Excel parking @ iceland

luke123456

The parking cowboys code checker site says:

You have missed the deadline to appeal!
Your deadline was on the Fri Sep 05 2014
Your deadline passed 3 day(s) ago

What do I do now?

Is there no way I can still appeal to POPLA and say I was abroad and explain what difficult circumstances I was having....?

Redx

you can try, thats all you can do , and have your appeal ready in case they say yes

no point asking us, you have to ask their lead adjudicator for leniency, we have no sway over him

think of it this way, if you turned up at the airport to fly home 3 days late, what would the airline have told you ? (you dont need to phone a friend on this one, especially if you used to watch AIRLINE with easyjet and tony robinson (baldrick))

luke123456

So do I just send my appeal to POPLA in the usual way via their website and do as it says in the newbie thread, explain reasons for late submission and is there anything else u would recommend?

thanks!

Redx

I have never sent popla an appeal , or used their website to send one, or their email for that matter

I doubt their website will let you upload one due to the expiry date being last friday, I think it will tell you where to go or if it does accept it then they may email you with a refusal tomorrow

what would I do ? good question

I would ring them up first thing tomorrow and check what to do and have it ready to email them if they ask you to do so , because they may accept it by email if you are prompt and they tell you to do so

dont do anything until speaking to them , apart from having it ready in word or pdf format (adobe) , or notepad or wordpad for that matter

luke123456

POPLA have advised on the phone that they cannot say whether or not the late appeal will be considered. I have been advised to put in a written explanation as to why the appeal is late and i feel that I should combine the apology to POPLA with the appeal, asap!

My appeal draft to POPLA please advise urgently.


As the registered keeper, I received an invoice from Excel Parking. I appeal on the following grounds:

1. The charge and Excel Parking' latest 'GPEOL statement' is not a genuine pre-estimate of loss.
2. No standing/authority to pursue charges in the courts - Excel Parking are a mere agent with negative responsibility for customers on this MSA private land.
3. Failure to invoke Keeper Liability under the Protection of Freedoms Act 2012 (the POFA).
4. Unclear and non-compliant signage created no contract with the driver. No signs seen except the clear offer of free parking on the MSA approach advertisement.
5. The ANPR records are unreliable, non-compliant and not proof of one parking event.

************************************************** ************************

1. The charge and Excel Parking' latest 'GPEOL statement' is not a genuine pre-estimate of loss.
If Excel Parking are alleging that an overstay gives rise to a small tariff then that tariff alone plus £2.50 to obtain data from the DVLA would be the only sum that an Operator can potentially claim as a typical sum of the heads of cost that arise in all cases. And that would only be possible if the driver has been fully informed of that sum, on very clear notices, in advance of parking. This was not the case.

£100 is a sum 'plucked out of the air' by Excel Parking and it bears no relation to any loss. My proposition is that £100 was chosen because it happens to be the maximum figure the BPA feel is a 'tolerable' amount to impose on motorists, when compared to PCNs issued by Councils on street. There is no valid comparison with a private firm alleging 'breach' in order to maximise their own profits and a real PCN from a Council - but the BPA admitted to the Government that Council PCN amounts were the basis of that figure.

I believe that (in common with many PPCs after the recent BPA training or by copying PPS who have won a couple of anomalous POPLA decisions) as is already in the public domain here:
http://parking-prankster.blogspot.co...ies-lying.html
Excel Parking have significantly changed their GPEOL calculations from the version presented to POPLA earlier in 2014. I require Excel Parking to explain their new calculations. My position is that, any 'new' version cannot be accepted as a genuine PRE-estimate. In fact it is a 'post-estimate' of (arguable) 'actual costs' after the event; figures totted up to match the charge, including fully-counted man-hours for 'POPLA appeal work' when in fact only 2% of PCNs proceed to POPLA. As this is supposed to be a pre-estimate showing why every PCN is £100 (whether appealed or not), any man-hours must be counted only on a minimal pro-rata basis, i.e. they might reasonably count only 2% of the time taken on an average POPLA appeal, since the vast majority of cases involve no appeal work at all.

Indeed, in the 2014 POPLA Annual Report the Lead Adjudicator, Mr Greenslade, stated, “However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."

If Excel Parking present what they describe as a GPEOL statement I require them to show documentary evidence regarding exactly when this 'pre-estimate of loss' was discussed with the MSA or at any substantive meeting within the Operator's Senior Management. How/when were these calculations made and on what basis? Bearing in mind how many of their cases actually go to POPLA, what steps were taken to account for the 98% which do not? I put Excel Parking to strict proof that they ever had such a meeting.

If there was no meeting to discuss the £100 charge in advance then there was never a pre-estimate of loss discussion at all, as was found in April 2013 in 1IR65128 Brookfield Aviation Int. Ltd. v Van Boekel, where by HHJ Hand QC concluded in his summary at 94:
''I do not believe the evidence...that there was ever an attempt at a genuine pre-estimate of loss. I have found that there was no meeting in 2007...it seems to me that a conclusion that there was never any attempt at a genuine pre-estimate of loss is of some significance...Finally, the fact that the figure was arrived at by reference to what pilots might be prepared to tolerate...shows to my mind that in so far as the Claimant made any calculation as to amount, that calculation related to the balance between deterring breach and enforcing the notice period on the one hand and deterring recruitment on the other. In short, the sum stipulated for was not a genuine pre-estimate of loss but an “in terrorem” sum to deter breach and as such is a penalty.''

A direct comparison can be drawn with Brookfield v Van Boekel that, so far as Excel Parking made any calculation as to amount, that calculation related to the balance between deterring breach and enforcement on the one hand and deterring customers of the MSA on the other. £100 was simply the maximum set by the BPA, a sum which motorists might 'tolerate'.

Excel Parking have now added layers of 'staff checks' to match the PCN sum, in the hope that POPLA may not notice that 'time spent on POPLA appeals' cannot be factored into every PCN. In fact they have manufactured their calculations well after the event of deciding the parking charges, knowing that most appellants will not realise that their 'GPEOL calculation' has changed.

Further, in July 2014 a directly comparable POPLA decision was made about a Excel Parking PCN number 448140522042 issued at the Services at MOTO Cherwell, on 21 May 2014 and my case is exactly the same:

''Reasons for the Assessor’s Determination
It is the Operator’s case that the Appellant’s vehicle was parked for longer that the free parking period and payment for parking was not made thereafter. As the Appellant has raised the issue of the charge not being a genuine pre-estimate of loss, the onus is on the Operator to prove that it is. The Operator has produced a breakdown of costs that they incur in managing the site and breaches of the terms and conditions of parking, however, there appear to be multiple layers of unnecessary checks and balances included in their costs, which do not necessarily flow from the Appellant’s breach. I have looked at all of the evidence and have decided to allow this appeal on the basis that the Operator has failed to prove that the parking charge amount is a genuine pre-estimate of loss.''

I contend that the figure of £100 is a penalty clause in terrorem to deter breach. The calculation cannot be copied from another PPC, neither can it be commercially justified.

POPLA Assessor Chris Adamson stated in June 2014 that:
''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, 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 Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bank of 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.''

Coupon-mad

That first bit looks fine and the other points are standard ones so I am sure you've got the right template - as long as you add the other points! - so send it. But you will have to be very clear in the comments box as to why this is late. I think POPLA will chuck it out.

say I was abroad and explain what difficult circumstances I was having..?

Yes but make it clear on the top because I bet they have a new clerk simply checking the new codes haven't expired & he/she'll move it to a reject pile without looking unless some reason jumps out.

luke123456

When you say add the other points you mean the points as to why it's late...?

If it does get rejected do I have no choice but to pay the £100?

Umkomaas

If it does get rejected do I have no choice but to pay the £100?

A POPLA decision is only binding on the PPC, not the motorist.

It won't be rejected if you continue to follow forum advice.

Coupon-mad

luke123456 wrote: »

When you say add the other points you mean the points as to why it's late...?

Errrr no, points 2, 3, 4, and 5 of course that you've put at the top but never included below your first argument. I assumed you didn't bother to copy them here as it's a template so it's not needed to be shown in full here. Obviously if you list 5 points then you talk about five points!

If it does get rejected do I have no choice but to pay the £100?

No. Who said that? Why not read more on here.

I do hope you haven't waited 24 hours again and still haven't submitted this to POPLA. This appeal has been terribly delayed so I think you will be lucky if they take it.

luke123456

Oh crap

I didn't include points 2, 3, 4 and 5!! I thought that was it. I submitted the appeal before you had replied Coupon-mad as I knew time was ticking....

Crap! Do I just go to the POPLA site now and add points 2 3 4 and5 as 'evidence to submit' as you can submit evidence after you have submitted an appeal...

Also Excel parking have now sent me a 'LIABILITY Notice' giving me 7 days to pay the £100 .

Please advise!

Thanks!