PCN Excel Parking Services Middlesbrough Leisure Park

LB3683

Hi All, I appreciate a couple of threads exist about this matter from a few years ago but I was yet to see anything regarding my individual circumstances.

In the above mentioned car park there are blue bays which are free parking for leisure park visitors and white pays which are pay and display. My wife has paid and displayed but parked in a blue bay and received a fine.

I know the standard procedure is to wait for the NTK but I ask if there is any benefit of starting with a soft appeal.direct to the car park company. I was parking there as advised by courts I was attending for an adoption hearing so was distracted and hadn't considered any issue given I'd paid for parking but I appreciate these companies don't care for mitigating circumstances.

I have read a few threads and written/borrowed the following as a potential soft appeal.
Is there any point sending it? My wife is concerned if we wait for the NTK and then lose the appeal we will have to pay the higher fine.
Any help or advice would be greatly appreciated. Thanks.


"Dear Sir/Madam

PCN Number: XXXXXXX
Issued: XX/XX/XXXX

I refer to your ‘Parking Charge Notice’ of XXXXXXXXXX. I am the keeper of the vehicle subject to your ‘charge’ and wish to challenge your alleged claim against me on the following grounds:

1. Cause of action.
Please make this clear. If it is claimed that a contract has been entered into please send me a complete version of the terms and conditions of said contract. Further to the above please explain fully on which of the following grounds your claim is based:
a. Damages for trespass
b. Damages for breach of contract
c. A contractual sum

2. Your loss.
If it is your case that that a trespass was committed or that a contract was breached such that your claim is one for damages, please give me a full breakdown of the actual loss you say was suffered by your business or the landowner/landholder (not including operating costs such as wages, signs, uniforms, office costs etc as they are not incurred as a result of the alleged parking contravention, as stated by Judge McIlwaine in VCS v Ibbotson).


3.Failure to mitigate loss.
The ‘Parking Charge Notice’ mentions that the driver was observed "leaving the leisure park” and that this was filmed.
In addition to this the driver advises that they paid for a parking ticket in a machine valid for a white bay and in doing so they walked directly past two parking attendants when leaving the car park. Neither of whom made any attempts to mitigate said loss.
Taking into account the position of the aforementioned parking attendants and the time of purchasing a valid ticket for a white bay (09:27) and the 'time seen' noted on the 'Parking Charge Notice' (09:31) it is clear that your staff observed (and filmed) the driver park the vehicle, purchase a parking ticket and walk directly past them. Therefore I would like to take this opportunity to remind you that if any contract exists, the claimant has a responsibility to mitigate any losses incurred as a result of a breach of contract. As such the parking attendants who 'observed’ the driver allegedly leaving the leisure park have failed to make any attempt to mitigate losses and would have been reasonably expected to alert the driver to the fact that a fine fine would be issued if the driver was to leave the site as they suspected may occur.
Please provide any witness statement or any photographic evidence of this observation, for without sufficient evidence your claim cannot be considered. Please send me a copy of your procedures for handling and processing that evidence and the relevant audit trail.

4.Punitive / Unfair / Unreasonable. The parking charge of £60/100 is punitive and is therefore void. £60/100 is arbitrary and disproportionate to any alleged breach of contract or trespass.

a. The £60/100 parking charge you are imposing is an unfair term (and therefore not binding) under the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations which 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:
‘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’
And 5(2), which states:
‘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.’

b. The £60/100 parking charge you are imposing is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which states:

‘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 would like to take this opportunity to alert you to the relevance of VCS v Ibbotson, and in particular to the comments made by Judge McIlwaine in relation to the above grounds of appeal especially in relation to actual losses incurred, mitigation of loss, clearly defined boundaries, and privity of contract/right to issue proceedings.

If you reject this challenge or fail to address all the issues that have been raised then, in accordance with the BPA AOS Code of Practice 22.12, please ensure that you enclose all the required information (including the necessary ‘POPLA code’) so that I may immediately refer the matter for their decision and/or take appropriate legal action.

I look forward to your reply.
Yours faithfully,

Xxxxx


This letter is written wholly without prejudice to my whole rights and pleas and may not be produced or founded upon in any proceedings by any party or other person except on my prior, express, written consent."

bod1467

A/ The "letter" is written as if from the keeper but you haven't yet had an NtK. So how does the keeper know about this? (You need to be careful not to pull the rug from underneath yourself, mixing keeper and driver positions).

B/ Parking companies don't give a toss about mitigating circumstances - they just want your money.

Follow the NEWBIES guide.

Redx

I would follow the sheep method (or lemming method) and wait for the NTK and then deal with it the same as the hundreds of others we deal with on here and win over 99% of the time, thereby paying no money for this INVOICE (NOT a FINE)

mitigation wont work at all

ps:- if you paid for parking then there is no loss to the landowner, meaning that the contract was paid and so no invoice is payable, in effect, you owe nothing so nothing is what you should pay - even if it takes a couple of emails to excel and to popla, using the correct appeal arguments

if they are stupid enough to waste over £30 of their money allowing you to use popla to quash the ticket, do so

Guys_Dad

While waiting for the NtK, check out the wording that designates difference between white and blue spaces and what is the procedure when parking in the blue bay? (Register at leisure centre or what? In other words, how did they know she was not at leisure centre?)

Post up a picture of the sign if you can.

LB3683

I don't live or work near there so haven't been able to get back to take a photo but I have just recieved the NTK. I see on the newbie thread there is a stock response. Excuse what is probably a stupid question but do I literally just send that with my relevant information added? Or do I need to check and add any omissions of POFA guidelines in the NTK? The notice itself makes no reference to POFA but does state if the keeper fails to provide proper details of the driver they will be pursued for the payment. Is that last bit BS?

Redx

use the new short stock response template and report them to the BPA if you think the NTK fails POFA 2012 or the BPA CoP

LB3683

Thanks a lot. If/when it goes to POPLA is that when I produce my 'evidence' of having paid for parking just for the wrong bay?

Redx

no really because if you had checked the popla website they say mitigation isnt a valid appeal point and neither is having paid for a ticket, any ticket

its not about "what happened" , its about legal arguments

so your popla appeal will be based on legal points, not "what happened on the day" , as they could not care less about what happened or about your ticket purchases (which are excuses, not legal appeal points)

LB3683

I assumed from your post above that the purchase of a ticket would negate the claim of loss to landowner?

Another quick one, I read on the sticky that the NTK must mention the period the car was parked and the creditor.

The NTK notes the contravention time and date but not the complete period (as the PCN does) is that a breach or am I misinterpreting the word 'period' in this context?

Regarding the creditor the NTK mentions only the place. I assume the creditor would be something more along the lines of the person or company which owns the land?

Apologies about this.

Redx

sounds like reasonable questions , so yes find and refute all instances of failures

bear in mind the landowner isnt sending you this invoice, its the PPC sending it , they havent sent it for non-payment, but for parking in the wrong bay (a rule breach, not a lack of a paid for ticket)

you seem to think this ticket has some importance, whereas I dont think it does , neither do popla either

if I had bought a road tax disc for my car, then either not displayed it on my car OR displayed it on a different car (also of a different colour), then received a penalty notice for it, the fact I bought a ticket so did not defraud the DVLA isnt a valid argument for non-display or using it on a different coloured car , so why would yours be valid ?

if you buy a ticket (or not) yet dont follow the rules, then the invoice will follow , due to breaking the rules (and not the buying of a ticket)

you seem to be still focussed on "what happened on the day"

popla will focus on your legal presentations and not what happened on the day and wont give a rats **** about your ticket or the colour of the bays

if it went to court, then yes you could present this matter to the judge, but this isnt court, its popla

you said this in your opening post

but I appreciate these companies don't care for mitigating circumstances.

so when you say these companies, also include POPLA and you have covered all the bases

yes I believe the creditor would be the landowner or his legally appointed managing agent, not the PPC as they rarely have jurisdiction, plus have not yet proved jurisdiction

you can add it like in post #4 here https://forums.moneysavingexpert.com/discussion/5059495 as an extra point, but I doubt popla will rule on it , they will probably go for not a gpeol or something more tangible

LB3683

As I am fully expecting my stock response to be rebutted by the PCC I have written up a POPLA appeal. Does this seem okay to you?

Thanks very much for all this help by the way.
The images are yet to be entered but I remember them being very high up with a tiny yellow font on a blue background.





To Whom It may concern,

I have received POPLA code: ##### from Excel Parking Ltd following a failed appeal attempt directly to themselves with relation to PCN no: #####in relation to Vehicle ##### at Middlesbrough Leisure Park on #####.
I am the registered vehicle of the above vehicle and I wish to extend my appeal to yourself for consideration.


My appeal is based on the following points:

1. The signage was inadequate so there was no valid contract formed.
2. The £60/100 charge is grossly disproportionate and not a genuine pre-estimate of loss
3. Failure to mitigate losses.
4. Incompliant Notice To Keeper.
5. Differing Contravention details on PCN to NTK.
6. Excel’s legal capacity to enforce/issue Parking Charge Notices.

For clarity I will outlay the above points individually.
1) The signage was inadequate so there was no valid contract formed

The occupants of the car recall seeing no signs on entrance to the car park so did not knowingly enter into any contract or accept any terms.
Since receiving the Notice To Keeper I have attended the site of the alleged contravention and found the signage to be inadequate (pictured below).
Any 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. 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 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
The signage at the car park does not meet the requirements set out by the BPA. Their code of practice, appendix B page 27 states that:

• The AOS roundel must always be shown on the sign
• The operator must always mention that terms and conditions apply and say where to find more details about them
• There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision.

[IMG]file:///C:\Users\Owner\AppData\Local\Temp\msohtml1\03\clip_image002.jpg[/IMG]


As you can see from the above picture of the parking sign, it does not meet these requirements. In particular it appears they have deliberately chosen to go against BPA advice and make the sign in yellow and blue font.
One can only assume this is a blatant attempt to distort driver’s ability to view/understand the alleged contract (thus making the contract itself void)
I also include a picture of another sign demonstrating the same points, as well as showing the sign as being very difficult to read as it is placed very high up with an incredibly small font.
[IMG]file:///C:\Users\Owner\AppData\Local\Temp\msohtml1\03\clip_image004.jpg[/IMG]



2.) The £60/100 charge is grossly disproportionate and not a genuine pre-estimate of loss':


This charge is both punitive and unreasonable and therefore void. £60/100 is arbitrary and disproportionate to any alleged breach of contract or trespass.

The £60/100 parking charge Excel are imposing is an unfair term (and therefore not binding) under the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations which 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:
‘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’
And 5(2), which states:
‘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.’

The £60/100 parking charge Excel are imposing is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which states:

‘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.’

The car park in question is free to park in for four hours; if the driver did not have to pay to park, how can Excel justify their £60/100 charge for the alleged contravention as there can clearly be no genuine loss to the landowner. The car park itself was very empty at the time so the parking of this vehicle also could have no bearing on a loss to any businesses nearby. Although the loss relates only to that of the landowner, whom again, had no interest in parking costs regardless of any alleged contravention.
I refer POPLA to the case of Vehicle Control Services Ltd vs Mr R Ibbotson (16th May 2012) which found that general business costs cannot constitute a loss. The amount of the "penalty" imposed is completely disproportionate to any alleged "loss" by Excel. It is, therefore, punitive and contravenes the Unfair Contract Terms Act 1997.

I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance. As such, the charge that was levied is punitive and therefore void (i.e. unenforceable).

I also refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC (EWCA Civ 186 [2013]). This case determined the actual nature of Private Parking Charges. It was stated that, "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be." The Court ruling was "...that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice. This provides a means of payment at the point of supply, and a means to account to HMRC for the VAT element of the charge. No VAT is itemised on this PCN. It must, therefore, be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses, as set out above.

3.) Failure to mitigate losses.
The ‘Parking Charge Notice’ mentions that the driver was alledgely observed "leaving the leisure park” and that this was filmed.
Taking into account the time the vehicle in question was seen (09:31) and the alledged contravention time (09:43) which have both been noted by the parking attendant on the PCN, it is clear that Excel’s staff must have observed (and filmed) the driver park the vehicle and shortly afterwards allegedly leave the leisure park.
Therefore I would like to take this opportunity to state that if any contract did exist, the claimant had a responsibility to mitigate any losses incurred as a result of a breach of contract.
As such the parking attendants who 'observed’ the driver allegedly leaving the leisure park have failed to make any attempt to mitigate losses and would have been reasonably expected to alert the driver to the fact that they have parked incorrectly and a charge would be issued if the driver was to leave the site as they suspected may occur.
I would ask Excel to provide any witness statement or any photographic evidence of this observation, for without sufficient evidence such a claim cannot be considered. I would also ask Excel to provide a copy of their procedures for handling and processing that evidence and the relevant audit trail.

If of course the parking attendant has not seen the vehicle be parker or seen the driver allegedly leave the leisure park than this PCN is also void because the information withheld is false.

4.) Incompliant Notice To Keeper

It is stated under Protections of Freedom Act that for a Notice to Keeper to be valid it must state, among other things:

• The period the car was parked for.
• State whether a notice to the driver was given either to the driver or placed on the vehicle and if so to repeat the information in that notice about paying the parking charge and when.
• Identify the “creditor” who is legally entitled to recover the parking charge.

Please find the NTK attached and note that:

1. Although the time of the alleged contravention is listed (09:43) it does not state the period of which the car was parked for.
2. The NTK does not state whether or not a NTD was placed on the vehicle or given to the driver, just that it may have been affixed to the vehicle or issued via the post.
3. There is absolutely no mention of the creditor who is entitled to recover any parking charge, not any mention that Excel are working on behalf of a client.

5.) Differing Contravention details on PCN to NTK.
Please find attached both the PCN and the NTK and note the PCN states several parking contraventions and have coded them accordingly. Among Others there is listed Contravention 81 ‘PARKED IN A RESTRICTED AREA OF THE CAR PARK’and Contravention A0 ‘OTHER (SPECIFY)’.
The issuer of the PCN has highlighted A0 OTHER (SPECIFY)’ as the contravention code and provided additional details of ‘left the leisure park’.
However the NTK refers to contravention code 81 ‘PARKED IN A RESTRICTED AREA OF THE CAR PARK’.
It is clear from this that either the PCN or the NTK is invalid and do not correspond to one another.
In addition to this if even if the PCN and NTK corresponded correctly to one another if either of these claims were to be argued by Excel there would need to be sufficient evidence provided to prove that the driver of the vehicle did commit the alleged contravention and Excel have yet to provide any such evidence.

6.) Excel’s legal capacity to enforce/issue Parking Charge Notices:
In their correspondence with me, Excel have not produced any evidence to show that they have any proprietary interest in the car park in Middlesbrough. Nor have they provided any evidence that they are lawfully entitled to demand money from a driver or keeper. As it appears that they do not own the land, nor have any interest or assignment of title of the land in question, it is assumed that they are merely agents for the owner or legal occupier. I contend, therefore, that they do not have the necessary legal capacity to charge the driver of a vehicle for using the car park.

So, I require that Excel provide a full, up-to date, signed and dated contract or agreement with the landowner. A signed witness statement stating that someone has seen a contract is not sufficient. The contract must state that Excel are entitled to pursue these matters through the issue of PCNs and through the courts. This needs to be an actual copy and not simply a document which claims that such a contract or agreement exists.


I appreciate the time you have taken in reading my appeal, I hope you will find the evidence compelling and uphold my appeal and look forward to hearing back from you.
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