Advice on my POPLA appeal letter welcome

JMR4534

I have drafted the following POPLA appeal letter with the help of the NEWBIES thread. For the background to my case, please see my previous postings on 20/03/14 and 02/05/14.

I should be grateful if you could tell me if the appeal letter as it currently stands is sufficient or whether any additional detail should be added.

I only have a few days left to meet the appeal deadline so would like to get this sent off as soon as possible.

Current letter is as follows:

Dear POPLA Assessor,
Re: ExcelParking fake PCN, verification code 2561144553

I am the registeredkeeper and I wish to appeal a recent parking charge from Excel Parking. Isubmit the points below to show that I am not liable for the parking charge:

1) No genuinepre-estimate of loss
The Excel Parkingnotice allege 'breach of terms/failure to comply' and as such, thelandowner/occupier (not their agent) can only pursue liquidated damagesdirectly flowing from the parking event. Given that Excel Parking charge thesame lump sum for a 15 minute overstay as they would for 150 minutes, and thesame fixed charge applies to any alleged contravention (whetherserious/damaging, or trifling as in my case), it is clear there has been noregard paid to establishing that this charge is a genuine pre-estimate of loss.

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

The Office of FairTrading has stated to the BPA Ltd that a 'parking charge' is not automaticallyrecoverable simply because it is stated to be a parking charge, as it cannot beused to state a loss where none exists. And the BPA Code of Practice statesthat a charge for breach must wholly represent a genuine pre-estimate of lossflowing from the parking event.

Excel Parking andPOPLA will be familiar with the well-known case on whether a sum is a genuinepre-estimate of loss or a penalty: Dunlop Pneumatic Tyre Company Limited vNew Garage and Motor Company [1915] AC 79. Indeed I suspect Excel Parkingmight cite it. However, therein is the classic statement, in the speech of LordDunedin, that a stipulation: “… will be held to be a penalty if the sumstipulated for is extravagant and unconscionable in amount in comparison withthe greatest loss which could conceivably be proved to have followed from thebreach.'' There is a presumption... that it is penalty when "a single lumpsum is made payable by way of compensation, on the occurrence of one or more orall of several events, some of which may occasion serious and others buttrifling damage".

No doubt ExcelParking will send their usual well-known template bluster attempting to assertsome ''commercial justification'' but I refute their arguments. In a recentdecision about a similar PPC, ParkingEye who operated a car park at Town QuaySouthampton, POPLA Assessor Marina Kapour did not accept ParkingEye's genericsubmission that the inclusion of costs which in reality amount to the generalbusiness costs incurred for the provision of their car park management servicesis commercially justified. ''The whole business model of an Operator in respectof a particular car park operation cannot of itself amount to commercialjustification. I find that the charge is not justified commercially and so mustbe shown to be a genuine pre-estimate of loss in order to be enforceableagainst the appellant.''

My case with ExcelParking is the same and POPLA must be seen to be consistent if similararguments are raised by an appellant.

2) No standingor authority to pursue charges nor form contracts with drivers
Excel Parking donot own the land mentioned in their Notice to Keeper and have not provided anyevidence that they are lawfully entitled to demand money from a driver orkeeper. Even if a contract is shown to POPLA, I assert that there arepersuasive recent court decisions against various PPCs which establish that amere parking agent has no legal standing nor authority which could impact onvisiting drivers.

3) Flawedlandowner contract and irregularities with any witness statement
Under the BPA CoPSection 7, a landowner contract must specifically allow the Operator to pursuecharges in their own name in the courts and grant them the right to formcontracts with drivers. I require Excel Parking to produce a copy of thecontract with the landowner as I believe it is not compliant with the CoP andthat it is the same flawed business agreement model as in Sharma andGardam.

If Excel Parking produce a 'witness statement' in lieu ofthe contract then I will immediately counter that with evidence that these havebeen debunked in other recent court cases due to well-publicised and seriousdate/signature/factual irregularities. I do not expect it has escaped the POPLAAssessors' attention that Excel Parking witness statements have been robustlyand publicly discredited and are - arguably - not worth the paper they arephotocopied on. I suggest Excel Parking don't bother trying that in my case. Ifthey do, I contend that there is no proof whatsoever that the alleged signatoryhas ever seen the relevant contract terms, or, indeed is even an employee ofthe landowner, or signed it on the date shown. I contend, if such a witness statementis submitted instead of the landowner contract itself, that this should bedisregarded as unreliable and not proving full BPA compliance nor showingsufficient detail to disprove the findings in Sharma and Gardam.

4) ANPR Accuracy and breach ofthe BPA Code of Practice 21.3
This Operator isobliged to ensure their ANPR equipment is maintained as described in paragraph21.3 of the British Parking Association's Approved Operator Scheme Code ofPractice. I say that Excel Parking have failed to clearly inform drivers aboutthe cameras and what the data will be used for and how it will be used andstored. I have also seen no evidence that they have complied with the otherrequirements in that section of the code.

In addition Iquestion the entire reliability of the system. I require that Excel Parkingpresent records as to the dates and times of when the cameras at this car parkwere checked, adjusted, calibrated, synchronised with the timer which stampsthe photos and generally maintained to ensure the accuracy of the dates andtimes of any ANPR images. This is important because the entirety of the chargeis founded on two images purporting to show my vehicle entering and exiting atspecific times. It is vital that this Operator must produce evidence inresponse and explain to POPLA how their system differs (if at all) from the flawed ANPRsystem which was wholly responsible for the court loss recently in ParkingEyev Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said theevidence from ParkingEye was fundamentally flawed because the synchronisationof the camera pictures with the timer had been called into question and theoperator could not rebut the point.

So, in addition toshowing their maintenance records, I require Excel Parking to show evidence torebut the following assertion. I suggest that in the case of my vehicle beingin this car park, a local camera took the image but a remote server added thetime stamp. As the two are disconnected by the internet and do not have acommon "time synchronisation system", there is no proof that the timestamp added is actually the exact time of the image. The operator appears touse WIFI which introduces a delay through buffering, so "live" is notreally "live". Hence without a synchronised time stamp there is noevidence that the image is ever time stamped with an accurate time. Therefore Icontend that this ANPR "evidence" from the cameras in this car parkis just as unreliable and unsynchronised as the evidence in the Fox-Jones case.As their whole charge rests upon two timed photos, I put Excel Parking tostrict proof to the contrary.

I request that myappeal is upheld and for POPLA to inform Excel Parking to cancel the PCN.

Yours faithfully,

THE REGISTEREDKEEPER

ezerscrooge

Looks well - certainly got the main points covered. I might suggest adding another - froma very recent case...

No contract with the parking company.

There has been no contract formed with the parking company therefore there can be no breach of contract.

In the case ParkingEye v Green (08/05/2014 High Wycombe) the judge ruled there could be no contract in a free car park as there was no consideration from the motorist. For a contract to exist, there must be consideration from both sides and, as this is a free car park, there was no consideration required from the motorist. In this case the judge ruled that a contract did not exist, and therefore the parking company could not claim for breach of contract.