Excel Parking Fine - Bury New Road

duffy182

Hi,

I sent this on Tuesday:

Appeal reasons:
Dear POPLA adjudicator, I am writing to appeal against a parking charge levied by Excel Parking Services Ltd on XX/XX/XXXX in CAR PARK IN QUESTION. I am the registered keeper of the vehicle concerned.
The grounds for my appeal are as follows :

1) No genuine pre-estimate of loss The charge of £100 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. I specified in my original appeal that I would like to see a breakdown of the costs incurred by Excel as a result of the alleged breach. Excel have failed to provide this information, 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”. 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. This would not represent a loss resulting from a breach of the alleged parking contract and in any case I believe Excel are likely to be paid by their client - so any such payment income must be balanced within the breakdown Excel supply and must be shown in the contract, which leads me to my next appeal point.

2) Legal capacity to issue parking charges 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 are merely an employed site agent and this is nothing more than a commercial agreement between the two parties. There is nothing that could enable 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.

3) Unclear Signage The signs in Bury New Road Car Park are not at all clear. With referral to The BPA Code of Practice, it states this of signage: ‘The sign must be readable from far enough away so that drivers can take in all the essential text.’ I argue this is not the case at Bury New Road as it was only when the driver had received the ‘charge notice’ did they have to walk right up to the car park’s signs to see where it was attempting to be justified. The smaller font was only just readable when standing directly in front of the sign and it was also very brightly coloured, busy and confusing. The signs were very unclear and they were also unlit for the most part and placed on the wall of a building in the dark or high up. The contrasting font for providing different information was also confusing as the largest section, arguably most visible section, states ‘UP TO 1 HRS: FREE’. This was the first time the driver had parked in this location and the signs did not give enough notice to drivers, in font size and colouring. The colours used on the signs are blue and yellow, with the use of such colours actually being highlighted in the BCP Code of Practice: ‘There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision. Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material...'' The driver even asked a fellow car park user for advice but they admitted they were not sure, as the signage was confusing, and had only been there 5 minutes and was now leaving, without purchasing a parking ticket.

4) 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.'

To conclude, 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 - which was nothing as the driver was in Croma Restaurant on the site (which the driver has evidence of) and 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.

Yours,

NAME OF DRIVER

Just thought I would post on here for future reference for anyone. The appeal has been acknowledged so I will let the forum know when I do!

Thanks so much for your help!

Sking85

Hi duffy182 did you have any luck with this?

I've just received an invoice tonight from these cowboys.

I read the top of the sign stating parking charges 800-1800 but further down it says 1800-800 £1.

Annoyingly I actually had a £1 on me and if I read this of would have paid it.

Thanks

Umkomaas

It's almost 6 months since Duffy last visited the forum, and despite assistance from the forum's most senior and knowledgable adviser, (Coupon-mad), did not even have the courtesy of letting us know the outcome, despite promises to do so.

I would think you have no chance of a reply.

Just thought I would post on here for future reference for anyone. The appeal has been acknowledged so I will let the forum know when I do!

Thanks so much for your help!

Please read the NEWBIES FAQ sticky (also written by Coupon-mad) for further advice on how to handle your PCN.

Coupon-mad

You need to use the Forum Jump (on this page at least twice) and click 'GO' to get to page one of the forum and read the NEWBIES FAQs thread. It gives you the template first appeal you need to send to the PPC as soon as the registered keeper receives the first letter. Don't just read an old thread - you need to get to page one and that's only one click away.

Sking85

Thanks I'll get the ball rolling on this tomorrow night.

I was visiting the croma restaurant and have my receipt as well so no local business has suffered by me parking there.

I can't get over the amount quoted! £100 reduced to £60. A council usually quotes £50 reduced to £25

Umkomaas

All part of the unjustness of the private parking industry. You can win this by following forum advice.

traceynob

How have you got on so far? I was in that car park last night and saw two poor unfortunate victims had received tickets, it seems to be very random who gets targeted.

Ralph-y

this thread has not been updated since last October .... so please don't hold your breath waiting for a reply

Ralph:cool:

traceynob

Shame, I know that these things can drag on, but people follow these threads in the hope of seeing a good outcome, so no outcome/update is a bit bob!