Paid for parking but POLA appeal refused.

gallonofmagnet

I can re-word if you think it will have more success.

Redx

I would contend that not a gpeol would have to be the main issue so point them straight to it, no messing , as bullet point 1 , also try to get winning words from previous decisions from the POPLA DECISIONS thread to support your case

if you have complained about no contract or bad signage , make them next , then anpr had you complained about that too

in other words I believe all this arguing about the payment for the ticket and faulty machines or whatever is detrimental to your popla case, they tell you this on their website

so point them at the relevant issues you should have won on, not the arguments over the ticket and ticket machines (in my opinion) - or make them the last point or points

nigelbb

gallonofmagnet wrote: »

Appeal is at the top of this thread.

Is that really your appeal? It looks like just a set of bullet points.

You haven't posted the full adjudication as the Assessor's name is missing. This is important as some of them are less experienced & make mistakes.

Chris Adamson the Senior Assessor has made the point on several occasions that an initial loss is fundamental to any claim for damages as a genuine pre-estimate of loss and without an initial loss any costs incurred subsequently cannot be reasonably claimed to have been caused by the breach.

gallonofmagnet

I'll redo. I removed the assessors name for posting on the forum. It was there before and is Farah Ahmad.

Redx

I believe there have been a few appeals to popla where that person was the assessor , so it may help your case as it seems they missed the not a gpeol, as it was buried in your appeal near the bottom

bod1467

This assessor used to wrongly reject GPEoL appeals when she first started, until Chris Adamson whipped some of the assessors into shape. It looks like she just looks for the GPEoL words and doesn't digest what is actually being said by an appellant.

gallonofmagnet

Re: POPLA Appeal Reference 2561494515

Dear POPLA adjudicator,

I am writing to request that the PoPLA appeal decision in this case is re-examined as I do not believe the following point which was included in our original appeal has been covered.

• The car park in question is a pay and display facility and even though there was a misunderstanding as to what constitutes a valid ticket, the loss incurred by the operator is a matter of the time spent in the car park without making the relevant payment. This is a quantifiable loss as can be seen on the sign which displays the actual normal parking fee. In this case the correct amount - £1.20 - was paid at the time it was requested to Excel Parking Services via their own supplied Pay and Display machine. Therefore the amount outstanding to be paid in this instance is £0.00. Any greater amount MUST be deemed to be a penalty, which of course is non compliant to the BPA Code of Practice itself which states that the use of fine or penalty may not be used.

No evidence to the contrary has been supplied by Excel during the appeal to POPLA. If this point had been addressed correctly I would of expected a defence to have been entered by Excel.

POPLA and the assessor Farah Ahmad have failed to address this point in its entirety.

Chris Adamson the Senior Assessor is well known to have made the point on several occasions that an initial loss is fundamental to any claim for damages as a genuine pre-estimate of loss and without an initial loss any costs incurred subsequently cannot be reasonably claimed to have been caused by the breach. With this in mind I feel it is imperative that this point is covered in Farah Ahmad's determination which it is not.

Yours faithfully,

gallonofmagnet

nigelbb wrote: »

Is that really your appeal? It looks like just a set of bullet points.

You haven't posted the full adjudication as the Assessor's name is missing. This is important as some of them are less experienced & make mistakes.

Chris Adamson the Senior Assessor has made the point on several occasions that an initial loss is fundamental to any claim for damages as a genuine pre-estimate of loss and without an initial loss any costs incurred subsequently cannot be reasonably claimed to have been caused by the breach.

Is it worth quoting Chris Adamson on this?

Coupon-mad

gallonofmagnet wrote: »

I'll redo. I removed the assessors name for posting on the forum. It was there before and is Farah Ahmad.

Aaah that explains a lot and I suspect they will re-look at it. Excel's no GPEOL paragraph is normally refused, I think she just didn't realise what you were getting at but I felt the use of the words 'quantifiable loss' was clear enough for an Assessor to seize on.

But - and it's a big BUT - I don't think you should attempt to add any of this (text in italics below) as it wasn't in your appeal, I think you should just state as you did towards the top, that the Assessor and Excel did not address the points you had made about quantifiable loss and the fact the amount owed was £0.00 (to rebut it you would have expected to see Excel stating a believable GPEOL but they did not, and you are aware that their current GPEOL statement for this car park is not being accepted by POPLA).

So I would remove all this as it's trying to add new evidence and IMHO won't look good:


which should be assessed in line with the following:.

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 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.

2) 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'.

gallonofmagnet

gallonofmagnet wrote: »

Re: POPLA Appeal Reference 2561494515

Dear POPLA adjudicator,

I am writing to request that the PoPLA appeal decision in this case is re-examined as I do not believe the following point which was included in our original appeal has been covered.

• The car park in question is a pay and display facility and even though there was a misunderstanding as to what constitutes a valid ticket, the loss incurred by the operator is a matter of the time spent in the car park without making the relevant payment. This is a quantifiable loss as can be seen on the sign which displays the actual normal parking fee. In this case the correct amount - £1.20 - was paid at the time it was requested to Excel Parking Services via their own supplied Pay and Display machine. Therefore the amount outstanding to be paid in this instance is £0.00. Any greater amount MUST be deemed to be a penalty, which of course is non compliant to the BPA Code of Practice itself which states that the use of fine or penalty may not be used.

No evidence to the contrary has been supplied by Excel both during the appeal directly to the company or during the POPLA appeal.

POPLA and the assessor Farah Ahmad have failed to address this point in its entirety.

Chris Adamson the Senior Assessor has made the point on several occasions that an initial loss is fundamental to any claim for damages as a genuine pre-estimate of loss and without an initial loss any costs incurred subsequently cannot be reasonably claimed to have been caused by the breach. With this in mind I feel it is imperative that this point is covered in Farah Ahmad's determination which it is not.

Yours faithfully,

Sorry I didn't come to you guys sooner, but hopefully this thread will be helpful to other people who have a similar problem to me.