Parking Charge Notice from Excel Parking

Vegasbabe

Hi I wonder if someone could have a look at the draft of my appeal letter for POPLA?

Scenario
I drove into their car park and didn't purchase a ticket for the 15 minutes I was in it and I didn't see the information about ANPR when I drove in because it's in the bottom right hand corner of their sign in small print whilst the tariff is in large print in the centre of the sign.

You can't see the information about ANPR when you drive in, you have to go up to the sign so it's not clear a prominently displayed. There is no information about what the ANPR information is used for just that that it's an ANPR car park, again in the smaller print.

Excel state that the signs are prominent - they are once you're IN the car park and they are dotted around the car park.

I am concerned about points 2 and 4:
2 Lack of signage - no contract with driver? There was signage at the entrance and plenty of signage once you get into the car park. But the info for ANPC is not clear. I'll try and post a picture seperateley.

Should I remove this para and by removing it am I making my case weaker.

4 regarding loss to Excel. I didn't purchase a ticket.

Any help would be grateully appreciated.

Thanks in advance


I am the registered keeper & this is my appeal:

1) The Charge is not a genuine pre-estimate of loss

Their sign states the charge is for not fully complying with the conditions' so this Operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the car park was not even half full.

This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all. I therefore think the charges are punitive.

2) Lack of signage - no contract with driver

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 no contract agreed between the parties.

The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver as: ''Signs should be readable and understandable at all times...” These signs are not readable from any distance. The charges are clear from a distance, but any other information is not clear.

In addition, the BPA code of practice 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.''

Excel Parking fail to operate the system in a 'reasonable, consistent and transparent manner'.

Excel Parking's signage informing drivers of ANPR provides no opportunity for drivers in moving traffic at the entrance to be 'informed that this technology is in use and what the Operator will use the data captured by ANPR cameras for'.I contend that as well as being unreliable, this is a non-compliant ANPR system is a far from 'transparent' - unreasonably 'farming' the data from moving vehicles at the entrance & exit and neither 'managing, enforcing nor controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any parking event at all.

3) Lack of standing/authority from landowner to issue tickets
Excel Parking has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Excel Parking to strict proof of the contract terms with the actual landowner (not a lessee or agent). Excel Parking have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and issue PCNs, merely acting as agents. No evidence has been supplied lawfully showing that Excel Parking are entitled to pursue these charges in their own right.


I require Excel Parking to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

4) Unreasonable/Unfair Terms

Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:

'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances. A lack of appropriate and clear signage when entering an area is far from 'transparent'.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(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." Furthermore, Regulation 5(1) states that: "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".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "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.”I contend it is wholly unreasonable to rely on a lack of appropriate and clear signage when entering an area in an attempt to profit by charging a disproportionate sum where no loss has been caused.

I therefore respectfully request that my appeal is upheld and the charge is dismissed.

Redx

leave ALL points in the appeal , you are not an expert or an assessor and so have no experience to judge these matters

info

you are no expert on signage , but that signage has to meet the BPA CoP so I ask you a simple question - does the signage meet the BPA CoP (not your own opinions) ? - I suspect the answer is that you do not know - my point exactly , which is why you are querying the signage - clearly you didnt notice the signs so that seems to fail the acid test doesnt it ?

no ticket bought - ok , so you owe the car park owner say £2 for not paying for a ticket, and maybe a few pounds chasing you up for non-payment - would you agree /

if so , why do they want between £50 and £100 ? is this a genuine pre estimate of loss are are they punishing you ? (they can only get back what is owed plus a reasonable amount in chasing it up , say £10 to £16 and the OFT indicated about £12 so clearly not their punishment fee)

these appeals have been honed to the nth degree and many minds applied to them , so those who are new to this and not sure of what is going on should abide by the info provided by trusted members

remember, Excel are the ones making these allegations , they have to abide by the BPA CoP , they have to prove their case, so make them prove each and every point , to a trained assessor

good luck

ps:- here is the template example for the Peel Centre , Stockport

https://forums.moneysavingexpert.com/discussion/comment/64393064#Comment_64393064

I am sure that one is easily adapted for your car park, assuming its not the Peel centre of course

Coupon-mad

Remove this whole paragraph as it's a case where there is an initial loss (arguably) and you are shooting yourself in the foot here:


This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all. I therefore think the charges are punitive.


Why not have another look at the examples in the NEWBIES thread post #3 ('HOW TO WIN AT POPLA' link) as I am certain there are some which deal better with the argument about not having paid a tariff and the fact the only amount 'due' was minimal.

Was this the Peel Centre? If so, there's a pre-written POPLA appeal in the NEWBIES thread link already which includes stuff about the landowner allegedly paying Excel for the 'service' (therefore they can't charge the victims for the notices, ANPR equipment etc....no loss then if they are paid!). Even if not the Peel Centre, 'your' car park sounds sufficiently similar to use that template as your base and adapt it to suit.

Vegasbabe

First things first.

You guys are fantastic. I have to thank Coupon-man, arabesque_101, HO87, Crabman and Redx for your support and help in putting my appeal letter together.

On Friday morning I was getting ready to go the Commonwealth Games when I got an email from POPLA to say that my appeal had been upheld and instructing Excel Parking to cancel their parking notice.

Here is the letter. Thanks again :j

(Appellant)
-v-
Excel Parking Services Limited (Operator)

The Operator issued parking charge notice number XL08128484 arising out of the presence at the Car Park at Snow Hill, on 08/05/2014, of a vehicle with registration mark XXXXXXX.

The Appellant appealed against liability for the parking charge.

The Assessor has considered the evidence of both parties and has determined that the appeal be allowed.

The Assessor’s reasons are as set out.

The Operator should now cancel the parking charge notice forthwith.

Reasons for the Assessor’s Determination

At 09:30 on the 8th May 2014, a vehicle with registration mark XXXXXXX was recorded exiting the Car Park at Snow Hill after a stay of 16 minutes. A parking charge notice was issued for parking without displaying a valid ticket/permit.

The Operator’s case is that the terms and conditions at the site state that the car park is a pay and display car park. This is stated on several signs placed throughout the parking area and as the Appellant had failed to purchase a valid ticket, she had failed to park in accordance with the terms and conditions.

The Appellant’s case is that:
a) The charge is not a genuine pre estimate of loss.
b) The terms relied upon by the Operator amount to unfair terms.
c) The Operator does not have the standing to enforce this charge.
d) There is a lack of signage at the site.
e) The ANPR at the site is inaccurate and is not compliant with the BPA Code of Practice.

It is noted in this case that although the Operator has marked the documents referred to as confidential; these are the same documents that have been supplied by the Operator to the Appellant.

Considering carefully all the evidence before me, the Operator has stated that the charge is a genuine pre estimate of the loss incurred and in the event that it is not a genuine pre estimate of loss, the charge is commercially justified.

The Operator has provided evidence to show that they incur costs of £166.01 but in order to meet with the requirements of the British Parking Association, the maximum charge that can be imposed is £100. Although the Operator has stated the final charge, they have failed to indicate how this charge was calculated. Although the Operator has explained costs that may be incurred, a number of the items referred to amount to general operating costs and would not appear to be substantially linked to the cost incurred as a result of the breach. In the absence of an explanation as to how the amount of the charge was reached, I am not satisfied that the Operator has provided sufficient evidence to show that the charge represents a genuine pre estimate of the loss incurred.

If the charge is not found to amount to a genuine pre estimate of loss, the Operator has stated that the charge is commercially justified. The Operator has provided a number of cases in support of this submission. In cases I have seen from the higher courts and indeed the cases submitted by the Operator, it is clear that the charge cannot be commercially justified if the primary purpose of the charge is to deter a breach.

Where the charge represents damages, the amount of the charge is required to be compensatory rather than punitive; with the goal of placing the parties in the position they would have been in, had the contract been performed. In this case, the primary purpose of the charge is to prevent vehicles from parking without purchasing parking time. This is to deter a breach of the terms and conditions and I am consequently not satisfied that the charge can be commercially justified. The Operator has not demonstrated that the charge is a genuine pre estimate of loss or commercially justified and I therefore have no evidence before me to refute the Appellant’s submission that the charge does not amount to a genuine pre estimate of loss. As a result, I need not decide any other issues raised by the Appellant.

Accordingly, this appeal must be allowed.

Shehla Pirwany

Assessor

Umkomaas

Considering carefully all the evidence before me, the Operator has stated that the charge is a genuine pre estimate of the loss incurred and in the event that it is not a genuine pre estimate of loss, the charge is commercially justified.

The 'if one doesn't work, then perhaps the other one will' strategy. Desperate attempt to twist the reality that neither apply - they just want your money, and they'll say whatever is necessary to get it. It's good the assessor saw through this.

And now to the next twist:

The Operator has provided evidence to show that they incur costs of £166.01 but in order to meet with the requirements of the British Parking Association, the maximum charge that can be imposed is £100. Although the Operator has stated the final charge, they have failed to indicate how this charge was calculated.

No business could possibly operate on this basis. As their only business is issuing PCNs, then they make £66.01 loss on each and every ticket issued. They'd be more solvent if they issued no tickets at all. So how come they show a year-end profit?

It's a disgrace that they produce such manufactured (and totally unsustainable) business figures, designed purely to hoodwink the assessor into dismissing the appeal. Appalling. POPLA should be reporting this to the BPA and the BPA stepping in to put a stop to this false accounting.