PCN - Excel parking, Peel Centre Stockport

[mystery1]

Re: PCN - Excel parking, Peel Centre Stockport

Are you the registered keeper or is it all in your mrs name ?


M1

[nickdav]

Re: PCN - Excel parking, Peel Centre Stockport

Its all in my wife's name, and she was the driver at the time.

Thanks

Nick

[mystery1]

Re: PCN - Excel parking, Peel Centre Stockport

Leave it with me.

M1

[nickdav]

Re: PCN - Excel parking, Peel Centre Stockport

Thanks.

[mystery1]

Re: PCN - Excel parking, Peel Centre Stockport

[QUOTE=nickdav;530274]Thanks.[/QUOTExcel E]

You get 1 chance to appeal and cannot change anything so get everything ready and submit it all together,including photos, letters etc.


I wish to appeal for the following reasons :-

A ‘parking charge’ cannot be applied for a machine failure to accurately record information provided by a motorist..
The amount charged does not represent a genuine pre-estimate of loss
No landowner contract nor legal standing to form contracts or charge drivers
No contract with registered keeper as per ‘The Consumer Contracts (Information, Cancellation & Additional Payments) Regulations 2013’
The registered keeper is not liable for this charge under POFA 2012 as the requirements have not been met.
Excel are trying to enforce an unfair contract as per ‘Unfair Terms in Consumer Contracts Regulations 1999’ & OFT ‘Unfair Contract Terms
Guidance’
Incorrect information on PCN.
The PCN breaches the AOS code of practice in a number of areas.

1. Excel have issued a PCN ‘Parking Charge Notice’ however they have stated that the PCN is for ‘Parking without displaying a valid ticket/permit ’. The PCN issued by Excel contradicts itself, it cannot be a ‘parking charge’ if it is for an alleged non displaying of a ticket as a ticket was on display. (see exhibits A & B). The driver entered the registration number in to the machine but it did not print on the receipt. In any event the ticket itself only requires the time and date be displayed. I believe that the charge amounts to an attempt to charge a penalty which is illegal as Excel have no authority under law to issue a fixed penalty notice.
2. The amount demanded doesn't represent a genuine pre-estimate of loss, nor is it a core price term nor does it reflect any material damage to The Peel centre or Excel . The fact that the charge is none-itemised and given as a round figure to the maximum amount allowed (also with the minimum amount of discount offered for payment within 14 days) under the AOS Code of Practice (Schedule 5) means that this charge can only be interpreted as quite literally no-more than a disguised penalty. Which has been issued in the form of a misleading un-solicited invoice with the aim of maximising revenue for Excel .
   
   
   If the charge is an attempt at gaining compensation for a loss to the businesses then it is not commercially justified and has no basis in law to be claimed. The driver purchased £2 of parking time which is for 3-4 hours of parking. Therefore there has been no loss to the business. See parking eye v Cargius http://nebula.wsimg.com/de2566ded6f0...&alloworigin=1
   
   
   Therefore the parking charge 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 stopping. 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 cannot include speculative future costs relating to internal appeal procedures or mounting an IAS defence. Also losses must not include normal overheads costs incurred by Excel in the running the business or the manning of the centre premises.No landowner contract nor legal standing to form contracts or charge driver
   
   3. 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.

4. I reject strongly that any contract was ever entered into by the motorist when entering the site and I find it ludicrous that a few poorly designed and positioned signs which can’t possibly be read properly from a moving vehicle can be used as a basis for contract. The signs are adjacent to the main roadways therefore a driver can’t stop and read them properly which contravenes the AOS code of practice section 17.1 (Grace Period)‘Drivers should be allowed a sufficient amount of time in order to park and read any signs in order that they may make an informed decision as to whether or not to remain on the site before any enforcement action is taken by you or your agents’.


As stated the position of the signs do not allow for the above. The amount of detail on your signs and the fact they do not fully face the oncoming traffic means they cannot be read fully from a moving vehicle.


According to the Excel signage at the centre, the £100 covers "parking in a restricted area" "using a disabled bay without clearly displaying a valid disabled badge" There can be no contract to do something that is not permitted. A contractually agreed sum is a fee specified within the terms of a contract i.e. the price to be paid for x amount of parking.
Excel are attempting to say the charge is a contractually agreed sum but they fail - it isn't.
In order for there to be a contract there must be an offer, acceptance and an exchange of ‘consideration’ between the parties (i.e. each party must receive something of value from the other). If only one party receives the ‘consideration’ there can be no contract.
So it can’t be a contractually agreed fee if what you are being asked to pay for is something that is NOT allowed because, clearly that’s a nonsense and, it fails to establish the essential requirements of a contract because there is no exchange of consideration when you are being asked to pay but get nothing in return.
Because permission to park cannot be granted when parking isn't allowed the parking charge cannot be a contractual price. Instead, the charge is still a sum sought as damages, and therefore must be shown to be a genuine pre estimate of the loss which may be caused by the parking breach. As has already been established in point 1 this has not been carried out.


Excel have breached the new Consumer Contracts Directive from the EU, specifically the information requirements in the Consumer Contracts (Information, Cancellation and Additional Payments) Regulations 2013:


They failed to serve by 'durable medium' in advance, the geographical address and phone number of their client, since Excel is acting as an agent of the principle, the owners of the Peel centre.


Also they failed to ensure that the contract was 'expressly agreed' which is a requirement of the regulations - agreement can no longer be assumed or implied. It is trite law that a contract read (or in this case, not read) merely from signage leads only to 'implied consent': 'a manifestation of consent to something through conduct, including inaction or silence' or ' Consent that is inferred from signs, actions, or facts, or by inaction or silence.'




Quite clearly express consent (as required by this law) was never given to enter into contract.


Quite clearly express consent (as required by this law) was never given to be subject to additional unsolicited charges which is what this PCN quite clearly amounts to.


So it fails the test of 'express agreement' in advance of a consumer contract, which is now demanded by the EU Directive and current Consumer Regulations i.e.'Express consent is clearly and unmistakably stated, rather than implied.'


It is the will of Parliament, following the recent EU Directives on Consumer Contracts, that UK consumer contracts are now unified in terms of what is required by way of information before the contract is concluded. Also contracts must be 'expressly agreed' so a contract based merely on implied consent from a sign, fails the new statutory regulations:


These Regulations apply to all UK consumer contracts from June 2014, unless they are within the exempt list (which a parking contract is not).
The information to be given to consumers is provided in Schedule 2 (On-Premises) and Schedule 2 (off premises and distance contracts) of the Regulations.''


Part 4 of these Regulations has provisions concerning protection from unsolicited sales and additional charges which have not been expressly agreed in advance (this was an unsolicited charge not expressly agreed at all, so this is a breach of the Regulations).


Regulation 39 introduces a new provision into the Consumer Protection from Unfair Trading Regulations 2008 which provides that a consumer is not required to pay for the unsolicited supply of products (as happened here – the NTK is an unsolicited invoice).
Another breach by Excel


Regulation 40 provides that a consumer is not required to make payments in addition to those agreed for the trader’s main obligation, unless the consumer gave express consent before conclusion of the contract
No payments were expressly agreed in any way.


Information breaches of these Regulations:
This Operator has failed to serve in a durable medium, ANY information as defined in these Regulations for Distance Contracts (i.e. not face-to-face) as set out in Article 13:
Information to be provided before making a distance contract
''13.—(1) Before the consumer is bound by a distance contract, the trader — (a) must give or make available to the consumer the information listed in Sch. 2 in a clear and comprehensible manner, and in a way appropriate to the means of distance communication used, and
(b) if a right to cancel exists, must give or make available to the consumer a cancellation form as set out in part B of Schedule 3.
(2) In so far as the information is provided on a durable medium, it must be legible.
(3) The information referred to in paragraphs (l), (m) and (n) of Schedule 2 may be provided by means of the model instructions on cancellation set out in part A of Sch.3;
(4) Where a distance contract is concluded through a means of distance communication which allows limited space or time to display the information—
(a) the information listed in paragraphs (a), (b), (f), (g), (h), (l) and (s) of Schedule 2 must be
provided on that means of communication in accordance with paragraphs (1) and (2), but (b) the other information required by paragraph (1) may be provided in another appropriate way.
(5) If the trader has not complied with paragraph (1) in respect off paragraph (g), (h) or (m) of Schedule 2, the consumer is not to bear the charges or costs referred to in those paragraphs.
(6) Any information that the trader gives the consumer as required by this regulation is to be treated as included as a term of the contract.
(7) A change to any of that information, made before entering into the contract or later, is not effective unless expressly agreed between the consumer and the trader.''


Everything that is required by this statute has been omitted, including no information given about the right to withdraw in the case of a distance contract (because this is certainly not one that can be agreed face to face). There is no exemption from this even for distance contracts with limited space or time. Even if this is not considered to be a 'distance contract' the Regulations set out that all Consumer Contracts (except 'exempt' ones which parking contracts are not) require certain information including the geographical address and phone number of the principal, for complaints, where a trader is an agent.


This statutory information was missing and it was not served in a durable medium beforehand, nor was any term 'expressly agreed' so the contract breaches the above statutory regulations.


Regards 13. (1)Excel have failed to provide ‘the information listed in Sch. 2 in a clear and comprehensible manner, and in a way appropriate to the means of distance communication used,’ The signs contain too much information to be read from a moving vehicle and are positioned alongside main roadways so do not allow for motorists to stop and read them properly without blocking the road way. Therefore this is a clear breach of the regulations regarding distance contracts.


The linked Regulations show that a failure to provide the statutory information and to obtain express agreement, now renders any UK consumer contract unrecoverable.


5. Excel are attempting to proceed with action against the registered keeper using POFA2012 as can been seen on the charge notice (exhibit C) "we may pursue the registered keeper for any parking charge"

The notice does not identify the creditor, specify when the notice was sent (it is merely dated which is not saying it was sent on the date it was written) and does not inform the keeper that they may be liable if the driver is not named within 28 days, all of which are required under the protection of freedoms act 2012 schedule 4 to make the keeper liable.

There will be no admission as to who was driving and no assumption can be drawn as such therefore Excel must withdraw their action against the registered keeper. Excel also has no legal basis to pursue the keeper on the pure assumption alone that they were the driver. Any further contact with the registered keeper will be considered harassment.

6. Excel are trying to enforce an unfair contract as per ‘The Unfair Terms in Consumer Contracts Regulations 1999’


Unfair Terms
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.’’


9. The PCN breaches the IPC own code of practice (Accredited Operator Scheme) in the following areas (some of which have been previously mentioned above but are included again for clarity).


Part B
8.1 If your charges amount to damages you should be able to demonstrate how such charges are calculated for each site as a ‘genuine pre-estimated loss’ in order to be able to justify the amounts.
Excel have breached this part of the code as they have failed to produce a ‘genuine pre-estimated loss’ as covered under point 2 above.
14.1 Predatory Tactics – ‘You must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious instance of non-compliance and will be dealt with under the sanctions system as defined in schedule 2 to the code.’


The driver submitted the full correct registration number and it appears the machine has either not accepted it or removed it. I submit this is a predatory practice as the driver has done all they can reasonably do t adhere to the practices of Excel .




Part C (Operations in England and Wales)
1 Applying for keeper details where keeper liability is sought
If you intend to be able to be able to recover unpaid parking charges from the keeper of a vehicle then you must request Keeper details in accordance with schedule 4 of POFA 2012’


Excel are pursuing the keeper on the assumption alone that they were the driver. The registered keeper is not liable for this charge as the driver paid for parking. This money was accepted and certainly has not been returned.


When requesting keeper details otherwise than in accordance with the protection of Freedom Act 2012 you must inform the DVLA that you are not seeking to be able to rely upon keeper liability should they ask you for that information.
As Excel are proceeding with action against the registered keeper alone then I put it to them that they have not complied with the above guideline unless they can provide evidence that they have done so. If this information has been requested outside of POFA 2012 then I reserve the right to raise a formal complaint with the DVLA
1.5 ‘You must apply for keeper details only where you have ‘reasonable cause’ to do so’
As Excel are aware of the fact that the keeper is not liable as POFA 2012 doesn’t apply when you don't identify the creditor or otherwise comply with section 9 then they have no reasonable cause to apply for the keeper details.
3.1(b) 7 5.1(b) Specified the period of parking to which the notice relates.
The PCN does not specify the time period to which the parking relates. Therefore it can’t be used as a basis for claiming damages or loss against myself.
7 ‘Applying for keeper details where keeper liability is not sought’
7.3 ‘Where you have not complied with the terms of POFA, you must not infer that keeper liability exists’
Excel have contravened this on the PCN by stating ‘We may pursue the registered keeper for any Parking Charge amount that remains outstanding on the assumption that they were the driver’. This is quite clearly an attempt to infer liability upon the keeper when the identity of the driver has not been disclosed. Excel also has no legal basis to pursue the keeper on the assumption alone that they were the driver.


As can be seen from the signs (exhibits D, E & F) they do not meet schedule 1 of the code of practice. The code of practice states "Contrast and illumination The colours used on signage should be such that the contrast between the background and the text makes the wording on the sign clearly legible. Black text on a white background or white text on a black background will provide a suitable contrast. Other colour combinations can be adopted at your discretion but you should avoid combinations which might cause difficulties for the visually impaired such as blue and yellow"

The signs are blue and yellow which is specifically stated to be difficult for visually impaired people to read.


In Summary
I believe I have proved beyond any doubt that the action which Excel has brought against me is without foundation. Furthermore as proved above many of their actions contravene the law and the IPC code of practice. It shall form the basis of a formal complaint against Excel for breach of code and were law has been breached further action should I deem it necessary. However if Excel agree to drop their action against me at this point then I shall agree not to raise a complaint or pursue court action against them for the illegal nature of their business. However should they fail to unequivocally drop their action against me then I will proceed with this action against them. Furthermore I shall defend any court action by Excel vigorously including full use of any court appeal system if it becomes required. I will also counter charge Excel for harassment, damages and costs brought about by them.
I will also robustly reject harassment by ‘debt recovery agencies’ who attempt to extort money from me on behalf of Excel without a county court judgement. They shall also be subject to the same level of scrutiny as I have given Excel regarding the PCN as demonstrated above and I reserve the right to make formal complaint and court action against any such agency.
If IAS fail to find in my favour then I wish to see a full point by point breakdown and explanation as to why each point was rejected. Failure to do so will be taken that the rejection of the appeal was of an arbitrary nature and will be used in my further defence. I especially wish to see a full justification for rejection of points which have been upheld at previous appeals (such as point 2). I will also demand they provide details to me of the number of cases which it has reviewed and provide a full breakdown of how many appeals it has upheld and how many it has rejected. So that the true ‘independence’ of the IAS can be established if I wish to take matters further. Failure to do so will be taken that the numbers of rejections will reflect unfavourably upon the IAS.

I believe my appeal should be upheld and the ticket cancelled.




M1

[nickdav]

Re: PCN - Excel parking, Peel Centre Stockport

Sorry if I am being stupid. I take it I need to change VCS to Excel and airport to Peel Centre?

Also when my wife sent the email to the company she identified the driver as her self as she believed the PCN would be cancelled once they saw a copy of the ticket, do I need to edit the part which says about registered keeper or leave it in?

Thanks
Nick

[mystery1]

Re: PCN - Excel parking, Peel Centre Stockport

Sorry if I am being stupid. I take it I need to change VCS to Excel and airport to Peel Centre?

Also when my wife sent the email to the company she identified the driver as her self as she believed the PCN would be cancelled once they saw a copy of the ticket, do I need to edit the part which says about registered keeper or leave it in?

Thanks
Nick

OOps, yes i meant to check i had but somebody was annoying me.

Glad you read it :okay:

M1

[nickdav]

Re: PCN - Excel parking, Peel Centre Stockport

Thanks M1

Does this matter by the way??-

Also when my wife sent the email to the company she identified the driver as her self as she believed the PCN would be cancelled once they saw a copy of the ticket, do I need to edit the part which says about registered keeper or leave it in?

Cheers
Nick

[mystery1]

Re: PCN - Excel parking, Peel Centre Stockport

It'll do no harm. They may not notice.

M1

[nickdav]

Re: PCN - Excel parking, Peel Centre Stockport

Surprise, surprise the appeal has been dismissed.

Has anyone any advice for what I can do next?

Thanks

Nick

[mystery1]

Re: PCN - Excel parking, Peel Centre Stockport

Pay up or ignore and see if they have the balls to take you to court on a pretty ropey case.

The IAS appeals system sucks and is as bent as can be but sadly there is no regulation so nothing can really be done about it.

M1

[edinburger]

Re: PCN - Excel parking, Peel Centre Stockport

I know its old thread but any idea what was final outcome to this ?

[mystery1]

Re: PCN - Excel parking, Peel Centre Stockport

I don't do private communications, so if it ain't on the thread there is every chance i have no idea what happened.

M1

[Lenny0212]

Re: PCN - Excel parking, Peel Centre Stockport

Hi guys,

Just got a parking charge £100 from Excel for parking at the peel centre without a ticket. Exactly the same as you NickDav. I live and work in Stockport and park at the peel centre weekly, so know that not buying a ticket will result in a penalty.

Anyway the ticket is for the 14th May, and I have since cleaned out my car and struggling to find my ticket. Usually let them build up and then discard which was the case last week.

I was at the peel centre with my son, and met my brother and his family for a coffee. We arrived at the same time and bought tickets together. They witnessed me buy mine and I actually made a joke about the fact that my partners wife had the check her reg before entering it.

We know the date well because we all just got back from holiday that day. I actually have pictures of the kids outside Costa.

Anyway....the interesting part is that my brother just called to say he has had a penalty notice too. This is an absolute joke.

I wonder how many others got penalties that day? Must be a fault with the machine.

Any advice on how to proceed with this?

Thanks
L

[ostell]

Re: PCN - Excel parking, Peel Centre Stockport

So what is the "Offence" your car has allegedly committed? Best not to identify the drivers just in case.