PCN Excel Parking Services Middlesbrough Leisure Park

Saleem_J

LMAO yes i did read the transcript from that case. That judge deserves a medal, give me many a chuckle whilst reading it.
I planned to rely strongly on that case in any appeal i made to POPLA or to Excel directly

Coupon-mad

Saleem_J wrote: »

So if I can convince dad to sit back and let me handle it, i shouldn't contact excel at all until my dad recieves the NtK? not even to try the first appeal before taking it to POPLA?

Yep that would be ideal as you have a law degree so must be able to write compelling legal arguments better than the best of us here. And you (he) will have much more at appeal stage if you write the appeal for him (as registered keeper) and can show 'there is no registered liability under POFA 2012' ... which there probably won't be because I would be astonished if Excel NTKs are word- for word complaint with paragraph 8 of Schedule 4 of POFA.

Certainly there will be no bailiffs, no danger, just waiting for the lovely NTK. Let us know when you get it in a month or so, or, if Dad is twitchy then appeal within 28 days, as driver and you'll need to win on other points.

Saleem_J

OK here's my soft appeal.
It's heavily based on a template posted elsewhere, with points added/removed. Hopefully it should do the job, what do you guys think?



Dear Sir/Madam

PCN Number: XXXXXXX
Issued: XX/XX/XXXX

I refer to your ‘Parking Charge Notice’ of XXXXXXXXXX. I am the driver of the vehicle subject to your ‘charge’ and wish to challenge your alleged claim against me on the following grounds:

1. Cause of action. Please make this clear. If it is claimed that I have entered into a contract, please send me a complete version of the terms and conditions of said contract. Further to the above please explain fully on which of the following grounds your claim is based:
a. Damages for trespass
b. Damages for breach of contract
c. A contractual sum
2. Your loss. If it is your case that that a trespass was committed or that a contract was breached such that your claim is one for damages, please give me a full breakdown of the actual loss you say was suffered by your business or the landowner/landholder (not including operating costs such as wages, signs, uniforms, office costs etc as they are not incurred as a result of the alleged parking contravention, as stated by Judge McIlwaine in VCS v Ibbotson).
3. Status. After contacting Excel central payments office and being denied this information, I require the identity of the landowner and the actual creditor making this claim for £100, as I wish to retrospectively include them in this and any further correspondence on this matter. To consider the validity of any claim I must be informed of who is making the claim and in what capacity. I also demand a copy of the contract between Excel Parking Services Ltd and the Landowner permitting Excel Parking Services to manage the car park and enforce the contract through fines or “parking charge notices”.
4. Observed. The ‘Parking Charge Notice’ mentions that I was “observed leaving the leisure park” and that this was filmed. I would like to take this opportunity to remind you that if a contract exists, the claimant has a responsibility to mitigate any losses incurred as a result of a breach of contract. As such the parking attendants who ‘observed’ me leaving the leisure park have failed to mitigate losses and would have been reasonably expected to alert me to the fact that I would receive a fine if I left the site. Please provide any witness statement or any photographic evidence of this observation, for without sufficient evidence your claim cannot be considered. Please send me a copy of your procedures for handling and processing that evidence and the relevant audit trail. Furthermore, under section 7 of the Data Protection Act 1998 please send me a copy of all such photographs along with a copy of all other data you hold relating to me. As this would be required to be disclosed in any event as part of your evidence bundle in the small claims process, I do not expect to pay for the release of my personal data which you hold.

5. Contract. In the particular circumstances of this ‘incident’, the vehicle was parked inside a blue bay, which is free for 4 hours, thus there has been no actual ‘loss’ incurred.
In addition it would be reasonably expected to have notice boards erected displaying the full terms and conditions of the contract for parking, along with a chart to clearly display the boundaries of the leisure park in accordance with the BPA code of practice clause 6(i)(i). Moreover this should be printed in plain intelligible language in sufficiently large print as to be legible to a driver at the car park’s entry point.

Please find attached photographs which display the inadequate signage at the entrance to the car park. Firstly the notices make no reference to a fine incurred as a result of leaving the leisure park. Secondly there are no clearly defined boundaries of said leisure park. Thirdly the notices are not written in clearly legible text; they are difficult to read and are in small print, thus it is not reasonable to expect the driver to have notice of (and subsequently accept) any terms and conditions on the signs.


8. Punitive / Unfair / Unreasonable. The parking charge of £60/100 is punitive and is therefore void. £60/100 is arbitrary and disproportionate to any alleged breach of contract or trespass.

a. The £60/100 parking charge you are imposing is an unfair term (and therefore not binding) under the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations which gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(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.’
Furthermore, Regulation 5(1) states:
‘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’
And 5(2), which states:
‘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.’

b. The £60/100 parking charge you are imposing is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which states:

‘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.’

I would like to take this opportunity to alert you to the relevance of VCS v Ibbotson, and in particular to the comments made by Judge McIlwaine in relation to the above grounds of appeal especially in relation to actual losses incurred, mitigation of loss, clearly defined boundaries, and privity of contract/right to issue proceedings.

If you reject this challenge or fail to address all the issues that have been raised then, in accordance with the BPA AOS Code of Practice 22.12, please ensure that you enclose all the required information (including the necessary ‘POPLA code’) so that I may immediately refer the matter for their decision and/or take appropriate legal action.

I look forward to your reply.
Yours faithfully,

XXXXXXXXXXXXXXX


This letter is written wholly without prejudice to my whole rights and pleas and may not be produced or founded upon in any proceedings by any party or other person except on my prior, express, written consent.

Coupon-mad

Nice - and a strong appeal rather than a 'soft' one! They will cancel, they won't want to give you a POPLA code. :T

Saleem_J

I certainly hope so! had the adrenaline pumping round my body while writing it lol

As always couldn't have done it without the help of you (coupon_mad) and guys dad as well as several other MSE forum users.

I'll send this first thing tomorrow after i get back from work

Saleem_J

I've sent off my appeal, and today after work i've recieved an email from cineworld. (I had complained to them in order to hopefully have the fine cancelled, but they've actually given me the following info)

"Thank you for contacting Cineworld.


I am sorry to hear about the problems you have encountered when trying to use the Middlesbrough Leisure Park recently.

I can advise you that this car park is not owned by Cineworld but by the complex itself and we therefore have no control over the rules and regulations regarding parking there.

I can understand your frustrations as this car park is shared by customers for a variety of businesses that the Centertainment complex has in its grounds, but any difficulties you are experiencing regarding car park regulations would be better made to the company that owns the car park (Excel Parking).

In the meantime, I have obtained the contact details of the company that deal with the landowner of the premises. They are called Sanderson & Weathall and their site manager is Mr Peter Dunlop. The contact number is 0113 221 6160.

We do understand the importance of customers being able to park near our cinema so that they can attend films and would like to thank you very much for taking the time to write to us with your concerns. I hope the situation does improve at this cinema in future.


I do hope this is of help to you and should you have any further queries please feel free to contact our Customer Services on 0844 815 7747.

Kind Regards,"

Should I also contact this Pete Dunlop and forward him my complaint which i've sent to excel or should i just wait for a response from excel?

thanks

Umkomaas

I can almost guarantee that Excel does not own that car park.

Chase the landowner.

Coupon-mad

Send a strong complaint email to Peter Dunlop, who was easily found on Google with an email clicky link:

http://www.sandersonweatherall.co.uk/About-Us/Our-Team/Leeds-Office/

Saleem_J

what should I include in the complaint? the same grounds as the appeal?

4consumerrights

Saleem_J wrote: »

what should I include in the complaint? the same grounds as the appeal?

No not really - you are complaining to the landowner/agent more on the grounds of being mistreated as a regular genuine customer and user of the site - be appalled at the way customers are being hounded for payment of punitive charges for merely daring to park! State also that this will have a negative effect in the end on the leisure park as customers will be driven away by excessive charges and the hassle and demand they instruct Excel to cancel this charge!

PS> I have googled the street view of the complex and:

Did you request the photographs of the alleged offence.
The first and second photographs you posted also do not mention a charge for leaving the sight. - Material information missing and gross misrepresentation. Unfair contract terms.
The third sign - i bet is obscurred from general view and easily missed - possibly entrapment.



edit sight - should be SITE - what a typo!