Excel PCN, odd letter

Vangirl

Hi everyone, thanks for the help! I've finally got round to following your advice and editing one of the letters on the POPLA examples page (specifically this one: forums.moneysavingexpert.com/showthread.php?p=64393064&highlight=#post64393064)

If anyone has a minute and wouldn't mind looking over this it would be much appreciated! I've removed the parts that are specific to the original authors case and I have added section 4.
Hopefully I haven't deleted too much, but I don't have any additional evidence/haven't written any letters that the original author had done.


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

3) The signage was inadequate so there was no valid contract formed
A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms before parking. Nothing about Excel's onerous terms was sufficiently prominent. I believe that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

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) No keeper liability due to the PCN and appeal response initially being ignored, then arriving late. The PCN arrived 128 days after the alleged contravention. The keeper then appealed the contravention in a timely manner within the 14 day allowed window, but received no notification of the decision within the 35 day window advised by Excel. It states on the reverse of the PCN that if Excel are not able to confirm their decision within 35 days then they will inform the keeper within the 35 day window to explain why/confirm a new decision date, this did not happen. Instead the keeper was sent a ‘Final Reminder Notice’, ignoring the keeper’s appeal. After additional email contact from the keeper, Excel responded to the appeal, but the response letter arrived outside of 35 days.


5) 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;
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.

6) Unfair terms
The terms that the Operator is alleging create a contract, were not reasonable, not individually negotiated and caused a significant imbalance - to my potential detriment. Therefore, this charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says: ‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’

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

From the Office of Fair Trading’s 'Guidance for the Unfair Terms in Consumer Contract Regulations 1999':
Group 5 : Financial penalties – paragraph 1(e) of Schedule 2:
5.1 “It is unfair to impose disproportionate sanctions for a breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law.”
Group 18(a): Allowing the supplier to impose unfair financial burdens
'18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However, as already noted, transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.
19.14 The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term...will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term.'

I contend the above describes the charge exactly as an 'unfair financial burden'. The charge is designed ostensibly to be a deterrent, but is in fact a disguised penalty, issued by a third party agent which is not the landowner and has no assignment of title. Such a charge would normally be restricted to the landowner themselves claiming for any damages or loss - which was nothing if the occupants were in either of the restaurants where there is free parking. Excel show no evidence either way, merely photos of the first arrival and last departure in moving traffic, with no indication where the car was in between. The charge of £100 imposed by Excel constitutes an unfair term as it is disproportionate with respect to the alleged infringement.

yours,

Redx

move gpeol to the last point and renumber

add the blue words about Beavis below it (from the NEWBIES sticky thread)

when is the expiry date of the popla code ?

Vangirl

Ok cool, I've changed those bits around and added the blue text at the bottom (as below).

Woah I thought I had a few days left but looks like I need to send it off right now! Just submitted it, thanks for all your help!


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 six points:

1) No standing or assignment of rights to enforce this charge in the courts
Excel have no proprietary interest in the land concerned. 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.

2) The signage was inadequate so there was no valid contract formed
A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms before parking. Nothing about Excel's onerous terms was sufficiently prominent. I believe that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

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.

3) No keeper liability due to the PCN and appeal response initially being ignored, then arriving late. The PCN arrived 128 days after the alleged contravention. The keeper then appealed the contravention in a timely manner within the 14 day allowed window, but received no notification of the decision within the 35 day window advised by Excel. It states on the reverse of the PCN that if Excel are not able to confirm their decision within 35 days then they will inform the keeper within the 35 day window to explain why/confirm a new decision date, this did not happen. Instead the keeper was sent a ‘Final Reminder Notice’, ignoring the keeper’s appeal. After additional email contact from the keeper, Excel responded to the appeal, but the response letter arrived outside of 35 days.


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

6) 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 the Moor Centre in Brierley Hill 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 Moor Centre 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 Moor 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."

The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.


yours,

Redx

excellent, come back and tell us when you win

Vangirl

Thanks for the help, the appeal was a success! I've replied to the POPLA decisions thread :-)

Guys_Dad

Vangirl wrote: »

Thanks for the help, the appeal was a success! I've replied to the POPLA decisions thread :-)

Well done. Interesting that the winning point was the only one you really needed and hopefully will be a guide for a couple of contemporary threads. If you have the same point -out of POFA time - don't wast time adding any others.

The Appellant has made a number of submissions, however, I will only elaborate on the one submission that I am allowing this appeal on, namely that there is no keeper liability as they received the parking charge notice 128 days after the alleged parking contravention and the notice is not compliant with the Protection of Freedoms Act 2012.

Ralph-y

Vangirl ......

well done :j

now its time for you to give back to the cause

please make sure all your friends , family and acquaintances know all about this sort of scam .....

and

more important how to deal with it

Ralph:cool: