POPLA - Excel

mnkut

Hi all,

I have made it to the POPLA stage of my Excel parking appeal
And I need help! :j

Case details:
Non-windscreen tickets NTK arrived AFTER 15 days (under PoFA 2012) [2 months late, possible ground for appeal improper conduct]

Vehicle is a hire car (not registered keeper, driver has not been identified to Excel)

Reason for ticket: in a supermarket car park for 30 minutes at midnight obviously well past opening/closing times.
Ticket arrived for not paying/displaying. issued by Excel.

Link to 1st comms from Excel:
http:// oi62.tinypic. com/1zqdm6p. jpg

Will post 2nd comms (response to newbie informal appeal) shortly


Please tell me what else is appropriate this would be my first POPLA appeal:o major newbie

ColliesCarer

Hi mnkut,

See post #3 of the NEWBIES thread and follow the hyperlink How to Win at POPLA for example POPLA appeals, select one to adapt and post up your draft for comments/help fine tuning.
Make sure your appeal covers the following major points
1/ Not a genuine pre estimate of loss
2/ No legal standing/authority
3/ Non compliant Ntk - arrived out of time to comply with POFA 2012 therefore no keeper liability
4/ Non compliant signage therefore no contract with driver or keeper
5/ Inaccurate/Non compliant ANPR

mnkut

ColliesCarer wrote: »

Hi mnkut,

See post #3 of the NEWBIES thread and follow the hyperlink How to Win at POPLA for example POPLA appeals, select one to adapt and post up your draft for comments/help fine tuning.
Make sure your appeal covers the following major points
1/ Not a genuine pre estimate of loss
2/ No legal standing/authority
3/ Non compliant Ntk - arrived out of time to comply with POFA 2012 therefore no keeper liability
4/ Non compliant signage therefore no contract with driver or keeper
5/ Inaccurate/Non compliant ANPR

thanks will update with my POPLA appeal soon:p

mnkut

Hi all,

I am due to submit my POPLA appeal in the next few days, seeking any advice on how I can perfect this as its my first

Dear POPLA adjudicator,

I am writing to appeal against a parking charge (xxxxxxxxx) levied by Excel Parking Services Ltd on xxxxxx. I am the registered hirer of the vehicle (xxxx) concerned.

I submit the grounds for my appeal below:
1. No genuine pre-estimate of loss
2. No standing or authority to pursue charges nor form contracts with drivers
3. Unreadable signage
4. ANPR Accuracy

1. No genuine pre-estimate of loss

For reference; the Department for Transport guidelines state, in Section 16 Frequently Asked Questions, that:

"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver."

In communication with Excel Parking Services Ltd. they refer to their compliance with British Parking Association however I maintain that their charge of £100 is punitive and unreasonable including an element of profit, ironically 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.

POPLA Assessor Chris Adamson has stated in June 2014 that:

''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.

This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

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”.

Furthermore 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.

In my original appeal I specified 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.

I therefore re-request for Excel Parking Services Ltd. to provide a breakdown of costs.

2. No standing or authority to pursue charges nor form contracts with drivers

I believe that this operator has no proprietary interest in the land thus hold no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Excel Parking Services Ltd. must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level.

This has not been produced by the operator in their rejection statement so I have no proof that such a document is in existence. I contend that Excel Parking Services Ltd merely hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice.

I therefore put Excel Parking Services Ltd to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Excel Parking Services Ltd and the landowner. This is required so that POPLA and myself can check that it allows this operator to make contracts with drivers themselves and provides them with full authority to pursue charges, including a right to pursue them in court in their own name.

Please note that a witness statement to the effect that a contract is in place will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.). In any case, Excel Parking Services Ltd 's witness statements have been exposed as photocopy templates from clients who may well have no knowledge of any individual parking event and the signatory may never even have seen the contract.
3. The signage was not readable in the dark therefore no valid contract was formed

The only two signs available were both insufficiently lit and shrouded in darkness thus impossible to be seen by the occupants of the car. It is the obligation of Excel to provide signage that clearly communicate the full contractual terms & conditions, visible during both day and night to given that the car park operates 24 hours a day.

Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. This would include the signs being lit - and it can be seen from Excel Parking Services Ltd. 's own photos of an isolated numberplate in the dark, that the entrance (where signs must be clear) was in fact pitch black. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. The only charges the driver knew about were the small sums mentioned on the pay and display machine. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

Any photos supplied by Excel Parking Services Ltd. to POPLA will no doubt show the signs in daylight (unreflective of when the alleged contravention occurred during hours of no sunlight) or with the misleading aid of flash light. As such, I require Excel to show contemporaneous photo evidence of these signs in the dark without the aid of flash photography as proof for adequately clear signage.

4. The ANPR system is unreliable and neither synchronised nor accurate

If Excel Parking Services Ltd.'s ANPR records are completely reliable (which I contest) it is unreasonable for this operator to record the start of 'parking time' as the moment of arrival and departure in moving traffic. On this basis the driver could have entered and exited the car park twice first being the initial time recorded and second visit being the last time recorded . Therefore the exit photo is not evidence of 'parking time' at all.

The BPA Code of Practice indicates at paragraph 13.4 that the Respondent should “allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. There is no evidence that the respondent can produce to indicate that the vehicle was parked in breach of contract by the driver can be demonstrated by their evidence at all.

Excel Parking Services Ltd. is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice and to have signs stating how the data will be stored/used. I say that Parking Eye 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. It was dark and if there was such a sign at all then it was neither lit nor prominent, since the driver did not see it. I have also seen no evidence that they have complied with the other requirements in that section of the code in terms of ANPR logs and maintenance and I put this Operator to strict proof of full ANPR compliance.

In addition I question the entire reliability of the system. I require that Excel Parking Services Ltd. 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 ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye 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 Services Ltd. to show evidence to rebut the following assertion. I suggest that in the case of the 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 time stamp 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 Services Ltd. to strict proof to the contrary and to show how these camera timings are synchronised with the pay and display machine.


I gratefully request that my appeal is allowed.

Your faithfully,

ColliesCarer

That's looking like a winner to me

I've only one suggestion to make which is

In your No genuine pre estimate of loss point insert the wording I've put in red below after this sentence
........This reply completely fails to demonstrate that the whole charge is a genuine pre-estimate of loss.

Nor is the charge 'commercially justified'. If Excel cite 'ParkingEye v Beavis & Wardley' it's irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law.

In addition, POPLA Assessor Chris Adamson has stated in June 2014 upon seeing VCS' latest effort at a loss statement - their latest attempt to get around POPLA and likely to be broadly similar to any effort made by their sister firm, Excel - that:

''I am not minded to accept that the charge in this case is commercially justified.

and before this bit

In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.

mnkut

ColliesCarer wrote: »

That's looking like a winner to me

I've only one suggestion to make which is

In your No genuine pre estimate of loss point insert the wording I've put in red below after this sentence
........This reply completely fails to demonstrate that the whole charge is a genuine pre-estimate of loss.

Nor is the charge 'commercially justified'. If Excel cite 'ParkingEye v Beavis & Wardley' it's irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law.

In addition, POPLA Assessor Chris Adamson has stated in June 2014 upon seeing VCS' latest effort at a loss statement - their latest attempt to get around POPLA and likely to be broadly similar to any effort made by their sister firm, Excel - that:

''I am not minded to accept that the charge in this case is commercially justified.

and before this bit

In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.

Thank you very much :A

Coupon-mad

When Excel send you their GPEOL argument drivel, search this forum for 'Excel GPEOL' so you can rebut their rubbish & have the last word to POPLA.