Peel centre Excel POPLA submission letter

beetlemad

Hi All,

After receiving a letter from Excel re Peel centre parking (for my OH who believes he bought a ticket but would never have kept it as he gets his car regularly cleaned but may have typed reg incorrectly) I sent a soft letter his behalf to Excel using a template from here but also requesting records of registration numbers similar to the correct reg number from around the times the car was parked.

We have now received a POPLA code abd loads of waffle but nothing - no mention at all of my request for information about inputting incorrect reg number etc.

I have copied the POPLA template from Newbies page, taking out the NANDOS wording. Is this ok to just send (see below) or should I add additional wording into it??



Date:
Dear POPLA adjudicator,


I am writing to appeal against a parking charge levied by Excel Parking Services Ltd on XXXX 2014. I am the registered keeper of the vehicle concerned.
The grounds for my appeal are as follows:
1) No genuine pre-estimate of loss
The charge of £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 has 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 “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) No standing or assignment of rights to enforce this charge in the courts

Excel have no proprietary interest in the land concerned and have not responded to 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 drives 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) 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.

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.

4) 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.
The charge of £100 imposed by Excel constitutes an unfair term as it is disproportionate with respect to the alleged infringement.


Yours,


Registered keeper

beetlemad

oh also on the POPLA appeals form should I tick the box "the parking charge (ticket) exceeded the appropriate amount"

Redx

put numbered bullet points for each section as a menu above the main appeal points

tick 3 from 4 (all except the "stolen" box)

cant see any section about the signage either, so add that too , then I think its good to go

beetlemad

right think I get you with numbered bulled points - do u mean as a summary of what is going to be covered?

ok - ill go back through popla letters and see if I can find a section on signage - dont trust myself to write it. Will look tomorrow with fresh eyes and then repost if you all dont mind

thanks again for your help x

Dee140157

Yes he does, a summary of what is to be covered.

As for signage, always include a point about signage. You could crib from this one:

The signage was not readable in the dusk so there was no valid contract formed between ParkingEye and the driver
The entrance sign states a table of tariffs applicable, which does not cover the period from 6pm to 6am: this statement is included outside of the tariff table.
Given that the entrance road from which the car park is accessed falls into the 15mph approach speed in accordance with the BPA CoP Appendix B (June 2013), the lack of a clear indication of charges being applicable to a ‘Reasonable Person’ driving past the sign is insufficient to form any contract.
Given that the premises in question are an Out Of Hours medical facility, it should be expected that the ‘Reasonable Person’ standard be adjusted to cover those in similar circumstances of medical urgency, including signage commensurate with a proportion of the visitors. Furthermore I contest that this mechanism is deliberate.
There is no mention on the entrance sign that the site is “Managed By” ParkingEye, as is required in appendix 2 of the aforementioned Code of Practice.
There is also no notification on the entrance sign that there is a ‘Free Period’ during which there is time allowed to park, read the terms and decide whether to enter into any contract or not, which is a requirement under Contract Law.
The only signs are up on poles (away from the Pay machine, which is not a 'sign' nor does it communicate full contractual terms & conditions). Any upright signs were shrouded in darkness and were not seen by the occupants of the car.
I believe that ParkingEye place their signs so high that terms would only be legible if a driver got out of a car and climbed a stepladder, holding a torch, to try to read them: This mechanism also is believed to be deliberate.
Any photos supplied by ParkingEye to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera & flash and the angle may well not show how high the signs are. As such, I require ParkingEye to state the height of each sign in their response and to show contemporaneous photo evidence of these signs in the dark without the aid of flash photography.

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 ParkingEye's own photos of a numberplate in the dusk & rain, that the entrance (must be clear) was in fact approaching dark. 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.

Coupon-mad

If you haven't sent it yet, you should include the paragraph & detail under 'EXCEL FAILED TO UNDERTAKE THEIR USUAL MANUAL REVIEW OF TICKETS' from here:

https://forums.moneysavingexpert.com/discussion/comment/62187053#Comment_62187053

...that one was specially written for the Peel Centre where someone has paid but may have made a typo with the car reg. Obviously the linked example is about Equality Act breach too - which isn't relevant - but the rest is. Glad to see you found an Excel example template to create your draft though as your version does mention important stuff like the fact we believe Excel are paid there by the Centre which would affect any 'heads of cost'.

beetlemad

If anyone could just glance over this. I have taken all your comments on board and hopefully added relevant information as you have all kindly offered. Formatting is a little skew on her compared to my word doc but you should get the drift.



Date:
Dear POPLA adjudicator,


I am writing to appeal against a parking charge levied by Excel Parking Services Ltd on XXXX 2014. I am the registered keeper of the vehicle concerned.
The grounds for my appeal are as follows:
• No genuine pre-estimate of loss
• No standing or assignment of rights to enforce this charge in the courts
• Unfair terms
• EXCEL failed to undertake their usual manual review of tickets
• Unclear and non-compliant signage
1) No genuine pre-estimate of loss
The charge of £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 has 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 “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) No standing or assignment of rights to enforce this charge in the courts

Excel have no proprietary interest in the land concerned and have not responded to 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 drives 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) 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.

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.

4) 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.
The charge of £100 imposed by Excel constitutes an unfair term as it is disproportionate with respect to the alleged infringement.
5) EXCEL failed to undertake their usual manual review of tickets
Excel's unfair parking tickets were exposed in a recent Watchdog Daily article here:

(LINK HERE)

and their spokesperson is on record as responding thus in the case of Mr Couzens where Excel admitted their processes failed:
''However, we do recognise that motorists may input an incorrect digit(s) of their VR number when purchasing a P&D ticket and as such our processing allows for a manual review/quality check of PCN’s before they are issued. Unfortunately, on this occasion our check failed...''

I say that clearly their check failed in my case as well, and the correct course of action would have been for them to cancel the fake PCN when they received the information from the initial letter sent. This letter asked for them to check their records for the day in question, as a ticket was purchased by the driver, albeit in light of a PCN being issued then there is a risk of an incorrect digit being input. It would and should have been a simple matter to check but Excel has shown me no evidence that they even bothered to check and if so, why their check failed. So they must now explain their actions to POPLA.

6) Unclear and non-compliant signage
Due to their high position, bright colours, distracting pictograms and the barely legible size of the small print, the signs in this car park are very hard to read and understand. I contend that the signs and any core parking terms Excel are relying upon were too small for any driver to see, read or understand when driving into the car park. I request that POPLA should check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs and machines in that car park (wording, position, clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011.

Yours,


Registered keeper

Coupon-mad

Yep I think that's good to go, tick 3 out of 4 appeal boxes (not stolen car) and submit it online to POPLA.

beetlemad

Thanks guys - just received the response from the POPLA appeal. "The operator should now cancel the parking charge notice forthwith"

...with reasons stated as although the appellant was the driver and parked without purchasing and/pr displaying a valid ticket and being contravention of terms blah blah and the appellant has made several submissions in support of the appeal, it is "only necessary to deal with one for present purposes. He submits that the charge does not reflect a genuine pre-estimate of loss" and goes onto say that despite the operator submitting cases to support the loss (£166.01) and it being genuine estimate and commericially justified, the assessor disagrees with their submissions and that it is commercially justified.

Cheers all xxx

Redx

please post the PPC and the full decision + assessor in here for posterity

https://forums.moneysavingexpert.com/discussion/4488337

well done

beetlemad

This is done, hope its not too much - it was a lengthy letter!!