Parking charge from Excel Parking

[Shirley Temple]

Re: Parking charge from Excel Parking

Thanks, it was an automated email they sent saying they had received my email and if I didn't send them my full address and the name of the owner of the vehicle then I needed to send it to them,
I haven't sent this as I guess they already have it as they had sent the PCN throught the post to the owner of the vehicle,
If I call and they ask for the information as to who the driver was can I just state that I don't wish to name the driver?

[mystery1]

Re: Parking charge from Excel Parking

Correct. You are appealing as the registered keeper as you are allowed to do.

http://www.britishparking.co.uk/writ..._Version_4.pdf

22.1 Under the Code you must have procedures for dealing fairly, efficiently and promptly with complaints, challenges or appeals. The procedures must give drivers and keepers the chance to challenge a parking charge notice.

M1

[Shirley Temple]

Re: Parking charge from Excel Parking

Hiya a quick question regarding my post,
I may be tempting my fate here but it's nearly 35 days since I emailed my appeal to Excel, and according to the link above (if I've read it correctly) they have to have replied to me regarding my appeal within 35 days,
So my question is if I've not heard from them within the 35 days can they still enforce the PCN? Or can I just tell them to do one?

TIA xxx

[mystery1]

Re: Parking charge from Excel Parking

Well all breaches of the code of practice are helpful but don't 100% mean a victory.

You will win though.

M1

[Shirley Temple]

Re: Parking charge from Excel Parking

Fingers crossed I don't hear from them in the next few day,,, as soon as I do I'll come back to you, thanks for all your advice xxx

[Shirley Temple]

Re: Parking charge from Excel Parking

Well I guess I was tempting fate as I have received a letter saying they reject my claim, They are stating that "parking is leaving your vehicle attended or unattended stationed within the car park or the parking spot"
They have sent me a popla code but if I place an appeal to popla does this go to the courts?
I really can't be bothered to fight through the courts over £60,
Any help is grately needed xxx

[Kati]

Re: Parking charge from Excel Parking

Well I guess I was tempting fate as I have received a letter saying they reject my claim, They are stating that "parking is leaving your vehicle attended or unattended stationed within the car park or the parking spot"
They have sent me a popla code but if I place an appeal to popla does this go to the courts?
I really can't be bothered to fight through the courts over £60,
Any help is grately needed xxx

Personally, I'd still appeal to POPLA, chances are that you would win!! ... but at the end of the day, the decision is wholly yours to make

For a popla appeal edit http://www.legalbeagles.info/forums/...-Appeal-Letter or http://www.legalbeagles.info/forums/...-Appeal-Letter to suit and it'll be all right on the night

Maybe @mystery1 will have some words of wisdom for you :tinysmile_twink_t2:

Kx

[mystery1]

Re: Parking charge from Excel Parking

If you win at popla you've won. It costs you nothing to do so. 99.9% you win.

If you need a hand with a popla appeal let me know. There was an excel win recently so copy that as i'm away to work. If you can't find it let me know and i'll get back to you tonight/tomorrow.

M1

[Shirley Temple]

Re: Parking charge from Excel Parking

Yes please, any help you can give me is great, I'm not even sure I know where to start xxx

[Shirley Temple]

Re: Parking charge from Excel Parking

Yes please, any help you can give me is great, I'm not even sure I know where to start with editing the letter as in ie they don't own the land? And where do I put the bit about not even leaving the vehicle and it only being in the car park for 16 to which they give you 10 mins grace, so they are trying to charge me £60 for effectively 6 mins of just being sat in my car in their car park xxx

[mystery1]

Re: Parking charge from Excel Parking

http://www.legalbeagles.info/forums/...159#post457159 Not Excel as i thought but replace PPS for Excel and you have same sh!t different scumbag

http://www.legalbeagles.info/forums/...-Appeal-Letter

Start with those. I'll be back tonight as i'll then be off for 3 days

M1

[Shirley Temple]

Re: Parking charge from Excel Parking

Hi M1 can you please help me out with the editing for the popla appeal, I'm not quite sure what I need to take out or replace and where to write the bit about not leaving the vehicle? Sorry I'm abit blonde xxx

[mystery1]

Re: Parking charge from Excel Parking

Dear Sir/Madam,




I appeal against the decision of Excel parking because they have failed to follow the BPA code of practice and attempted to impose a penalty charge for either breach of contract or trespass.




The operator does not appear to own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, The operator has not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.




I require the operator to provide a full copy of the actual contemporaneous, signed & dated contract with the landowner.




Contracts are complicated things, so a witness statement signed by someone is not good enough, neither is a statement that a person has seen it. A copy of the original, showing the points above, is the only acceptable item as evidence that a contract exists and authorises the Operator the right, under contract, to write numerous letters to an appellant chasing monies without taking them to Court, to pursue parking charges in their own name, to retain any monies received from appellants and to pursue them through to Court.




I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.




I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges.




It was stated that, "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be."




The ruling of the Court stated, "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services."




In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated losses, as set out above.




The Operator also make reference in their appeal refusal of (date) to “seek to recover the monies owed to us” and makes no reference to the Landlord at all.




7.1 of the BPA code of practice makes it a requirement that Excel parking either own the land, or have the written authorisation of the land owner to enable them to operate on the land. I, as registered keeper, put Excel parking to strict proof that a valid contract exists that enables them to act in this manner on behalf of the landowner. It is not an onerus task to produce the contract as secttion 8.1 of the code means it has to be available at all times.








The BPA Code of Practice indicates at paragraph 13.4 that the Respondent should, “allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.” The signage in the car park provides no indication of the period of time it allows and this is unreasonable, especially as Excel parking rely on pictures taken of a vehicle at first arrival and then when leaving (not showing any evidence at all of actual parking time). So, there is no evidence that the respondent can produce to indicate that my vehicle was parked for more than the arbitrary time limit they are relying upon, and no breach of contract by the driver can be demonstrated by their evidence at all. On that basis the sum claimed fails to meet the standards set out in paragraph 19 of the BPA Code of Practice.








19.5 of the code of practice states, “If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer,”




There was a parking charge levied and paid which covered the period of parking when the signage dictated that it should be. After this time the car park is “free”. On the date of the claimed loss it was nearly empty and there was no physical damage caused. There can have been no loss arising from this incident. Neither can Excel parking lawfully include their operational day-to-day running costs in enforcing parking restrictions at the site (for example, by erecting signage and employing administration staff) in any 'loss' claimed. See VEHICLE CONTROL SERVICESLIMITED -v- MR R IBBOTSON and A Retailer v Ms B and Ms K, Oxford County Court. This does not represent a loss resulting from a breach of the alleged parking contract. In other words, were no breach to have occurred, the cost of parking enforcement would still have been the same. This has been quoted by PoPLA itself in adjucation.




I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.




The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges for all day parking. This is all the more so for the additional charges which operator states accrues after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by 40% by early payment that it is unreasonable to begin with.




UNLAWFUL PENALTY CHARGE




Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .




The operator is either charging for losses or it is a penalty/fine.




The operator could state the letter as an invoice or request for monies, but chooses to use the wording “CONTRACTUAL PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.




The signage on site states that parking is limited to 2 hours with no return within 1 hour. There is no option to stay for longer by paying. A clear penalty.








NO CONTRACT WITH THE DRIVER




There is no contract between PCC and the driver, but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999.. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc, were not satisfied.




UNFAIR TERMS




The charge that was levied is an unfair term, and therefore not binding, pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(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." Furthermore, Regulation 5(1) states that: "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" and 5(2) states: "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."




UNREASONABLE




The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "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.”




I further contend that Excel parking have failed to show me any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR) and would require POPLA to consider that particular section of the Code in its entirety and decide whether the Operator has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence. I, as registered keeper, contend that these cameras and their operation do not meet the standards laid down in the BPA code of practice.




I would contend that this appeal should be allowed for these reasons.


Yours sincerely


M1

[Shirley Temple]

Re: Parking charge from Excel Parking

Do I need to remove this bit as I don't think it says that on the signs?

The signage on site states that parking is limited to 2 hours with no return within 1 hour. There is no option to stay for longer by paying.

Thanks for your help it's very much appreciated xxx

[Kati]

Re: Parking charge from Excel Parking

Do I need to remove this bit as I don't think it says that on the signs?

The signage on site states that parking is limited to 2 hours with no return within 1 hour. There is no option to stay for longer by paying.

Thanks for your help it's very much appreciated xxx

If it doesn't apply, then you should remove it [MENTION=44931]Shirley Temple[/MENTION] :tinysmile_twink_t2:

K xx