Damsel in confusion and distress!

Coupon-mad

Yes, it is fine, honestly, send it online now, then forget about it and enjoy the season of goodwill!

Tjinks

And i gather its
POintless mentioning such trivial things as obviously cctv would show me paying and displaying my ticket? That why on earth doesnt the machine have record of me doing this? Or has it! Can i ask for a print out of it ? Clutching at straws maybe i am, just soooo frustrating when i know i paid!

Redx

yes it is frustrating, and we all would like to know how they get it sooooooo wrong

the point here is you make them prove their case, you dont prove it for them , they may never tell you , so you beat them at their own game

have a read of this, it explains it in simple terms we all understand

https://forums.moneysavingexpert.com/discussion/4835943

and my point was to make sure your copy and paste and edit followed the guys-dad template

Coupon-mad

Tjinks wrote: »

And i gather its
POintless mentioning such trivial things as obviously cctv would show me paying and displaying my ticket? That why on earth doesnt the machine have record of me doing this? Or has it! Can i ask for a print out of it ? Clutching at straws maybe i am, just soooo frustrating when i know i paid!

Pointless to ask them to look at the Store's CCTV, why would they, and it will have been wiped, and doesn't belong to the parking firm. And if you add that, you are immediately identifying who was driving by saying 'me paying'.

However, are you saying that Excel said no payment was made when it was? Don't want to confuse you but I have a version of a POPLA appeal especially for that:

https://forums.moneysavingexpert.com/discussion/comment/62187053#Comment_62187053

Forget the Equality Act paragraph at the top but how about adding a version of the paragraph under 'Excel failed to...' Does that suit your case? Remember that version was written for a driver who had already admitted they were driving! If you have not, then you would need to change it to 'the driver' and not me/myself/I. Hope that makes sense.

Umkomaas

Tjinks wrote: »

Its not indescriminate, its what i can find thats relevant to my case, like ive been told to do, is that wrong?

It's these quotes that I was concerned about:

Well, i replued to excels parking notice with this template i found online

!

Without prejudice, except as to costs

Parking Charge Notice -!Notice to Keeper!
!
This letter is a!formal challenge!to the issue of yourParking Charge Notice -!Notice to Keeper as set out in the!current!BPA!Ltd!AOS Code of Practice B.22
!
On 20/10/13 i!was the registered keeper of a nissan figaro!registration number
!
Before I decide how to deal with your!Parking Charge Notice -!Notice to Keeper, I should be grateful if you would first answer all the questions and deal with all the issues I have set out below. Once you have done so, I will be able to make an informed decision on how I deal with the matter.
!
I should be grateful for!specific!answers to all questions raised. In this respect I remind you of the obligations set out in the current Practice Direction on Pre-Action Conduct.

I'm concerned that the PPC will, if you aren't clear about what all this stuff means, recognise the fact that you're just simply copying and pasting (and hoping) from the internet - they deal with this stuff every day; they're not going to be stopped in their tracks by it - they've seen it all before.

Look, I'm trying to help here - the stuff about the Practice Direction, for example, is certainly not relevant until a LBCCC is raised, so putting this into an initial appeal (to me) raises only one thing - you're not fully au fait with what this is all about, and may, just may, persuade them that you are worth pursuing further.

Please take this in the positive way in which it is intended.

Redx

Umkomaas wrote: »

It's these quotes that I was concerned about:



I'm concerned that the PPC will, if you aren't clear about what all this stuff means, recognise the fact that you're just simply copying and pasting (and hoping) from the internet - they deal with this stuff every day; they're not going to be stopped in their tracks by it - they've seen it all before.

Look, I'm trying to help here - the stuff about the Practice Direction, for example, is certainly not relevant until a LBCCC is raised, so putting this into an initial appeal (to me) raises only one thing - you're not fully au fait with what this is all about, and may, just may, persuade them that you are worth pursuing further.

Please take this in the positive way in which it is intended.

thanks, I thought I saw a badly worded popla appeal, didnt realise it was in post #1 and that post #10 superceded it

I suggest the OP takes note of the last few posts and ensures that the details from coupon-mad are added and ensure the last posts info is no longer there LOL

4consumerrights

Tjinks wrote: »

And i gather its
POintless mentioning such trivial things as obviously cctv would show me paying and displaying my ticket? That why on earth doesnt the machine have record of me doing this? Or has it! Can i ask for a print out of it ? Clutching at straws maybe i am, just soooo frustrating when i know i paid!

Pointless because
as coupon said - any store video would be wiped clean by now
Parking companies only have ANPR at entrance/exit to car parks.

Look sorry if we all seem a bit harsh - we are trying to help.You are obviously getting a bit distressed and reading between the lines life is not treating you too well at the moment.

They have a photo of my car and i dont deny being there, i absolutely did put a ticket on my windscreen though after entering my reg into the machine, they have no record of my reg though!

But can you confirm what the alleged breach of terms was - i.e. not paying or not displaying. Did you enter your car reg correctly? The PPC should be able to check their systems with any non-complete car regs.

You need to calm down a little and take just a little time to do some reading and understanding.

WE ARE ON YOUR SIDE TO GET THIS CHARGE CANCELLED AND BY THE SOUND OF IT YOU DON'T WANT THE APPEAL TO FAIL.:)

Tjinks

They said i failed to buy a ticket , that theyve checked their records and cannot find any ticket that resembles my reg. so hows this?
"Preliminary information here

I want to appeal this charge and have it cancelled. Here are the reasons that I think you should cancel it:


1. Excel’s legal capacity to enforce/issue Parking Charge Notices.


In their correspondence with me, Excel have not produced any evidence to show that they have any proprietary interest in the M***C*****car park in B***********have they provided any evidence that they are lawfully entitled to demand money from a driver or keeper. As it appears that they do not own the land, nor have any interest or assignment of title of the land in question, it is assumed that they are merely agents for the owner or legal occupier. I contend, therefore, that they do not have the necessary legal capacity to charge the driver of a vehicle for using the car park.!


So, I require that Excel provide a full, up-to date, signed and dated contract or agreement with the landowner . A signed witness statement stating that someone has seen a contract is not sufficient. The contract must state that Excel are entitled to pursue these matters through the issue of PCNs and through the courts. This needs to be an actual copy and not simply a document which claims that such a contract or agreement exists.


2. Trespass


Without a contract, the most appropriate offence would be of civil trespass. If this was the case, the remedy would be to award damages to Excel. Given that there was no damage to the car park, the car park was not full when my car entered or left and Excel do not own the car park, I suggest that there was no loss to Excel at all.!


3. Unlawful Penalty Charge


Excel alleges a breach of contract. However, without any demonstrable loss or damage, it can only remain a fact that this 'charge' is an attempt to dress up an unlawful penalty to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008) OB Services v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .


On this basis, this 'charge' fails to meet the standards set out in paragraph 19 of the British Parking Association’s Code of Practice. It also fails to comply with the CPUTR 2008, the UTCCR 1999, the Equality Act 2010 and basic contract law.


4. The charge is a penalty and not a genuine pre-estimate of loss


The PCN records the duration of stay at xx minutes, whilst the tariff set by the operator for a 1-2 hour stay is just £1. Excel is asking for a charge of £100. This far exceeds the cost to the landowner for the time my car was parked there. The charge cannot be construed as anything but a punitive penalty.!


Following my appeal directly to Excel, they did not address this issue. They have not stated why they feel a £100 charge is an appropriate pre-estimate of loss. To justify this charge, I require that Excel supply a full breakdown of the costs they have suffered as a result of the car being parked at the car park. This breakdown must add up to £100. Normal expenditure that Excel incurs to carry on their business - their operational day-to-day running costs (e.g. provision of parking, parking enforcement, signage erection, salaries and office rent) must not be included in the breakdown; these are operational costs which Excel would suffer irrespective of the car being parked at that car park.


I refer POPLA to the case of Vehicle Control Services Ltd vs Mr R Ibbotson (16th May 2012) which found that general business costs cannot constitute a loss. This has also has been held in a number of very recent compelling, and comparable, decisions against Excel when POPLA has considered similar cases.


Therefore, this £100 charge does not represent a loss resulting from a breach of the alleged parking contract. In other words, were no breach to have happened, the cost of parking enforcement would still have been the same. This has been quoted by POPLA itself in adjudication. The amount of the “penalty” imposed is completely disproportionate to any alleged “loss” by Excel. It is, therefore, punitive and contravenes the Unfair Contract Terms Act 1997.

I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance. As such, the charge that was levied is punitive and therefore void (i.e. unenforceable) against me.!


I also refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC (EWCA Civ 186 [2013]). This case determined the actual nature of Private Parking Charges. It was stated that, "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." The Court ruling was "...that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." 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. This provides a means of payment at the point of supply, and a means to account to HMRC for the VAT element of the charge. No VAT is itemised on this PCN. 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 pre-estimated, losses, as set out above


5.No contract with the driver


The Operator refers in their correspondence to “contractually agreed Terms and Conditions”, however, I assert that there is no contract between Excel Parking Ltd and the driver.

I challenge the Operator to provide strict and robust proof that a contract existed between Excel Parking Ltd and the driver on the day in question, which meets all the legal requirements of contract formation, such as a meeting of minds, agreement, certainty of terms etc. If not all of these requirements were satisfied, any contract would be deemed “unfair” in the Unfair Terms in Consumer Contracts Regulations 1999.

EXCEL FAILED TO UNDERTAKE THEIR USUAL MANUAL REVIEW OF TICKETS
Excel's unfair parking tickets were exposed in a recent Watchdog Daily article here:

http://www.bbc.co.uk/programmes/p00zkz1k/features/private-parking

and their spokesperson is on record as responding thus in the case of Mr Couzens where Excel admitted their processes failed:

''However, we do recognise that motorists may input an incorrect digit(s) of their VR number when purchasing a P&D ticket and as such our processing allows for a manual review/quality check of PCN’s before they are issued. Unfortunately, on this occasion our check failed...''!

I say that clearly their check failed in my case as well, and the correct course of action would have been for them to cancel the fake PCN when they received the information that I had input my car registration It would have been a simple matter to check

Excel have shown me no evidence that they even bothered to check and if so, why their check failed. So they must now explain their actions to POPLA as i 100% !purchased a ticket,infact i ran into iceland to get change as i only had £10 note, they remember me asking for this change, i rang to check. That took me all of 2 minutes before i bought my ticket.!

Coupon-mad

It is getting better but you've had a 'rush of blood to the head' and said who was driving and said they went to get change first - both of which are an absolute no-no!

''So they must now explain their actions to POPLA as xxxxxxx 100% purchased a ticket, infact xxxxxxx ran into iceland to get change as xxxxxxx only had £10 note, they remember xxxxxxxxx asking for this change, i rang to check. That took xxxxxxxxx all of 2 minutes before xxxxxx bought xxxxx ticket.''

Remove that entire part. ^^




And re this bit below, I think it should be clearer what Excel must show as evidence and remove the bit that says who was driving!:


''I say that clearly their check failed in my case as well, and the correct course of action would have been for them to cancel the fake PCN when they received the information that xxxx had input my car registration It would have been a simple matter to check''


could be:


I say that clearly their check failed in my case as well. It will not be enough for Excel to show a printout from that day showing that this car registration does not feature, because of course it will not if there was a typo! What I believe must have happened, was that I can only suggest that the driver made a slight typo with the registration (which Excel's spokeperson says they are aware of and make manual checks for). If Excel are to rebut this assertion then they must show to POPLA an unredacted list of all UNMATCHED car registrations to the ANPR records that day (and my VRN will be one of those, of course, because payment was made). As Excel have put it on public record that they 'recognise that motorists may input an incorrect digit(s) of their VRN when purchasing a P&D ticket and as such our processing allows for a manual review/quality check of PCN’s before they are issued' then Excel must prove that manual review/quality check took place. I am not expecting to see a list of other VRNs, so in my case Excel can include a partially redacted copy in the evidence pack - or leave that sheet out of my evidence pack - as long as POPLA see the original printouts.


And re this bit:

''The contract must state that Excel are entitled to pursue these matters through the issue of PCNs and through the courts.''

I suggest it needs a slight tweak:

The contract must state that Excel are not mere agents for the landholder but are entitled to form contracts with drivers in their own right and it must assign Excel the standing to pursue these matters through the courts in their own name (otherwise it is not a BPA-compliant contract, which would be a case for sanctions).

Tjinks

Ok, here goes.... What info do i put before my letter, just the ref number?


"Preliminary information here

I want to appeal this charge and have it cancelled. Here are the reasons that I think you should cancel it:


1. Excel’s legal capacity to enforce/issue Parking Charge Notices.


In their correspondence with me, Excel have not produced any evidence to show that they have any proprietary interest in the M***C*****car park in B***********have they provided any evidence that they are lawfully entitled to demand money from a driver or keeper. As it appears that they do not own the land, nor have any interest or assignment of title of the land in question, it is assumed that they are merely agents for the owner or legal occupier. I contend, therefore, that they do not have the necessary legal capacity to charge the driver of a vehicle for using the car park.!


So, I require that Excel provide a full, up-to date, signed and dated contract or agreement with the landowner . A signed witness statement stating that someone has seen a contract is not sufficient. The contract must state that Excel are not mere agents for the landholder but are entitled to form contracts with drivers in their own right and it must assign Excel the standing to pursue these matters through the courts in their own name (otherwise it is not a BPA-compliant contract, which would be a case for sanctions).This needs to be an actual copy and not simply a document which claims that such a contract or agreement exists.


2. Trespass


Without a contract, the most appropriate offence would be of civil trespass. If this was the case, the remedy would be to award damages to Excel. Given that there was no damage to the car park, the car park was not full when my car entered or left and Excel do not own the car park, I suggest that there was no loss to Excel at all.!


3. Unlawful Penalty Charge


Excel alleges a breach of contract. However, without any demonstrable loss or damage, it can only remain a fact that this 'charge' is an attempt to dress up an unlawful penalty to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008) OB Services v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .


On this basis, this 'charge' fails to meet the standards set out in paragraph 19 of the British Parking Association’s Code of Practice. It also fails to comply with the CPUTR 2008, the UTCCR 1999, the Equality Act 2010 and basic contract law.


4. The charge is a penalty and not a genuine pre-estimate of loss


The PCN records the duration of stay at xx minutes, whilst the tariff set by the operator for a 1-2 hour stay is just £1. Excel is asking for a charge of £100. This far exceeds the cost to the landowner for the time my car was parked there. The charge cannot be construed as anything but a punitive penalty.!


Following my appeal directly to Excel, they did not address this issue. They have not stated why they feel a £100 charge is an appropriate pre-estimate of loss. To justify this charge, I require that Excel supply a full breakdown of the costs they have suffered as a result of the car being parked at the car park. This breakdown must add up to £100. Normal expenditure that Excel incurs to carry on their business - their operational day-to-day running costs (e.g. provision of parking, parking enforcement, signage erection, salaries and office rent) must not be included in the breakdown; these are operational costs which Excel would suffer irrespective of the car being parked at that car park.


I refer POPLA to the case of Vehicle Control Services Ltd vs Mr R Ibbotson (16th May 2012) which found that general business costs cannot constitute a loss. This has also has been held in a number of very recent compelling, and comparable, decisions against Excel when POPLA has considered similar cases.


Therefore, this £100 charge does not represent a loss resulting from a breach of the alleged parking contract. In other words, were no breach to have happened, the cost of parking enforcement would still have been the same. This has been quoted by POPLA itself in adjudication. The amount of the “penalty” imposed is completely disproportionate to any alleged “loss” by Excel. It is, therefore, punitive and contravenes the Unfair Contract Terms Act 1997.

I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance. As such, the charge that was levied is punitive and therefore void (i.e. unenforceable) against me.!


I also refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC (EWCA Civ 186 [2013]). This case determined the actual nature of Private Parking Charges. It was stated that, "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." The Court ruling was "...that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." 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. This provides a means of payment at the point of supply, and a means to account to HMRC for the VAT element of the charge. No VAT is itemised on this PCN. 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 pre-estimated, losses, as set out above


5.No contract with the driver


The Operator refers in their correspondence to “contractually agreed Terms and Conditions”, however, I assert that there is no contract between Excel Parking Ltd and the driver.

I challenge the Operator to provide strict and robust proof that a contract existed between Excel Parking Ltd and the driver on the day in question, which meets all the legal requirements of contract formation, such as a meeting of minds, agreement, certainty of terms etc. If not all of these requirements were satisfied, any contract would be deemed “unfair” in the Unfair Terms in Consumer Contracts Regulations 1999.

EXCEL FAILED TO UNDERTAKE THEIR USUAL MANUAL REVIEW OF TICKETS
Excel's unfair parking tickets were exposed in a recent Watchdog Daily article here:

http://www.bbc.co.uk/programmes/p00zkz1k/features/private-parking

and their spokesperson is on record as responding thus in the case of Mr Couzens where Excel admitted their processes failed:

''However, we do recognise that motorists may input an incorrect digit(s) of their VR number when purchasing a P&D ticket and as such our processing allows for a manual review/quality check of PCN’s before they are issued. Unfortunately, on this occasion our check failed...''!

I say that clearly their check failed in my case as well. It will not be enough for Excel to show a printout from that day showing that this car registration does not feature, because of course it will not if there was a typo! What I believe must have happened, was that I can only suggest that the driver made a slight typo with the registration (which Excel's spokeperson says they are aware of and make manual checks for). If Excel are to rebut this assertion then they must show to POPLA an unredacted list of all UNMATCHED car registrations to the ANPR records that day (and my VRN will be one of those, of course, because payment was made). As Excel have put it on public record that they 'recognise that motorists may input an incorrect digit(s) of their VRN when purchasing a P&D ticket and as such our processing allows for a manual review/quality check of PCN’s before they are issued' then Excel must prove that manual review/quality check took place. I am not expecting to see a list of other VRNs, so in my case Excel can include a partially redacted copy in the evidence pack - or leave that sheet out of my evidence pack - as long as POPLA see the original printouts.