Machine not working

Redx

I would just use one of the many recent popla appeals listed on here for the PEEL centre , stockport (search word peel or stockport)

all standard stuff and that is a p&d car park too

CaterpillarGirl

It wasn't Stockport though so not sure the signage stuff can be used, but I guess I can use the other stuff.

Do you think I should not use the ANPR stuff as in my case there was no ticket bought as the machine wasn't working so I'm not contesting an overstay or anything?

Redx

I never implied it was stockport but we get so many threads about it that its a good template for anywhere else

as for anpr, if you were snapped by anpr cameras (no windscreen ticket) then obviously you bring up the anpr aspect, basically you bring up any point that you feel they should prove is valid, no matter what it is , be it not a gpeol , no contract with landowner , bad signage , faulty machines , anything and everything

its their job to prove their case , their equipment , their invoice , their signage

its not your job to help them to prove their case, its your job to question every aspect of their invoice charge and how it came about

clearly you will win on not a gpeol , but put all the other stuff IN !

CaterpillarGirl

I've now put this together with help from the forum threads and would really appreciate some advice before I submit.

I think the wording in paragraph 3 of the no gpeol section might need to change as there was no free period of parking in my case. What could be said instead of " no loss or damage"? Or is it ok as is?

I have not included the ANPR stuff as I think there is a sign about cameras there and the PCN issued does not relate to an overstay.

Any other comments or suggestions?
Is it strong enough to succeed?

All help very much appreciated.



Dear POPLA adjudicator,

I am writing to appeal against two parking charges levied by Excel Parking Services Ltd on DD/MM/YYYY and Dd/Mm/YYYY. I am the registered keeper of the vehicle concerned.

My appeal is based on legal grounds. The grounds for my appeal are as follows :

1) No genuine pre-estimate of loss
2) No legal capacity to issue parking charges
3) Unfair terms

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 of terms and conditions.

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”.

I have already tried to pay the £2 which would have been paid if the ticket machine was working, which Excel refused. 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 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.

2) No legal capacity to issue parking charges

Excel have no proprietary interest in the land concerned and unless they can supply 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, then I believe that Excel do not have the legal capacity to enforce such a charge.
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 drivers charged for unauthorised parking” has not been addressed.

I require the unredacted landowner contract including any payments made between the parties, names & dates & details of all terms included. I suspect Excel are 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 “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) 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 that the above describes the charge of £100 imposed by Excel 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. The charge of £100 imposed by Excel constitutes an unfair term as it is disproportionate with respect to the alleged infringement.

I trust that when you have considered these grounds you will find in my favour and uphold the appeal.

yours,


The registered keeper's name

Redx

not a gpeol relates to the charge now being levied being disproportionate to any losses incurred by the landowner, so for example , a charge of say £85 to £100 is a punishment as clearly its way above any loss suffered by the landowner , the OFT deemed it more like £12 including collection

so the not a gpeol is for them to prove otherwise , I did say dont do their job for them yet you seem to think you understand the BPA CoP better than they do, or the terms and conditions laws , or laws of trespass and restitution , that apply here

they would have paid £2 , so the £100 charge is NOT A GENUINE PRE ESTIMATE OF LOSS

as for signage , I hardly think that you are an expert in deciding if the actual signage used meets the BPA CoP , so what you do is say or imply that it does not, meaning they have to prove compliancy

sorry to be so blunt, but you seem to take the view that you or somebody in your family is guilty here, whereas the person sending you the invoice should prove all points are valid, hence you call into question all of them , including the anpr that deemed you or your family overstayed (you have no idea if its calibrated correctly or can legally be used to prove their case is valid)

no idea why you are being stubborn about this, all you need to do is copy and paste a peel centre appeal into notepad, and then adjust it to meet your car park and not the peel centre, nothing more , nothing less , take you 20 minutes at most, then let popla decide relevancy

there is no free parking at the peel centre , its covered by anpr cameras in and out - validated by a ticket machine with reg number entry , and the signage there has been changed several times in the last couple of years as it failed a test by a judge - documented on tv (the martin cutts case)

in jan 2014 the machines were out of action there too, causing tickets to be issued and popla appeals to be drafted on here, so your case is NO DIFFERENT

good luck (I really do hope you win, despite the harshness above)

please wake up and smell the coffee !

ps:- have a read of the may blog by parking prankster, where a signage error forced a cancellation

edit

see this successful one here , similar circumstances , but peel centre as I said above

https://forums.moneysavingexpert.com/discussion/4867372

or adjust this PE one to suit by changing PE to Excel

https://forums.moneysavingexpert.com/discussion/4964040

CaterpillarGirl

I did copy a peel centre one but it was based on free parking at Nandos so I tried to adjust it for the car park I used.

I'm not trying to say I understand the BPA CoP better than anyone, out of my depth is all as I said earlier.

Not being stubborn, just trying to make sure it's all relevant to my case.

Do I need to take out my reference to the £2 I tried to pay? Is it ok to say "no loss or damages" when the charges would have been £2 if the machine was working?

You can be as harsh as you like, I need help !

Redx

read the 2 links I gave you above , one was a peel centre case exactly like yours where the machines were out of order, I would use that one as its this year , just amended to your car park and any other circumstances , remove nothing however

nobody expects you to understand all the legalities , that is for the popla solicitor/assessor and excel to sort out , not you

your "case" is no different to hundreds of others we see on here, but the excel one I linked to is almost identical

but they wont consider something if you do not include it, even if its relevant

so hit them with everything and let them deal with it (you removed signage and anpr details in your appeal above - not your job to prove their case for them , you query all aspects that they allege)

just make sure that after you copy and paste it , make the alterations mentioned in the post number #10 in there by coupon mad as well , then post here (minus personal info) , for checking

ps:- there is no "free parking" at nandos on the peel centre , there is 15 minutes at KFC and no other "free parking" on there , its a p&d car park with anpr on entrance and exit and ticket machines to cross check tickets to the anpr - a typical excel site

CaterpillarGirl

Very helpful Red X !! Thank you !!

I think I have to take some of the text out though as I didn't ask for a breakdown of costs etc in my appeal to Excel. Hadn't found this forum then!

Redx

doesnt matter what was in your excel appeal, this is a popla appeal so chuck everything in , dont worry about hurting their "feelings" or moving the goalposts !

read this one too https://forums.moneysavingexpert.com/discussion/4939933 , post #46 , seems a good and recent one to me , its excel too , doesnt have anything about machines being faulty but popla wont care about that anyway

CaterpillarGirl

If someone could take a quick look at my edited appeal that would be great.

Any further comments or suggestions? Thanks for your help!



Dear POPLA adjudicator,

I am writing to appeal against two parking charges levied by Excel Parking Services Ltd on DD/MM/YYYY and Dd/Mm/YYYY. 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.

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.

2) Legal capacity to issue parking charges

Excel have no proprietary interest in the land concerned and unless they can supply 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, then I believe that Excel do not have the legal capacity to enforce such a charge.
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 drivers charged for unauthorised parking” has not been addressed.

I require the unredacted landowner contract including any payments made between the parties, names & dates & details of all terms included. I suspect Excel are 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 “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) 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 yet I contend the driver was a customer of Nandos which has separate (free) parking terms anyway.

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.''

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 with records and photos.

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.'

I contend that the above describes the charge of £100 imposed by Excel 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. The charge of £100 imposed by Excel constitutes an unfair term as it is disproportionate with respect to the alleged infringement.

5) No contract with driver - frustrated contract caused by failure of Excel to provide the means to pay and a lack of signs about what to do when no P&D machines were visibly working

The ticket machine was not working preventing me from purchasing a ticket. There were no clear signs informing what to do and no provided means of calling Excel Parking to notify them. The 'contract' was frustrated by the failure of Excel to provide the means to pay.

I trust that when you have considered these grounds you will find in my favour and uphold the appeal.

yours,


The registered keeper's name