Excel Parking - Iceland Spennymoor

JazzJPH

Right, so I have taken as an example, a letter from the following link:

https://forums.moneysavingexpert.com/discussion/comment/64393064#Comment_64393064

I have amended it to suit the car park my wife was in. It will be signed by her. And so here is my letter, amendments made in red:


Dear POPLA

I am writing to appeal against a parking charge levied by Excel Parking Services Ltd. I am the registered keeper of the vehicle concerned and this is my appeal, based on 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 hefty write-off costs and unsubstantiated 'overheads'. Also, if Excel include in their calculation any staff costs or time spent dealing with POPLA appeals or debt collection this must only be calculated on a very minimal pro-rata basis, since only a very small percentage of cases ever go to POPLA or to debt collection stage. The Operator cannot truthfully state that 'hours' are spent by various staff members in a team, on each and every PCN, because in the vast majority of cases the automated process (camera takes photos>PCN triggered automatically, most cases not even appealed)clearly involves very little back-office intervention. If only 2% of cases proceed to POPLA then only 2% of the costs of POPLA appeals could be factored into a genuine pre-estimate of loss relating to all PCNs. I contend that Excel cannot justify £100 for each and every PCN that they say flows directly from a typical parking event in breach.

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 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 Peel Centre has cropped up at POPLA, then I contend that the calculation must fail as it is not a genuine PRE-estimate. A re-written calculation after the charges were set at this site, would be a 'post-estimate' after the event, showing figures conveniently calculated to match the charge. Indeed, in the 2014 Annual Report prepared by the lead assessor, Mr Greenslade, he stated this sort of calculation is not acceptable: “However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."

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

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

3) The signage was inadequate so there was no valid contract formed
A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms before parking. Nothing about Excel's onerous terms was sufficiently prominent - and indeed around the shops and disabled bays there are no terms at all except 'free parking for 2 hours’ and some information about Blue badges, respectively (despite the BPA CoP requiring all areas including disabled bays to be clearly signed 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.

The largest sign on the car park is right at the entrance, which can be seen only very briefly as the motorist turns into the car park then drives immediately around another corner to get into the car park. I feel this sign was placed here deliberately as nobody will stop to read it if there are cars behind them. I truly believe the sign is in an unsuitable place as the motorist cannot pull over to one side and allow flow of traffic while they read the sign. Instead, they are under pressure by other motorists to get into the car park and allow them access.

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.
<section referring to car park signs around Nandos/KFC being a free car park within P&D car park has been removed>


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 and immediately driven out for whatever reason (visiting a different shop first, having other priorities etc.) before returning later (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;
http://www.britishparking.co.uk/How-does-ANPR-work
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 - which was nothing if the occupants were in either of the shops where there is free parking. Excel show no evidence either way, merely photos of the first arrival and last departure in moving traffic, with no indication where the car was in between. The charge of £100 imposed by Excel constitutes an unfair term as it is disproportionate with respect to the alleged infringement.

yours,


The registered keeper's name

Redx

it wont belong to excel

they will be contracted for car parking duties , by the landowner

excel own little or more likely NO car parks

JazzJPH

Redx wrote: »

it wont belong to excel

they will be contracted for car parking duties , by the landowner

excel own little or more likely NO car parks

Where was that mentioned?

Coupon-mad

EDITED - now irrelevant as Excel do not offer POPLA in 2017.

SEE MY SIGNATURE!!

JazzJPH

Hi guys,

Sorry for not responding earlier, we had a letter through saying our appeal was upheld.

Thank you all so much for your help, it's very much appreciated.

Jazz

Coupon-mad

Be careful in future though - avoid that car park. Excel are not in the BPA (EDIT IN 2016/17 THEY SUE PEOPLE BUT ARE BEATABLE).

batman1056

I have just received the same letter - some website are telling me to ignore it others to respond.


I have asked for photos of the driver as it could have been one of 3 people driving the car, I am also aware that during that day we went to that car park at least 3 times so I doubt it captured that correctly.


Very frustrating as it states I was over the 120min allocated time by 23 mins - which I cannot recall doing or even seeing the signs.

Coupon-mad

batman1056 wrote: »

I have just received the same letter - some website are telling me to ignore it others to respond.


I have asked for photos of the driver as it could have been one of 3 people driving the car, I am also aware that during that day we went to that car park at least 3 times so I doubt it captured that correctly.


Very frustrating as it states I was over the 120min allocated time by 23 mins - which I cannot recall doing or even seeing the signs.

You've posted on a 2014/2015 thread.

You need to read the current forum and the NEWBIES FAQs and read up on all the BW Legal threads where Excel sue people, but almost all posters here defend and win.