PCN appeal rejected and POPLA code received

devdas121

Hi

I am in a terrible situation now.

I have parked in an Iceland car park but failed to pay as I didn't have any change. I have parked the car for nearly 35 minutes and was shocked when I received the PCN from them by post.

I have checked this forum and send a standard letter as described as below,

1) The amount being claimed is nota genuine pre-estimate of loss to your company or the landowner
2) Your signage does not comply with the BPA Code of Practice
3) You are not the landowner and do not have the capacity to offer contracts orto bring a claim for trespass.

These points and others will be raised with POPLA should you not accept thisappeal, and you will be expected to provide a full breakdown of your allegedloss, and your full contract with the landowner.

If you do reject the challenge and insist on taking the matter further, I mustinform you that I may claim my expenses from you. The expenses I may claim arenot exhaustive but may include the cost of stamps, envelopes, travel expenses,legal fees, etc. By continuing to pursue me you agree to pay these costs when Iprevail.

Any communication that does not either confirm cancellation or include a POPLAverification code shall be reported to the BPA as a breach of their Code ofPractice - the BPA recently issued guidance to all members to remind them ofthis fact. Such communication may also be deemed harassment and pursuedaccordingly.----

Today, I have received a letter from them rejecting this claim and issued a POPLA code . They have explained reasons for their refusal and now, I don't know what to do.

Please someone help to get away from this difficult sitation as I don't want to go to court.

Thanks in advance.

Dev

Half_way

dont worry
take a read of the sticky thread on here.

One word of caution as this was a pay car park you will need to word your popla appeal carefully.

a few more questions: is the car park specifically for iceland?
Who is the PPC?
Does the parking company state anywhere working for/and on behalf of Iceland?

Did you shop at the iceland store in question? if so you could try a return trip and see if you can get them to cancel

devdas121

Thanks for the reply Half -way

This car park was for Iceland customers and free for 15 minutes,

The letter says that Excel parking services Ltd act on behalf of Landowners. I have shopped from Iceland but do not have the receipt or proof any transaction as I have used the cash for the purchase. Then I went to another shop which was on the main road. If I go back to the store, I don't think they can do anything to get it canceled.

Thanks

Dev

devdas121

Hi

Please can some experts in this forum help me to sort out the issue,

Thanks in advance

Dev

Umkomaas

You need to do two things.

1. Complain to Iceland, telling them of your customer record, especially if you've not got a receipt from this parking event date. Do you have any previous bank/cc statements which show your past patronage of Iceland?

2. Read post #3 of the NEWBIES FAQ sticky, especially the 'How to Win at POPLA' blue link. Pick a POPLA appeal that closely resembles your parking event (pay and display car park), amend it at the edges to more readily link to your event, then post it up here for critique.

You will not be going to court if you work with us - but you will need to do the bulk of the work on this yourself. We will advise as you go along.

So stop panicking!

devdas121

Hi

After searching through the POPLA appeal forums, I have found and made an appeal letter , please let me know about this form and advise me for any amendments. I have actually tweaked Parking Eyes sent letter even though my PCN was given by EXCEL parking.


Re: EXCELPARKING PCN, reference code xxxxxxxxxx

10/11/2014

POPLA Code: xxxxxxxx

VRN: xxxxxxx

I am the keeper of this vehicle and this is my appeal.

On the above date, the quoted Parking Charge Notice was issued quoting “Notpurchasing the appropriate parking time or by remaining at the car park forlonger than permitted”. This charge has been contested directly with EXCELPARKING and rejected with a valid POPLA code.

I contest the charge and request it is dismissed on the following grounds:

1. No genuine pre-estimate of loss

2. Lack of standing/authority from landowner to issue tickets or pursue chargesin their own name at court

3. Signage non-compliant with the BPA Code of Practice and no contract formedwith driver

4. Unfair terms

5. The ANPR System Usage

6. The ANPR system is unreliable and neither synchronised nor accurate



1) NO GENUINE PRE-ESTIMATE OF LOSS
The demand for a payment of £100 is punitive, unreasonable, exceeds anappropriate amount, and has no relationship to any loss that could possiblyhave been suffered by the Landowner or the Operator.

Excel Parking must therefore be required to explain their charge' by providingPOPLA with a detailed financial appraisal which evidences the genuinepre-estimated amount of loss in this particular car park for this allegedcontravention. However, with or without any 'breach', the cost of parkingenforcement would still have been the same and there was no loss or damagecaused so Excel Parking have no cause of action to pursue this charge.

I specified in my original appeal that I would like to see a breakdown of thecosts incurred by Excel Parking as a result of the alleged breach. ExcelParking have failed to provide this information, stating that the charge is inline with BPA guidelines and therefore “deemed reasonable”. This replycompletely fails to demonstrate that the whole charge is a genuine pre-estimateof loss. The fact that the recommended maximum level in section 19.5 (“we wouldnot expect this amount to be more than £100”) has not been exceeded merelymeans that the operator does not have to justify the amount in advance. In noway does it absolve the operator of their responsibility to base the figure ona genuine pre-estimate of loss, or to comply with section 19.6 which statesthat the charge can “cannot be punitive or unreasonable”.

I put it to Excel Parking to prove that a loss has occurred at the time thatthis charge was levied and Excel Parking submit a breakdown of how this sum wascalculated prior to the parking event, as being capable of directly flowingfrom a minor alleged breach, such that the charge is a genuine pre-estimate ofloss.

If ParkingEye claim that the charge is 'commercially justified' and cite'ParkingEye v Beavis & Wardley', I put forth that such a claim isirrelevant since Mr Beavis is taking that flawed small claim decision to theCourt of Appeal, just as HHJ Moloney fully expected at the time he made hisdecision, which was full of caveats and full of holes and a distinct lack ofcase law. In addition, POPLA Assessor Chris Adamson has stated in June 2014upon seeing VCS' latest effort at a loss statement - their latest attempt toget around POPLA that:

''I am not minded to accept that the charge in this case is commerciallyjustified. In each case that I have seen from the higher courts, includingthose presented here by the Operator, it is made clear that a charge cannot becommercially justified where the dominant purpose of the charge is to deter theother party from breach. This is most clearly stated in Lordsvale Finance Plc vBank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine BesFilmcilik Ve Yapimcilik & Anor v United International Pictures & Ors[2003] EWHC Civ 1669 when Coleman J states a clause should not be struck downas a penalty, “if the increase could in the circumstances be explained ascommercially justifiable, provided always that its dominant purpose was not todeter 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 theywould have been in had the contract been performed. It also seems that courtshave been unwilling to allow clauses designed to deter breach as thisundermines the binding nature of the initial promise made. Whilst the courtshave reasonably moved away from a strict interpretation of what constitutes agenuine pre-estimate of loss, recognising that in complex commercial situationsan accurate pre-estimate will not always be possible, nevertheless it remainsthat a charge for damages must be compensatory in nature rather thanpunitive.''

My case is the same and Parking Eye’s contract with The Sun public houseChesterfield is nothing like ParkingEye's contract in the Beavis case anyway,where Parking Eye paid £1000 per week for what was in effect a 'fishinglicence' to catch victims and where the Operator made out they were theprincipal. In my case, ParkingEye are merely agents at best, with a barecontractor's licence to put up signage and 'issue tickets' and they are knownto be paid by their client so they have no standing nor loss to claim in theirown right anyway. Of course money changing hands will affect any calculationsof so-called 'loss' and is one of several reasons why I will require thelandowner contract in full (unredacted) as per point #2.

2) LACK OF STANDING/AUTHORITY FROM LANDOWNER TO ISSUE TICKETS OR PURSUE CHARGESIN THEIR OWN NAME AT COURT
Excel Parking have no proprietary interest in the land concerned and have notresponded to a request for a copy of the contract with the landowner in whichauthority to pursue outstanding parking charges is set out in section 7.2paragraph (f): “whether or not the landowner authorises you to take legalaction to recover charges from drives charged for unauthorised parking” has notbeen addressed. In the absence of this evidence, I believe that Excel Parkingdo not have the legal capacity to enforce such a charge.

I require the unredacted landowner contract including any payments made betweenthe parties, names & dates & details of all terms included. I suspect ExcelParking are merely an employed site agent and this is nothing more than acommercial agreement between the two parties. There is nothing that couldenable Excel Parking to impact upon visiting drivers in their own right, fortheir own profit. For the avoidance of doubt, I will not accept a mere “witnessstatement” or site agreements instead of the relevant contract, as these do notshow sufficient detail (such as the restrictions, charges and revenue sharingarrangements agreed with a landowner) and may well be signed by anon-landholder such as another agent.. There would be no proof that the allegedsignatory can act on behalf of the landowner or has ever seen the relevantcontract. Also a letter or statement would fail to show any payments madebetween the parties, and would omit dates & details of all terms in theactual contract - and so would fail to rebut my appeal point about theOperator's lack of standing & assignment of any rights.

3) SIGNAGE NON COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO CONTRACT FORMEDWITH DRIVER
Upon receiving the Parking Charge Notice, I, as keeper of the vehicle, havesince visited the site and argue the following :

3.1) I submit that this signage failed to comply with the BPA Code of Practicesection 18 and appendix B.. The signs failed to properly warn/inform the driverof the terms and any consequences for breach. Further, because Excel Parkingare a mere agent and place their signs so high, they have failed to establishthe elements of a contract (consideration/offer and acceptance). Any allegedcontract (denied in this case) could only be formed at the entrance to thepremises, prior to parking. It is not formed after the vehicle has already beenparked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs)Excel Parking have no signage with full terms which could ever be read at eyelevel, for a driver in moving traffic on arrival. The signs on entry are up onpoles with the spy cameras attached and these cannot be read by a driver intheir vehicle entering the car park. Stopping the vehicle before entering thecar park to get out and read these is completely infeasible as this would causean obstruction on a public highway and block the entrance to the car park.

3.2) A Notice is not imported into the contract unless brought home soprominently that the party 'must' have known of it and agreed terms. In thiscase, the driver did not see any sign, thus, there was noconsideration/acceptance and no contract agreed between the parties.
As a POPLA Assessor has said previously in an adjudication:
“Once an Appellant submits that the terms of parking were not displayed clearlyenough, the onus is then on the Operator to demonstrate that the signs at thetime and location in question were sufficiently clear”.
Excel Parking needs to prove that the driver actually saw, read and acceptedthe terms, which means that I and the POPLA Assessor would be led to believethat a conscious decision was made by the driver to park in exchange for payingthe extortionate fixed amount the Operator is now demanding.

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 mypotential detriment. Therefore, this charge is an unreasonable indemnity clauseunder section 4(1) of the Unfair Contract Terms Act 1977, which says: ‘A personcannot 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 beincurred by the other for negligence or breach of contract, except in so far asthe contract term satisfies the requirement of reasonableness.’

Further, the charge contravenes The Unfair Terms in Consumer ContractRegulations 1999 :
Schedule 2 : Indicative and non-exhaustive list of terms which may be regardedas unfair”
1(e) “Terms which have the object or effect of requiring any consumer who failsto fulfil his obligation to pay a disproportionately high sum in compensation.”
5(1) ''A contractual term which has not been individually negotiated shall beregarded as unfair if, contrary to the requirement of good faith, it causes asignificant imbalance in the parties' rights and obligations arising under thecontract, to the detriment of the consumer. (2) A term shall always be regardedas not having been individually negotiated where it has been drafted in advanceand the consumer has therefore not been able to influence the substance of theterm.''

From the Office of Fair Trading’s 'Guidance for the Unfair Terms in ConsumerContract Regulations 1999':
Group 5 : Financial penalties – paragraph 1(e) of Schedule 2:
5.1 “It is unfair to impose disproportionate sanctions for a breach ofcontract. A requirement to pay more in compensation for a breach than areasonable pre-estimate of the loss caused to the supplier is one kind ofexcessive penalty. Such a requirement will, in any case, normally be void tothe 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 andtransparent as to what must be paid and in what circumstances. However, asalready noted, transparency is not necessarily enough on its own to make a termfair. Fairness requires that the substance of contract terms, not just theirform and the way they are used, shows due regard for the legitimate interestsof 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 termcalculated to make consumers pay excessively for doing something that wouldnormally 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 betreated as exempt if it is clearly calculated to produce the same effect as anunfair exclusion clause, penalty, variation clause or other objectionableterm.'

I contend the above describes the charge exactly as an 'unfair financialburden'. The charge is designed ostensibly to be a deterrent, but is in fact adisguised penalty, issued by a third party agent which is not the landowner andhas no assignment of title. Such a charge would normally be restricted to thelandowner themselves claiming for any damages or loss.

5) THE ANPR SYSTEM USAGE
Under paragraph 21.1 of the BPA Code of Practice it states 'You may use ANPRcamera technology to manage, control and enforce parking in private car parks,as long as you do this in a reasonable, consistent and transparent manner. Yoursigns at the car park must tell drivers that you are using this technology andwhat you will use the data captured by ANPR cameras for'
I say that Parking Eye have failed to clearly inform drivers about the camerasand what the data will be used for and how it will be used and stored. If therewas such a sign at all, it was not prominent, since the driver (nor the keeperon a more recent visit) did not see it. Photographic evidence of the existenceof this sign was not provided by Excel Parking on appeal (see #5). There is noopportunity for drivers in moving traffic at the entrance to be 'informed thatthis technology is in use and what the Operator will use the data captured byANPR cameras for'. I contend this is a non-compliant ANPR system being merely asecret high-up spy camera - far from 'transparent' - unreasonably 'farming' thedata from moving vehicles at the entrance & exit and neither 'managing,enforcing nor controlling parking' since the cameras are not concerned with anyaspect of the actual parking spaces, nor any parking event at all.

6) THE ANPR SYSTEM IS UNRELIABLE AND NEITHER SYNCHRONISED NOR ACCURATE
If Excel Parking 's ANPR records are completely reliable (which I contest) thenthis Operator claims the car was parked for around 183 minutes. And yet theirevidence shows no parking time or evidence that the car was even parked, merelyphotos of a car driving in and out which does not discount the possibility of adouble visit that evening. It is unreasonable for this operator to record thestart of 'parking time' as the moment of arrival in moving traffic if they infact offer a pay and display system which the driver can only access afterparking and which is when the clock in fact starts. The exit photo is notevidence of 'parking time' at all and has not been shown to be synchronised tothe pay and display machine clock nor even to relate to the same parking eventthat evening.

This Operator is obliged to ensure their ANPR equipment is maintained asdescribed in paragraph 21.3 of the BPA Code of Practice and to have signsstating how the data will be stored/used. I have seen no evidence that theyhave complied with this section of the code (nor 21.1, 21.2 or 21.4) in termsof ANPR logs and maintenance and I put this Operator to strict proof of fullANPR compliance.

I question the entire reliability of the system. I require that Excel Parkingpresent records as to the dates and times of when the cameras at this car parkwere checked, adjusted, calibrated, synchronised with the timer which stampsthe photos and generally maintained to ensure the accuracy of the dates andtimes of any ANPR images. This is important because the entirety of the chargeis founded on two images purporting to show the vehicle entering and exiting atspecific times.



So, inaddition to showing their maintenance records, I require Excel Parking to showevidence to rebut the following assertion. I suggest that in the case of myvehicle being in this car park, a local camera took the image but a remoteserver added the time stamp. As the two are disconnected by the internet and donot have a common "time synchronisation system", there is no proofthat the time stamp added is actually the exact time of the image. The operatorappears to use WIFI which introduces a delay through buffering, so"live" is not really "live". Hence without a synchronisedtime stamp there is no evidence that the image is ever time stamped with anaccurate time. Therefore I contend that this ANPR "evidence" from thecameras in this car park is just as unreliable and unsynchronised as theevidence in the Fox-Jones case. As their whole charge rests upon two timedphotos, I put Excel Parking to strict proof to the contrary and to show howthese camera timings are synchronised with the pay and display machine.

This concludes my appeal, I respectfully request that my appeal be upheld andthe charge be dismissed if Excel Parking fail to address and provide thenecessary evidence as requested in the points highlighted above.



Thisconcludes my appeal, I respectfully request that my appeal be upheld and thecharge be dismissed if Excel Parking fail to address and provide the necessaryevidence as requested in the points highlighted above.

Coupon-mad

the quoted Parking Charge Notice was issued quoting “Not purchasing the appropriate parking time or by remaining at the car park for longer than permitted”.

Is that true of the Notice? Is that the wording?

And you need to proof read it again, such as here where you still have PE:

If ParkingEye claim that the charge is 'commercially justified'

and here - get rid of this paragraph which is obviously talking about PE at a pub car park!:

My case is the same and Parking Eye’s contract with The Sun public houseChesterfield is nothing like ParkingEye's contract in the Beavis case anyway,where Parking Eye paid £1000 per week for what was in effect a 'fishinglicence' to catch victims and where the Operator made out they were theprincipal. In my case, ParkingEye are merely agents at best, with a barecontractor's licence to put up signage and 'issue tickets' and they are knownto be paid by their client so they have no standing nor loss to claim in theirown right anyway. Of course money changing hands will affect any calculationsof so-called 'loss' and is one of several reasons why I will require thelandowner contract in full (unredacted) as per point #2.

and further down I spotted another one that needs changing to Excel, here but you need to proof read it, not me!

5) THE ANPR SYSTEM USAGE
Under paragraph 21.1 of the BPA Code of Practice it states 'You may use ANPRcamera technology to manage, control and enforce parking in private car parks,as long as you do this in a reasonable, consistent and transparent manner. Yoursigns at the car park must tell drivers that you are using this technology andwhat you will use the data captured by ANPR cameras for'
I say that Parking Eye have failed to clearly inform drivers

and I think I would get rid of this as your case is an allegation of an unpaid fee, not about an overstay of time:

So, in addition to showing their maintenance records, I require Excel Parking to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so"live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from thecameras in this car park is just as unreliable and unsynchronised as the evidence in the Fox-Jones case. As their whole charge rests upon two timed photos, I put Excel Parking to strict proof to the contrary and to show how these camera timings are synchronised with the pay and display machine.

And personally I would change point 4 (get rid of it all, unfair terms never wins at POPLA). Instead you want a paragraph about the flaws in the Notice to Keeper which mean there is no 'keeper liability'. Such as the examples shown under G24, CEL and possibly VCS or Excel examples. A paragraph which points out where the NTK fails to adhere to the rules in paragraph 9 (not para 8 so don't copy one talking about that). YOu will find more under 'How to win at POPLA' and just dig out one talking about paragraph 9.

You need to compare your Notice to Paragraph 9 of the Schedule which is linked in the Newbies thread. For example I suspect there will be no clearly specified 'period of parking' which is not the arrival time nor leaving time, no identification of the creditor, no description of the unpaid parking charges which were outstanding the day BEFORE the NTK was issued (i.e. the tariff is not described) and if the description of the contravention is those words you gave above in your introduction then you can also say they have failed to describe the circumstances which gave rise to the charge, which cannot be 'either/or'.

Umkomaas

C-m, you have more patience than I do with these 'copy and dump' with a bit of 'find and replace' appeals, where the OP can't possibly have read through it!

There's more time being expended by regulars than by the OPs on their own cases!

devdas121

Thanks Coupon- mad.

I have edited the parts now, please see if it is OK.

Re: EXCELPARKING PCN, reference code xxxxxxxxxx

10/11/2014

POPLA Code: xxxxxxxx

VRN: xxxxxxx

I am the keeper of this vehicle and this is my appeal.

On the above date, the quoted Parking Charge Notice was issued quoting “Notpurchasing the appropriate parking time or by remaining at the car park forlonger than permitted”. This charge has been contested directly with EXCELPARKING and rejected with a valid POPLA code.

I contest the charge and request it is dismissed on the following grounds:

1. No genuine pre-estimate of loss

2. Lack of standing/authority from landowner to issue tickets or pursue chargesin their own name at court

3. Signage non-compliant with the BPA Code of Practice and no contract formedwith driver


4. The ANPR System Usage

5. The ANPR system is unreliable and neither synchronized nor accurate



1) NO GENUINE PRE-ESTIMATE OF LOSS
The demand for a payment of £100 is punitive, unreasonable, exceeds anappropriate amount, and has no relationship to any loss that could possiblyhave been suffered by the Landowner or the Operator.

Excel Parking must therefore be required to explain their charge' by providingPOPLA with a detailed financial appraisal which evidences the genuinepre-estimated amount of loss in this particular car park for this allegedcontravention. However, with or without any 'breach', the cost of parkingenforcement would still have been the same and there was no loss or damagecaused so Excel Parking have no cause of action to pursue this charge.

I specified in my original appeal that I would like to see a breakdown of thecosts incurred by Excel Parking as a result of the alleged breach. ExcelParking has failed to provide this information, stating that the charge is inline with BPA guidelines and therefore “deemed reasonable”. This replycompletely fails to demonstrate that the whole charge is a genuine pre-estimateof loss. The fact that the recommended maximum level in section 19.5 (“we wouldnot expect this amount to be more than £100”) has not been exceeded merelymeans that the operator does not have to justify the amount in advance. In noway does it absolve the operator of their responsibility to base the figure ona genuine pre-estimate of loss, or to comply with section 19.6 which statesthat the charge can “cannot be punitive or unreasonable”.

I put it to Excel Parking to prove that a loss has occurred at the time thatthis charge was levied and Excel Parking submit a breakdown of how this sum wascalculated prior to the parking event, as being capable of directly flowingfrom a minor alleged breach, such that the charge is a genuine pre-estimate ofloss.

If Excel Parking claim that the charge is 'commercially justified' and cite'ParkingEye v Beavis & Wardley', I put forth that such a claim isirrelevant since Mr Beavis is taking that flawed small claim decision to theCourt of Appeal, just as HHJ Moloney fully expected at the time he made hisdecision, which was full of caveats and full of holes and a distinct lack ofcase law. In addition, POPLA Assessor Chris Adamson has stated in June 2014upon seeing VCS' latest effort at a loss statement - their latest attempt toget around POPLA that:

''I am not minded to accept that the charge in this case is commerciallyjustified. In each case that I have seen from the higher courts, includingthose presented here by the Operator, it is made clear that a charge cannot becommercially justified where the dominant purpose of the charge is to deter theother party from breach. This is most clearly stated in Lordsvale Finance Plc vBank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine BesFilmcilik Ve Yapimcilik & Anor v United International Pictures & Ors[2003] EWHC Civ 1669 when Coleman J states a clause should not be struck downas a penalty, “if the increase could in the circumstances be explained ascommercially justifiable, provided always that its dominant purpose was not todeter 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 theywould have been in had the contract been performed. It also seems that courtshave been unwilling to allow clauses designed to deter breach as this underminesthe binding nature of the initial promise made. Whilst the courts havereasonably moved away from a strict interpretation of what constitutes agenuine pre-estimate of loss, recognizing that in complex commercial situationsan accurate pre-estimate will not always be possible, nevertheless it remainsthat a charge for damages must be compensatory in nature rather thanpunitive.''


2) LACK OF STANDING/AUTHORITY FROM LANDOWNER TO ISSUE TICKETS OR PURSUE CHARGESIN THEIR OWN NAME AT COURT
Excel Parking have no proprietary interest in the land concerned and have notresponded to a request for a copy of the contract with the landowner in whichauthority to pursue outstanding parking charges is set out in section 7.2paragraph (f): “whether or not the landowner authorizes you to take legalaction to recover charges from drives charged for unauthorized parking” has notbeen addressed. In the absence of this evidence, I believe that Excel Parkingdo not have the legal capacity to enforce such a charge.

I require the underacted landowner contract including any payments made betweenthe parties, names & dates & details of all terms included. I suspectExcel Parking are merely an employed site agent and this is nothing more than acommercial agreement between the two parties. There is nothing that couldenable Excel Parking to impact upon visiting drivers in their own right, fortheir own profit. For the avoidance of doubt, I will not accept a mere “witnessstatement” or site agreements instead of the relevant contract, as these do notshow sufficient detail (such as the restrictions, charges and revenue sharingarrangements agreed with a landowner) and may well be signed by anon-landholder such as another agent.. There would be no proof that the allegedsignatory can act on behalf of the landowner or has ever seen the relevantcontract. Also a letter or statement would fail to show any payments madebetween the parties, and would omit dates & details of all terms in theactual contract - and so would fail to rebut my appeal point about theOperator's lack of standing & assignment of any rights.

3) SIGNAGE NON COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO CONTRACT FORMEDWITH DRIVER
Upon receiving the Parking Charge Notice, I, as keeper of the vehicle, havesince visited the site and argue the following :

3.1) I submit that this signage failed to comply with the BPA Code of Practicesection 18 and appendix B.. The signs failed to properly warn/inform the driverof the terms and any consequences for breach. Further, because Excel Parkingare a mere agent and place their signs so high, they have failed to establishthe elements of a contract (consideration/offer and acceptance). Any allegedcontract (denied in this case) could only 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. In breach of Appendix B (Mandatory Entrance Signs) ExcelParking have no signage with full terms which could ever be read at eye level,for a driver in moving traffic on arrival. The signs on entry are up on poleswith the spy cameras attached and these cannot be read by a driver in theirvehicle entering the car park. Stopping the vehicle before entering the carpark to get out and read these is completely infeasible as this would cause anobstruction on a public highway and block the entrance to the car park.

3.2) A Notice is not imported into the contract unless brought home soprominently that the party 'must' have known of it and agreed terms. In thiscase, the driver did not see any sign, thus, there was noconsideration/acceptance and no contract agreed between the parties.
As a POPLA Assessor has said previously in an adjudication:
“Once an Appellant submits that the terms of parking were not displayed clearlyenough, the onus is then on the Operator to demonstrate that the signs at thetime and location in question were sufficiently clear”.
Excel Parking needs to prove that the driver actually saw, read and acceptedthe terms, which means that I and the POPLA Assessor would be led to believethat a conscious decision was made by the driver to park in exchange for payingthe extortionate fixed amount the Operator is now demanding.

5.1 “It is unfair to impose disproportionate sanctions for a breach ofcontract. A requirement to pay more in compensation for a breach than areasonable pre-estimate of the loss caused to the supplier is one kind ofexcessive penalty. Such a requirement will, in any case, normally be void tothe 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 andtransparent as to what must be paid and in what circumstances. However, asalready noted, transparency is not necessarily enough on its own to make a termfair. Fairness requires that the substance of contract terms, not just theirform and the way they are used, shows due regard for the legitimate interestsof 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 termcalculated to make consumers pay excessively for doing something that wouldnormally 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 betreated as exempt if it is clearly calculated to produce the same effect as anunfair exclusion clause, penalty, variation clause or other objectionableterm.'

I contend the above describes the charge exactly as an 'unfair financialburden'. The charge is designed ostensibly to be a deterrent, but is in fact adisguised penalty, issued by a third party agent which is not the landowner andhas no assignment of title. Such a charge would normally be restricted to thelandowner themselves claiming for any damages or loss.

4) THE ANPR SYSTEM USAGE
Under paragraph 21.1 of the BPA Code of Practice it states 'You may use ANPRcamera technology to manage, control and enforce parking in private car parks,as long as you do this in a reasonable, consistent and transparent manner. Yoursigns at the car park must tell drivers that you are using this technology andwhat you will use the data captured by ANPR cameras for'
I say that Excel Parking have failed to clearly inform drivers about thecameras and what the data will be used for and how it will be used and stored.If there was such a sign at all, it was not prominent, since the driver (northe keeper on a more recent visit) did not see it. Photographic evidence of theexistence of this sign was not provided by Excel Parking on appeal (see #5). Thereis no opportunity for drivers in moving traffic at the entrance to be 'informedthat this technology is in use and what the Operator will use the data capturedby ANPR cameras for'. I contend this is a non-compliant ANPR system beingmerely a secret high-up spy camera - far from 'transparent' - unreasonably'farming' the data from moving vehicles at the entrance & exit and neither'managing, enforcing nor controlling parking' since the cameras are notconcerned with any aspect of the actual parking spaces, nor any parking eventat all.

5) THE ANPR SYSTEM IS UNRELIABLE AND NEITHER SYNCHRONISED NOR ACCURATE
If Excel Parking’s ANPR records are completely reliable (which I contest) thenthis Operator claims the car was parked for around 183 minutes. And yet theirevidence shows no parking time or evidence that the car was even parked, merelyphotos of a car driving in and out which does not discount the possibility of adouble visit that evening. It is unreasonable for this operator to record thestart of 'parking time' as the moment of arrival in moving traffic if they infact offer a pay and display system which the driver can only access afterparking and which is when the clock in fact starts. The exit photo is notevidence of 'parking time' at all and has not been shown to be synchronized tothe pay and display machine clock nor even to relate to the same parking eventthat evening.

This Operator is obliged to ensure their ANPR equipment is maintained asdescribed in paragraph 21.3 of the BPA Code of Practice and to have signsstating how the data will be stored/used. I have seen no evidence that theyhave complied with this section of the code (nor 21.1, 21.2 or 21.4) in termsof ANPR logs and maintenance and I put this Operator to strict proof of fullANPR compliance.

I question the entire reliability of the system. I require that Excel Parkingpresent records as to the dates and times of when the cameras at this car parkwere checked, adjusted, calibrated, synchronized with the timer which stamps thephotos and generally maintained to ensure the accuracy of the dates and timesof any ANPR images. This is important because the entirety of the charge isfounded on two images purporting to show the vehicle entering and exiting atspecific times.




This concludes my appeal, I respectfully request that my appeal be upheld andthe charge be dismissed if Excel Parking fails to address and provide thenecessary evidence as requested in the points highlighted above.



Thisconcludes my appeal, I respectfully request that my appeal be upheld and thecharge be dismissed if Excel Parking fails to address and provide the necessaryevidence as requested in the points highlighted above.
Thanks

Dev

Coupon-mad

please see if it is OK.

It has most of the right paragraphs we would expect, yes.

- when does your POPLA code expire then (NEWBIES thread tells you in post #3 so I hope you checked)? This has already taken you 3 weeks!

- edit your first post NOW - you have said there who was driving (DON'T).

It's up to you to proof read (easy to find all 'ParkingEye' use if you just control & F and look for all entries in your word document). Check the only mention of PE is the Beavis case. Check that facts are right - e.g. if it wasn't evening why is 'evening' in it, that sort of thing. We can't proof-read it for you.

And you haven't got a 'no keeper liability' paragraph even though their NTK won't be compliant with paragraph 8 (if there was a windscreen ticket) or paragraph 9 (if it was only by post) of Schedule 4. Plenty of examples of no keeper liability arguments in the 'How to win at POPLA' link in post #3 of the NEWBIES sticky. Loads of the examples have that bit but you must get it right (para 8 or para 9? I have told you which is which).

And you haven't said where this is from so it doesn't make sense in isolation:

5.1 “It is unfair to impose disproportionate sanctions for a breach ofcontract. A requirement to pay more in compensation for a breach than areasonable pre-estimate of the loss caused to the supplier is one kind ofexcessive penalty. Such a requirement will, in any case, normally be void tothe extent that it amounts to a penalty under English common law.”
Group 18(a):

devdas121

Thanks Coupon-Mad.

My letter was dated on 03/11, so I presume have 28 days to appeal. I haven't specified anywhere that I was the driver of the vehicle.

I have removed all parking Eye, except the car park case. I have proof read and edited appeal and please see if I have missed anything.



I am the keeper of this vehicle and this is my appeal.

On the above date, the quoted Parking Charge Notice was issued quoting “Parkedwithout displaying a valid ticket/permit”. This charge has been contesteddirectly with EXCEL PARKING and rejected with a valid POPLA code.

I contest the charge and request it is dismissed on the following grounds:

1. No genuine pre-estimate of loss

2. Lack of standing/authority from landowner to issue tickets or pursue chargesin their own name at court

3. Signage non-compliant with the BPA Code of Practice and no contract formedwith driver


4. The ANPR System Usage

5. The ANPR system is unreliable and neither synchronized nor accurate



1) NO GENUINE PRE-ESTIMATE OF LOSS
The demand for a payment of £100 is punitive, unreasonable, exceeds anappropriate amount, and has no relationship to any loss that could possiblyhave been suffered by the Landowner or the Operator.

Excel Parking must therefore be required to explain their charge' by providingPOPLA with a detailed financial appraisal which evidences the genuinepre-estimated amount of loss in this particular car park for this allegedcontravention. However, with or without any 'breach', the cost of parkingenforcement would still have been the same and there was no loss or damagecaused so Excel Parking have no cause of action to pursue this charge.

I specified in my original appeal that I would like to see a breakdown of thecosts incurred by Excel Parking as a result of the alleged breach. ExcelParking has failed to provide this information, stating that the charge is inline with BPA guidelines and therefore “deemed reasonable”. This replycompletely fails to demonstrate that the whole charge is a genuine pre-estimateof loss. The fact that the recommended maximum level in section 19.5 (“we wouldnot expect this amount to be more than £100”) has not been exceeded merelymeans that the operator does not have to justify the amount in advance. In noway does it absolve the operator of their responsibility to base the figure ona genuine pre-estimate of loss, or to comply with section 19.6 which statesthat the charge can “cannot be punitive or unreasonable”.

I put it to Excel Parking to prove that a loss has occurred at the time thatthis charge was levied and Excel Parking submit a breakdown of how this sum wascalculated prior to the parking event, as being capable of directly flowingfrom a minor alleged breach, such that the charge is a genuine pre-estimate ofloss.

If Excel Parking claim that the charge is 'commercially justified' and cite'ParkingEye v Beavis & Wardley', I put forth that such a claim is irrelevantsince Mr Beavis is taking that flawed small claim decision to the Court ofAppeal, 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. Inaddition, POPLA Assessor Chris Adamson has stated in June 2014 upon seeing VCS'latest effort at a loss statement - their latest attempt to get around POPLAthat:

''I am not minded to accept that the charge in this case is commerciallyjustified. In each case that I have seen from the higher courts, includingthose presented here by the Operator, it is made clear that a charge cannot becommercially justified where the dominant purpose of the charge is to deter theother party from breach. This is most clearly stated in Lordsvale Finance Plc vBank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine BesFilmcilik Ve Yapimcilik & Anor v United International Pictures & Ors[2003] EWHC Civ 1669 when Coleman J states a clause should not be struck downas a penalty, “if the increase could in the circumstances be explained ascommercially justifiable, provided always that its dominant purpose was not todeter 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 theywould have been in had the contract been performed. It also seems that courtshave been unwilling to allow clauses designed to deter breach as thisundermines the binding nature of the initial promise made. Whilst the courtshave reasonably moved away from a strict interpretation of what constitutes agenuine pre-estimate of loss, recognizing that in complex commercial situationsan accurate pre-estimate will not always be possible, nevertheless it remainsthat a charge for damages must be compensatory in nature rather thanpunitive.''


2) LACK OF STANDING/AUTHORITY FROM LANDOWNER TO ISSUE TICKETS OR PURSUE CHARGESIN THEIR OWN NAME AT COURT
Excel Parking have no proprietary interest in the land concerned and have notresponded to a request for a copy of the contract with the landowner in whichauthority to pursue outstanding parking charges is set out in section 7.2paragraph (f): “whether or not the landowner authorizes you to take legalaction to recover charges from drives charged for unauthorized parking” has notbeen addressed. In the absence of this evidence, I believe that Excel Parkingdo not have the legal capacity to enforce such a charge.

I require the underacted landowner contract including any payments made betweenthe parties, names & dates & details of all terms included. I suspectExcel Parking are merely an employed site agent and this is nothing more than acommercial agreement between the two parties. There is nothing that couldenable Excel Parking to impact upon visiting drivers in their own right, fortheir own profit. For the avoidance of doubt, I will not accept a mere “witnessstatement” or site agreements instead of the relevant contract, as these do notshow sufficient detail (such as the restrictions, charges and revenue sharingarrangements agreed with a landowner) and may well be signed by anon-landholder such as another agent.. There would be no proof that the allegedsignatory can act on behalf of the landowner or has ever seen the relevantcontract. Also a letter or statement would fail to show any payments madebetween the parties, and would omit dates & details of all terms in theactual contract - and so would fail to rebut my appeal point about theOperator's lack of standing & assignment of any rights.

3) SIGNAGE NON COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO CONTRACT FORMEDWITH DRIVER
Upon receiving the Parking Charge Notice, I, as keeper of the vehicle, havesince visited the site and argue the following :

3.1) I submit that this signage failed to comply with the BPA Code of Practicesection 18 and appendix B.. The signs failed to properly warn/inform the driverof the terms and any consequences for breach. Further, because Excel Parkingare a mere agent and place their signs so high, they have failed to establishthe elements of a contract (consideration/offer and acceptance). Any allegedcontract (denied in this case) could only be formed at the entrance to thepremises, prior to parking. It is not formed after the vehicle has already beenparked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs)Excel Parking have no signage with full terms which could ever be read at eyelevel, for a driver in moving traffic on arrival. The signs on entry are up onpoles with the spy cameras attached and these cannot be read by a driver intheir vehicle entering the car park. Stopping the vehicle before entering thecar park to get out and read these is completely infeasible as this would causean obstruction on a public highway and block the entrance to the car park.

3.2) A Notice is not imported into the contract unless brought home soprominently that the party 'must' have known of it and agreed terms. In thiscase, the driver did not see any sign, thus, there was noconsideration/acceptance and no contract agreed between the parties.
As a POPLA Assessor has said previously in an adjudication:
“Once an Appellant submits that the terms of parking were not displayed clearlyenough, the onus is then on the Operator to demonstrate that the signs at thetime and location in question were sufficiently clear”.
Excel Parking needs to prove that the driver actually saw, read and acceptedthe terms, which means that I and the POPLA Assessor would be led to believethat a conscious decision was made by the driver to park in exchange for payingthe extortionate fixed amount the Operator is now demanding.

3.3. “It is unfair to imposedisproportionate sanctions for a breach of contract. A requirement to pay morein compensation for a breach than a reasonable pre-estimate of the loss causedto the supplier is one kind of excessive penalty. Such a requirement will, inany case, normally be void to the extent that it amounts to a penalty under Englishcommon law.”
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 betreated as exempt if it is clearly calculated to produce the same effect as anunfair exclusion clause, penalty, variation clause or other objectionableterm.'

I contend the above describes the charge exactly as an 'unfair financialburden'. The charge is designed ostensibly to be a deterrent, but is in fact adisguised penalty, issued by a third party agent which is not the landowner andhas no assignment of title. Such a charge would normally be restricted to thelandowner themselves claiming for any damages or loss.

4) THE ANPR SYSTEM USAGE
Under paragraph 21.1 of the BPA Code of Practice it states 'You may use ANPRcamera technology to manage, control and enforce parking in private car parks,as long as you do this in a reasonable, consistent and transparent manner. Yoursigns at the car park must tell drivers that you are using this technology andwhat you will use the data captured by ANPR cameras for'
I say that Excel Parking have failed to clearly inform drivers about thecameras and what the data will be used for and how it will be used and stored.If there was such a sign at all, it was not prominent, since the driver (nor thekeeper on a more recent visit) did not see it. Photographic evidence of theexistence of this sign was not provided by Excel Parking on appeal (see #5).There is no opportunity for drivers in moving traffic at the entrance to be'informed that this technology is in use and what the Operator will use thedata captured by ANPR cameras for'. I contend this is a non-compliant ANPRsystem being merely a secret high-up spy camera - far from 'transparent' -unreasonably 'farming' the data from moving vehicles at the entrance & exitand neither 'managing, enforcing nor controlling parking' since the cameras arenot concerned with any aspect of the actual parking spaces, nor any parkingevent at all.

5) THE ANPR SYSTEM IS UNRELIABLE AND NEITHER SYNCHRONISED NOR ACCURATE
If Excel Parking’s ANPR records are completely reliable (which I contest) thenthis Operator claims the car was parked for around 37 minutes. And yet theirevidence shows no parking time or evidence that the car was even parked, merelyphotos of a car driving in and out which does not discount the possibility of adouble visit that evening. It is unreasonable for this operator to record thestart of 'parking time' as the moment of arrival in moving traffic if they infact offer a pay and display system which the driver can only access afterparking and which is when the clock in fact starts. The exit photo is notevidence of 'parking time' at all and has not been shown to be synchronized tothe pay and display machine clock nor even to relate to the same parking eventthat evening.

This Operator is obliged to ensure their ANPR equipment is maintained asdescribed in paragraph 21.3 of the BPA Code of Practice and to have signsstating how the data will be stored/used. I have seen no evidence that theyhave complied with this section of the code (nor 21.1, 21.2 or 21.4) in termsof ANPR logs and maintenance and I put this Operator to strict proof of fullANPR compliance.

I question the entire reliability of the system. I require that Excel Parking presentrecords as to the dates and times of when the cameras at this car park werechecked, adjusted, calibrated, synchronized with the timer which stamps thephotos and generally maintained to ensure the accuracy of the dates and timesof any ANPR images. This is important because the entirety of the charge isfounded on two images purporting to show the vehicle entering and exiting atspecific times.



Non-compliantNotice to Keeper
The Notice to Keeper sent by Excel parking to myself is not compliant with paragraph 9 (2)(h) of schedule 4of the Protection of Freedom Act 2012 in that it does not identify thecreditor. The Operator is required to specifically "identify" thecreditor, which requires words to the effect of "The creditor is .....". The keeper is entitled to know the party with whom any purportedcontract was made. Excel parkinghas failed to do this and therefore has not fulfilled all the requirementsnecessary under POFA to allow it to attempt recovery of any charge from thekeeper.




This concludes my appeal, I respectfully request that my appeal be upheld andthe charge be dismissed if Excel Parking fails to address and provide thenecessary evidence as requested in the points highlighted above.



Thisconcludes my appeal, I respectfully request that my appeal be upheld and thecharge be dismissed if Excel Parking fails to address and provide the necessaryevidence as requested in the points highlighted above.

Thanks a lot