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Excel Parking Fine Round 2

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Hi

I am in the throws of defending against a car parking fine from Excel, I have sent off the first standard letter as below:

Dear Excel Parking

PCN number XXXXXXXX

As the registered keeper, I have received your parking invoice which of course, I decline your invitation to pay. I wish to invoke your appeals process, since all liability to your company is denied on the following basis:

1) The amount being claimed is not a genuine pre-estimate of loss to your company or the landowner
2) Your signage does not comply with your ATA Code of Practice and was not sufficiently prominent to create any contract
3) You are not the landowner and do not have the standing to offer contracts nor to bring a claim for trespass

Please issue your standard cancellation letter or a specific, detailed rejection letter. If you choose to send the latter, it must state:

- The legal basis of your charge (i.e. breach, trespass or contractual fee?) as your signage was not seen/accepted by the driver and your recent Notice failed to make the basis of the charge clear. As keeper, I cannot be expected to guess the nature of the allegation.

- If alleging breach of contract, with your rejection letter I require a breakdown of the liquidated damages suffered, and by whom, and when this calculation was determined and how this particular 'loss' arose. Please also explain how/why you charge a fixed sum no matter whether the alleged contravention was trivial or more serious and how that can amount to a genuine pre-estimate of loss.

- If alleging trespass please enclose evidence of the perpetrator and proof of the liquidated damages alleged and the calculation of this sum.

- If alleging 'contractual fee' I require that you now send me a VAT invoice by return and explain the daily rate for parking and service provided for the fee. Failure to provide this information and a VAT invoice now that I have requested it, will be considered evidence that this was not in fact a genuine offer to park for a fee and is merely a penalty which is not recoverable in contract law (as found by Mr Recorder Gibson QC, on appeal at Luton County Court in the case of Civil Enforcement v McCafferty 3YK50188 (AP476) 21/2/2014).

Take formal note:

(a) Your unsupported, unsolicited invoice and any further letters if you persist, will constitute harassment. If you continue, your contact and that of any agent will be deemed a 'serious and persistent unwarranted threat' as found by Lord Justice Sedley in Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46 (10 February 2009) and I reserve the right to take the matter further. You have been informed that I consider this to be harassment so any decision to send further letters rather than cancel the invoice will reinforce the evidence of your persistent unwarranted threat and you may be required to justify your actions in court.
(b) Any obfuscation on your part, such as pretending I have to name the driver, alleging I am too late or unable to appeal as keeper or requiring more evidence when clearly I have already set out my full challenge for this stage, will be reported to the DVLA and to your respective ATA, as a sanctionable breach of your Code of Practice.

(c) If you reject my challenge and insist upon taking the matter further I must inform you that I may claim my costs from you and my time at the court rate of £18 per hour. The expenses I may claim are not exhaustive but may include the cost of stamps, envelopes, travel expenses and legal fees as well as liquidated damages for distress arising from harassment.

By continuing to pursue me you hereby accept liability to pay my costs when I prevail and you acknowledge and imply full understanding of the above.

Yours,


Surprise, surprise it comes back as rejected. I thought their letter to me was however very interesting from the point of view of whom exactly a contract has been formed with, as it looks as though they are acting as a proxy and they simply do not know who the other party is, how on earth can a contract exist. Also their estimates of GPEOL sounds like a huge fudge, I have enclosed the letter below:

Dear XXXXX
Notice Serial No: XXXXXXXX
Vehicle Registration Mark: XXXXXXX
Date & Time of Issue: XXXXXXXX


We refer to your appeal against the above Parking Charge Notice (PCN) which we received by letter on XXXXXXX.

As the Registered Keeper of the above vehicle on the date the contractually agreed terms and conditions were breached you were informed that the Parking Charge Notice that you had 28 days to either appeal, settle the Notice by making payment, or provide a Serviceable name and UK address for the driver so that we may pursue them. Despite this request, a full name and serviceable address for the driver has not been provided.

Please be aware that as you have failed to provide us with the full name and UK serviceable address for the driver within the 28 day period stipulated on the Parking Charge Notice, we are now within our rights to recover from the Registered Keeper under the Protection of Freedoms Act 2012.

We have considered the points you have raised and our response is as follows:

The XXXXXX Retail Car Park in XXXXX is a Pay & Display car park. The Terms and Conditions of the Car Park require for a valid Pay and Display (P&D) Ticket to be purchased after entering the car park, detailing the full vehicle registration mark (VRM) i.e. (License Number). Management of this site is conducted via ANPR cameras that take photographs of vehicles entering and exiting the car park and work in conjunction with the Pay and Display machines in situ.

We can confirm that the charges for this Notice are set in place by the land owner whom Excel Parking Services Ltd manages the car park on behalf of, and the charges are in line with the British Parking Associations Code of Practice for Parking Enforcement on Private Land and Unregulated Private Car Parks. The Code recommends that the Maximum Parking Charge shall not exceed £100.00 As our charges follow this guideline they are deemed reasonable. We would refer you to a recent decision in the case of Parking Eye V. Mr Kevin Shelley (2013) and suggest you read the full transcript.

We consider the amount on the PCN as a reasonable charge for liquidated damages in respect of a breach of the parking contract and contend that it is not a ‘penalty’ for a number of reasons. We have calculated this sum as a genuine pre-estimate of our losses as we incur significant costs in managing the parking location to ensure compliance to the stated Terms and Conditions and to follow up on any breaches of these identified. A full breakdown of loss will be provided at the request of a judge, but once again, we would refer you to the outcome of the case: Parking Eye v. Mr Kevin Shelley (2013).

We maintain that our signs are clearly visible and meet the requirements set by the British Parking Association guidelines. As established members of the British Parking Association, we adhere to their Code of Practice for Private Enforcement on Private Land and Unregulated Car Parks. This Code of Practice gives recommendations in regards to the signage within the car park. The signs within the car park fully comply with the recommendations outlined in the Code of Practice and are therefore deemed reasonable.

Excel Parking Services Ltd are acting on behalf of the landowner on enforcing the enclosed Terms and Conditions on their land. We hold a contract with them which allows us to enforce contractually agreed Terms and Conditions. We cannot at this time, provide a copy of our contract due to it being commercially sensitive. Our signs on site make it clear that we operate/manage the car park. If necessary, we can provide a copy of the contract between ourselves and the landowner, should a judge request one in court. We are contracted by the landowner/landholder to enforce the agreed Terms and Conditions and ensure that these are not breached.

A person can enter into a contract either by expressly agreeing to do so by acting in such a way that he/she can be said to have implied agreement to enter into a contract. Where notice is given to a motorist of the consequences of parking in a particular area, by implications a motorist enters into a contract with Excel Parking Service Ltd and accepts the terms set out in the Notice by proceeding to park. As there was a contract between yourself and Excel Parking Service Ltd, the was no civil trespass.

Following your comments on the status of our Document, please note that it is a Parking Charge Notice. It is not an invoice.

In regards to the issue of any claim of harassment, it must be noted that under the Administration of Justice Act 1970, the relevant section 40 does not apply to anything done by a person which is reasonable (and otherwise legal) for the purpose of enforcement of any liability by legal process. Due to the fact that the aforementioned contract was created, the driver has agreed to the Terms and Conditions including being liable for a Charge in the event of a contravention. To this end we are within our rights and acting in accordance with the Administration of Justice Act 1970.

When parking on private land, a motorist freely enters into an agreement to abide by the conditions of parking in return for permission to park. It is the motorist’s responsibility to ensure that he or she abides by any clearly displayed conditions of parking. It is clear that the terms of parking stated that a pay and display ticket must be displayed, or the motorist would face liability for a parking charge. We would note that you had the opportunity to leave the car park if you could not comply with the terms of parking. As such we have decided to reject your appeal for the reasons as outlined above.

The required payment of £60.00 is to be received within out office by XXXXXX. If the payment is not received by this date the amount payable will increase to £100.00. Failure to comply may result in the issue of court proceedings whereby further costs will be incurred.

You do have the option to appeal to the ‘Parking on Private Land Appeals’ (POPLA) service, which is an independent body. Details of how to appeal to the POPLA service are attached to this letter in the form of both guidance notes and an appeals form. Please carefully read the guidance notes, particularly those relating to ‘grounds for appeal’. It is important you note that if you wish to appeal to POPLA, the discount offer will no longer apply and the full charge of £100.00 will be pursued should your appeal be rejected by POPLA. Further costs may be incurred should it be necessary for us to recover the outstanding charge using debt recovery and/or court action.

Your POPLA verification Code is: XXXXXXXXX

Payments can be made online at xxxxxxx by following the links for “PCN Payment”, or over the phone by using a valid credit or debit card. Alternatively you can send a cheque or postal order made payable to Excel Parking Services Limited. It is the motorists responsibility to ensure that payment is received within our office, and by the relevant date, as stated above.

Yours Sincerely

A Clapham
For and on Behalf of the Senior Manager
Central Payments Office.

I am keen to appeal this however I wanted to ask if anybody had any comments on the letter before I proceed.

DB.
:(
«1

Comments

  • da_rule
    da_rule Posts: 3,618 Forumite
    Sixth Anniversary 1,000 Posts
    Firstly, before someone else jumps on you, you have not received a fine, it is an invoice.

    This is a standard appeal rejection letter. Your next step is to appeal to POPLA. You will find some templates by following the 'How to win at POPLA' link in the 3rd post of the Newbies thread.

    Edit it to meet your needs then post it back up here and we'll look over it.
  • Redx
    Redx Posts: 38,084 Forumite
    Eighth Anniversary 10,000 Posts Name Dropper Photogenic
    yep

    1) its not a FINE , its an invoice , so lose the word FINE from your vocabulary please , thanks

    2) use the links to popla appeals in the NEWBIES thread to draft up a suitable popla appeal based on the usual legal appeal points , in notepad , post on here minus personal info for any fine tuning before sending to popla
  • dan_boy
    dan_boy Posts: 9 Forumite
    Points taken thanks
  • Coupon-mad
    Coupon-mad Posts: 151,354 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    You will win at POPLA like everyone else does so forget their letter except for the lovely POPLA code!
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top or bottom of any page where it says:
    Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • Stroma
    Stroma Posts: 7,971 Forumite
    Uniform Washer
    Wonder where they get the idea that a serviceable address is only in the UK from ? Pofa2012 certainly doesn't mention that, just another made up rule by these cowboys
    When posting a parking issue on MSE do not reveal any information that may enable PPCs to identify you. They DO monitor the forum.
    We don't need the following to help you.
    Name, Address, PCN Number, Exact Date Of Incident, Date On Invoice, Reg Number, Vehicle Picture, The Time You Entered & Left Car Park, Or The Amount of Time You Overstayed.
    :beer: Anti Enforcement Hobbyist Member :beer:
  • dan_boy
    dan_boy Posts: 9 Forumite
    Ok here is my letter to POPLA, I have taken a few ideas from elsewhere as well as from the standard letters, let me know if anything else should be in here. Also I thought it interesting that they rather fudged the topic of the VAT as required by an invoice, do you think I should include something for this.

    Dear POPLA adjudicator,

    I am writing to appeal against a parking charge levied by Excel Parking Services Ltd on XXXXXXXX. I am the registered keeper of the vehicle concerned.

    The grounds for my appeal are as follows:
    1. No Genuine Pre-estimate of loss.
    2. Legal capacity to issue parking charges.
    3. Unfair terms.
    4. ANPR - Inaccuracy and Non-compliance, including lack of ANPR data usage signs.
    5. Non Compliant Signage.

    1. No genuine pre-estimate of loss
    The charge of £60, potentially rising to £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. I specified in my original appeal that I would like to see a breakdown of the costs incurred by Excel as a result of the alleged breach. Excel have failed to provide this information, stating that the charge is in line with BPA guidelines and therefore “deemed reasonable”. This reply completely fails to demonstrate that the whole charge is a genuine pre-estimate of loss. 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, which leads me to my next appeal point.
    2. Legal capacity to issue parking charges.
    Excel have no proprietary interest in the land concerned and have refused a request for 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. 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. In the absence of this evidence, I believe that Excel do not have the legal capacity to enforce such a charge.

    I require the unredacted landowner contract including any payments made between the parties, names & dates & details of all terms included. I suspect Excel are merely 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 mere “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 the above describes the charge 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. Such a charge would normally be restricted to the landowner themselves claiming for any damages or loss.
    4. 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.

    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.

    5. Non Compliant Signage.
    The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver.
    Following receipt of the charge, I personally visited and photographed the signage at the site in question. I believe the signs and any core parking terms that the parking company are relying upon were barely visible (Please see enclosed photographs), of extremely poor design for legibility and were too high with the wordage too small for any driver to see, read or understand when driving into this car park. The Operator needs to show evidence and signage map/photos on this point - specifically showing the height of the signs and where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in. Any terms displayed on the ticket machines or on a ticket itself, do not alter the contract which must be shown in full at the entrance. I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park as they failed to comply with the BPA Code of Practice appendix B. I require the operator to provide photographic evidence that proves otherwise.
  • The_Deep
    The_Deep Posts: 16,830 Forumite
    Is not failing to produce a v.a.t. invoice when required something which may be of interest to Revenue and Customs?
    You never know how far you can go until you go too far.
  • atilla
    atilla Posts: 862 Forumite
    Part of the Furniture Combo Breaker
    The_Deep wrote: »
    Is not failing to produce a v.a.t. invoice when required something which may be of interest to Revenue and Customs?
    Indeed it is.
    No vat invoice I no pay (not that I do anyway).
    The vat issue is one of the points that got dvla panicking when I went after not so smart.
  • dan_boy
    dan_boy Posts: 9 Forumite
    Any suggestions on how best to work this into the letter as it seems to be an important point which I think that their letter to me indicates that it is a subject they would rather hope is ignored.
  • bod1467
    bod1467 Posts: 15,214 Forumite
    POPLA won't care about whether or not the PPC is paying VAT in respect of this (or even whether they need to). So ignore it for your POPLA appeal.
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