Excel parking - popla

kittyboo18

Hello

I have just received a reply from excel regarding my appeal - they have decided that I still owe them.

Could so someone please point me in the right direction. I used the generic template from mse for my appeal.

I had bought a ticket and still have it - I didn't display it correctly, must have blown off my dash when I shut the door.

Any help would be appreciated - thank you x

pogofish

Did you use the template from the Newbies Sticky? If not, get into that thread and read-up on what you need to do now.

kittyboo18

Yes I used the template from here.

They must be used to getting them as they made comment to the fact they knew I had found the information on a forum.

Thank you

Coupon-mad

Not sure what more help you need? If you have seen the Newbies thread this is obvious and easy, all downhill now. Just go back to the Newbies thread and adapt/tweak to suit, the Excel version shown as an example in the hyperlink 'How to win at POPLA'. Why not search the forum for 'Excel' as well, to read other recent threads which have already won at POPLA every time.

Dee140157

Just to clarify , you need to read further down the newbie thread and focus no on post 3. Use the hyperlink C-M says and you will find lots of examples to help you.

kittyboo18

Incorrect information

Coupon-mad

Confusing - you have pasted two appeals there and I don't recognise either of them as the 'Excel version' of a POPLA appeal, usually used for P&D car parks such as the Peel Centre. I am sure the one in the newbies thread post #3 under the Hyperlink 'How to win at POPLA' mentions the fact Excel are PAID by their clients...

The first effort you pasted is an old one and you've put 2013 as the date of appeal instead of 2014 (but don't adapt it - that's not the template you should be using). We told you exactly where it is!

The second one - surely you noticed it's about a different PPC called UKCPS? Too much of it is specific to UKCPS (words like 'elapsed').

kittyboo18

Dear POPLA

I am writing to appeal against a parking charge levied by Excel Parking Services Ltd. I am the registered keeper of the vehicle concerned and this is my appeal, based on four points:

1) No genuine pre-estimate of loss
The charge of £100 is punitive and unreasonable. Excel must explain their 'charge' by providing POPLA with a GPEOL calculation, not including their operational tax-deductible business running costs - for example, costs of signage, convoluted layers of staff checks including time on appeals that never happen in most cases, or hefty write-off costs and unsubstantiated 'overheads'. 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 Excel cannot justify £100 for each and every PCN that they say flows directly from a typical parking event in breach.


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 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) The signage was inadequate so there was no valid contract formed
A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms before parking. Nothing about Excel's onerous terms was sufficiently prominent - I believe 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.

The signs in this car park are sparse and unclear. The signs are angled away from the entrance as the cars turn in, to the extent that they are incapable of forming a contract even if the driver had seen and agreed to the terms. It is not easy to know for sure, when parking here, what the parking terms are unless you happen to park near a P&D machine or adjacent to a parking terms sign in this large car park.

BPA code 18.1 “You must use signs to make it easy...to find out what your terms and conditions are.” BPA code 18.2 states “Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this.”

BPA code 18.3 states “Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”

Any photos supplied by Excel to POPLA will no doubt show the signs present on site and in daylight or with the misleading aid of a camera with zoom or a 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 their response and to show contemporaneous wider view photo evidence of these signs in context in the car park.

Unreadable signage breaches Appendix B of the BPA CoP which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. This would include the signs being lit/reflective and repeated throughout the car park, with consistency of restrictions throughout, something this car park does not have.


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 if the occupants were in either of the restaurants where there is free parking. Excel show no evidence either way, merely photos of the first arrival and last departure in moving traffic, with no indication where the car was in between. The charge of £100 imposed by Excel constitutes an unfair term as it is disproportionate with respect to the alleged infringement.

Dee140157

You have chosen the good appeal for the Peel Centre at Excel, but makes sure you have edited it so you are not referring to this car park re signage etc as of course your car park will be different.

So in the first section, I would edit the last paragraph relating to the Peel centre to make it more generic.

kittyboo18

Thank you I will amend that part before I send. Does everything else look ok?

Dee140157

I have just re read my own post and think it could be misconstrued. Leave signage point in, but make sure it fits your car park. Apart from that and other advice it will be good to go.