Full amount paid, ticket short changed

morltepaworl

Thanks DEE, it's a big learning curve.

Dee140157

It is indeed and I am still learning, hence slightly inaccurate advice earlier in the thread. But it is one I am slowly getting there with and so will you if you need or want to.

rdr

I was successful on my appeal to the parking company under similar circumstances: https://forums.moneysavingexpert.com/discussion/4957391
I would demand that the company produces a cash/ticket reconciliation.

morltepaworl

Hello Good People..I have an update for your consideration. I sent my soft appeal off, got the rejection and a popla code, been trawling the threads and I think that I have finally cracked my appeal. Should I post in this thread or start a new one. Also, do you need to see my rejection letter.

Dee140157

Post your draft on this thread please so we can offer any pointers.

morltepaworl

Dear Sir/Madam,
RE: POPLA
I am the registered keeper and this is my appeal.

Civil Parking Notice (CPN):
Vehicle Reg:
Date of Issue:
Company in question: Excel Parking

On the above date the driver was issued with a car parking notice for 'Parking after the expiry of time in a pay and display car park'. This is correct as the driver did stay longer than the time issued on the parking ticket but the driver did actually pay the full amount to park for the full day.

On --/--/2014 the driver put £.2.50 into the ticket machine (to park all day) but the machine did not register the 50p that they inserted into the machine. The driver tried to eject the coins but only the £2.00 came out. The driver put the £2.00 back into the machine and pressed the enter button and was issued with a ticket for £2.00 to stay up to 4 hours. As the driver had no more change they left a note stating the ticket machine had took the 50p. Later that day around 5 o'clock the driver returned to their car to see a £100.00 car parking charge.

The driver believes they did everything they could on their side; This was clearly a technical fault with the machine!

I challenged this notice on a number of issues. I then received a rejection with regards to the alleged contravention. Attached to the rejection was the POPLA form and verification code.

I would like to appeal this notice on the following grounds.

1. Non genuine pre-estimate of loss
The amount of £100 demanded by Excel Parking is not a genuine pre-estimate of loss and therefore is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999.
Parking charges cannot include business costs which would occur whether or not the alleged contravention took place.
In its reply to my initial letter requesting a breakdown of how supposed damages of £100 have arisen, Excel Parking provided no proof of any alleged 'losses'.

Excel Parking has failed to provide any breakdown of how the sum of £100 has been arrived at based on the alleged parking contravention despite my requesting them to do so. As Excel Parking cannot show this is a genuine pre-estimate of loss, they have breached the BPA Code of Practice, which states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event. This therefore renders this charge unenforceable.
Given that Excel Parking charges the same lump sum for alleged contraventions at any time of day on any day of the week, regardless of whether the contravention was serious or trifling, it is clear that no regard has been paid to establishing that this charge is a genuine pre-estimate of loss, and instead the charge is punitive and is being enforced as a penalty.

2. Unlawful penalty charge
Excel Parking cannot prove demonstrable loss or damage yet a breach of contract has been alleged. It is therefore clear that this Parking Charge Notice is an unlawful attempt at impersonating a legally enforceable parking ticket as issued by the Police or Local Councils.
Excel Parking could have made clear the letter was an invoice or request for monies, yet it chose to word it as a 'Charge Notice' in an attempt for it to appear threatening and intimidating in order to extort money from unwitting members of the public.

3. No contract between driver/Inadequate signage
As a POPLA Assessor has said previously in an adjudication, “Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.
Excel Parking must prove that the driver actually saw, read and accepted the terms at the time the alleged contravention took place.
Had this been the case, i.e. the driver had seen the terms and conditions of parking, it would be implied that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding rather than simply the nominal amount presumably due in a machine on site.
The idea that any driver would accept these terms knowingly is perverse and beyond credibility, and so I dispute the existence of a contract between the driver and the Operator.

4.Non-compliant Notice to Keeper
The Notice to Keeper sent by Excel Parking to myself is not compliant with paragraph 9 (2)(h) of schedule 4 of the Protection of Freedom Act 2012 in that it does not identify the creditor.
The Operator is required to specifically "identify" the creditor, which requires words to the effect of "The creditor is ..... ".
The keeper is entitled to know the party with whom any purported contract was made.
Excel Parking has failed to do this and therefore has not fulfilled all the requirements necessary under POFA to allow it to attempt recovery of any charge from the keeper.

5. Flawed contract with landowner/Authority to issue PCNs
The BPA code of practice contains the following: "7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges, through the courts if necessary."
Excel Parking does not own this car park and is merely an agent of the landowner or legal occupier. In its notice and rejection letters Excel Parking has provided me with no evidence that it is lawfully entitled to demand money from a driver or keeper.

I put Excel Parking to strict proof to POPLA that it has the proper legal authorisation from the landowner to contract with drivers and to enforce charges in its own name as creditor in the courts for breach of contract.
I demand Excel Parking produce to POPLA the contemporaneous and unredacted contract between the landowner and Excel Parking..

6. Non-compliant Notice to Keeper
The Notice to Keeper sent by Excel Parking to myself is not compliant with paragraph 9 (2)(h) of schedule 4 of the Protection of Freedom Act 2012 in that it does not identify the creditor.
The Operator is required to specifically "identify" the creditor, which requires words to the effect of "The creditor is ..... ".
The keeper is entitled to know the party with whom any purported contract was made.
Excel Parking has failed to do this and therefore has not fulfilled all the requirements necessary under POFA to allow it to attempt recovery of any charge from the keeper.

Dee140157

Civil Parking Notice? Not Parking Charge Notice?
Point 4 and point 6 are the same.
Bullet point summary at the top will help.
I would require proof from Excel that their machines were in full working order. They could provide you with proof of cost of tickets issued along with amount of money received in machine for that day.
Guys Dad will like the conciseness of the appeal. But I wonder if it needs something more. Have you searched for other winning excel appeals?

ezerscrooge

And stick the Beavis rebuttal in - they'll mention 'commercial justifcation' for the charge somewhere...

---

[FONT=&quot]Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) 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.''

[/FONT]

morltepaworl

Thank you all so much. will rectify and improve, but will do it on a fresh head. See you tomorrow. Cheers.

morltepaworl

To Dee140157 & ezerscrooge here is my re-done appeal letter. please take a look.

Dear Sir/Madam,
RE: POPLA
I am the registered keeper and this is my appeal.

Parking Charge Notice:
Vehicle Reg:
Date of Issue:
Company in question: Excel Parking

On the above date the driver was issued with a car parking notice for 'Parking after the expiry of time in a pay and display car park'. This is correct as the driver did stay longer than the time issued on the parking ticket but the driver did actually pay the full amount to park for the full day.

On --/--/2014 the driver put £.2.50 into the ticket machine (to park all day) but the machine did not register the 50p that they inserted into the machine. The driver tried to eject the coins but only the £2.00 came out. The driver put the £2.00 back into the machine and pressed the enter button and was issued with a ticket for £2.00 to stay up to 4 hours. As the driver had no more change they left a note stating the ticket machine had took the 50p. Later that day around 5 o'clock the driver returned to their car to see a £100.00 car parking charge.

The driver believes they did everything they could on their side; This was clearly a technical fault with the machine!

I challenged this notice on a number of issues. I then received a rejection with regards to the alleged contravention. Attached to the rejection was the POPLA form and verification code.

I would like to appeal this notice on the following grounds.
Non genuine pre-estimate of loss
Unlawful penalty charge
No contract between driver/inadequate signage
Non-complaint Notice to Keeper
Flawed contract with landowner/Authority to issue PCNs
The charge is commercially unjustified

1. Non genuine pre-estimate of loss
The amount of £100 demanded by Excel Parking is not a genuine pre-estimate of loss and therefore is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999.
Parking charges cannot include business costs which would occur whether or not the alleged contravention took place.
In its reply to my initial letter requesting a breakdown of how supposed damages of £100 have arisen, Excel Parking provided no proof of any alleged 'losses'.

Excel Parking has failed to provide any breakdown of how the sum of £100 has been arrived at based on the alleged parking contravention despite my requesting them to do so. As Excel Parking cannot show this is a genuine pre-estimate of loss, they have breached the BPA Code of Practice, which states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event. This therefore renders this charge unenforceable.
Given that Excel Parking charges the same lump sum for alleged contraventions at any time of day on any day of the week, regardless of whether the contravention was serious or trifling, it is clear that no regard has been paid to establishing that this charge is a genuine pre-estimate of loss, and instead the charge is punitive and is being enforced as a penalty.

2. Unlawful penalty charge
Excel Parking cannot prove demonstrable loss or damage yet a breach of contract has been alleged. It is therefore clear that this Parking charge notice is an unlawful attempt at impersonating a legally enforceable parking ticket as issued by the police or local councils.
Excel Parking could have made clear the letter was an invoice or request for monies, yet it chose to word it as a 'Charge Notice' in an attempt for it to appear threatening and intimidating in order to extort money from unwitting members of the public.

3. No contract between driver/Inadequate signage
As a POPLA Assessor has said previously in an adjudication, “Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.
Excel Parking must prove that the driver actually saw, read and accepted the terms at the time the alleged contravention took place.
Had this been the case, i.e. the driver had seen the terms and conditions of parking, it would be implied that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the operator is now demanding rather than simply the nominal amount presumably due in a machine on site.
The idea that any driver would accept these terms knowingly is perverse and beyond credibility, and so I dispute the existence of a contract between the driver and the operator.

4.Non-compliant Notice to Keeper
The Notice to Keeper sent by Excel Parking to myself is not compliant with paragraph 9 (2)(h) of schedule 4 of the Protection of Freedom Act 2012 in that it does not identify the creditor.
The Operator is required to specifically "identify" the creditor, which requires words to the effect of "The creditor is ..... ".
The keeper is entitled to know the party with whom any purported contract was made.
Excel Parking has failed to do this and therefore has not fulfilled all the requirements necessary under POFA to allow it to attempt recovery of any charge from the keeper.

5. Flawed contract with landowner/Authority to issue PCNs
The BPA code of practice contains the following: "7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges, through the courts if necessary."
Excel Parking does not own this car park and is merely an agent of the landowner or legal occupier. In its notice and rejection letters Excel Parking has provided me with no evidence that it is lawfully entitled to demand money from a driver or keeper.

I put Excel Parking to strict proof to POPLA that it has the proper legal authorisation from the landowner to contract with drivers and to enforce charges in its own name as creditor in the courts for breach of contract.
I demand Excel Parking produce to POPLA the contemporaneous and unredacted contract between the landowner and Excel Parking..

The charge is commercially unjustified
Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway).

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.''

Conclusion
Finally it is my contention that as the customer had paid the full required amount irrespective of what the ticket displayed. Any losses incurred were initiated by a faulty, possibly poorly maintained, ticket machine owned or operated by Excel Parking themselves; Therefore any costs/losses are self inflicted and do not arise from any action or inaction of the customer.

I hereby submit my appeal.
Signed -