Excel Parking Fine – Appeal won!

Screen shot 2014-02-08 at 07.49.24Last October I parked in The Square Shopping Centre Car Park, I tried to pay, with a handful of change but both machines available would not take my money.  So I didn’t pay.  A couple of weeks later I got a letter through the post with a parking fine. This particular car park has licence plate camera which take pictures on the way in and way out.  They’d even supplied the pictures on the letter, yes it was me, and yes you got me.  At the bottom of the letter they were trying to charge me £60 for the inadequacies of their car park machines.   They said I would be able to appeal to them, and they would review it.  So I completed their form, stating that the machine supplied wouldn’t take my money.   I thought that would be final and settled.   A month passed and I’d all but forgotten about it.  Until with a thud I got an even longer letter saying they didn’t agree with me and there was a telephone number to call on the sign, so I should have phoned that.  Not everyone carries a mobile phone with them, they didn’t supply a phone to call their number or supply directions to the nearest phone box (I don’t think Chorlton has them anymore?)  Excel Parking say you can appeal to your fine to POPLA Parking on Public Land Appeal.  However if you appeal the fine increases from £60 to £100 if you lose, I didn’t want to pay £60 and definitely didn’t want to pay £100, so this is probably where they get a lot of their fines paid.

I searched on line forums and found someone else who’d appealed against an parking fine.  And general comments that as it’s private land the fines aren’t valid.  Now, I am not one of these gung ho type of people that can just bin bills, every demand or bill that comes through the post has to be dealt with immediately – my stress levels couldn’t cope with that behaviour.  I’m all about following a process in these matter.  One person wrote a particularly long and well thought out letter which required lots of information being provided by Excel Parking, and ultimately take up lots of their time, so as I used it.  See the whole letter below.  I changed the very last part specifying the issue with the machines not taking my money.

What would I have done if it was knocked back?

I’d have offered to pay a £1 a month for a hundred months, paying by cheque, so the banking charges to Excel Parking would be greater than the cheque itself and the administration cost for banking.

What happens if I ignore the letters and the demands?

I understand that they pass it on to a firm of solicitors who then add more money to the cost of recovering the amount, I don’t know how valid this will be, however solicitors costs can be quite weighty and I didn’t want to be chased down and receiving regular thuds of demand letters through the post.

What was the outcome?

After submitting the appeal in October, I received an email from POPLA saying Excel had submitted lots of documents and emailed over a pile of scanned documents Excel had sent them, these totalled around 70-80 pages and a couple of individual reports that would have taken at least half a day to write.  The out come from POPLA – drum roll please (although from the title of this post sort of gives it away) I won.

Screen shot 2014-02-08 at 08.18.49

 

Here is the full pdf appeal letter –  Please feel free to use the reference in any of your correspondence if you are appealing a parking fine.  I feel that this decision sets a precedent, but I’m not a legal expert by any stretch, but it seems (to me ) quite clear.

If anyone does use this letter, or would like to share their experience please add your experience to this post so people can use it as a resource.

And here is the very, very long letter I got from the forum, thank you delprimero whoever you are.  I pretty much used it word for word with the little extra at the bottom.

Name

Address

Verification Code: xxxxxxxxxxx

_______________________________________________________________________________

Parking Appeal

 

Sir/Madam,

I appeal against the decision from Excel Parking, firstly, on the basis that the parking charge (ticket) exceeded the appropriate amount. If any charge is due at all this should amount to £1.00.

On my appeal to Excel Parking I made it clear to them that I had doubts as to the reason for the charge laid against me. I asked them to clarify whether the ticket was due to a supposed contractual breach or for trespass. Since the remedy for rectification of the alleged misdemeanour is dependent on which circumstance it was supposed to be applied against they have failed to enlighten me as to what specific point of appeal I should follow.

Excel Parking manage the car park on behalf of The Square Shopping Centre and act as an agent for the landowner, who by his right of land ownership can only impose a payment in respect of the actual losses incurred by that party against someone who has trespassed on the premises, albeit unintentionally.

The Square Shopping Centre is not a member of the BPA thus is not bound by the BPA code of practice so the imposition of terms and conditions by Excel Parking, on behalf of The Square Shopping Centre to their own pecuniary advantage is beyond their remit.

Excel Parking cannot set a separate term or condition for the use of the car park themselves or impose any parking charges based on the BPA Code of Practice without having a separate condition within their own client contract to offer parking to visitors at a higher price. I’m assuming they have that right otherwise they would be in severe non compliance to the BPA Code of Practice which may well impact upon their continued ability to access the DVLA database for registered keeper details. However the law of contract or tort of trespass would apply in either of these cases anyway.

Since the car park is a pay and display facility, even though there was a misunderstanding as to the extent of the operational hours, the loss incurred by the landowner is a matter of the time spent in the car park without making the relevant payment. This is a quantifiable loss as can be seen on the sign which displays the actual normal parking fee. In this case the amount of the loss to the landowner is £1.00

Even if you feel that Excel Parking has a right to impose the charging structure of the BPA, I remind you that the matter of how charges should be applied is laid out clearly enough within that Code, albeit without any legislative recognition.

This says that the normal parking structure as laid out by the landowner is not covered by the Code of Practice. It must therefore mean that any further charges are for a breach of contract or for trespass on the premises. However I remind you that the BPA has no statutory basis for the application of the imposition or suggested imposition of any charge at all. Anyone can join together with a few friends and give themselves a name as a body of some sort. They can also make out a set of rules or code of conduct which can be heavily weighted in their favour. That doesn’t make it an acceptable practice on which to hold to ransom members of society who fail the test of one of their rules. A quick look at the Code of Practice of the BPA finds many anomalies that would be frowned upon in any civil court, and it doesn’t need a legal expert to find them either.

The ticket I received from Excel Parking had no reference to VAT shown on it. If it was an invoice for payment of a service contract, it must show VAT details on it, ie, for parking services amount owed £50 + VAT at 20% = £60. Since there is no mention of VAT it must therefore be presumed to be nil or zero rated which would be the applicable rate for a fine or penalty, which of course is non compliant to the BPA Code of Practice itself which states that the use of fine or penalty may not be used. That doesn’t legitimise the use of a more convenient term though. If the amount demanded were a contractual charge then it fails the test for that based entirely upon the wording on the ticket. It MUST show the VAT details of the company in accordance with the BPA Code of Practice, and it does not, therefore cannot be a breach of an alleged contractual arrangement.

To make sense of the situation in hand, I find it necessary to consider each aspect separately. First the issue of contract, then the tort of trespass, since it was not explained which act I was being charged for.

It’s my submission that this amount cannot be construed as a contractual parking breach.

To breach a contract, one must have been formed in the 1st place.

It’s my submission that such a contract was not formed. At no time was it brought to my attention on any sign that I had the right to enter a contract for parking without payment of the relevant parking fee offered by the landowners, for another parking charge set quite separately by Excel Parking.

If such a contract was intended it would have made that clear. There is no offer to park at the location by payment of such a charge, and there is no description of what I get from such a contract, let alone be in a position to enter into a negotiation in order to influence the contractual terms which is also a necessary part of a contract.

If there was an offer of that sort it should have been displayed on the signs saying, more or less, “parking at any time for unlimited and unrestricted periods is £60, including use of disabled bays by non blue badge holders” for instance. It also fails in not describing the extent of the time limit. For instance would such a contract, or the supposed acceptance of it by making a payment for the parking charge notice, extend my right to subsequent periods of parking on future dates without payment of the relevant parking fee, time unlimited? Perhaps it extends the right of placing my caravan there for the year since I have paid a fee for it?

There has to be an offer and acceptance in contracts. A contract can only be made in consideration of the passing or enjoyment of goods or services. I was not offered anything in exchange for the payment imposed.

If you consider this on the basis of parking in a disabled parking bay without displaying a blue badge. If the charge was in respect of a contract, it would need to fulfil the description of contract by actually offering a driver without a blue badge the right to park in a disabled bay upon making the relevant payment. That is not the intended action though is it? Nor is there any means to accept that offer by immediate payment at the location, which is also a necessary requirement.

This is exactly the same situation as mine. I have not been offered the right to park by Excel Parking for payment of a sum of money which is different to that for normal parking. The right to parking had already been extended by the landowners.

That being an irrefutable fact, at what point would a contract to an alternative parking arrangement commence? If a contract for parking had been the true intention it would be in danger of compromising the landowner’s intentions. The landowner allows parking for a fee. If the payment has been exceeded that does not mean there is no intention to make a further payment upon return to the car park to make good the shortfall.

Since life follows many complicated twists and turns, what was thought may have been an hours visit may unintentionally become 2 hours. As long as that extra time is paid for direct to the landowner by virtue of whatever payment option he has provided then the driver is fulfilling his obligations. Please also note that on entry to the car park,especially where it is a pay and display one, although that does not necessarily exclude free parking areas, the initial contract is with the landowner who makes his facility available to the driver. Any breach of the landowner’s contract is quite separate to the breach of a faux contract with another party who didn’t offer the initial one. The offer of a separate contract could only be classed as an attempt to undermine the original offer by the landowner.

If the driver contemplates taking up an offer to park in accordance with the Excel Parking contract, then that option should be mentioned upfront before the payment of the other fee is made so that the driver can choose whichever offer he wishes to take up. A method of making direct payment to accept that offer should be available at the location which would become the point at which the driver has considered the offer and accepted it. Without payment the offer is not accepted.

A further complication to the offer of parking by Excel Parking, if any were made at all, would be in the different amounts. Early payment or standard payment or extra for late payment cannot constitute a reasonable basis of a contract. There may be a discount for early payment in a contract and there may be a charge for late payment in accordance with the regulatory structure for that, ie an amount of statutory interest but only when the interest and any penalty charge is in regard to a commercial transaction, perhaps if the vehicle was a lorry delivering goods. Any addition which is shown to be a penalty is really not in compliance to the BPA Code of Practice since that says that the use of the word penalty must not be used and by implication made as an additional charge.

The parking charge in this instance is actually for not complying with some term or condition, ie is a penalty. It would be difficult to see how any County Court could see any different to that explanation and I would be more than happy to have them rule on that very point if needed, which would probably result in a particularly embarrassing scrutiny of a different finding by POPLA if you decide otherwise.

If you find that a contract had been formed I would expect you to could clarify what service or goods Excel Parking had offered me for the payment demanded. In fact I would insist upon knowing why Excel Parking had offered me the right to park in the first place, since that right had already been made by The Square Shopping Centre.

What Excel Parking has done instead was nothing other than imposing a penalty for non compliance to a condition of parking which may or may not have the backing of The Square Shopping Centre. It would be interesting to see how they would explain this in a county court. 

Since any charge can only be to make good any financial loss to the landowner, then the amount charged is well above the amount of £1.00 so is punitive by nature which is not likely to be in accordance with the remedy for making good the landowner’s loss. No other loss was incurred. In fact I asked Excel Parking to explain the reason for the charge so I could consider what the true loss would likely to have been dependent on the legal definition of the imposed charge, but never received any such explanation.

I have a right to know quite how the charge is made up. This is a basic right of contract and without suitable explanation I do not believe Excel Parking have met a sufficiently high enough standard as the principal party in the contractual application, if indeed they even had the right to make that offer and call it a contract.

My second point of consideration is for the action against the tort of trespass.

Only one party in this property has the right of action against trespass. That is The Square Shopping Centre. Trespass cannot be committed against an agent or management company. It has no landowner rights. Any civil action should be undertaken on behalf of the landowner who has been wronged and for the loss incurred.

Excel Parking has suffered no loss as they are unable to claim trespass in their own name. If they claim to be acting on behalf of their client they have not shown that to be the case since all the signs and the ticket itself tells me differently. They are taking action independently and require payment to be made to themselves. There is no mention of any involvement by their client. They are therefore unable to justify any charge at all. If they had right of occupation or were the landowner they could at least request payment of the amount of £1.00 as recompense for the trespass, however they don’t, so they can’t.

To give justification as to my calculation of the £1.00, beyond the actual time spent without payment, I refer you to the case of Michael Fagan who entered Buckingham Palace and visited the Queen while she was in bed. During his probably terse conversation he partook of half a bottle of wine from her bedside table. As the act of trespass had incurred the Queen no quantifiable loss worth any mention, Fagan was instead charged with the theft of the wine.

Would the outcome have been any different if the Queen had a contractual notice by her bedroom door advising that visitors without permission would be charged £300? It wouldn’t be intended to be a contract to visit her for payment of £300 now would it?

The BPA code of practice is deliberately obscure on the definition of the amount to charge. In one paragraph they say that charges should be reasonable and reflect the loss incurred, then in another paragraph it suggests a charging structure. It cannot have it both ways. I am mindful that if a court was to properly assess the charges, it would come down in favour of recompense for the actual loss rather than an amount suggested by a non statutory body with the best interests of its own members in mind.

The actual wording used within the Code of Practice is as follows:

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.

Another point made in the following paragraph is: If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. Since the cost of the 2 hours parking is only £1.00 how can a charge of 100 times that be considered as non punitive or reasonable? I expect you to calculate that into your considerations.

I put it to you that the BPA “guidance” is obfuscation on a parliamentary scale. That useful bit of information makes clear: loss that you suffer, meaning the parking management company which of course has suffered no loss at all. In fact up until the discovery of the non payment Excel Parking had no financial interest in the matter at all. Apart from that there can be no pre-estimate unless the known period of overstay, or length of stay without payment is known prior to that consideration. However, it can easily be calculated following the event by reference to the parking payment that has been underpaid or missed completely. Each case will have slightly different amounts and as such no genuine pre-estimate can therefore be made. The best way to compare this is by referencing it to a bit of seaweed hanging on a fence and trying to assess the weather conditions for tomorrow. It is quite frankly absurd and completely wrong to set a range of tariffs when a GENUINE loss may be easily quantified following the event.

The suggestion that trespass should also be quantified by a pre-estimate is absurd. It must have clarity. It must be a proven amount. The BPA sets a code that has passed no legislative scrutiny but instead offers quasi legalistic explanations to enhance the income of their members.

Secondly…

I refer to the ‘Notice to Keeper’, ref Xxxxxxxxxx dated 04/03/2013 from Excel Parking and would wish to draw your attention to the following statement contained therein:-

“under schedule 4 of the Protection of Freedoms Act 2012, we do have the right to recover from ……………”

This statement makes it clear that Excel Parking is dealing with its claim in accordance with the requirements of Schedule 4 of POFA. The requirements of Schedule 4 are quite clear in that there must be strict compliance with all of its requirements in order to take advantage of the rights granted under that Act to pursue the registered keeper in respect of a driver’s alleged debt.

The BPA Code of Practice supports the need for strict compliance (para 21.5 refers).

Excel Parking has however failed to comply in regards to paragraph 9(2)(h) of Schedule 4, PoFA 2012.

Whilst the ‘Notice to Keeper’ issued had indicated that Excel Parking require a payment to be made, there is no specific identification of the “Creditor”, who may, in law, be Excel Parking or some other party. PoFA requires a ‘Notice to Keeper’ to have words to the effect that “The Creditor is….”

The wording of Paragraph 9(2)(h) of Schedule 4 of PoFA does not indicate that the “creditor” must be named, but “identified”. To “identify” a “Creditor” a parking company must do more than name that person. The driver is entitled to know the identity of the party with whom he has legally contracted.

This view is supported by the Secretary of State for Transport. He has reserved to himself powers to make regulations to specify not only what must be said in a ‘Notice to Keeper’ but also what evidence should be provided. He says “The purpose of this power is to leave flexibility to mandate the specific evidence which must accompany a notice to keeper if it becomes clear that creditors are attempting to recover parking charges without providing keepers with sufficient evidence to know whether the claim is valid”

So, in addition to Excel Parking’s failure to specifically identify the “Creditor”, it has failed to provide any evidence that it, or a third party, is entitled to enforce an alleged breach of contractual terms and conditions.

I therefore expected Excel Parking to immediately cancel the ‘parking charge’ but they however, rejected this challenge.

I have now referred this matter (and any further issues that I may subsequently raise) to POPLA for your adjudication on this matter.

Thirdly…

Another point to mention in appeal against this charge is in reference to the The BPA Code of Practice, in which it states under appendix B, entrance signage:

“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”

For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not. Upon returning to the car park after receiving this unjustified ‘charge notice’ to check the alleged terms at a later date, I had to get out of my car to even read the larger font on the signs, and the smaller font was only readable when standing next to a sign. They were also very brightly coloured but too busy, confusing and unclear. Everything except the ‘welcome’ heading is too unreadable to be compliant (photo attached).

Furthermore Excel state that:

“The signs within the car park comply with the recommendations in the Code of Practice”

When with reference to the BCP Code of Practice, it actually states:

“There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision” 

As can be seen from the attached photos, the signs clearly use blue and yellow which hinder any easy recognition of the actual content of the signs. Excel appear to have made no improvements to their signage design since it was severely criticised by Deputy District Judge Lateef at Stockport County Court in Excel -v- Cutts, where Excel lost the case 

http://www.manchestereveningnews.co.uk/new…t-battle-870812

http://s3-eu-west-1.amazonaws.com/plcdev/f…r2012_1b_mf.pdf ‘

Lastly…

 With further reference to Section 21 of the BPA Code:

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. The processes that you use to manage your ANPR system may be audited by our compliance team or our agents.

I contend that these cameras in this car park are not compliant and so I require Excel to produce evidence to the contrary if they are to rebut this point, specifically producing to POPLA, contemporaneous records to evidence that the cameras here have received in 2013, regular maintenance and checks to ensure that the timing and detail of any images captured were accurate on the day of this event.

May I now point you to the text at the very top of this appeal. I assume you have skipped it and continued to the actual appeal points. If you have read this far, you have accepted a contract for payment of a sum of money. This is exactly the same situation as applies with this parking charge notification. Nothing more or less. It is exactly similar to suggesting that someone who drives beyond a sign agrees to the imposition of parking charges. You had the opportunity to throw this appeal in the bin without reading it. I hope you get my reasoning.

In conclusion, I accept that due to the wrong opinion made as to the terms of the parking arrangements there was an underpayment for a period relating to a cost of £1.00 and I will gladly make that payment in full and final acceptance of my responsibility. You can take it from the contractual charge you have just agreed to.

 

Yours sincerely

 

 

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