Excel parking stockport non statutory route

Oils

I received a PCN after forgetting to pay for a ticket at the peel centre stockport. The date of contravention was 3/11/13 but the date of notice was 18/11/13...1 day over the required 14 days allowed. I appealed to eXcel following the guidance on here and received a long reply with the paragraph below included.
"Whilst we submitted the original PCN in accordance with the POFA 2012 we acknowledge that we were outside the delivery timescales for maintaining our rights to keeper liability under the POFA 2012. We are therefore pursuing the PCN under a non statutory route, primarily for breach of the terms and conditions of parking at the peel centre car park in stockport".

Can they do this or do I just appeal to popla?

I wAsnt driving the car and believe I am not obliged to name the driver as they missed the 14 days...what I'm not clear on is the paragraph above.

Any help or advice would be appreciated.

Redx

if they havent given you a popla code then you cannot appeal to popla

read the newbies - "read this first"sticky thread as almost any question has an answer within it, or linked from it

if I understand your actual question correctly, they can only pursue the driver if they are not invoking POFA 2012

Oils

They say in the letter they are within their rights to recover from the registered keeper under POFA 2012. But I read in the 'read this first' thread they cannot do that if outside the 14 days...is that correct and if so would you just reply to excel saying that and ignore any further letters or ask for a popla code?

Redx

your posts contradict each other , please clarify this pursuing RK business, either they are sticking by it, or are waiving it, they cannot do both

Oils

That's what's confusing me, the first 4 paragraphs word for word are below...

We refer to your email dated 28th November 2013 in relation to the above PCN.

Whilst we submitted the original PCN in accordance with the POFA 2012 we acknowledge that we were outside the delivery timescales for maintaining our rights to keeper liability under the POFA 2012.

We are therefore pursuing the PCN under a non statutory route, primarily for breach of the terms and conditions of parking at the peel centre car park in stockport.

Please be aware that as you have failed to provide us with the full name and uk serviceable address for the driver within the 28 day period stipulated on the PCN, we are now within our rights to recover from the registered keeper under the POFA 2012.

Coupon-mad

Oils wrote: »

They say in the letter they are within their rights to recover from the registered keeper under POFA 2012. But I read in the 'read this first' thread they cannot do that if outside the 14 days...is that correct and if so would you just reply to excel saying that and ignore any further letters or ask for a popla code?

I know there's a lot of info in the Newbies sticky thread but I do mention that several PPCs follow a non-POFA route (look where I talk about Civil Enforcement, for example). Excel have fallen into that trap this time - it's their own fault - and you will now WIN if you play it right as keeper. This is fun!

Are you certain there is no POPLA code on the letter or was there a POPLA form attached, printed on the back of the letter or anything?

If not then as keeper you write back and say:




'Dear Excel,


Re PCN xxxxxxxxx


Many thanks for kindly confirming there is no keeper liability and effectively making my POPLA case for me. What a happy New Year - you have excelled yourselves in this matter! You even managed to leave in a template sentence saying that you 'now have the right to pursue me as keeper' and of course I am considering reporting this breach and misinformation to the BPA and DVLA.

I invite you to cancel this one forthwith, because your alternative is to send me, the appellant keeper, a POPLA code and as I wasn't driving you have no case against me at all. Excel does not own this notoriously blighted car park; you are merely a paid agent of the landowner like any other and your charges are not a genuine pre-estimate of loss.

But if you really want to fund a POPLA appeal under these circumstances then I will have no alternative but to 'play the game' and go through the motions of a POPLA appeal that I will win. But I will, of course, charge Excel and possibly the Peel Centre as jointly and severally liable for my wasted time and costs when I prevail. The expenses I may claim are not exhaustive but may include the cost of stamps, envelopes, travel expenses, legal fees, etc. and my time from now on, charged at a court rate of £18 per hour. By continuing to pursue me you agree to these terms.

Please issue your cancellation within 14 days of this letter, seeing as my appeal was submitted in good time in December. Or forward a rejection letter and POPLA verification code if you accept my terms for humouring you and your unwarranted 'charge'.

yours faithfully,


the registered keeper's name

Oils wrote: »

Please be aware that as you have failed to provide us with the full name and uk serviceable address for the driver within the 28 day period stipulated on the PCN, we are now within our rights to recover from the registered keeper under the POFA 2012.

They have simply left in a bit of 'template letter' that shouldn't be there! You could report them to the BPA for it, and to the DVLA as they are not allowed to suggest keeper liability where none exists. Email addresses for the BPA and DVLA are in the newbies thread.

Oils

There is a popla form on the back which I presumed was just a blank template. It has a verification code at the bottom, and my PCN number on... do I use that?

Thanks so much for the reply also, I have spent hours reading all the various threads etc but it's all so blooming confusing!

Coupon-mad

Wow, you nearly missed it, of COURSE you use it, forget my letter I suggested. It's POPLA time!

http://forums.moneysavingexpert.com/forumdisplay.php?f=163

'How to win at POPLA' is a link in the Newbies thread, and you can also use a ParkingCowboys link there to check how long you have, just 28 days from when the code was generated so check that start date first. Let's see your draft appeal for POPLA, which could include some of the above points as an introduction.

Oils

It's dated 2nd jan 2013 so I'll get the reply done tomorrow using your link and put a copy on here for you to have a look if that's ok? Cheers again for your help.

bondy_lad

good luck in your quest against the scum known as excel,just to let you know,i have had a few altercations with the scumbags at the peel centre,they now avoid me if they see me there preaching against them,,,anyway to cut to the chase the empoyees of the scum known as excel confirmed to me,we knew it anyway,that excel and other ppcs check this forum daily to try and get info on who is going to chalenge their scam,so carefull with info that you divulge.

Oils

Right here goes with the reply. I was going to tick the reason for appeal as ' I am not liable for the parking charge' and add the 6 points as reasons detailed below, explaining also that I was not driving the car on the date in question.

Feedback would be appreciated!!

1. Failed to meet the guidelines in schedule 4 of POFA 2012

Excel wrote to me as the registered keeper on the 18th November 2013, 15 days after the contravention date of 3rd November 2013. I appealed explaining they were outside the 14 day timescale set out in the POFA 2012 to maintain their rights to keeper liability. Excel rejected my appeal copy enclosed and then went on to explain they were pursuing me under a non statutory route but under POFA 2012?? As I explained in the appeal their right to do this was lost when they wrote to me outside the agreed timescales yet they still rejected my appeal. As well as wasting my time in now having to appeal to you, surely this is against the rules set out under POFA 2012 as the DVLA only released my data based on the fact excel followed the agreed rules around the notice keeper, which they have clearly not done.


2. 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 Peel Centre car park in Stockport. Nor 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.


3. 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.


4. 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.


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


The PCN records the duration of stay at 41 minutes, whilst the tariff set by the operator for a 2 hour stay is just £1. Excel is asking for a charge of £100 reduced to £60 if paid early. 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.


6. No contract with the driver


The Operator refers in their correspondence to the driver being "contractually bound upon entering the car park" 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.