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

The_Deep

I trust that you will be pro-active and broadcast you experiences wrt PCs and how to bear them on you own forum, and link to other fora.

I very much doubt that many B.M.W. owners are familiar with the concept of money saving.

Redx

VorTechS wrote: »

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?

anpr points should always be added if only anpr was used (no windscreen ticket by human being - sic)

excel tend to use anpr and reg numbers in machines for cross checking , so generally anpr only

if you read pranksters blogs, you will find one that fully explains the use of anpr cameras and why you see the images that are reproduced, most people assume these are poor "photographs" whereas prankster clearly explains the differences

therefore your observances are irrelevant as you are basing them on the assumption the pics are the same as your mobile phone takes

VorTechS

Thank you all for your help thus far! (Sadistically I am starting to enjoy this process!)

I attach my second draft, and hopefully this one covers everything I have learnt about so far!

I've re-organized a few of the paragraphs and hopefully the whole thing flows as it should after adding the Unfair Terms and ANPR points. I've re-worded a small part of the ANPR point taken from another appeal to better fit my situation.

I would very much appreciate comments on this version:

VorTechS wrote:

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 adequate signage

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

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 used in this case was accessed immediately off a roundabout and no such signage was in evidence or was not adequately visible to be seen by a driver exiting from said roundabout, during the hours of darkness.

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, in this case, there was no substantial loss and no damage caused therefore Excel have no cause of action to pursue the amount being charged. Excel have failed to provide a breakdown of the charge, 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”.

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.

Furthermore 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 from Excel Parking Services Ltd (Excel) upon appeal was received stating "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.

Although a different operator, in the case of Parking Eye v Smith at Manchester County Court December 2011, the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty.

3) Unfair terms

The terms that the Operator is alleging create a contract, were not reasonable, not individually negotiated and caused a significant imbalance to my potential detriment. Therefore, this charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says: ‘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.’

Further, the charge contravenes The Unfair Terms in Consumer Contract Regulations 1999 :

Schedule 2 : Indicative and non-exhaustive list of terms which may be regarded as unfair”

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.”

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.''

From the Office of Fair Trading’s 'Guidance for the Unfair Terms in Consumer Contract Regulations 1999':

Group 5 : Financial penalties – paragraph 1(e) of Schedule 2:

5.1 “It is unfair to impose disproportionate sanctions for a breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law.”
Group 18(a): Allowing the supplier to impose unfair financial burdens

18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However, as already noted, 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.

19.14 The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term...will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term.'

I contend the above describes the charge exactly as an 'unfair financial burden'. The charge is designed ostensibly to be a deterrent, but is in fact a disguised penalty, issued by a third party agent which is not the landowner and has no assignment of title. Such a charge would normally be restricted to the landowner themselves claiming for any damages or loss if the driver had only been informed of that by clearer and transparent signage in the various areas of this car park. The charge of £100 imposed by Excel constitutes an unfair term as it is disproportionate with respect to the alleged infringement which, at most, accounts for an 18 minute stay in a retail park where a large proportion of the retail units cease trading within 30-45 minutes of arrival.

4) Legal capacity to issue parking charges

Excel Parking Services Ltd (Excel) have no proprietary interest in the land concerned and have not shown any evidence of having any legally standing 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.

5) ANPR - Inaccuracy and Non-compliance, including lack of ANPR data usage signs

I require the Operator to present records as to 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. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times and I contend that such systems are known to be flawed in so much that reliability can be called into question with respect to image/time synchronisation.

The 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.

It is my belief that there are no signs at the car park that 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 with records and photos.

Redx

looks ok to me

I would add a menu with a numbered bullet point list just before the main appeal points , just so they are easily seen before the assessor dives into the explanations below them - 30 seconds of copy and paste

VorTechS

Yep, thanks. I'll do that, and add the PCN details and then I can think about sending it off!

ColliesCarer

Re: Your concern about the wording about loss in the paragraph in the no gpeol point there is a case you might want to consider referring to, which although is one involving Parking Eye it still makes a point that could be useful to you

e.g
This charge from Excel as a third party business agent is an unenforceable penalty. In Parking Eye v Smith, Manchester County Court December 2011, the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty.

Edit: That said it's only a suggestion for an extra inclusion if you think it would be useful - I agree with Redx that even as it currently stands it looks pretty good

misfitgemma

Agh, I just had one today from excel from the same place.

Would it be recommended that I send the same letter as the OP to Excel? -.-

The fine for it is ridiculous considering its like what, 30p an hour? So all theyve lost is 30-80p essentially. Ugh..

But yes, a newbie in distress here. Please help?

ColliesCarer

Hi Misfitgemma
The Op is at a different stage of the process to you to but when you are also having to submit a POPLA appeal something very similar will be needed.
You will need to submit a 1st appeal to Excel before that - as registered keeper - see post #6 of this thread or a more detailed template appeal can be found in the link below

https://forums.moneysavingexpert.com/discussion/4816822

and take a look at the flow chart

https://forums.moneysavingexpert.com/discussion/4922055

Then create your own thread and the forum will advise you.

ps you might be able to help this OP if you have any photos of the signs/P&D machines at The Walk as VorTechs was only visiting the area and is about 120 miles away.

misfitgemma

I live literally up the hill from said parking area, I could easily gather photographic evidence for vortechs if needed.

Ok, I will do. Thanks for the help.

VorTechS

ColliesCarer wrote: »

Re: Your concern about the wording about loss in the paragraph in the no gpeol point there is a case you might want to consider referring to, which although is one involving Parking Eye it still makes a point that could be useful to you

e.g
This charge from Excel as a third party business agent is an unenforceable penalty. In Parking Eye v Smith, Manchester County Court December 2011, the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty.

Edit: That said it's only a suggestion for an extra inclusion if you think it would be useful - I agree with Redx that even as it currently stands it looks pretty good

Thank you that seems like a very worthy inclusion for reference!