POPLA stage with Excel at Eastbank Ancoats

jamex

Hello all,

I'm asking for advice on which template to use, as none of the cases seem to fit mine.

The fine was issued at Eastbank Ancoats, Manchester - an apartment block - where they only allow a 12hr ticket to be bought. One was purchased, but in the knowledge that it would have run out before getting back to the car. The plan was to buy another ticket on return, but unfortunately a 'fine' had already been stuck to the window.

I followed the appeal instructions on this site after receiving the NTK through the post, and have now got a rejection of such with a POPLA code which expires in 10 days.

I'd have to say that the signage was good, but the 12hr limit clearly designed to trap people.

I'm really not sure which appeal template to use.

Any help would be very appreciated.

Best,

James

Umkomaas

Use any template which includes the following essential appeal points as a starting point. Flash it up here and we'll advise on suitability. But don't go copying and pasting the first thing that 'looks good and all legal', you do need to have some understanding of what you are 'writing'.

1. No genuine pre-estimate of loss (GPEOL)
2. Signage
3. No Contract with landowner to pursue charges in their own name at court
4. No proprietary interest in the land
5. Unlawful Penalty Charge

Look for those that have been posted relating to Excel. Use the forum search engine with 'Excel POPLA' as the search term; it will bring up loads, have a read through some if the more recent ones.

You most certainly need to read post #3 of the NEWBIES sticky 'How to win at POPLA' which will help guide you through it.

What won't help you is to dwell on the 'ticket for 12 hours' designed to entrap - POPLA will have absolutely NO interest in that. Harsh, but true, so save your breath on that one.

jamex

Thanks for your advice,

I am putting together my appeal now, and having left it to the last minute, will have to get it submitted online today.

I've had a look at the POPLA site, and it requires me to tick boxes for the grounds of my appeal.

Options are;

1) I was not improperly parked
2) The parking charge (ticket) exceeded the appropriate amount
3) The vehicle was stolen
4) I am not liable for the parking charge

I'm guessing that I just tick 2.

Would you agree?

Thanks in advance - I'll post my appeal letter in an hour or 2 when it's finished.

:think:

Guys_Dad

jamex wrote: »

Thanks for your advice,

I am putting together my appeal now, and having left it to the last minute, will have to get it submitted online today.

I've had a look at the POPLA site, and it requires me to tick boxes for the grounds of my appeal.

Options are;

1) I was not improperly parked
2) The parking charge (ticket) exceeded the appropriate amount
3) The vehicle was stolen
4) I am not liable for the parking charge

I'm guessing that I just tick 2.

Would you agree?

Thanks in advance - I'll post my appeal letter in an hour or 2 when it's finished.

:think:

Tick 1,2 &4

Dee140157

And how do you know the signage was good? There are lots of things that make signage non complaint, eg the wording, the height, the font used, their placement etc etc. Unless you are an expert you cannot say the signage was "good". Perhaps the most you can say is that it was plentiful!

So whatever you do leave signage in. It is up to PPC to prove their signage is compliant and adequate.

Do post draft here as I am concerned you may miss important stuff, if you think you know what is ok and what is not.

jamex

Thanks so much for your help so Umkomaas & Guys Dad.

Here is my draft of appeal.


Dear POPLA adjudicator,

I am writing to appeal against a parking charge levied by Excel Parking Services Ltd on 26/04/2014. 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 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 “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 contract exists with landowner to pursue charges

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. Nor will I accept a statement that someone has seen the 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. Unclear and non-compliant signage not forming a contract

There are no clear sings in the parking area near the space the vehicle was parked in. Any photographs supplied by the operator to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera and flash and the angle may well not show how high the signs are. As such, I require Excel to state the height of each sign in its response and to show contemporaneous photographic evidence of these signs in the dark without the aid of flash photography. The operator also needs to show evidence in the way of a signage map on this point – specifically showing the location of the signs and whether a driver still in a car can see and read them when deciding to drive in. Any terms displayed do not alter the contract which must be shown in full at the entrance.

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. 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. Nothing about this operator's 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 alleged contract would be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late.

There was no agreement to pay. No consideration/acceptance flowed to and from both parties, so there was no contract formed. This is a non-negotiated and totally unexpected third-party ‘charge’ foisted upon legitimate motorists who are not ‘customers’ of UK Parking Control Ltd but residents or visitors of the very buildings that are home to these parking spaces; they are not expecting to read a contract when they park at their home, or visit the home of friends or family. I contend the extortionate charge was not ‘drawn to his/her attention in the most explicit way’ (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal):
“The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it – or something equally startling.”

4) Unlawful Penalty Charge

Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:

'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances. A lack of appropriate and clear signage when entering an area is far from 'transparent'.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(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." Furthermore, Regulation 5(1) states that: "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".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "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.”I contend it is wholly unreasonable to rely on a lack of appropriate and clear signage when entering an area in an attempt to profit by charging a disproportionate sum where no loss has been caused.

I therefore respectfully request that my appeal is upheld and the charge is dismissed.

xxxxx

I feel like the last point is made in a very different tone to the rest, should i find something more 'in keeping'?

Also, in 3) Signage, the appeal I copied from has this in the text "There was no agreement to pay. No consideration/acceptance flowed to and from both parties, so there was no contract formed. " But as I DID purchase a ticket, is this part redundant?

Many many thankses,

jmx

Dee140157

You need a Beavis rebuttal in the no GPEOL paragraph. (See first post in how to win at POPLA appeal on newbie thread)

And you have the usual mistake (which I make all the time) there are no clear "sings"!

And yes remove the words you mention. The loss is only the difference between what you paid and what you should have paid.

jamex

Thank you Dee,

is this ok for a final version then?

Dear POPLA adjudicator,

I am writing to appeal against a parking charge levied by Excel Parking Services Ltd on 26/04/2014. 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 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 “cannot be punitive or unreasonable”.

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. 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 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.''

My case is the same and Excel contracts are nothing like ParkingEye's contract in the Beavis case anyway, where Parking Eye paid £1000 per week for what was in effect a 'fishing licence' to catch victims and where the Operator made out they were the principal. In my case, Excel are merely agents at best, with a bare contractor's licence to put up signage and 'issue tickets' and they are known to be paid by their client so they have no standing nor loss to claim in their own right anyway. Of course money changing hands will affect any calculations of so-called 'loss' and is one of several reasons why I will require the landowner contract in full (unredacted) as per point 2.

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 contract exists with landowner to pursue charges

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. Nor will I accept a statement that someone has seen the 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. Unclear and non-compliant signage not forming a contract

There are no clear signs in the parking area near the space the vehicle was parked in. Any photographs supplied by the operator to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera and flash and the angle may well not show how high the signs are. As such, I require Excel to state the height of each sign in its response and to show contemporaneous photographic evidence of these signs in the dark without the aid of flash photography. The operator also needs to show evidence in the way of a signage map on this point – specifically showing the location of the signs and whether a driver still in a car can see and read them when deciding to drive in. Any terms displayed do not alter the contract which must be shown in full at the entrance.

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. 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. Nothing about this operator's 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 alleged contract would be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late.

This is a non-negotiated and totally unexpected third-party ‘charge’ foisted upon legitimate motorists who are not ‘customers’ of UK Parking Control Ltd but residents or visitors of the very buildings that are home to these parking spaces; they are not expecting to read a contract when they park at their home, or visit the home of friends or family. I contend the extortionate charge was not ‘drawn to his/her attention in the most explicit way’ (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal):
“The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it – or something equally startling.”

4) Unlawful Penalty Charge

Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances. A lack of appropriate and clear signage when entering an area is far from 'transparent'.
Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(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." Furthermore, Regulation 5(1) states that: "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".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "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.”I contend it is wholly unreasonable to rely on a lack of appropriate and clear signage when entering an area in an attempt to profit by charging a disproportionate sum where no loss has been caused.

I therefore respectfully request that my appeal is upheld and the charge is dismissed.

Coupon-mad

Yep that looks fine, so submit it online ticking 3 appeal boxes on the POPLA page. Be ready (in a few weeks) to receive Excel's 'evidence' which will blather on about their attempt to justify the charge - be ready to rebut it.

There is a rebuttal already written on a thread you'll find if you search 'Excel GPEOL'.

Redx

I would add a short numbered "bullet point" list at the beginning of the main appeal , similar to post #2 , so the assessor can see the points being made easily before going on to read them , otherwise its good to go

jamex

SUCCESS!!!!

appeal granted on grounds of no genuine pre estimate of loss.

Thank you all so much for your help!

J xx

:rotfl::T:beer::j