PCN Excel Parking Services Middlesbrough Leisure Park

Coupon-mad

That's based on an old template, I can tell from this '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]).' That case doesn't help!

Why not just use/adapt a version from the newbies thread post #3? Make sure the version you adapt includes 'no keeper liability' due to the flawed NTK which is indeed a winning point along with no GPEOL, no standing, etc.

LB3683

Many thanks for the advice.
I have borrowed bits/rewritten, how does this one fare?

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 you for consideration.


My appeal is based on the following points:

1. The signage was inadequate so there was no valid contract formed.
2. The proposed charge is grossly disproportionate and not a genuine pre-estimate of loss.
3. Failure to mitigate losses.
4. Non compliant Notice to Keeper - no keeper liability established under POFA2 2012
5. Differing Contravention details on PCN to NTK.
6. Excel’s legal capacity to enforce/issue Parking Charge Notices.
7. Unfair Terms

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.

IMAGE


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.

IMAGE



2.) The proposed charge is grossly disproportionate and not a genuine pre-estimate of loss':


The charge proposed by Excel is both punitive and unreasonable and therefore void. £60/100 is an arbitrary and disproportionate to any alleged breach of contract or trespass.
Excel must explain their 'charge' by providing POPLA with a GPEOL calculation, not including their operational tax-deductible business running costs - for example, costs of signage, convoluted layers of staff checks including time on appeals that never happen in most cases, or hefty write-off costs and unsubstantiated 'overheads'.
Also, if Excel include in their calculation any staff costs or time spent dealing with POPLA appeals or debt collection this must only be calculated on a very minimal pro-rata basis, since only a very small percentage of cases ever go to POPLA or to debt collection stage. The Operator cannot truthfully state that 'hours' are spent by various staff members in a team, on each and every PCN, because in the vast majority of cases the process (PCN issued > NTK sent automatically after a set time limit, most cases not even appealed) clearly involves very little back-office intervention. If only 2% of cases proceed to POPLA then only 2% of the costs of POPLA appeals could be factored into a genuine pre-estimate of loss relating to all PCNs. I contend that Excel cannot justify £60/100 for each and every PCN that they say flows directly from a typical parking event in breach.

In any case I believe Excel are paid by the Leisure centre an annual sum to cover the signs, ticketing and CCTV cameras, etc. Therefore, this payment income must be balanced within the GPEOL breakdown Excel supply otherwise it would be double accounting for the same expenses. The motorist is not responsible for Excel's costs already covered by the Leisure Centre remuneration. The more Excel re-write the GPEOL calculation (various numbered versions which must nearly have reached double figures by now) the further away they must get from the calculation being viewed as a genuine pre-estimate.

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.



In addition to this 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.

In my appeal I will also make reference to three recent court hearings:

1. The case of VEHICLE CONTROL SERVICES Ltd VS 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 CEL or the landowner they are working on behalf of.
It is, therefore, punitive and contravenes the Unfair Contract Terms Act 1997.

2. The case of OB SERVICES VS C THURLOW (13th July 2010)which found on appeal that If these charges were a genuine pre estimation of loss following from the parking of the vehicle then a parking firm would not be prepared to accepted a reduced fee for prompt payment.

“In my judgement the answer is clear. £100 is not a genuine pre estimate of loss, if it were why is he prepared to accept £50 (if paid promptly)? It was clearly a threat to deter parking.
On the basis that the effect of the notice is effectively to seek to impose a penalty clause. It is unenforceable. No loss or damage is asserted or proved. In these circumstances the claimant has no claim and the appeal is allowed”

3. The case of CEL v MCCAFFERTY (21st February 2014), which also clearly makes the point that there is no genuine pre estimate of loss and the charge is therefore a penalty (making it invalid/unenforceable).

“The purpose is clearly, in my judgement, a deterrent, to discourage customers from not paying and necessitating a time consuming and expensive process of chasing them or of simply losing revenue…no attempt has been made at this appeal to justify the charge of £150 as being an actual loss suffered by the claimant and accordingly the appeal is dismissed.


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).

3.) Failure to mitigate losses.
The ‘Parking Charge Notice’ mentions that the driver was allegedly 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 alleged 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) Non compliant Notice to Keeper - no keeper liability established under POFA2 2012

It is stated under Protections of Freedom Act 2012, schedule 4, paragraph 8 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.

A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6 (1)(a) is given in accordance with this paragraph if the following requirements are met.
(2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made;
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 in direct breach of POFA 2012 Schedule 4, paragraph 8
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.

The failure by Excel to include this information appropriately on their NTK is a nullity so no keeper liability exists.

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.

7.) 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 - which was nothing if the occupants were in either of the restaurants where there is free parking. Excel show no evidence either way, merely photos of the first arrival and last departure in moving traffic, with no indication where the car was in between. The charge of £100 imposed by Excel constitutes an unfair term as it is disproportionate with respect to the alleged infringement.


I appreciate the time you have taken in reading my appeal points and hope you will find the evidence sufficiently compelling and decide to uphold my appeal.
I look forward to hearing back from you.
Yours faithfully
(the registered keeper)

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LB3683

Appears some of the text formatting has skewed, particulary spacing and use of bold from copying over.
It needs a proof read for spelling, grammar etc but I can cover that easily, my concern is whether the basis of this appeal is sound?

Thanks again.

Coupon-mad

I don't understand how your appeal can have this:

'The ‘Parking Charge Notice’ mentions that the driver was allegedly observed "leaving the leisure park” and that this was filmed.'

...and then also point #5 which says it's not for leaving the site at all?

Have you over-copied a template with some points that are not relevant to your case?

LB3683

Neither do I, to be fair. The PCN states the charge is for leaving the leisure centre and the driver has been filmed doing this. When I got the NTK it made no reference to this alleged contravention and instead referred to a new contravention of 'parking in a restricted area'. I intend to include copies of both on my POPLA appeal to show this.

Still waiting on my POPLA code mind you...

Coupon-mad

Aha, that will be a good point for POPLA in due course.

LB3683

I've checked the guide and can't seem to find if there is a specific time frame in which the PPC has to issue me with a POPLA code? The code itself is valid for 28 days but I imagine there must be a timescale by which they must either accept my appeal or escalate my claim to POPLA?

ezerscrooge

They can take up to 35 days. Chase them up on day 28 with an e-mail stating that they have had your appeal for 28 days, and that you expect notification that the charge is cancelled or a PoPLA code is provided.

ezerscrooge

Once they issue a PoPLA code it is then valid for 28 days from that date of issue. You will then use that code to submit your appeal to PoPLA

LB3683

Hi All, just got my POPLA code in the post so looking to submit my above appeal with copies of the documents provided. Wish me luck!