Advice required...

Pointerman

Coupon-mad wrote: »

Yep, to make it easier for the Assessor I would just plonk no GPEOL as point #1 just before 'Excel failed to...'

And as for the first intro paragraph I would keep just this part but move it, to be a paragraph within the no GPEOL point and add the extra bit I have added:

Thank you again Coupon-mad!
If I have understood you correctly the following should be the appeal which I submit.
Having re-read again I am a little confused by the phrase "my emergency" under no breach of contract. I cannot find where I picked that up and it seems to me it should read "my actions" or similar, unless my ignorance is showing again!

Will POPLA require any further documentation? (I will obviously be attaching a copy of the P&D ticket)




Dear POPLA adjudicator,

POPLA appeal re Excel ticket number xxxxxxx POPLA code xxxxxxxxxx

This is my appeal as I am the driver of this car (already admitted) but I am not legally liable for the parking charge. In addition, the vehicle was not improperly parked. As such, the parking 'charge' notice (ticket) also exceeded the appropriate amount.

NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS
Excel are clearly attempting to enforce this charge under paragraph B 19.5 of the BPA Code of Practice as they suggest my emergency constituted a breach of contract. As such, they must be required to validate this argument by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss or damages in this particular car park for this particular 'contravention'.

The situation is that I parked in the Peel Centre car park and inserted the correct fee for the anticipated length of stay. The first letter of the car registration was input and surprisingly a ticket was issued before further details could be input. The ticket (see attached) stated the time, date and fee paid along with just the single letter of the registration. After searching for half an hour I located an Excel employee, to whom I explained the situation. I was assured that this was a common occurrence and he took note of my full registration in order to 'enter it on the system to prevent any issues'.

So this shows that an Excel employee was aware that I had paid, and he then failed to act to cancel the charge even though he knew there was no 'loss'. And in then there followed, a failure of Excel's reported 'processing {which} allows for a manual review/quality check of PCN’s before they are issued' (see the BBC programme link in the point below ,quoting Excel's own spokesman about this). Excel customer-facing and back office staff had ample opportunity to note the true position and to cancel this PCN and were already aware the parking fee had been paid in full and a ticket displayed (albeit with a minor car registration error which they say is their normal responsibility to identify to avoid PCNs being issued where no loss has occurred). The charge was a fixed one which took no account of the circumstances and certainly does not represent any loss whatsoever.

In addition I would add that I contend that the parking contract with this client will show (unless heavily redacted) that Excel are allegedly paid a 5 figure annual sum for the 'service' they ostensibly provide at the P&D sites where they operate. If Excel produce a breakdown of costs then I submit that these in fact reflect the 'service provision' they are already paid for and that other operational costs like wages are tax deductible, and would still exist even if no breaches were to occur in the car park. No losses flowed from this parking event at all.



Excel refer (on the appeal refusal letter) to the failure to purchase a valid P&D ticket within 15 minutes of entering the car park as a further breach of the Terms &Conditions.
The recorded entry time on the PCN is two minutes prior to the issue time on the ticket. The rejection letter shows Excel cannot even make a decision as to what the allegation was and, as such cannot possibly have related to any loss for this particular parking event.

Since I paid and displayed and no damage was caused, there can have been no loss arising from this incident. Neither can Excel lawfully include their operational day-to-day running costs in any 'loss' claimed. 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.


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


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 the first letter of my car registration only when the ticket was issued. It would have been a simple matter to check, especially as I provided a copy of the P&D ticket itself.

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.

UNCLEAR AND NON-COMPLIANT SIGNAGE
Due to their high position, bright colours, distracting pictograms and the barely legible size of the small print, the signs in this car park are very hard to read and understand.

I contend that the signs and any core parking terms Excel are relying upon were too small for any driver to see, read or understand when driving into the car park. I request that POPLA should check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs and machines in that car park (wording, position, clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011.

CONTRACT WITH LANDOWNER - NO LOCUS STANDI


Excel do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that Excel has the 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 (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow Excel to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

So I require the unredacted contract for all these stated reasons as 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 (Transcript linked):

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.

NO CONTRACT WITH THE DRIVER AND UNFAIR TERMS
There is no contract between Excel and myself but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999:

Unfair Terms
5.—(1) 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.

(2) 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.''

Clearly it is patently unfair for a firm to state in a published article that they have a set procedure including manual checks - because they understand a driver can make a mistake with car registration input - and yet they failed to carry out those simple checks in my case. This would seem to me to be a clear breach of the Consumer Protection from Unfair Trading Regulations 2008.






UNRELIABLE, UNSYNCHRONISED, NON-COMPLIANT ANPR SYSTEM

I require the Operator to present records which prove:

- the Manufacturers' stated % reliability of the exact ANPR system used here.

- the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images.

In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:
''21 Automatic number plate recognition (ANPR)
21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''

At this location, there are merely a couple of secret small cameras up high on a pole. No signs at the car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here.

Unless the Operator can show documentary evidence otherwise, then this BPA Cop breach would also point to a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary.

UNLAWFUL PENALTY CHARGE
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, it can only remain a fact that this 'charge' is an attempt at dressing 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), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .


On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with the CPUTR 2008, the UTCCR 1999, the Equality Act 2010 and basic contract law.

It is unfair and punitive and, as such, I respectfully request that this appeal be allowed.




Signed:

Dated:

Pointerman

Hi all
Just a quick note to thank everyone for their help with my appeal.
I submitted my POPLA appeal and also sent an email of complaint to every address I could find for the Peel group. It looks like Nicola Dearden (ndearden@peel.co.uk) is the poor soul who has to deal with the multitude of complaints about Excel at the Peel Center.
I received an email from popla yesterday stating that the operator had cancelled the parking charge. I can only assume that this was due to some input from Ms Dearden as the date for my popla appeal was 24th March.
Whatever, chalk up another victory for the motorist and common sense! :beer:

Coupon-mad

That's great news!