PCN company car

Kayleighb1

I appeal this 'PCN' as keeper of the above car.
I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.

a). The sum does not represent a genuine pre-estimate of loss, nor is it a core price term. It is a disguised penalty and not commercially justified.
b). As keeper I believe that the signs were not seen, the wording is ambiguous and the predominant purpose of your business model is intended to be a deterrent.
c). There is no evidence that you have any proprietary interest in the land. I require the contract with the landowner is produced, as Excel are not the landowners and I contend you have no legal standing to pursue this charge.
d). There was no consideration nor acceptance flowing from both parties and any contract with myself or the driver is denied. The signage still indicates that EXCEL parking are a member of the BPA, meaning any appeal would be under POPLA, and therefore cannot legally enforce a contract as it does not convey correct information.
e). This is not a parking ticket, it is an unsolicited invoice.
f). It doesn’t comply with Terms in Consumer Contracts Regulations 1999
g). Excel is misleading as to the reasoning for the PCN.
h). ANPR camera accuracy.

a). The parking charges at the EXCEL site in question are £1.30 for 0-3 hours. Your unsolicited invoice alleging that the car above stayed for 33 minutes indicates that parking charges would have been limited to £1.30. In addition, there is a 15 minute window in which to buy a ticket, therefore the alleged offence is only for 18 minutes. Therefore your 'parking charge' of £100 does not represent a genuine pre-estimate of loss and is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. The amount claimed is excessive and is being enforced as a penalty for allegedly parking. I wish to see a breakdown of the cost calculations relating to this charge; given all of the costs must represent a loss resulting from the alleged breach at the time. Note:- the charges demanded by the operator as "genuine loss" are those allegedly incurred at the point of issuing the charge, and can not include speculative future costs relating to internal appeal procedures.

The keeper would be happy to make a retrospective payment of £1.30 to make good any losses on genuine parking charges incurred.

b).

c). As Excel are not the owners of this land and as such they cannot form a contract with the driver, I wish Excel to provide me with a full un-redacted copy of their contract with the landowner which allows them to form such a contract. A witness statement as to the existence of such a contract is not sufficient. I believe there is no contract with the landowner that gives Excel the legal standing to levy these charges nor pursue them in the courts in their own name as creditor. This was shown to be the case by District Judge McIlwaine in VCS v Ibbotson, Case No 1SE09849 16.5.2012 (transcript in the public domain). Further evidence that a third party agent cannot pursue such a charge anyway: as was found in ParkingEye v Sharma: Case No. 3QT62646 in the Brentford County Court 23/10/2013. District Judge Jenkins dismissed the case on the grounds that the parking contract was a commercial matter between Parking Eye and the landowner, and didn’t create any contractual relationship with motorists who used the car park. I submit that this applies in this case as well.

d). I submit that since the signage (see attached) is still incorrectly advising that EXCEL parking are approved BPA operators, that they are in breach of The Consumer Protection from Unfair Trading Regulations 2008 (5)(2)(a) - containing false information and is therefore untruthful - and The Unfair Terms in Consumer Contracts Regulations 1999 (see point g), and therefore no contract can be legally enforced.

In addition, if this charge was a contractually agreed fee, a VAT invoice would have been provided. I have no evidence that this business operation on this car park has been registered for business rates and a VAT invoice has not been supplied. I request a vat invoice as this car is a company car and can therefore have the expenses offset against business costs. This VAT must be accounted for as per HMRC regulations and requirements. Please therefore reissue your invoice upon rejection of this appeal, with the relevant VAT information included.

e). The appeal letter mentions the charge is for ‘a breach of terms and conditions of parking’ - if the vehicle was parked by the terms of the contract, then no breach occurred and no payment is due. (As per the initial PCN, which refers to the driver "agreeing to be contractually bound"). If the vehicle was parked in breach of the terms then there is no genuine offer to park, and the charge is an unenforceable ‘penalty’. The use of the word ‘breach’ by yourselves in this manner is also in breach of the IPC Code Of Practice regarding use of language when communicating with the keeper- though you have not used the term ‘penalty’, there is no other word for a charge incurred by a ‘breach’ of parking conditions.

f). In the Unfair Terms in Consumer Contracts Regulations 1999:-

''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.''

Also the OFT ‘Unfair Contract Terms Guidance’:
Group 18(a): Allowing the supplier to impose unfair financial burdens
‘'18.1.3 ...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.’’

A driver / keeper cannot enter into a contract to pay for something that is expressly prohibited or unauthorised because that would make it a disguised penalty, according to the Office of Fair Trading. The signage and appeal rejection letter are ambiguous but both give away the fact that it is not a contractual fee but a charge for "a breach of the conditions". A genuine contractual fee would have a payment mechanism related to the true cost of the supply of a parking space, not charge the same punitive amount whether the car stayed for 1 minute or 24 hours.

This charge represents 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.’

g). EXCEL is misleading as to to the reasoning for the PCN. The reason of this invoice as stated in PCN (see attached file) for "allegedly breaching the terms and conditions" which is under POFA 2012. But the appeal rejection letter said "we are not seeking to rely on POFA 2012", and that the driver has "freely entered into an agreement to abide by the conditions of parking in return for permission to park...or the motorist would face liability for a parking charge". This breaches the Unfair Terms in Consumer Contracts Regulations 1999 as above. Again, the signage on site shows EXCEL complies with BPA COP not with IPC COP which mislead me and wastes my time during complaint and appeal process. The sign is clearly not creating a contractual agreement so there is no genuine fee to park 'not in accordance' (i.e. in breach) of the terms.

h). EXCEL are obliged to ensure that their ANPR equipment is kept in good working order as described in section 3.3 of the IPC's code of practice. I require EXCEL 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 the vehicle entering and exiting at specific times. It is vital that EXCEL produce evidence in response to these points and explain to IAS how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge concluded that the evidence from the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point. I also challenge The Operator to show that DPA registration (data collecting CCTV) is also compliant with legal requirements and demand that they demonstrate adherence.


I also reserve the right to see the evidence of the other party before a decision is made.

Kayleighb1

I have added this

As stated in the appeal rejection, EXCEL are "not seeking to rely on POFA 2012" and "we highlight that we will continue to pursue the matter on the reasonable assumption that you were the driver of the vehicle in the date in question". I contend that in order to pursue this matter with me as keeper of the car, EXCEL needs to provide evidence that I was the driver at the time of the alleged offence. No keeper liability can apply in this case and therefore I request you dismiss this charge.

Scfisher

Just for info. What was the terms and conditions that you breached according to letter from excel.

The reason for asking is my letter stated that I 'parked without displaying a valid ticket / permit.'
This was not one of the 8 reasons for issuing a PCN according to the signage back in Dec 2014.

As well as many of the points you have raised I added that in my appeal (still outstanding)

I know you have posted picture of sign but cannot read on phone. Thought I would highlight that it may be worth you carefully checking the alleged breach on letter with conditions on sign.

Kayleighb1

Lost!

""I have read and viewed the documents provided by both the appellant and the operator, and I will run through the points raised as per the appellant's appeal notice.

1. Sum does not represent a genuine pre-estimate of loss, disguised as a penalty, not commercially justified.

I will refer to the recent decision in Parking Eye Limited v Beavis, handed down from the Court of Appeal. In his summing up of the case, Lord Justice Moore-Bick stated that the parking charge was commercially justifiable, that although parking charges are a deterrent, they are still enforceable, and that the amount of the charge is neither extravagant or unconscionable, and that a single comparison between the amount of the charge and any direct loss suffered by the innocent party is inappropriate.

2. Non-compliance with POFA 2012. From the same case, Moore-Bick LJ said that the provisions in the POFA strongly supported the conclusion that Parliament considered it to be in the public interest that parking charges of this kind should be recoverable.

3. Contract between the operator and the landowner. Although the appellant has not seen this contract, I have, and I am satisfied that the operator is entitled to pursue the charges incurred on the land in question.

4. Consideration and acceptance. Here the appellant has freely entered onto the land in question, having passed a number of large and conspicuous signs detailing the conditions of parking on the land. The appellant has freely entered into this contract. The fact that the operator may or may not be a member of BPA does not mislead the appellant as to the terms he is agreeing to. The fact that he has not admitted being the driver does not mean that he is not liable for the charge. The case of Elliot v Loake has determined that, in the absence of evidence to the contrary, the keeper of the vehicle is assumed to be the driver.

5. Not a parking ticket. With regard to thi s issue, I am satisfied that a proper charge was issued in this case.

6. Non-compliance with the Terms in Consumer Contracts Regulations. Despite the appellant's submissions, there is nothing that leads me to the conclusion that the operator has breached any requirement regarding the above Regulations.

7. Excel misleading as to the issue of the PCN. The PCN was clearly issued because the appellant entered the car park, remained for 33 minutes, and left without purchasing a ticket.

8. ANPR equipment accuracy.

Without evidence to the contrary, and given the operator's explanation as to how the system operates, I am satisfied that the equipment was working properly.

For all the above reasons I would dismiss the appeal."

esmerobbo

2. So because the Government implemented POFA it was automatically complied with?

4. Elliot V Loake are they taking the pi55 that was a RTA offence were the appellant crashed into a parked car, and lied when later arrested by the Police. He said he wasn't driving and he had not given anyone else permission to drive..

Quote from Lord Justice GRIFFITHS

"The owner manifestly lied about the damage to the car. The obvious inference to be drawn is that he is deliberately manufacturing the lie in order to escape responsibility for the accident which he caused when he was driving the motor-car. "

8. Excel = ANPR fine. Assessor = OK it must be.

No wonder they wont identify themselves!

Kayleighb1

We have just received a letter - notice of intended court proceedings - saying that if we don't pay the fine by tomorrow they "may commence debt recovery action or legal proceedings".

Any advice? I feel like I'm playing poker and don't know who is bluffing.

Redx

except it does not say that, it does not say "fine", you made that up

it says if you dont pay the extortionate amount demanded (I made that up too) they may issue court proceedings , or get the debt collectors on the case (who have no powers and can do nothing except send you nasty letters)

and yes they may, or they may not, they have 6 years to decide, you have 6 years of worry and hassle

maybe you would win in court, maybe you wont, but you wont know until the fat lady sings (when its all over)

nothing else you can do except pay (which we dont advocate) or go to court and defend yourself (if it gets that far)

there is no magic bullet to make it "go away" , they are calling the shots , you decide on your strategy and defence

Kayleighb1

My apologies for using the word fine. I think it's clear that it was my language, since the stuff I took directly from the letter was in quote marks.

The letter referred to the £100 as a "debt" or "charge". Just to clear things up.

I understand our choice is to pay or risk court, yet I would still appreciate advice. What would forum users do? How likely is it that excel go to court? Have they a history of doing so?

Can debt collectors force their way into my home? (Debt is not in my name)

Would really appreciate advice.

Redx

Kayleighb1 wrote: »

I understand our choice is to pay or risk court, yet I would still appreciate advice.

1) What would forum users do?

2) How likely is it that excel go to court? Have they a history of doing so?

3) Can debt collectors force their way into my home? (Debt is not in my name)

Would really appreciate advice.

1) that is your choice to make

some will wimp out , others will stand their ground

you have the right to defend yourself in front of a judge, my advice is

do so

2) they do and have taken people to court, so its definitely possible

3) NO , read posts #12 and #13 in here

https://forums.moneysavingexpert.com/discussion/5161978

also read post #4 of the newbies sticky thread too

its BAILIFFS that can do this, providing they have a court order signed by a judge, you are mixing the two up, plus its not been in front of a court

Kayleighb1

Many thanks