POPLA appeal feedback please

libya

hello - am following forum advice about my PCN from sept'14.
below is my proposed popla appeal - can you advise edit please?
thanks in advance.

Dear Sir/Madam

As the registered keeper, I appeal on the following grounds:
1. the charge is not a genuine pre-estimate of loss.
2. No standing/authority to form contracts with motorists
3. Failure to invoke Keeper Liability under the Protection of Freedoms Act 2012 (the POFA).
4. Unclear and non-compliant signage created no contract with the driver.
5. The ANPR records are unreliable, non-compliant and not proof of one parking event.
1. The charge is not a genuine pre-estimate of loss.
£100 is a sum 'plucked out of the air' by the Operator and it bears no relation to any loss. My proposition is that £100 was chosen because it happens to be the maximum figure the BPA feel is a 'tolerable' amount to impose on motorists, when compared to PCNs issued by Councils on the street. There is no valid comparison with a private firm alleging 'breach' in order to maximise their own profits and a real PCN from a Council - but the BPA admitted to the Government that Council PCN amounts were the basis of that figure.
I require Excel Parking to explain their new calculations behind this charge. My position is that, any 'new' version cannot be accepted as a genuine PRE-estimate. In fact it is a 'post-estimate' of (arguable) 'actual costs' after the event; figures totted up to match the charge, including fully-counted man-hours for 'POPLA appeal work' when in fact less than 2% of PCNs proceed to POPLA. As this is supposed to be a pre-estimate relating to the typical loss caused by an average breach (whether the PCN is appealed or not), any man-hours must be counted only on a minimal pro-rata basis, i.e. they 'might' reasonably count only 2% of the time taken on a POPLA appeal, since the over 98% of cases involve no POPLA work whatsoever.
In the 2014 POPLA Annual Report the Lead Adjudicator, Mr Greenslade, stated, “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."
If Excel Parking present what they describe as a GPEOL statement I require them to show documentary evidence regarding exactly when this 'pre-estimate of loss' was discussed with the landowner in advance, and/or at any substantive meeting. How/when were these calculations made and on what basis? I put Excel Parking to strict proof that they ever had such a meeting.
If there was no meeting to discuss the £100 charge in advance then there was never a pre-estimate of loss discussion at all, as was found in April 2013 in 1IR65128 Brookfield Aviation Int. Ltd. v Van Boekel, where by HHJ Hand QC concluded in his summary at 94:
''I do not believe the evidence...that there was ever an attempt at a genuine pre-estimate of loss. I have found that there was no meeting in 2007...it seems to me that a conclusion that there was never any attempt at a genuine pre-estimate of loss is of some significance...Finally, the factthat the figure was arrived at by reference to what pilots might be prepared to tolerate...shows to my mind that in so far as the Claimant made any calculation as to amount, that calculation related to the balance between deterring breach and enforcing the notice period on the one hand and deterring recruitment on the other.In short, the sum stipulated for was not a genuine pre-estimateof loss but an “in terrorem” sum to deter breach and as such is a penalty.''
A direct comparison can be drawn with Brookfield v Van Boekel that, so far as Excel Parking made any calculation as to amount, that calculation related to the balance between deterring breach and enforcementon the one hand and deterring customers, on the other.£100 was simply the maximum set by the BPA, a sum which motorists might 'tolerate'.
I contend that the figure of £100 is a penalty clause in terrorem to deter breach, neither can it be commercially justified.
POPLA Assessor Chris Adamson stated in June 2014 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.''
2. No standing/authority to form contracts with motorists
This Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. I contend that they merely hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. Authority to merely 'issue tickets' is not the same authority as a right to form contracts in their own right, with visiting drivers. As a commercial site agent acting under an agency agreement 'on behalf of' the a principal, Excel Parking has negative responsibility and no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA CoP.
I put Excel Parking to strict proof to provide an unredacted, contemporaneous copy of the contract which - to demonstrate standing and authority - must specifically state that Excel Parking can make contracts with drivers themselves and that they have full authority to pursue charges in court in their own name. A witness statement to the effect that a contract is in place will not be sufficient because it will not show which restrictions are to be enforced, what the times/dates/details of enforcement are. How will I know that the landholder contract allows Excel Parking to charge £100 for this particular contravention if the contract is not produced? Showing a piece of paper signed by someone who has never seen the actual contract, saying merely that Excel Parking can put up signs and 'issue parking charges' would not prove that they can form contracts with drivers nor show that they can charge this amount for this contravention.
3. Failure to invoke Keeper Liability under the Protection of Freedoms Act 2012 (the POFA).
In order to pursue Keeper Liability under the POFA, Excel Parking must have met the strict conditions in the Act. However, they have failed to fulfil the requirements of the “Notice to Keeper” (‘NtK’) as per para. 9 Sch 4 of the Act which reads in part:
“(1) A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
(2) The notice must—
(b) inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(e) state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i) to pay the unpaid parking charges; or
(ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii) the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
(h) identify the creditor and specify how and to whom payment or notification to the creditor may be made;
(4) The notice must be given by:
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.”
The NTK fails due to the following reasons:
The following points (A)-(E) may be observed as flaws in this NTK, making this non-compliant under the POFA 2012:
(A) The 'period of parking' is not 'specified', only the times the car was seen in traffic on arrival and on the final time it left that day. There's no evidence of parking at all.
(B) It does not inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(C) It fails to describe any alleged unpaid parking charges “for the specified period of parking” (a period which was not specified). POFA requires that a NTK describes any 'outstanding' 'unpaid' charges which the driver owed as at a time not later than the DAY BEFORE the issue of the postal NTK. The sum for breach of contract cannot be described as ‘unpaid by the driver’ prior to the day the NTK was issued, because it only arises and could be described as 'unpaid', if at all, at/after the time of receipt of the NTK by the keeper. The inflated PCN amount now being pursued for 'breach' should not be confused with the sum intended by Schedule 4 of the POFA, just because it is also - coincidentally, perhaps - called a ‘parking charge’. The timelines are clearly stated in the Act and it is clear that the Act requires any unpaid tariff that the driver owed before the NTK was issued, to be stated - and that this is the only sum that can be pursued from a registered keeper.
(D) It does not identify the creditor, who could be the landowner, a retailer, a managing agent, or the Operator, or another party. The fact that an Operator's name is on a NTK as the payee, does not 'identify' them as the creditor because administrative functions such as sending notices and collecting monies can be carried out by other parties, such as agents and debt collectors who are never 'the creditor'. This Operator could simply be an administrator, a debt collector only - the creditor could be any other party if not specified here. Such basic detail cannot be assumed. The creditor has to be 'identified' with words to the effect that 'the creditor is...'.
(E) The NTK fails to show the arrangements for complaints and the geographical address of the client/landowner, since this Operator is an agent . This is a requirement for all consumer contracts since June 2014, in accordance with the Consumer Contracts (Information, Cancellation and Additional Charges) Regs 2013 and also a breach of the POFA not to include full details of such arrangements for complaints.
The fact that some of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the NTK is compliant. A NTK is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 as regards the wording in a compliant NTK are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out even some of the mandatory NTK wording means there is no 'keeper liability'.
In this case the driver has not been identified so the charge has no legal basis to be enforced against me.
4. Unclear and Non-compliant signage which created no contract with the driver, who did not see any signs.
Operators of Motorway Services Areas (MSAs) and their agents must comply with Government Policy. The Highways Agency, on behalf of the Department for Transport (DfT), published a policy on the provision of roadside facilities on its network, the 'DfT Circular 01/2008: Policy on Service Areas and other Roadside Facilities on Motorways and All-purpose Trunk Roads in England'. The policy states at B19: 'At all types of site, where a charge is to be levied for parking beyond the mandatory two free hours, the charging regime must be clearly displayed within both the parking areas and the amenity building.' Compliance of the MSA with the above policy is disputed and I therefore require Excel Parking to prove that such clearly displayed signage exists within the amenity building(s) at the car park in question. It is not enough to prove that such signage exists merely within the car park itself and that point is covered separately in my appeal.
Furthermore the policy states: 'All signing of roadside facilities and signing arrangements within sites must comply with the current Traffic Signs Regulations and General Directions {TSRGD} and any other guidance as may be issued from time to time by the Department for Transport or the Highways Agency. Approval must be sought from the
Highways Agency’s signs specialist for the use of all non-prescribed signs.' I put Excel Parking to strict proof that the DFT/Highways Agency has granted special authorisation for their traffic signs (any signs relating to traffic) in this particular MSA to be exempt from this policy requirement. It will not be acceptable for Excel Parking to claim that these particular signs are in their own opinion not 'traffic signs' when these signs provide information to vehicle users in moving traffic, who may never leave their vehicles.
Failure to comply with Government policy would render the alleged contract unenforceable.
In any case, unless signs are seen and understood before parking, they are not imported into any contract. In a free car park, where the Operator does not own the land (the named principal being the only party capable of offering the spaces and other amenities in the facility), there is no possibility of a contract, since no consideration can flow between a driver and a site agent. No money/offer/promise/permit or any other tangible nor implied nor executory consideration was capable of being exchanged with Excel Parking in this case.
I have recently driven this same route to check signage and the only clear invitation is on the MSA's own approach signage which offers 'free parking' and other roadside amenities. I had to search to find Excel Parking signs and was unable to make out the terms as the signs are at the top of poles. The driver, having parked the vehicle or driven through to get petrol (or having done both) would have relied upon the free parking offer from the MSA and no doubt saw no signs by Excel Parking at that time.
Their signage is not lit or reflective and is not so prominent that it 'must' have been seen among the myriad clutter of signs and information in a busy MSA. Terms are only imported into a contract if they are clear and so prominent that the party 'must' have known of it and agreed. The opposite is true in an MSA where the landholder's approach signs, brightly lit and with symbols, are very clear that free parking is offered to enable tired motorists to take a break - without strings or stated restriction. It was the MSA's own roadside approach sign advertising the services which formed the only possible offer and contract with 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). Lord Denning continued: '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.'
5. ANPR records are unreliable and not proof of one parking event.
The charge is founded entirely on two photos of my vehicle entering/leaving the car park at specific times. I put Excel Parking to strict proof that their ANPR system is not fundamentally flawed because of known issues such as missing checks and maintenance of the timer/cameras and the possibility of two visits being recorded as one. The Operator's proof must show checks relating to my case/my vehicle, not vague statements about any maintenance checks carried out at other times.
The 'two visits recorded as one' problem is very common and is even mentioned on the BPA website as a known issue: anpr link


The BPA says: ''As with all new technology, there are issues associated with its use:
Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.''

Since I am merely the registered keeper, I have no evidence to discount the above possibilities. Excel Parking show no parking photographs so they cannot say for certain that the car was not involved in non-parking related activity - e.g. queuing or filling up with petrol or water, nor can they show the car did not leave the site and return. This could easily be a case of two visits, or if my vehicle was on site for the time shown, I suggest that it may well not have been 'parked' for more than 2 hours. There is a petrol station on site, as well as air and water, so I put Excel Parking to strict proof of actual parking for over two hours with no other petrol station-related activity. Even if the car first drove past the cameras and though the car park the driver may have decided to get petrol whilst the passengers were in the MSA facility and so 'parking' for over two hours would not have occurred. The Government rules require a full two hours free parking to allow a driver to rest. So I require Excel Parking to rebut these assertions.

I agree with the BPA that this ANPR technology has issues associated with its use. These also include (but are not limited to) synchronisation errors, buffering, faults with the timer, faults with one or other of the cameras, faults with the wireless signals and differences between the settings of the in/out clocks. The operator uses WIFI with an inherent delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever accurate to the minute.

In addition, the BPA CoP contains the following in paragraph 21:
''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.''
Excel Parking fail to operate the system in a 'reasonable, consistent and transparent manner'. They place signs far too high to see on arrival and these are not lit, so 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 the data captured by ANPR cameras for'. I contend that as well as being unreliable, this is a non-compliant ANPR system being merely 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 not concerned with any aspect of the actual parking spaces, nor any parking event at all.

Umkomaas

We have no background on your case to evaluate this from a contextual point of view.

Which motorway services area was the charge in connection with?

Coupon-mad

Excel Parking don't do MSAs so why is this a MSA version?

libya

okay-thanks


the incident involved anpr camera in an Iceland/Excel car park - what changes do i need to make please?

Umkomaas

I'm afraid you need a complete overhaul/start again.

Please look at the NEWBIES FAQ sticky, post #3 'How to win at POPLA' blue link and find an appeal that closely resembles your circumstances, especially one also linked to Excel.

You just can't drop any old appeal in here, with seemingly little understanding of what you've 'written', and expect regulars to plough through a 3,000+ word wall of text, which makes no sense in respect of your situation, and sort it all out for you.

Sorry, but you have to put in the hours to sort your problem out. We will advise from the sidelines - but we have, literally, dozens to help - every day of the week!

When does your POPLA deadline expire?

Coupon-mad

Yep adapt the Excel version instead of trying to adapt another PPC version from a Motorway Services. Easy to find in 'How to win at POPLA' in post #3 of the Newbies thread which might be where you found this one. Some of it is OK but it's obviously about a MSA, as it says so. Look at an Excel POPLA appeal or two instead, even Google for some but only look at examples from the last 3 months or so.

libya

ok - so what about going with this effort?



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 five 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 habefty 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.

In any case I believe Excel are paid by Iceland 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 Iceland 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 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 Excel Parking 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 with full terms on display. 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.

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.

4) 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.

I also require Excel to produce evidence to show that they had conducted searches of their ANPR database to rule out multiple entries/exits, a phenomenon where the camera has missed picking up the VRN in the middle of those times shown on their photos. It would only take one missed reading of the VRN - due to a van or a carrier bag, bird, tree branch or even a pedestrian crossing over and obscuring the camera's clear view - for this system to then ignore any other entry/exit in the meantime. ANPR records are certainly not infallible and all such systems have their flaws. Excel's evidence shows no parking time, merely photos of a car driving in and out (first arrival, last exit) which does not discount the possibility of a double visit that day. Indeed this issue has previously been noted by POPLA assessor Matthew Shaw in a successful POPLA appeal in May 2014:

“where a registration mark is misread, or not read at all and no photo is recorded by the ANPR camera, then the system is “configured to record the duration of stay as the first and last exit”, and to ignore any isolated entry or exit in between. On that basis, the ANPR need only have missed either the vehicle’s initial exit or re-entry. Because the site was very congested at the times in question, the Appellant submits that the ANPR error is most likely to have been caused by another vehicle obscuring his registration mark. In any event, the Appellant suggested various pieces of evidence that the Operator ought to reasonably provide to prove its case. This included evidence to show that it had conduct searches of its ANPR database to rule out multiple entries/exits on the day in question. The Operator did not produce any evidence to address these issues. On balance, I find that the Operator has not discharged its burden to prove the offence by refuting the Appellant’s submissions. The appeal is allowed on this ground. “

It is therefore within the realms of possibility that the system operating on the day in question may well have fallen victim to such a phenomenon of the vehicle entering the car park and leaving on two separate occasions but only recording two of these events and as such creating the appearance of the vehicle being in the car park for a longer period than was actually the case. Or the driver may have driven in, realised it was pay and display then driven out to get change before returning (and of course the ANPR cameras show only the first and last visits even if they actually have three photos - i.e. in a case where the camera misses reading one of the entries/exits in the middle of the period, the system defaults to showing the first entry and last exit and ignores any other image).

The BPA even mention this as an inherent problem with ANPR on their website;

The BPA's view is: 'As with all new technology, there are issues associated with its use:
a) Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.
b) Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'

Even if an Operator shows a list with 'no record' of that car registration in between the times, this would not discount the 'double visit' possibility as it is well known that car registrations are completely missed when a vehicle is followed closely by a higher vehicle, or by a temporary interruption in the camera recording. I put the Operator to strict proof to the contrary. In my view, it would take evidence in the form of continuous video footage to refute the double visit possibility. If I am wrong then they must show POPLA a complete 'video' that they allege shows no more entries or exits that day by this car. Lists of VRNs 'seen' would merely support my argument that the system is flawed.

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.

5) 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. 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.

Fruitcake

You have a typo in the first paragraph, "or habefty write-off costs..."


The rest looks OK to me but I am not one of the experts.


Have you complained long and loud to Iceland pointing out these scammers are using ANPR technology that is known to be unfit for purpose? Have you told them they will lose you and all your family and friends as customers if they do not get this fake unenforceable PCN cancelled?


Do not let Iceland fob you off with," it's nothing to do with us". Iceland are the principle here and Excel are their agents so anything Excel do, Iceland are jointly liable.

Coupon-mad

Looks OK, much better, but as long as the driver has never been divulged and you are appealing only as the keeper, I would add the other point you had in the first version:

Failure to invoke Keeper Liability under the Protection of Freedoms Act 2012 (the POFA).

Check the NTK against paragraph 9 as quoted, and I think you will find most if not all of the points in the MSA example are also true of an Excel postal PCN. Assuming this was a postal PCN not a windscreen one (the latter would need paragraph 8 quoted instead).