditions have to be LEGIBLE as well as in jargon-free language. I argued that this must mean legible to the typical user, in this case a motorist driving past, several metres away.

In her judgment, Judge Lateef smashed Excel's case into little pieces and refused them leave to appeal. She deserves a lot of credit for actually visiting the site - many judges wouldn't have bothered.

The most difficult task now is to get Excel to make the signage legible, to get them to repay the money they've taken off thousands of people, and to persuade the land owners, Peel Land and Holdings, to intervene.

Excel are a multi-million pound company with access to the best lawyers money can buy. But they can be defeated, as this case shows. For more about Excel, see the BBC website's Face the Facts page and, I believe, the Watchdog page.

bromsgrovebarry

Wow! A Judge worthy of the title. A very useful post and shows what a disreputable outfit Excel are. The government better be very careful before getting into bed with PPC scammers.

robredz

The Private parking "Industry" what does it produce? ah yes MISERY, asnd illicit profit.

esmerobbo

I think Mr Martin Cutts may have a legal background himself!;)

Its a pity the case fell at the first hurdle really, it may have been interesting to see what this Judge thought about the penalty aspect!

The thought that Excel could have possibly earned £1m from that one car park is horrendous!

bromsgrovebarry

Info on Excel. It may be worth clinking on Renshaw Smith on the page to see his other directorships.
http://companycheck.co.uk/company/02878122

trisontana

What's that I hear? - Oh yes, a deafening silence from the likes of Perky and Hasbeen.

trisontana

bromsgrovebarry wrote: »

Info on Excel. It may be worth clinking on Renshaw Smith on the page to see his other directorships.
http://companycheck.co.uk/company/02878122

Of course he's a big noise in the BPA.

esmerobbo

trisontana wrote: »

Of course he's a big noise in the BPA.

And probably a contributor to the COP to which his own companies do not adhere to?

vax2002

Whilst we have hacks prepared to write that these are FINES then the publicity received here for PPC's is a bonus.
People will read this not only incorrect description but think that what they have been given is an official fine, it says so in the paper.
Instead of rubbing our hands at the minor victory of 1 motorists we should be more concerned at the thousands who have read about these "FINES"
We should all be sending letters of complaint to the Editor and then to the Press Complaints commission if they ignore.
Newspapers do have a duty to ensure articles are factual and not misleading

this is not a victory article, it is as good as a paid for advert by PPC'S
newsdesk@men-news.co.uk

DaveF327

trisontana wrote: »

Excel were suing me for breach of contract. They claimed I had accepted their terms and conditions of contract simply by driving into their car park. So my argument was all about the nature of this alleged contract. For a contract to exist in English law, there have to be several elements, one of which is 'agreement' (offer and acceptance). For there to be agreement in law, Excel must have made reasonable efforts to show me I was entering into a contract. At the point where the supposed contract was made - the entrance - I argued that the relevant parts of the notice were illegible to me as a typical motorist. Not illegible to a fantasy motorist who gets out of his car, locks it, leaves it in front of a pedestrian crossing on a double yellow line, and goes to read the notice from a foot away; but illegible to a real motorist who's driving past at 10mph, 7 metres away, concentrating on the roadway ahead (including people on a pedestrian crossing).

The relevant parts of the notice were the words 'Pay and display', which was in lettering only 13mm high and surrounded by lots of other visual clutter; and a mish-mash of terms and conditions and other messages, most of which were in lettering only 5mm high. From 7 metres away, driving at 10mph, you just don't see or read this stuff. What you see is large text saying 'Welcome to the Peel Centre' and a big 'P' for parking. This gives you the mindset that the car park is free, as so many car parks near big stores are (at least where I live). There is no barrier or ticket machine at the entrance.

The judge visited the site twice to see the set-up for herself. She probably also looked at nearby car parks. For example, at Sainsbury's, the words 'Pay and display' are at least 10 times bigger and on an uncluttered notice board directly in the motorist's line of sight. I showed the court photographic evidence of numerous other car parks in the area where the signs are very large and clear. The words 'Pay and display' are typically 65mm high at the entrance to municipal car parks, ie, six times bigger than at the Peel Centre.

The entrance I used was, I believe, cunningly got up to look like the entrance to a free car park

....

The Office of Fair Trading guidance about regulation 7 of the Unfair Contract Terms Act (which relates to standard-form consumer contracts like this one) says that terms and conditions have to be LEGIBLE as well as in jargon-free language. I argued that this must mean legible to the typical user, in this case a motorist driving past, several metres away.

Absolute gold. :beer:

This is a detailed and valid legal argument very similar to the one I've been planning to use on the offchance I ever appear at a county court. I've said all along that those who receive PCNs have never "agreed" to, nor signed, any contract as the finer details of the contract are not legible to a reasonable and competent motorist who is exercising his obligations under RTA s.3 (due care and attention) whilst in motion in a public place.

The only solution to this would be if PPCs concisely state their terms in no more than two brief sentences using transport font exactly the same size as on legal roadside signs, and on parking signs which must be of a size that complies with the traffic signs general directions 2002. Of course, they won't as their revenue relies on the sheer volume of unwitting "panic remittances" caused by their obfuscation, ambiguity and inflexibility of their terms.