POPLA appeal letter - do you approve?

JMR4534

Hi Coupon-mad

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 code2561144553

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

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

This charge from Excel Parking as a third party business agent is an unenforceable penalty. In Parking Eye v Smith, Manchester County Court December 2011, the judge decided that he 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.

The Office of Fair Trading has stated to the BPA Ltd that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.

Excel Parking and POPLA will be familiar with the well-known case on whether a sum is a genuine pre-estimate of loss or a penalty: Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79. Indeed I suspect Excel Parking might cite it. However, therein 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.'' There is a presumption... that it is penalty when "a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

No doubt Excel Parking will send their usual well-known template bluster attempting to assert some ''commercial justification'' but I refute their arguments. In a recent decision about a similar PPC, Parking Eye who operated a car park at Town Quay Southampton, POPLA Assessor Marina Kapour did not accept Parking Eye's generic submission that the inclusion of costs which in reality amount to the general business costs incurred for the provision of their car park management services is commercially justified. ''The whole business model of an Operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre-estimate of loss in order to be enforceable against the appellant.''

My case with Excel Parking is the same and POPLA must be seen to be consistent if similar arguments are raised by an appellant.

2) No standing or authority to pursue charges nor form contracts with drivers
Excel Parking do not own the land mentioned in their Notice to Keeper and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. Even if a contract is shown to POPLA, I assert that there are persuasive recent court decisions against various PPCs which establish that a mere parking agent has no legal standing nor authority which could impact on visiting drivers.

3) Flawed landowner contract and irregularities with any witness statement
Under the BPA CoP Section 7, a landowner contract must specifically allow the Operator to pursue charges in their own name in the courts and grant them the right to form contracts with drivers. I require Excel Parking to produce a copy of the contract with the landowner as I believe it is not compliant with the CoP and that it is the same flawed business agreement model as in Sharma and Gardam.

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

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

In addition I question the entire reliability of the system. I require that Excel Parking 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. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from Parking Eye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

So, in addition to showing their maintenance records, I require Excel Parking to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the timestamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from the cameras in this car park is 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 to strict proof to the contrary.

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

Yours faithfully,

THE REGISTEREDKEEPER

Coupon-mad

That's very Parking-Eye biased in its wording and repeated mentions of Sharma and Gardam. Maybe you will find a slightly more Excel-based slant to the wording you might find on these search results:

http://lmgtfy.com/?q=excel+popla+site%3Aforums.moneysavingexpert.com

It will search automatically, I think you should find some recent threads with a POPLA wording. Your points of appeal are right but the cases cited too much Parking Eye (obvious template).