POPLA Draft - Peel Centre - Newbie Thread Read!

Redx

sparkyfrodo wrote: »

Awesome, thanks. I think we're nearly there.

Dee140157 - where can I get the name of the POPLA officer that made that decision to include?

its in the popla decisions thread, a few days ago

or use the search box and demonstrably clear

sparkyfrodo

Doh - thanks. Got it - Ricky Powell.

Added the paragraph from Ricky to the end of point 1, GPEOL.

Chopped out the part specifically about the importance of ANPR in my case (as I left within the times anyway), but left the rest of the ANPR section in. Also changed the wording on a few other bits.

Final draft, please reassure me that the adapted template nature won't count against me (!):
________________________________________

Dear POPLA adjudicator,

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

The grounds for my appeal are as follows:

1. No genuine pre-estimate of loss/no initial loss
2. No standing or assignment of rights to enforce this charge in the courts
3. ANPR - Inaccuracy and Non-compliance, including lack of ANPR data usage signs
4. Unfair terms


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 intervention on the part of back-office staff. I fully contend that £100 is in fact a penalty, and cannot be presented as a genuine pre-estimate of loss as 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 driver 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' (as stated in the ParkingEye v Beavis case).

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 Peel Centre has cropped up at POPLA, then I would attest that the calculation is completely fabricated and 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."

Furthermore, a POPLA Assessor Ricky Powell stated in a recent decision:

“For such losses to be recoverable, the must Operator show an initial loss which needed to be pursued. This is simple where there was, for example, a failure to pay a tariff to park. However, in cases such as the present one an initial loss is not demonstrably clear and the Operator must set it out in their pre-estimate of loss. Without an initial loss, the costs incurred by the issue of the parking charge notice cannot be considered to have been caused by the driver’s contravention of the Terms of parking. This is because the Operator would have been in the same position had the parking charge not been issued.”

In this instance, the driver paid for and displayed a ticket (attached to this document) that was valid for a time period significantly beyond the amount of time actually spent in the car park. Therefore, there was no initial loss on the part of Excel Parking Services, and any demand for payment is entirely unjustified.

2) No standing or assignment of rights to enforce this charge in the courts

Excel have a burden to prove proprietary interest in the land concerned, and therefore a right to pursue outstanding parking charges on behalf of the landowner, as required by the BPA Code of Practice, Section 7.

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.

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 did actually purchase a ticket and display it for the relevant parking period. The charge of £100 imposed by Excel constitutes an unfair term as it is disproportionate with respect to the alleged infringement.

Yours faithfully,

Coupon-mad

That will do a job on them!

sparkyfrodo

Hi,

Just an update on this - I've received a tome of evidence from Excel Parking, and it's quite ridiculous how much they put into it.

I'm completely baffled by the work they've put in, all for someone who paid for a ticket that didn't have the right registration on it. People are dying all over the world, and someone is actually paid to sit at a desk, put all of this together, to chase me for £100, for a ticket I paid for.

If anyone is interested in asking about any of the specific points of the evidence, please drop me a PM.

Will post in the appropriate thread when I get the result!

Guys_Dad

sparkyfrodo wrote: »

Hi,

I'm completely baffled by the work they've put in, all for someone who paid for a ticket that didn't have the right registration on it. People are dying all over the world, and someone is actually paid to sit at a desk, put all of this together, to chase me for £100, for a ticket I paid for.

PPCs are great supporters of the "Feed the World" campaign so would refute the point you are making.

Unfortunately, they start and end with their own snouts in the trough!!

Dee140157

There are lots of examples of evidence rebuttalsfor excel on this site. Search and use to send in your own rebuttal of the evidence to POPLA - entitled evidence rebuttal.

EnigmaPart1

Dee140157 wrote: »

There are lots of examples of evidence rebuttalsfor excel on this site. Search and use to send in your own rebuttal of the evidence to POPLA - entitled evidence rebuttal.

Unfortunately Excel have produced a new one (version 2)

So no the is no point search around the forum because you would be wasting your time as this is a brand new document

I would suggest you collate the loss documents tonight and then go from there.....

4consumerrights

EnigmaPart1 wrote: »

Unfortunately Excel have produced a new one (version 2)

So no the is no point search around the forum because you would be wasting your time as this is a brand new document

I would suggest you collate the loss documents tonight and then go from there.....

*There* is a point to compare and contrast the alleged losses.....

You need to rebut every point you can too.

Bet they have not supplied the full un-redacted contract.

The Peel Centre does have a couple of surprises to it.

hoohoo

sparkyfrodo wrote: »

Hi,

Just an update on this - I've received a tome of evidence from Excel Parking, and it's quite ridiculous how much they put into it.

I'm completely baffled by the work they've put in, all for someone who paid for a ticket that didn't have the right registration on it. People are dying all over the world, and someone is actually paid to sit at a desk, put all of this together, to chase me for £100, for a ticket I paid for.

If anyone is interested in asking about any of the specific points of the evidence, please drop me a PM.

Will post in the appropriate thread when I get the result!

Check the prankster blog. If your parking charge was issued for 'non display of ticket' include the picture of signage which indicates this is not an event for which a parking charge can be issued.

http://parking-prankster.blogspot.co.uk/2014/10/excel-parking-pay-for-failing-to-inform.html

sparkyfrodo

Wait, I have to try and REBUT their evidence too? I was hoping this ridiculous process was over :-(.

@guysdad It makes me really, really angry that things have gone this far and that common sense can't prevail. SO much time wasted that could have been put to much better use elsewhere.

@hoohoo Mine is for "Not purchasing a VALID pay and display ticket", which (according to their terms and conditions), it wasn't, as I didn't put the correct registration number in.

@4consumerrights No, they haven't supplied the full contract, just a Witness Statement.