My apologies for another pcn at peel centre.

Redx

I would not admit to anything at all on there, there are already court cases in progress

less is more , like a no comment interview , plus popla wont give a monkeys

make them justify the gpeol,then rebut it just before the decision

Stills

Thanks redx. Your insight is extremely valuable and makes perfect sense. The less is more, is definitely the way to go in this situation.

I'll get together an adapted template for my appeal and put it up for a final check before I send it off to popla. Thank you very much.

Stills

So basically I have changed the pcn charge fee and removed the paragraph involving nandos:


Dear POPLA adjudicator,

I am writing to appeal against a parking charge levied by Excel Parking Services Ltd on 03/08/2014 against vehicle registration XXXXXXX. I am the registered keeper of the vehicle concerned.

The grounds for my appeal are as follows :

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 GPEOL calculation. 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 likely loss resulting from all breaches of the alleged parking contract. 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 automated process (camera takes photos>PCN triggered automatically, 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 the figure of £100 is in fact a penalty and cannot therefore be a genuine pre-estimate of loss because Excel cannot justify £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 Peel centre an annual sum to cover the signs, ticketing and ANPR 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 Peel 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 can they argue long after the event of deciding these charges years ago, that suddenly the £100 is not a GPEOL after all, it is instead a 'commercially justified penalty' (jumping on the ParkingEye v Beavis bandwagon).

POPLA Assessor Chris Adamson has stated in June 2014 upon seeing a loss statement re-written again recently for Excel and sister company VCS - 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 in 2014 changed their 'GPEOL calculations' from the version presented to the POPLA Assessor in the multiple times the notorious Peel Centre has cropped up at POPLA, then I contend that the calculation must fail as it is not a genuine PRE-estimate. A re-written calculation after the charges were set at this site, would be a 'post-estimate' after the event, showing figures conveniently calculated to match the charge. Indeed, in the 2014 Annual Report prepared by the lead assessor, Mr Greenslade, he stated this sort of calculation is not acceptable: “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 assignment of rights to enforce this charge in the courts

Excel have no proprietary interest in the land concerned and have not responded to a request for a copy of the contract with the landowner in which authority to pursue outstanding parking charges is granted, as required by the BPA Code of Practice, Section 7. In particular, the issue of the requirement set out in section 7.2 paragraph (f) : “whether or not the landowner authorises you to take legal action to recover charges from drives charged for unauthorised parking” has not been addressed. In the absence of this evidence, I believe that Excel do not have the legal capacity to enforce such a charge.

I require the unredacted landowner contract including any payments made between the parties, names & dates & details of all terms included. I say Excel are merely an employed site agent and this is nothing more than a commercial agreement between the two parties. There is nothing that could enable Excel to impact upon visiting drivers in their own right for their own profit, because they are agents acting on behalf of a named principal. For the avoidance of doubt, I will not accept a mere “witness statement” since a mere letter would fail to show any payments made between the parties, and would omit contraventions and restrictions and dates & details of all terms in the actual contract.

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

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.'

5) Unclear Signage

Due to their high position, poor colours, distracting pictograms and the barely legible size of the small print, the signs in this car park are very hard to read and understand, especially after hours/after dark. At no point was the driver sufficiently informed by any signs that they had entered a pay and display car park.

The signs and any core parking terms Excel are relying upon were too small for any driver to see, read or understand when manoeuvring into the car park. I request that POPLA should check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs and machines in that car park (wording, position, clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011



Yours Faithfully,

My Name

Coupon-mad

Remove your name from the above post! And the charge should be shown as £100 not the discount BRIBE of £60. You have mentioned '£60' about four times so change them all.

One thing though, but I don't know if it makes any difference, on my original pcn, it only included my full name, however on my rejection letter, they address me as Ms... I am not a woman!

Does this make any difference at all?

Nope.

Where is the 'unclear signs' paragraph which goes into EVERY POPLA appeal?! No you don't have to check; yes we know they have signs up! ALWAYS say the signs were unclear/ not seen.

Redx

wot she said ^^^^^^^^^^^^^^^^^^^^ lol

even your first post names the actual figure at £100 (discounted to £60 for an "early-bird" payment (bribe) )

and as stated above, you ALWAYS dispute signage, even though its been changed many times , making them have to prove its within the BPA CoP and legible and readable by all in all parts of the car park ! , so it should feature in EVERY popla appeal no matter who-where-what-why

I accept that the template popla appeal does not include an actual paragraph but the bold type at the top of it does suggest adding a signage paragraph and should be followed regardless due to the fact that the signage is poor in the various food areas of that car park, never mind that it may not comply with the BPA CoP, so make them prove it by implying its not as it should be (use another template for wording) - people have to learn to use those appeal templates as a basis for their appeal, not a catch all fully worded appeal

nb:- note that the initial template letter DOES include signage as a 3 point appeal and therefore all 3 should ALWAYS form a part of a popla appeal too (see C below)

A = not a gpeol etc

B = no contract

C = Signage

A) The amount is neither a genuine tariff/fee for parking, nor is it based upon any genuine pre-estimate of loss to your company or the landowner.
You are not the landowner and do not have the standing to offer contracts to drivers nor to bring a claim in your own right.


C) Your signage was not sufficiently prominent nor clearly worded and consideration did not flow from both parties, so there was no contract formed. This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not your customers and are not parties of equal bargaining power. Therefore ALL terms are required to be so prominent and the risk of a charge so transparent that the information in its entirety must have been seen/accepted by the driver. No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal): 'The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.'

and no they could have called you mickey mouse or minnie mouse and it would not matter a jot, its the invoice pcn for the vehicle with the VRN that matters and they would not care if Ms Sherlock Holmes was liable and paid it as long as it was paid

Stills

So I have edited the appeal again and included the 5th point about unclear signage as advised. Do I need to include any reference numbers in the appeal or is it ok now as it is? Thank you for your time reading and helping me.

Dee140157

It's good to go now, so send and get await evidence pack, which will need a rebuttal as the final step towards success.

Redx

you would have to add reference numbers and personal details in your actual final draft for popla yes

but you still dont seem to have got the hang of this as you have done a copy and paste and not actually read it, sorry to be pedantic about his but will have to be for clarity

I showed you the wording of the template appeal, the one that goes to EXCEL who are the PPC

you have copied it verbatim

ie: YOUR SIGNAGE blah blah

this is your POPLA appeal and popla do not have signage

you should have looked at similar popla appeals with signage paragraphs and copied, pasted and adapted it , whereas you are just blindly copying and pasting without any regard to the content at all

ie:- you would not use an appeal point to the PPC copied verbatim as the wording is all wrong for POPLA

I suggest you find a correct signage TO POPLA paragraph and adapt it and re-edit point 5) , only then will it be ready for popla, but please PROOF READ what you are copying and ensure it is worded correctly

this is not just a copy and paste excercise, although it is made a lot easier from examples you can plagiarise

sorry Dee, ITS NOT good to go, yet, see above

Stills

Sorry, I have just read it again and you're right. I admit I hastedly copied and pasted without reading it properly. Will do it properly now.


I believe it is finally ready now but please spare one more minute for another final checkover.

Redx

ok, that looks ok to me now

sorry to be pedantic on the signage issue, but there are court cases going through at the moment over NTK issues and signage issues

see here https://forums.moneysavingexpert.com/discussion/5041004

hence better to be safe than sorry

ps:- here is one Dee recommended that could be amended from PE to Excel and adapted

https://forums.moneysavingexpert.com/discussion/5002160

or post #25 in this VCS one

https://forums.moneysavingexpert.com/discussion/5035853

who are a sister company to Excel, so you change VCS to Excel and adapt it accordingly

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not sure how or why the signage point has been lost on these Peel centre ones but hopefully you are now sorted out