1st time Excel victim

Howard_Ino

They have sent the 614 version, ANPR GPEOL and within this they quote


Filmcilik-v-UIP


ParkingEye-v-BeavisWardley


McAlpine-v-Tilebox

“Furthermore, in processing of the detected contraventions there is currently a team of eight members of staff responsible for reviewing and processing all images from the Camera Enforcement system for this site and others, in order to ensure the quality of the images and determining that the evidence collected by the system constitutes a breach. Therefore, within the cost of the estimate we apportion an appropriate level for the staff time required to carry out these reviews, to each PCN. Again it must be clearly stated that these charges are directly attributable to each and every PCN and would not be incurred if it was not that a breach had occurred. It is reasonable to state that because we know and expect that breaches will and do occur that we have to provide sufficient resource to handle and manage these expected breaches.”

So is this the one I need?

In rebuttal to Excel Parking

1) There is no Genuine Pre-estimated of Loss breakdown to how they have come up with £100, as business costs are not losses and therefore should not be passed down to the motorist.

2) They have stated in their evidence that we are at the 4th appeal stage, when in fact we are still at the 1st appeal stage.

3) I strongly believe Excel are paid an annual sum for their 'service' like having the machines, signage, etc at that car park. If they have included those same business costs again in the 'GPEOL' calculation, the Peel Centre already covers that cost as far as i can ascertain.

4) 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.

5) In the case of Dunlop Pneumatic Tyre Co.

Lord Dunedin said that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach.''...''it is a penalty when a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

6) In the case of Clydebank Engineering and Talal el Makdessi, McAlpine and Filmcilik

These are commercial cases between two large companies of equal bargaining power whereas I am a consumer & no contract was ever negotiated with me. Consumer law prevails; there can be no 'commercial justification'.

7) Parking Eye v Beavis & Wardley

This is a County Court case, considered flawed. HHJ Moloney went out on a limb and expects the case to go to the Court of Appeal. The charge WAS found to be a penalty which is wholly unsupported by any case law. Not a persuasive nor binding argument, especially whilst still within the appeal window.

trisontana

Complete hogwash. If they don't want to pay those staff wages, they should not have set up the company in the first place. Once again they can't get it into their thick scull that there is a difference between day-to-day operating costs and a loss caused by a particular parking "incident" . We know that and so does POPLA. It's only Excl who don't get the message.

Here's an example:- Suppose somebody heaves a brick through my window and I sue that person for the damage caused. I can claim for replacing the window and any damage caused by the flying glass. What I can't claim is for the day-to-day running expenses for my house, such as energy bills and council tax. I can't see any difference between that and Excel's case.

Redx

some excel/vcs rebuttals in this recent win

https://forums.moneysavingexpert.com/discussion/5027585

but not hard to find using the search box as well

Howard_Ino

Thanks for the help, I used the search but couldnt find rebuttals to all their claims, just for the gPEOL and Parkingeye vs Beavis Wardley so I thought they were trying a new angle.

Howard_Ino

Can someone check this for me please...



My rebuttal to Excel is :-

1. Excel have failed to produce a genuine pre estimate of 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.
To rebut their sentence: “We calculate this pre-estimate of loss on the basis of a charge applicable in all instances of this nature, calculated from the costs incurred by us on an annual basis in dealing with material breaches of the parking terms and conditions we impose at this car park and others.”

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.
Excels’s quote of Parking Eye v Beavis & Wardley

This is a County Court case, considered flawed. HHJ Moloney went out on a limb and expects the case to go to the Court of Appeal. The charge WAS found to be a penalty which is wholly unsupported by any case law. Not a persuasive nor binding argument, especially whilst still within the appeal window.
'a penalty is also permitted under Contract Law'

Not in Consumer law, and specifically not when the predominant aim of a charge is as a deterrent, which is one of the main reasons why the First National Bank decision differs.

Also Excel have contradicted their own argument because in the GPEOL statement they say 'the amount of the PCN...cannot therefore be construed in this context as a 'penalty'

Many of these 'costs' are the tax-deductible costs of running any business. Other costs such as handling 'further stage appeals', debt collection preparation and POPLA, rarely occur. POPLA 'costs' cannot be passed onto the motorist, not even via backdoor accounting methods, and is especially unreasonable since only 1 - 2% of cases ever go to POPLA - a figure which Excel is well aware has remained fairly constant.
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 #3

2. Excel failed to address the question regarding the Pay & Display, Excel originally claimed that the alleged contravention was ‘parked longer than permitted’ but their subsequent rejection to my appeal claimed that the driver had not paid and displayed so I am still unsure as to the nature of their claim.
3. Excel failed to provide a relevant contract of land owner, therefore they have failed to show their standing to bring a claim, subsequently I dispute their claim that they are in any position to bring a claim against either me or the driver. I strongly believe Excel are paid an annual sum for their 'service' like having the machines, signage, etc at that car park. If they have included those same business costs again in the 'GPEOL' calculation, Iceland already covers that cost as far as i can ascertain.
In the case of Filmcilik-v-UIP and McAlpine-v-Tilebox, these are commercial cases between two large companies of equal bargaining power whereas I am a consumer & no contract was ever negotiated with me. Consumer law prevails; there can be no 'commercial justification'.

4. Their pictures in fact demonstrate that Excel are not up to date with their information as the signs at the site have obviously been changed since these pictures were taken. The writing on the sign in their picture is far too small to read when entering the car park from a busy main road whilst crossing a footpath. The current signage simply states “please refer to full terms and condition signs located around the car park”, the sign also states “24 Hour Car Park”, but makes no mention of a time limit, so clearly no contract was formed. I have included a photograph of the actual sign in the car park which as you can see looks nothing like their photograph.
Based on all the points in my appeal and Excel’s evidence which I have rebutted, I respectively ask for my appeal to upheld.

Yours
RK

Howard_Ino

Is my rebuttal ok?


Do I submit this the same way as I submitted the original popla appeal?

Coupon-mad

Send it by email with your name & the POPLA code in the subject line and 'urgent additional information - please pass to Assessor before decision'.

Your rebuttal is fine. Tell us when you win!

Howard_Ino

Thank you very very much Coupon-mad, truly you are a star.

I have already sent the rebuttal using the console on the popla site, I also sent a photo of the real sign on the site which is very different from the one the have pictures of, a confirmation came back saying thank you for your enquiry we will try and get back to you within 5 days, I think the appeal will be heard on or just after the 24th so fingers crossed.

I'm looking forward to coming back and confirming its been upheld.

Howard_Ino

Its me again, I had the popla decision today, and guess what?

WE WON!!!

I will post up the decision over the weekend.

Thanks again Coupon-Mad and everyone else who commented and helped put these cowboys in their place.

Coupon-mad

Course you did! Well done!