Excel PCN driver left site

ap86

Umkomaas wrote: »

You need to keep everything about your case on the one thread as we need to cross-check information you've already given with what you're putting in your POPLA draft.

Have you thoroughly read through exactly what you're saying here? Have you read and understood some of the references (VCS -v- Ibbotson for example)?

There is one glaring contradiction with one of your statements in your initial thread, that there were no ANPR cameras at the car park, yet:



If this goes to POPLA and Excel can 'rubbish' your submissions then the more they can do this, the potentially weaker your case.

You seem to be rushing everything here - when is your POPLA deadline date?

Look, we will help, but you just can't chuck anything in here and leave us to sort it out for you. You need to understand what you are writing, does it hang together, and does it make sense. Another example is the summary list of bullet points at the top of your draft e.g. 'Business Legitimacy' (whatever that is?) appears in the summary but not the body of the appeal.

Was this draft originally from an Excel case?

Please PM Crabman (forum guide) and ask that the two threads are merged please.

Everything will be kept in this thread from now on. It was from an original excel case and the reason for the charge is the same one I am facing. The deadline is 28 days from the 21st May (so 18th June).

Will have a re look through the case i'm looking to provide and ammend accordingly.

Umkomaas

I don't think you read what I said, the two threads need to be merged otherwise you are going to be getting separate pieces of advice on each thread and no one will know which is most relevant, what already might have been done etc. It will lead to confusion and quite possibly conflicting or even incorrect advice.

We have so many threads to advise on it really would help if you follow what we are suggesting please.

PM Crabman.

ap86

All. I've tried putting together a POPLA appeal for my case. The case is a PCN from Excel Parking, which is based on the driver leaving the site.

Comments and feedback greatly appreciated to help me bat away these morons!

Ta in advance!

[FONT=&quot]Date XXXXXXXX[/FONT]
[FONT=&quot]Car Reg XXXXXXX[/FONT]
[FONT=&quot]Location XXXX[/FONT]
[FONT=&quot]Date of PCN Issue XXXXXXXX[/FONT]
[FONT=&quot]PCN Number XXXXXXXXX[/FONT]
[FONT=&quot]POPLA Verification Code XXXXXXXXXX[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Dear POLA Assessor,[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I am writing as the registered keeper of the above vehicle on the alleged contravention ate and I’m writing this to appeal a charge sent to me by Excel Parking Service. I would like to appeal this notice on the following grounds:[/FONT]
· [FONT=&quot]The charge is not a genuine pre-estimate of loss;[/FONT]
· [FONT=&quot]Unlawful penalty clause;[/FONT]
· [FONT=&quot]No authority to levy charges;[/FONT]
· [FONT=&quot]The signage was not compliant with the BPA Code of Practice;[/FONT]
· [FONT=&quot]The Office of Fair Trading’s Guidance for the Unfair Terms in Consumer Contracts Regulations 1999;[/FONT]
· [FONT=&quot]The driver of the vehicle at the time of the offence has proof in the form of a receipt from a store on the retail park, that they used the car park legitimately.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]The charge is not a genuine pre-estimate of loss[/FONT]
[FONT=&quot]The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount and has no relationship to the loss that would have been suffered by the landowner. The Excel Parking Services signs state that a PCN would be issued for a “failure to comply” with the terms of parking, which indicates that the parking charge represents damages for a breach of the parking contract. Accordingly, the parking charge must be a genuine pre-estimate of loss. Excel Parking Services has not provided any evidence as to how and why the parking charge is a genuine pre-estimate of loss. Therefore the parking charge is punitive and an un-enforceable penalty charge.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]The BPA Code of Practice states in section 19.5 “If the parking charge that the driver is being asked to pay is for a breach of contract or an act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.”[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Section 19.6 states “if your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I put to Excel Parking Services to strict proof that their charge represents a genuine pre-estimate of loss. To date, Excel Parking Services have not provided a detailed breakdown of how the amount of the charge was calculated on the form of documented evidence applicable to this car park and the incident in question. I am aware from court rulings and previous POPLA adjudications that the cost of running the business (e.g. if no breach had occurred, the cost of parking enforcement in the form of erecting signs, paying staff wages, supplying staff uniforms, monitoring the car park and day to day office costs) would still have been the same and had to have been paid, and therefore may not be included in this pre-estimate of loss.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I therefore respectfully request that my appeal is upheld and the charge dismissed.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Unlawful Penalty Clause – Revenue for Excel Parking Services[/FONT]
[FONT=&quot]Since there is no demonstrable loss or damage and yet a breach of contract has been alleged, this charge can only be an unlawful attempt at dressing up a penalty to impersonate a parking ticket (as found in the VCS v Ibbotson case 2012). This transparently punitive charge by Excel Parking Services is a revenue raising exercise and is therefore unenforceable in law. Excel Parking Services own website even backs this up and is a damning piece of evidence that the charges Excel Parking Services issue are part of a revenue-raising exercise. This is therefore a revenue-raising scheme disguised as a ‘parking ticket’ and consequently, it is an unenforceable penalty.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I therefore respectfully request that my appeal is upheld and the charge dismissed.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]No authority to Levy Charges[/FONT]
[FONT=&quot]A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner’s behalf and enforce for a breach of contract. Excel Parking Services must provide evidence to demonstrate that it is the landowner, or a contract that it has the authority of the landowner to issue charge notices at this location. I believe that there is no contract with the landowner that entitles Excel Parking Services to levy these charges and pursue these charges in their own name as a creditor, and therefore has no authority to issue charge notices.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I put to Excel Parking Services to strict proof to POPLA that they have the necessary legal authorisation at this location and I demand that Excel Parking Services produce to POPLA the contemporaneous and unredacted contract between the landowner and Excel Parking Services. Even if a basic contact is produced and mentions PCN’s, the lack of ownership or assignment of title or interest in the land reduces the contract to one that is simply an agency basis between Excel Parking Services and the owner/occupier, which contains nothing which Excel Parking Services can lawfully use in their own name as an agent, that could impact on a third party.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]There have been widespread reports of parking companies supplying witness statements instead of the relevant contract. A signed witness statement is not adequate to prove authorisation of the contract between the landowner and Excel parking Services exists, and this it is not acceptable in this situation. As stated above, only a signed unredacted contact provides the requisite legal standing Excel Parking Services have in pursuit of parking charges.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I therefore respectfully request that my appeal is upheld and the charge dismissed.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]The Signage Was Not Compliant With the BPA Code of Practice[/FONT]
[FONT=&quot]The signage was not compliant with the BPA Code of Practice, therefore there is no valid contact formed between Excel Parking Services and the driver. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]The signs failed to properly warn/inform the driver of the terms and any consequences for a breach of the contract. Further, because Excel Parking Services are a mere agent and place their signs so high, they have failed to establish the elements of a contract. Any alleged contract could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. In breach of Appendix B of the BPA Code of Practice (Mandatory Entrance Signs) Excel Parking Services have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival, without the driver having to take his eye away from the direction they are travelling in.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I therefore respectfully request that my appeal is upheld and the charge dismissed.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]The Office of Fair Trading’s Guidance for the Unfair Terms in Consumer Contracts Regulations 1999[/FONT]
[FONT=&quot]The OFT’s Guidance for the Unfair Terms in Consumer Contracts Regulations 1999 states:[/FONT]
[FONT=&quot]“It is unfair to impose disproportionate sanctions for a breach of contract. A requirement to pay more in compensation for a breach that 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.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]A term is unfair if:[/FONT]
· [FONT=&quot]Contrary to the requirement of good faith it causes a significant imbalance in the parties’ rights and obligations under the contract, to the detriment of consumers;[/FONT]
[FONT=&quot]Unfair terms are not enforceable against the consumer.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Proof of Purchase from Retail Park[/FONT]
[FONT=&quot]The driver has a receipt from a store on the retail park on the day the alleged offence took place. This is proof that the driver was a customer on site whist the car was parked in the car park, and therefore the condition of customer parking only whilst on site is fully met. The argument put forward by Excel Parking Services which states that there is a considerable time difference between the time on the PCN and that on the customers store purchase receipt is an argument which holds no value or strength to uphold the charge put forward by Excel Parking Services. Indeed I would state that nobody in their right mind would go into the nearest shop to buy an item they do not want or need just to provide a piece of evidence to appeal against an unenforceable punitive parking charge.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I therefore respectfully request that my appeal is upheld and the charge dismissed.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Kind Regards,[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]The registered keeper of XXXXXXX[/FONT]

Coupon-mad

Just a typo 'Dear POLA Assessor' - and you could state there is no evidence about leaving the site and no site boundary defined in the signs, and as per VCS v Ibbotson, there has been no attempt to mitigate the loss if an attendant contends that he watched the driver walk away. Some of that is covered here:

https://forums.moneysavingexpert.com/discussion/comment/65214290#Comment_65214290

You will win!

ap86

Coupon-mad wrote: »

Just a typo 'Dear POLA Assessor' - and you could state there is no evidence about leaving the site and no site boundary defined in the signs, and as per VCS v Ibbotson, there has been no attempt to mitigate the loss if an attendant contends that he watched the driver walk away. Some of that is covered here:

https://forums.moneysavingexpert.com/discussion/comment/65214290#Comment_65214290

You will win!

Cheers coupon mad. I do hope it will be upheld! Is the rest of it ok? admittedly I did rush the first draft because I was at work at the time and it was all that was on my mind to be honest. But after sitting down last night with a brew and a bit of refining, I hope I have got a stronger more coherent case. They really are a bunch of cowboys these PPCs!

Thanks again for your help!

Coupon-mad

Looks fine, I would defo include the stuff about no evidence of anyone 'leaving the site', no site boundary defined anyway and no attempt to mitigate loss.

Guys_Dad

Coupon-mad wrote: »

Looks fine, I would defo include the stuff about no evidence of anyone 'leaving the site', no site boundary defined anyway and no attempt to mitigate loss.

And even if driver did, passenger, who went shopping on site, did not, did they?

ap86

Guys_Dad wrote: »

And even if driver did, passenger, who went shopping on site, did not, did they?

no i believe they did not

thanks for your help and advice all!

4consumerrights

@ap86 - critique here:

opening post you claim to have appealed and then query if a notice to keeper should also arrive! This is obviously a windscreen ticket as the alleged breach is going off site ....

yet you are appealing as the registered keeper... change this to

As keeper, the parking charge notice is being appealed on the following grounds:



I would also add (either under the BPA section or after Office of fair trading section) this:

The Office of Fair Trading states that a parking charge is not automatically recoverable simply because it is stated to be a parking charge. It cannot be used to create a loss where no loss exists.

The following needs adding :

I believe that there is no contract with the landowner that entitles Excel Parking Services to levy these charges and pursue these charges through the courts, in their own name as a creditor

change title:

No contract with driver - Inadequate/non-compliant signage


The signage was not compliant with the BPA Code of Practice, therefore there is no valid contact formed between Excel Parking Services and the driver.

The signs failed to properly warn/inform the driver of the terms and any consequences for a breach of the contract. Further, because Excel Parking Services are a mere agent and place their signs so high, they have failed to establish the elements of a contract (Offer/consideration/ acceptance)........


Proof of Purchase from Retail Park
The driver has a receipt from a store on the retail park on the day the alleged[STRIKE] offence [/STRIKE] contravention took place. This is proof that the driver was a customer on site whist the car was parked in the car park, and therefore the condition of customer parking only whilst on site is fully met. [STRIKE]The argument put forward by Excel Parking Services which states that there is a considerable time difference between the time on the PCN and that on the customers store purchase receipt is an argument which holds no value or strength to uphold the charge put forward by Excel Parking Services.[STRIKE] Indeed I would state that nobody in their right mind would go into the nearest shop to buy an item they do not want or need just to provide a piece of evidence to appeal against an unenforceable punitive parking charge.[/STRIKE] [/STRIKE]



It is not an offence.

Last part not needed - don't try and supply a reason !

customers can spend considerable time browsing the stores before making a purchase is a rebuttal which can be made if necessary. .


And do add the following as per coupon's suggestion:

No attempt to mitigate any loss:

A company has a legal obligation to mitigate any losses incurred. The alleged breach of contract in this case (refuted as demonstrated to be genuine customer) is for leaving the site.

As an employee of your company, the parking attendant is required to mitigate any losses to your company and therefore would need to draw the person's attention to the terms of parking and prevent any such incidence in the first instance. No liability can be accepted on my part as this did not occasion and the driver was a valid customer.



**********************************************


Make sure you rebut the evidence pack when it arrives. The Parking Ticket Appeals service have all versions of Excel and VCS evidence packs and loss statements if needed.

contact: info@parkingticketappeals.org.uk

ap86

4consumerrights wrote: »

@ap86 - critique here:

opening post you claim to have appealed and then query if a notice to keeper should also arrive! This is obviously a windscreen ticket as the alleged breach is going off site ....

yet you are appealing as the registered keeper... change this to

As keeper, the parking charge notice is being appealed on the following grounds:



I would also add (either under the BPA section or after Office of fair trading section) this:

The Office of Fair Trading states that a parking charge is not automatically recoverable simply because it is stated to be a parking charge. It cannot be used to create a loss where no loss exists.

The following needs adding :

I believe that there is no contract with the landowner that entitles Excel Parking Services to levy these charges and pursue these charges through the courts, in their own name as a creditor

change title:

No contract with driver - Inadequate/non-compliant signage


The signage was not compliant with the BPA Code of Practice, therefore there is no valid contact formed between Excel Parking Services and the driver.

The signs failed to properly warn/inform the driver of the terms and any consequences for a breach of the contract. Further, because Excel Parking Services are a mere agent and place their signs so high, they have failed to establish the elements of a contract (Offer/consideration/ acceptance)........


Proof of Purchase from Retail Park
The driver has a receipt from a store on the retail park on the day the alleged[STRIKE] offence [/STRIKE] contravention took place. This is proof that the driver was a customer on site whist the car was parked in the car park, and therefore the condition of customer parking only whilst on site is fully met. [STRIKE]The argument put forward by Excel Parking Services which states that there is a considerable time difference between the time on the PCN and that on the customers store purchase receipt is an argument which holds no value or strength to uphold the charge put forward by Excel Parking Services.[STRIKE] Indeed I would state that nobody in their right mind would go into the nearest shop to buy an item they do not want or need just to provide a piece of evidence to appeal against an unenforceable punitive parking charge.[/STRIKE] [/STRIKE]



It is not an offence.

Last part not needed - don't try and supply a reason !

customers can spend considerable time browsing the stores before making a purchase is a rebuttal which can be made if necessary. .


And do add the following as per coupon's suggestion:

No attempt to mitigate any loss:

A company has a legal obligation to mitigate any losses incurred. The alleged breach of contract in this case (refuted as demonstrated to be genuine customer) is for leaving the site.

As an employee of your company, the parking attendant is required to mitigate any losses to your company and therefore would need to draw the person's attention to the terms of parking and prevent any such incidence in the first instance. No liability can be accepted on my part as this did not occasion and the driver was a valid customer.



**********************************************


Make sure you rebut the evidence pack when it arrives. The Parking Ticket Appeals service have all versions of Excel and VCS evidence packs and loss statements if needed.

contact: info@parkingticketappeals.org.uk

thanks for that! Should I contact the parking ticket appeals service before I submit my POPLA appeal?