1st time Excel victim

Howard_Ino

I got one of these tickets from Excel saying I overstayed a 2 hour limit by 30 minutes, I have appealed but they turned it down and gave me a popla code, would someone please check my popla appeal is ok as Im new at this. Its coupon mads appeal from the sticky but have altered it slightly to suit me.




Dear POPLA adjudicator,

I am writing to appeal against a parking charge levied by Excel Parking Services Ltd on 04/07/2014. I am the registered keeper of the vehicle concerned.

The grounds for my appeal are as follows :

• No genuine pre-estimate of loss
• No standing or authority to pursue charges nor form contracts with drivers
• ANPR - Inaccuracy and Non-compliance, including lack of ANPR data usage signs so there was no valid contract formed
• The terms of the car park are unfair
• There is a lack of signage

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 did not believe their charge to be a genuine pre-estimate of loss, Excel replied stating that the charge is in line with BPA code of practise 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 standing or authority to pursue charges nor form contracts with drivers

I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Excel must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. This has not been produced by the operator in their rejection statement so I have no proof that such a document is in existence. I contend that Excel merely hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice.

I therefore put Excel to strict proof to provide POPLA and myself with an unreacted, contemporaneous copy of the contract between Excel and the landowner. This is required so that POPLA and myself can check that it allows this Operator to make contracts with drivers themselves and provides them with full authority to pursue charges, including a right to pursue them in court in their own name. Please note that a witness statement to the effect that a contract is in place will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.).




3) ANPR - Inaccuracy and Non-compliance, including lack of ANPR data usage signs




The operator claims the vehicle registration was not entered into the pay and display ticket machine, I assert that this is not the case and therefore I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times.

In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:
''21 Automatic number plate recognition (ANPR)
21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''

No signs at the car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here. Unless the Operator can show documentary evidence otherwise, then this BPA Cop breach would also point to a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary with records and photos.




4) 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 as the driver left the site. The charge of £100 imposed by Excel constitutes an unfair term as it is disproportionate with respect to the alleged infringement.








5. Lack of signage

There is categorically no contract between the driver and Excel. The sign at the entrance to the car park merely refers the driver to “please refer to the full terms and conditions located around the car park”. No other signs were seen.
I require Excel to provide POPLA with evidence that its signage is compliant with BPA rules upon both entry and where the car in question was parked.


Yours

Coupon-mad

Point #5 is far more important than point#4 that could be dropped altogether as it never is the winning point.

And the first point needs to have the commercial justification rebuttal and the words of the Senior Assessor Christopher Adamson which you will find in other examples like here:

https://forums.moneysavingexpert.com/discussion/comment/66221675#Comment_66221675

...which also has more in the 'lack of signage' (no contract with driver) point.

Also you've said they are alleging an overstay on a 2hr limit but here you've said something different:

The operator claims the vehicle registration was not entered into the pay and display ticket machine (?) which is right?

Howard_Ino

Thank you for your comments, should I completly swap my point #1 for the one in the link you gave or just add to it?
In all honesty I cannot remember getting a ticket fromt the machine, but I would not intentionally not pay for parking.

Umkomaas

Howard_Ino wrote: »

Thank you for your comments, should I completly swap my point #1 for the one in the link you gave or just add to it?
In all honesty I cannot remember getting a ticket fromt the machine, but I would not intentionally not pay for parking.

Add to it, not instead.

Coupon-mad

Also make sure you do beef up the unclear signage paragraph to make it clear there's no contract capable of being formed with the driver due to the unclear/lack of signs.

Howard_Ino wrote: »

Thank you for your comments, should I completly swap my point #1 for the one in the link you gave or just add to it?
In all honesty I cannot remember getting a ticket fromt the machine, but I would not intentionally not pay for parking.

Was it pay and display (not a free car park?). If so then you can add another point that:

No keeper liability - omissions in the Notice to Keeper
The Notice to Keeper only states the punitive £100 'charge' and fails to state the 'sum of the parking fee' which remains unpaid in whole or in part. Nor does the NTK set out the circumstances which arose which allegedly caused a punitive 'parking charge' to become due. As keeper reading the NTK and knowing that no authorised driver of my car would knowingly not pay a normal parking fee, I have no idea whether the driver is alleged to have overstayed paid-for time, or put the car registration in wrongly but still paid in full, or not displayed the P&D ticket, or paid too little in the way of tariff. I cannot be expected to guess the nature of the allegation and the law agrees because such omissions fail to meet the requirements set out in paragraph 9 of Schedule 4 of the POFA 2012. POPLA Assessor Matthew Shaw has previously stated that a compliant Notice to Keeper is fundamental in establishing keeper liability. As such, this flawed Notice renders the charge unenforceable against a keeper and it should be cancelled.

Howard_Ino

Yes it was P&D.


They are alleging on overstay by 30 minutes but go on in their letter about my registration number not being in their P&D machine.


The NTK states the reason for the charge "parked for longer than the permitted time", an overstay.


In the appeal refusal letter they state that I "did not comply with the terms and conditions of parking by failing to purchase a valid P&D ticket. By failing to purchase a valid P&D ticket, you were in breach of the terms and conditions of parking which you agreed to adhere to upon entering the facility"


So originally they said the reason for the charge is an overstay, but the refusal letter says it’s because I didn’t buy a ticket.

Redx

in that case follow the help given by coupon-mad and treat this the same as the infamous peel centre in stockport where you will find many threads and popla appeals on here to look at, including the main one linked from the newbies thread that CM has just amended so its bang up to date

its either an overstay which you paid for the majority of , or its a no ticket at all due to total non-payment or incorrect VRN entry, it cannot be both , lol

either way, use the info provided above to make yours a winning popla appeal, usually on not a gpeol which the assessors tend to use as Excel like to claim for their BLT and teas in a morning , their dinners at lunchtime , plus the 50 car park attendants and umbrellas for when its raining (as opposed to the £2 you might owe them for the ticket machine)

good luck

Coupon-mad

Howard_Ino wrote: »

Yes it was P&D.


They are alleging on overstay by 30 minutes but go on in their letter about my registration number not being in their P&D machine.


The NTK states the reason for the charge "parked for longer than the permitted time", an overstay.


In the appeal refusal letter they state that I "did not comply with the terms and conditions of parking by failing to purchase a valid P&D ticket. By failing to purchase a valid P&D ticket, you were in breach of the terms and conditions of parking which you agreed to adhere to upon entering the facility"


So originally they said the reason for the charge is an overstay, but the refusal letter says it’s because I didn’t buy a ticket.

So point all of that out as evidence leading to an inescapable conclusion that the Notice to Keeper itself must be flawed. Adapt the wording I suggested then add in what you've said above which has created uncertainty. A legal document has to have certainty of terms which is why the POFA sets out what it must say. They can't change the details in a subsequent rejection letter - if a driver "did not comply with the terms and conditions of parking by failing to purchase a valid P&D ticket'' then that is NOT what the NTK says, is it? So it's wrong/unclear/not compliant with POFA and as such, there is no possibility of keeper liability.

Be very careful when adding wording, not to say things like you did above ' In the appeal refusal letter they state that I "did not comply ' which inadvertently says I when talking about 'the driver'...

Howard_Ino

Ive altered the appeal would you mind checking it for me please?








Dear POPLA adjudicator,

I am writing to appeal against a parking charge levied by Excel Parking Services Ltd on 04/07/2014. I am the registered keeper of the vehicle concerned.

The grounds for my appeal are as follows :

• No genuine pre-estimate of loss
• No standing or authority to pursue charges nor form contracts with drivers
• ANPR - Inaccuracy and Non-compliance, including lack of ANPR data usage signs so there was no valid contract formed
• Flawed keeper liability, erroneous ‘Notice to keeper’
• No keeper liability

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 did not believe their charge to be a genuine pre-estimate of loss, Excel replied stating that the charge is in line with BPA code of practise 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 standing or authority to pursue charges nor form contracts with drivers

I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Excel must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. This has not been produced by the operator in their rejection statement so I have no proof that such a document is in existence. I contend that Excel merely hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice.

I therefore put Excel to strict proof to provide POPLA and myself with an unreacted, contemporaneous copy of the contract between Excel and the landowner. This is required so that POPLA and myself can check that it allows this Operator to make contracts with drivers themselves and provides them with full authority to pursue charges, including a right to pursue them in court in their own name. Please note that a witness statement to the effect that a contract is in place will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.).




3) ANPR - Inaccuracy and Non-compliance, including lack of ANPR data usage signs




The operator claims the vehicle registration was not entered into the pay and display ticket machine, I assert that this is not the case and therefore I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times.

In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:
''21 Automatic number plate recognition (ANPR)
21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''

No signs at the car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here. Unless the Operator can show documentary evidence otherwise, then this BPA Cop breach would also point to a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary with records and photos.







4. Flawed keeper liability, erroneous ‘Notice to keeper’





I received a notice to keeper dated 14th July 2014 for an alleged breach of the terms and conditions of an Iceland car parked managed by Excel, the notice clearly states that the reason for the charge is “parked for longer than the maximum period permitted”. I went on to appeal this charge and was sent a refusal by Excel dated 5th August 2014, in this refusal the reason for the charge is “failing to purchase a valid pay and display ticket”. This leads me to the inescapable conclusion the original notice to keeper is flawed as I am uncertain as to why Excel have issued this charge. A legal document has to have certainty of terms and the POFA sets out what it must say, Excel cannot change the details in a subsequent rejection letter.













4. Lack of signage

There is categorically no contract between the driver and Excel. The sign at the entrance to the car park merely refers the driver to “please refer to the full terms and conditions located around the car park”. No other signs were seen. 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. 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 whilst crossing a footpath. 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.


I require Excel to provide POPLA with evidence that its signage is compliant with BPA rules upon both entry and where the car in question was parked.





5. No keeper liability - omissions in the Notice to Keeper



The Notice to Keeper only states the punitive £100 'charge' and fails to state the 'sum of the parking fee' which remains unpaid in whole or in part. Nor does the NTK set out the circumstances which arose which allegedly caused a punitive 'parking charge' to become due. As keeper reading the NTK and knowing that no authorised driver of my car would knowingly not pay a normal parking fee, I have no idea whether the driver is alleged to have overstayed paid-for time, or put the car registration in wrongly but still paid in full, or not displayed the P&D ticket, or paid too little in the way of tariff. I cannot be expected to guess the nature of the allegation and the law agrees because such omissions fail to meet the requirements set out in paragraph 9 of Schedule 4 of the POFA 2012. POPLA Assessor Matthew Shaw has previously stated that a compliant Notice to Keeper is fundamental in establishing keeper liability. As such, this flawed Notice renders the charge unenforceable against a keeper and it should be cancelled.





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





yours,

Coupon-mad

Your numbers at the top don't match up with the details below - point 4 and 6 should be one point.

Also you've missed the fact that in reply #2 I said ''the first point needs to have the commercial justification rebuttal and the words of the Senior Assessor Christopher Adamson''.

Have a look at the point #1 in this version about VCS - which is owned by the same person as Excel - so similar GPEOL statements are used by both:

https://forums.moneysavingexpert.com/discussion/comment/66245745#Comment_66245745

Copy that version of point #1 - ONLY from where it says 'POPLA Assessor Chris Adamson has stated...' (NOT the words above that) right through to the end of point #1, even though it's long. And change 'VCS' to 'Excel' of course. Add it to the 2 paragraphs you already have under your existing point #1 (don't delete your words).

Howard_Ino

Thanks coupon mad, Im not as good at this as you but am determined not to have to pay them, hows this version?












Dear POPLA adjudicator,

I am writing to appeal against a parking charge levied by Excel Parking Services Ltd on 04/07/2014. I am the registered keeper of the vehicle concerned.

The grounds for my appeal are as follows :

• No genuine pre-estimate of loss
• No standing or authority to pursue charges nor form contracts with drivers
• ANPR - Inaccuracy and Non-compliance, including lack of ANPR data usage signs so there was no valid contract formed
• Flawed keeper liability, erroneous ‘Notice to keeper’
• Lack of signage

• 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 did not believe their charge to be a genuine pre-estimate of loss, Excel replied stating that the charge is in line with BPA code of practise 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.
  
  POPLA Assessor Chris Adamson has stated in June 2014 upon seeing Excels latest effort at a loss statement - their latest attempt to get around POPLA - that:
  
  ''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bank of Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.
  
  This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''
  
  If Excel have since changed their GPEOL calculations from the version presented to the POPLA Assessor in June, then I contend that the calculation still fails as it is not a genuine PRE-estimate and in fact is a 'post-estimate' after the event, of figures designed to match the charge. Indeed, in the 2014 Annual Report prepared by the lead assessor, 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."
  
  
  

2. No standing or authority to pursue charges nor form contracts with drivers

I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Excel must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. This has not been produced by the operator in their rejection statement so I have no proof that such a document is in existence. I contend that Excel merely hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice.

I therefore put Excel to strict proof to provide POPLA and myself with an unreacted, contemporaneous copy of the contract between Excel and the landowner. This is required so that POPLA and myself can check that it allows this Operator to make contracts with drivers themselves and provides them with full authority to pursue charges, including a right to pursue them in court in their own name. Please note that a witness statement to the effect that a contract is in place will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.).




3. ANPR - Inaccuracy and Non-compliance, including lack of ANPR data usage signs




The operator claims the vehicle registration was not entered into the pay and display ticket machine, I assert that this is not the case and therefore I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times.

In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:
''21 Automatic number plate recognition (ANPR)
21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''

No signs at the car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here. Unless the Operator can show documentary evidence otherwise, then this BPA Cop breach would also point to a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary with records and photos.




4. Flawed keeper liability, erroneous ‘Notice to keeper’


I received a notice to keeper dated 14th July 2014 for an alleged breach of the terms and conditions of an Iceland car parked managed by Excel, the notice clearly states that the reason for the charge is “parked for longer than the maximum period permitted”. I went on to appeal this charge and was sent a refusal by Excel dated 5th August 2014, in this refusal the reason for the charge is “failing to purchase a valid pay and display ticket”. This leads me to the inescapable conclusion the original notice to keeper is flawed as I am uncertain as to why Excel have issued this charge. A legal document has to have certainty of terms and the POFA sets out what it must say, Excel cannot change the details in a subsequent rejection letter.


The Notice to Keeper only states the punitive £100 'charge' and fails to state the 'sum of the parking fee' which remains unpaid in whole or in part. Nor does the NTK set out the circumstances which arose which allegedly caused a punitive 'parking charge' to become due. As keeper reading the NTK and knowing that no authorised driver of my car would knowingly not pay a normal parking fee, I have no idea whether the driver is alleged to have overstayed paid-for time, or put the car registration in wrongly but still paid in full, or not displayed the P&D ticket, or paid too little in the way of tariff. I cannot be expected to guess the nature of the allegation and the law agrees because such omissions fail to meet the requirements set out in paragraph 9 of Schedule 4 of the POFA 2012. POPLA Assessor Matthew Shaw has previously stated that a compliant Notice to Keeper is fundamental in establishing keeper liability. As such, this flawed Notice renders the charge unenforceable against a keeper and it should be cancelled.




5. Lack of signage

There is categorically no contract between the driver and Excel. The sign at the entrance to the car park merely refers the driver to “please refer to the full terms and conditions located around the car park”. No other signs were seen. 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. 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 whilst crossing a footpath. 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.


I require Excel to provide POPLA with evidence that its signage is compliant with BPA rules upon both entry and where the car in question was parked.






yours,