Excel Parking - Ebbw Vale, The Walk - Surprise Surprise!

Stroma

No don't go there as it's pointless, just draft your popla appeal on the standard stuff you will find on here. Then just place your draft here so we can make sure you have everything in it to win.

VorTechS

Thanks for that!...

So, subject to potentially incorrect recollections of the site, I have drafted the following appeal tweaked accordingly. I have approx. 3 weeks to submit:

Dear POPLA,

I am the registered keeper (to be flushed out with relevant details) & this is my appeal. I am not liable for this parking charge, and appeal on the following grounds:

1) Lack of signage - no contract with driver

Any signage was inadequate, not compliant with the BPA Code of Practice and was not prominent.

BPA CoP Appendix B states that: Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit...should be made of a retro-reflective material similar to that used on public roads.

A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and therefore, no contract.
Furthermore BPA CoP Appendix B also states: Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore,
as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of

The entrance in use, was accessed immediately off a roundabout and no such signage was in evidence or was adequately visible to be seen by a driver exiting from said roundabout.

2) No genuine pre-estimate of loss

The charge being claimed is punitive and unreasonable, contravening the British Parking Association’s Code of Practice section 19. Excel Parking Services Ltd (Excel) must therefore be required to explain their 'charge' by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention.

However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused so Excel have no cause of action to pursue this charge. Excel have failed to provide an appropriate breakdown of costs, stating that the charge is in line with BPA guidelines and therefore “deemed reasonable”.

This reply completely fails to demonstrate that the whole charge is a genuine pre-estimate of loss. The fact that the recommended maximum level in section 19.5 (“we would not expect this amount to be more than £100”) has not been exceeded merely means that the operator does not have to justify the amount in advance. In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge can “cannot be punitive or unreasonable”.

In the case of Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79, there is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach”.

The finding of Colman J in Lordsvale Finance Plc -v- Bank of Zambia [1996] QB 752 was that “whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provisions was to deter a party from breaking the contract or to compensate the innocent part for the breach [...] deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred”.

UTCCR 1999:-

''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.

The OFT on Unfair Contract Terms:

18(a): Unfair financial burdens

'18.1.3 ...transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers.

Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.

It would normally be for the owner to claim for loss, and it is unfair to attempt to make a party pay excessively for an event that would normally be 'breach of contract'. The charge is neither a genuine pre-estimate of loss nor a genuine offer regarding any 'contractual fee for parking'. It is an unenforceable disguised penalty.

Excel Parking Services Ltd (Excel) cannot include their operational tax-deductible business running costs - for example, costs of signage, staffing and dealing later with the appeals, or hefty write-off costs. A reponse received upon appeal from Excel Parking Services Ltd (Excel) however clearly states "We have calculated this sum as a genuine pre-estimate of our losses as we incur significant costs in managing the parking location to ensure compliance".

This would not represent a loss resulting from a breach of the alleged parking contract and in any case I believe Excel Parking Services Ltd (Excel) are likely to be paid by their client - so any such payment income must be balanced within the breakdown Excel Parking Services Ltd (Excel) supply and must be shown in the contract, which leads me to my next appeal point.

3) Legal capacity to issue parking charges

Excel Parking Services Ltd (Excel) have no proprietary interest in the land concerned and have not responded to a request for a copy of the contract with the landowner in which authority to pursue outstanding parking charges is granted, as required by the BPA Code of Practice, Section 7. In particular, the issue of the requirement set out in section 7.2 paragraph (f) : “whether or not the landowner authorises you to take legal action to recover charges from drives charged for unauthorised parking” has not been addressed. In the absence of this evidence, I believe that Excel do not have the legal capacity to enforce such a charge.

I require the unredacted landowner contract including any payments made between the parties, names & dates & details of all terms included. I suspect Excel Parking Services Ltd (Excel) to be merely an employed site agent and that this is nothing more than a commercial agreement between the two parties. There is nothing that could enable Excel Parking Services Ltd (Excel) to impact upon visiting drivers in their own right, for their own profit.

For the avoidance of doubt, I will not accept a mere “witness statement” instead of the relevant contract. There would be no proof that the alleged signatory can act on behalf of the landowner or has ever seen the relevant contract. Also a letter or statement would fail to show any payments made between the parties, and would omit dates & details of all terms in the actual contract - and so would fail to rebut my appeal point about the Operator's lack of standing & assignment of any rights.

Regards,

Registered Keeper

Coupon-mad

The entrance in use, was accessed immediately off a roundabout and no such signage was in evidence or was adequately visible to be seen by a driver exiting from said roundabout.

Is the above detail right for your case? The appeal points will win but make sure everything is right for this car park. Excel won't defend it at all.

VorTechS

Coupon-mad wrote: »

Is the above detail right for your case? The appeal points will win but make sure everything is right for this car park. Excel won't defend it at all.

Depending on what you are asking here, I can't say for certain it is right. The driver can only recollect not seeing any signage at the entrance. That's not to say it wasn't present, but if it was, it certainly was not clearly visible to the driver exiting the roundabout in the dark.

If the question is more geared towards asking about 'Is the entrance used immediately off a roundabout', then yes, that statement is correct.

VorTechS

Hmmm, having just re-read the appeal, I notice there are a few things that may need further tweaking... ?

This part of the appeal:

VorTechS wrote:

However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused so Excel have no cause of action to pursue this charge. Excel have failed to provide an appropriate breakdown of costs, stating that the charge is in line with BPA guidelines and therefore deemed “deemed reasonable”

My concern would be around the use of the word loss. As no ticket was purchased, I'm assuming it could be argued there was a 'loss'?

Also, in my appeal to the PPC I did not request an un-redacted copy of the contract with the landowner, but this appeal indicates otherwise. I should probably therefore remove that part of the statement... ?

Redx

yes there is a loss if its a p&d car park, so the landowner can only claim a "genuine pre estimate of loss" , in which case so can excel if they have the legal right to do so , so lets assume that £12 covers this (the OFT figure) or say between £3.50 and £16 which are figures bandied about on here (where the parking fee maybe say £2 to £5) , then that is reasonable under the circumstances , so you are asking popla to investigate this aspect by mentioning it in the appeal under the GPEOL paragraph , meaning Excel have to provide a costs breakdown of the charge they impose on you, they usually add business operating costs, assuming they send the details in

as for your initial appeal, doesnt matter what you said in it, in this POPLA appeal you task popla to investigate the legalisites of each and every legal point you raise, including requiring them to check an un-redacted copy of the landowner contract, if you ask , they will investigate, if you dont - they wont !

so you put everything in, making the PPC have to justify their exorbitant pcn to popla

this thread https://forums.moneysavingexpert.com/discussion/4835943 explains the ideas behind this

and this thread https://forums.moneysavingexpert.com/discussion/4911999 shows a recent popla appeal draft to Excel for the infamous p&d car park in Stockport , so you can check your draft against that one as they are similar

as for signage , excel will place signs in such a way you can easily miss them, especially if coming into the car park off a roundabout, hence the earlier signage query, check the Peel centre popla appeal regarding signage on those points, bearing in mind the peel centre is not the same one as yours, but similar conditions apply

VorTechS

Redx wrote: »

yes there is a loss if its a p&d car park, so the landowner can only claim a "genuine pre estimate of loss" , in which case so can excel if they have the legal right to do so , so lets assume that £12 covers this (the OFT figure) or say between £3.50 and £16 which are figures bandied about on here (where the parking fee maybe say £2 to £5) , then that is reasonable under the circumstances , so you are asking popla to investigate this aspect by mentioning it in the appeal under the GPEOL paragraph , meaning Excel have to provide a costs breakdown of the charge they impose on you, they usually add business operating costs, assuming they send the details in

as for your initial appeal, doesnt matter what you said in it, in this POPLA appeal you task popla to investigate the legalisites of each and every legal point you raise, including requiring them to check an un-redacted copy of the landowner contract, if you ask , they will investigate, if you dont - they wont !

so you put everything in, making the PPC have to justify their exorbitant pcn to popla

this thread https://forums.moneysavingexpert.com/discussion/4835943 explains the ideas behind this

Thanks, I understand the reason for requiring the explanation and breakdown, but that thread certainly makes it nice and clear!

I'm just wary of stating something that is factually incorrect in the appeal should they decide to take things further!

As the site is allegedly P&D, and we're in agreement they have incurred a loss, I have stated in the appeal the opposite. So as no ticket was purchased, and I am indicating there was no loss, ergo my statement would be incorrect.

Should I therefore modify this statement to read more along the lines of: 'the amount being requested by Excel far exceeds the amount that would otherwise have been obtained through purchase of said ticket for the period of actual parking (18 minutes)' .... ?

VorTechS

In fact, perhaps I should just add 'substantial' so that it reads 'no substantial loss, and no damage' and tack the statement of cost/timing to the end.... ?

Redx

sounds reasonable to me

check the extra info I posted in my earlier reply as I added some Peel centre detail and a link , same ppc , different p&d car park , but similar circumstances

VorTechS

Ah brilliant, thank you!

I've come across that Stockport thread before now - and I like the 'Unfair Terms' as a separate paragraph. So I'll do some more tweaks tonight.

Also the ANPR points could be interesting, and I wonder if I should also apply them in this case.

One thing I have noticed from very, very careful examination of the images supplied on the PCN, is that the Entrance image has been 'enhanced'. There's some OSD information related to the camera which clearly shows that the image has 'Gain' applied to it. The exit image (a separate camera which shows things completely shrouded in darkness so much that you'd be hard pressed to even see a car in it!) however may not have any, but definitely much less applied (the OSD is less readable in this case). There are also vertical bars present in the imagery.

Not sure if this is something that should be included?