Peel Centre, Stockport

Bender000

Still struggling.


The best I can come up with so far for a rebuttal to Excel is below.
I used https://forums.moneysavingexpert.com/discussion/comment/66678168#Comment_66678168 as my basis but:


-I am unable to include points about signage because they have big fat signs at all entrances.


-Im not sure about including contract of land owner points either as they have included a witness statement? see here http://1drv.ms/1sdpc5v.


-I cant refer to Beavis because they do not refer to it either.


In short, I cant seem to find any rebuttals to Excel based on the Version: 2.0_EPS__ANPR/CCTV GPEOL from ExcelParking.....












To rebut their sentence: “1. We have calculated this sum as a genuine pre-estimate of our losses as we incur significant costs in ensuring compliance to the stated terms & conditions and to follow up on any breaches of these identified. The parking charge in this instance was established after consideration of the costs which may be incurred as a result of a breach in the operator’s terms and conditions; a breakdown of these costs are listed on page 2 of this statement. “
This shows an unreasonable approach to arriving at a 'pre-estimate of loss' as it is far too wide a pool of information to create a single fixed charge.

EP have contradicted their own argument because in the GPEOL statement they say 'the amount of the PCN...is therefore not a 'penalty' .

Many of these 'costs' are the tax-deductible costs of running any business. POPLA Assessor Chris Adamson has 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 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. 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).

Bender000

I found this thread https://forums.moneysavingexpert.com/discussion/5052502
and have modified my rebuttal:


Thoughts/comments appreciated.


Thanks!


Dear Sir/Madam,

This is my response to Excels statement regarding my appeal.

Genuine pre-estimate of loss statement

My main point revolves around the fact that the charge is not a genuine pre-estimate of loss:

The charge is not a genuine pre-estimate of loss incurred by Excel Parking Limited and is punitive, contravening the Unfair Contract Terms Act 1997. I also consider the Parking Charge Notice to be a penalty because Excel Parking Limited have alleged a breach of terms and conditions and yet have not quantified their alleged loss (which cannot include business running costs nor the POPLA fee).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.'' As for the actual GPEOL "calculation": Nearly all of it consists of (implausible) expenses arising, supposedly, from handling this PoPLA appeal. But (i) the supposed loss was originally claimed when the charge notice was first issued, and at that point there was no appeal; the alleged loss needs to be justified as it was then, it cannot be retro-fitted with convenient costs which hadn't been incurred at the time of the original demand and, at that time, might never have been incurred; and (ii) it is in any case the position of both the government and BPA Ltd. that PoPLA should be a free service to the motorist, therefore the motorist cannot be charged for the costs of PoPLA appeals. BPA Ltd. has recently instructed operators to cease this practise. They have also claimed for a debt recovery process for some reason. The alleged loss also includes staff and admin costs which are day-to-day operational costs which the operator would have incurred regardless of the parking "event" and which the operator doubtless offsets against tax. There is no Genuine Pre-estimated of Loss full breakdown to how they have come up with £123.82, as business costs are not losses and therefore should not be passed down to the motorist. Nowhere have they stated a value of how much they propose that the driver failed to pay for the time they claim they were at the car park. This would surely be the actual “loss”.

A parking charge cannot be used to manufacture a loss where none existed, and yet this is exactly what Excel has attempted. It is circular, it is specious, and it most certainly isn't genuine.

I contend that the calculation must fail as a GPEOL since it is not a PRE-estimate. In fact is a 'post-estimate' after the event, of figures designed to match the charge (and even then it fails as they have included their usual £5 DVLA fee that never occurred). Indeed, in the 2014 POPLA Annual Report prepared by the Lead Adjudicator, Mr Greenslade, he 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."

To rebut their sentence: “1. We have calculated this sum as a genuine pre-estimate of our losses as we incur significant costs in ensuring compliance to the stated terms & conditions and to follow up on any breaches of these identified. The parking charge in this instance was established after consideration of the costs which may be incurred as a result of a breach in the operator’s terms and conditions; a breakdown of these costs are listed on page 2 of this statement. “


This shows an unreasonable approach to arriving at a 'pre-estimate of loss' as it is far too wide a pool of information to create a single fixed charge.

EP have contradicted their own argument because in the GPEOL statement they say 'the amount of the PCN...is therefore not a 'penalty' .

Many of these 'costs' are the tax-deductible costs of running any business. POPLA Assessor Chris Adamson has 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 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. 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).

Signage

No image had been submitted for a like for like image as to the time the PCN was issued. It was not made clear that there was no waiting allowed. The print was too small on the signs to allow for a contract to be made between a driver and excel. The signage which is designed to inform drivers of no stopping is entirely inadequate, in that it requires drivers to stop to be able to read safely, in my opinion is not clear.

Contract

There seems to be no unredacted contract, which could include information about 'money changing hands' in the contract, hiding information that could be relevant to the costs calculation fails to meet the strict proof of contract terms needed.

Summary of evidence

•The signage was inadequate as the driver was not aware of the full nature of the contract being offered.

•Having a large quantity of something is no proof of its quality.

•At first appearance it appears as an official penalty notice, designed to scare the individual into paying an unrealistic charge. After re-reading it, it does appear to be an invoice to me.

•No actual proof of accuracy in this case.

•Full contract has not been supplied for inspection.

•A parking charge cannot be used to manufacture a loss where none existed, and yet this is exactly what Excel has attempted. It is circular, it is specious, and it most certainly isn't genuine.

•A parking charge cannot be used to manufacture a loss where none existed, and yet this is exactly what Excel has attempted. It is circular, it is specious, and it most certainly isn't genuine. What losses were actually caused at this time is not stated in real terms.

•I think anyone who was asked would conclude that the charge is not a true reflection of any loss incurred by Excel.

•The signage which is designed to inform drivers of no stopping is entirely inadequate, in that it requires drivers to stop to be able to read safely, and in my opinion is not clear. A parking charge cannot be used to manufacture a loss where none existed, and yet this is exactly what Excel has attempted. It is circular, it is specious, and it most certainly isn't genuine. I would also need evidence that this was actually calculated in advance of the PCN being issued.

Yours,



RK

Coupon-mad

-I am unable to include points about signage because they have big fat signs at all entrances.

-Im not sure about including contract of land owner points either as they have included a witness statement? see here http://1drv.ms/1sdpc5v.

I have to go out now but you are wrong to say the above. Don't you realise PPCs always have big signs up? And that witness statement fails to show the payment that Excel receive (£30K per annum, allegedly) which could possibly (in the absence of evidence otherwise) be double-accounting with what they are trying to charge you for. Unless they explain and describe the payment they receive of £30K per annum and what that pays for - signs, cameras, maybe the wages of a ticketing bloke on foot, etc. - then how can Excel show POPLA that you are liable for the costs listed?

Bender000

Ok, so heres my new rebuttal with the new bits in red.
I don't know what else I can put for signage????


This is my response to Excels statement regarding my appeal.



Genuine pre-estimate of loss statement

My main point revolves around the fact that the charge is not a genuine pre-estimate of loss:
The charge is not a genuine pre-estimate of loss incurred by Excel Parking Limited and is punitive, contravening the Unfair Contract Terms Act 1997. I also consider the Parking Charge Notice to be a penalty because Excel Parking Limited have alleged a breach of terms and conditions and yet have not quantified their alleged loss (which cannot include business running costs nor the POPLA fee).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.'' As for the actual GPEOL "calculation": Nearly all of it consists of (implausible) expenses arising, supposedly, from handling this PoPLA appeal. But (i) the supposed loss was originally claimed when the charge notice was first issued, and at that point there was no appeal; the alleged loss needs to be justified as it was then, it cannot be retro-fitted with convenient costs which hadn't been incurred at the time of the original demand and, at that time, might never have been incurred; and (ii) it is in any case the position of both the government and BPA Ltd. that PoPLA should be a free service to the motorist, therefore the motorist cannot be charged for the costs of PoPLA appeals. BPA Ltd. has recently instructed operators to cease this practise. They have also claimed for a debt recovery process for some reason. The alleged loss also includes staff and admin costs which are day-to-day operational costs which the operator would have incurred regardless of the parking "event" and which the operator doubtless offsets against tax. There is no Genuine Pre-estimated of Loss full breakdown to how they have come up with £123.82, as business costs are not losses and therefore should not be passed down to the motorist. Nowhere have they stated a value of how much they propose that the driver failed to pay for the time they claim they were at the car park. This would surely be the actual “loss”.

A parking charge cannot be used to manufacture a loss where none existed, and yet this is exactly what Excel has attempted. It is circular, it is specious, and it most certainly isn't genuine.
I contend that the calculation must fail as a GPEOL since it is not a PRE-estimate. In fact is a 'post-estimate' after the event, of figures designed to match the charge (and even then it fails as they have included their usual £5 DVLA fee that never occurred). Indeed, in the 2014 POPLA Annual Report prepared by the Lead Adjudicator, Mr Greenslade, he 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."

To rebut their sentence: “1. We have calculated this sum as a genuine pre-estimate of our losses as we incur significant costs in ensuring compliance to the stated terms & conditions and to follow up on any breaches of these identified. The parking charge in this instance was established after consideration of the costs which may be incurred as a result of a breach in the operator’s terms and conditions; a breakdown of these costs are listed on page 2 of this statement. “

This shows an unreasonable approach to arriving at a 'pre-estimate of loss' as it is far too wide a pool of information to create a single fixed charge.

EP have contradicted their own argument because in the GPEOL statement they say 'the amount of the PCN...is therefore not a 'penalty' .

Many of these 'costs' are the tax-deductible costs of running any business. POPLA Assessor Chris Adamson has 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 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. 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).

Signage

No image had been submitted for a like for like image as to the time the PCN was issued. It was not made clear that there was no waiting allowed. The print was too small on the signs to allow for a contract to be made between a driver and excel. The signage which is designed to inform drivers of no stopping is entirely inadequate, in that it requires drivers to stop to be able to read safely, in my opinion is not clear.

Contract

There seems to be no unredacted contract, which could include information about 'money changing hands' in the contract, hiding information that could be relevant to the costs calculation fails to meet the strict proof of contract terms needed.

The witness statement supplied fails to show the payment that Excel receive (£30K per annum, allegedly) which could possibly (in the absence of evidence otherwise) be double-accounting with what they are trying to charge me for. Unless they explain and describe the payment they receive of £30K per annum and what that pays for - signs, cameras, maybe the wages of a ticketing attendants etc. - I suggest that Excel are unable to demonstrate that I am liable for the costs listed.

Summary of evidence

•The signage was inadequate as the driver was not aware of the full nature of the contract being offered.

•Having a large quantity of something is no proof of its quality.

•At first appearance it appears as an official penalty notice, designed to scare the individual into paying an unrealistic charge. After re-reading it, it does appear to be an invoice to me.

•No actual proof of accuracy in this case.

•Full contract has not been supplied for inspection.

•A parking charge cannot be used to manufacture a loss where none existed, and yet this is exactly what Excel has attempted. It is circular, it is specious, and it most certainly isn't genuine.

•A parking charge cannot be used to manufacture a loss where none existed, and yet this is exactly what Excel has attempted. It is circular, it is specious, and it most certainly isn't genuine. What losses were actually caused at this time is not stated in real terms.

•I think anyone who was asked would conclude that the charge is not a true reflection of any loss incurred by Excel.

•The signage which is designed to inform drivers of no stopping is entirely inadequate, in that it requires drivers to stop to be able to read safely, and in my opinion is not clear. A parking charge cannot be used to manufacture a loss where none existed, and yet this is exactly what Excel has attempted. It is circular, it is specious, and it most certainly isn't genuine. I would also need evidence that this was actually calculated in advance of the PCN being


issued.
Yours,

Coupon-mad

You have repeated yourself here:

•A parking charge cannot be used to manufacture a loss where none existed, and yet this is exactly what Excel has attempted. It is circular, it is specious, and it most certainly isn't genuine.

•A parking charge cannot be used to manufacture a loss where none existed, and yet this is exactly what Excel has attempted. It is circular, it is specious, and it most certainly isn't genuine. What losses were actually caused at this time is not stated in real terms.

...but apart from that I wold send it off by email to POPLA as you will win anyway - their evidence is too shaky and you have drawn attention to the main points.

Bender000

OK, many thanks. Tried to submit via popla website via "upload evidence" page but it keeps saying "Verification number invalid - please re-enter the code. If it is not recognised please contact the operator who issued you with the verification code." So have emailed it to POPLA Administrative Team [EMAIL="Teamenquiries@popla.org.uk"]enquiries@popla.org.uk[/EMAIL].

Bender000

Thanks to all the people on this forum:

The Operator issued parking charge notice number XXX arising out of the presence at Peel Centre, Stockport, on XX June 2014, of a vehicle with registration mark XXXXXXXXX.

The Appellant appealed against liability for the parking charge.

The Assessor has considered the evidence of both parties and has determined that the appeal be allowed.

The Assessor’s reasons are as set out.

The Operator should now cancel the parking charge notice forthwith.

Reasons for the Assessor’s Determination

It is the Operator’s case that their Terms and Conditions of parking (“the Terms”) are clearly displayed throughout the above named site. They submit that the Appellant breached the Terms by failing to display a valid pay and display ticket and is therefore liable to pay the parking charge issued.

The Appellant raises several grounds of appeal but it is only necessary for the purposes of this appeal to deal with one of those grounds. This is the submission that the parking charge does not reflect a genuine pre-estimate of loss.

The Operator submits that the charge does in fact represent a genuine pre-estimate of loss. However, I reject this submission for the following reasons;

i) A pre-estimate of loss should only include losses which the Operator reasonably expects to incur as a result of the particular breach the Appellant is alleged to have committed;

ii) The costs for the ‘2nd Stage Process’ are not properly included in the pre-estimate because appellants are only entitled to make representation to the Operator once and so the Operator cannot submit that they expect to incur costs for responding to ‘further representations’. These costs would not naturally flow from the alleged breach and so I must disregard the total of £32.92 from the total;

iii) The costs for the ‘debt recovery process’ are also not properly included in this case. It is not the case that the Operator can reasonably expect, as a matter of course, the sums due not to be paid by an Appellant. It is by no means certain, or even inherently likely, that the debt recovery action suggested by the Operator in its pre-estimate will be necessary. Therefore, I must disregard the total of £14.94 from the pre-estimate.

iv) The total pre-estimate, after the above deductions, amounts to
£75.96. I do not find that this amount substantially reflects the parking charge amount of £100.

Therefore, I find the charge to be a penalty and unenforceable.

Accordingly, I allow the appeal.

Ricky Powell

Assessor

suckernomore

I had a PCN from Excel Parking for 30 minutes on a Sunday at the Peel Centre, when I honestly did not know that I should be paying parking. I appealed with email pretty much identical to #9 on this thread (and ignored the immediate threatening autoreply). This morning I have had a letter from Excel advising the notice is cancelled and records now closed. It looks like they are not even bothering taking these challenges to further appeal any more!
I just wanted to say thanks to everyone who has contributed to this thread and helped my case - not only have I a bit more money in my pocket, but have the satisfaction of justice (to some small extent) done.

ampersand

Welcome to mse - good to read this as a 1st post, but do make it a separate thread:-)

It may generate discussion, attract 'me,too's, if yours indicates a jolly new trend.

Redx

which is strange if this was in 2015 and not 2014 as they are in the IPC now so the details in this thread would not apply

if it was an old 2014 charge then they couldnt be bothered taking it to popla