help. excel parking (the peel centre, stockport)

[JD0963]

On the 29th of July, myself my son and his partner drove to the peel centre in stockport and parked next to nandos. My son paid for the ticket with cash and placed it on my dashboard.

 

On the 8th of August I received a letter from Excel parking telling me I had to pay £60 as I didn't purchase a ticket. The only explanation I have is my son is dyslexic and might have entered a wrong character In the ticket machine. If this is the case (which I am positive it is) I don't feel I should have to pay the fine as this was simply a human error and I still paid them for a ticket.

 

I have explained this to them and they don't care. Where should I go from here? Can they take me to court?

 

thanks in advance for any help

maureen

[Crocdoc]

This is not my letter as I only keep the Scottish version, but you have my assurance that it comes from a very reliable source. Simply fill in the blanks and post up their response

You may wish to copy in the land owner

 

Name

Address

Date

 

Without prejudice, except as to costs Notice to Driver/Keeper (delete as appropriate) [Give its ref number]

On (date) I was the registered keeper of a (make and model of vehicle) registration number (reg number).

 

Before I decide how to deal with your Notice to Driver/Keeper (delete as appropriate), I should be grateful if you would first answer all the questions and deal with all the issues I have set out below. Once you have done so, I will be able to make an informed decision on how I deal with the matter. I dispute the parking charge for the reasons set out below. Please note that although I dispute the whole basis of the parking charge, my main concern is its disproportionate and punitive level. 1. No contract

There was no contract between the driver and [insert name of parking company]. The driver did not see any contractual information on any signs when entering the car park and therefore at that time had no idea that any contract or restrictions applied. As a consequence the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied.

2. Trespass

If there was no contract, then at most the driver was guilty of a civil trespass (though this is neither admitted nor denied). If this were the case, the driver may be liable to damages. Given that no ‘damage’ was done to the car park and that the car park was not completely full when the driver parked or when the driver left, there was in fact no loss at all.

 

3. Punitive/unfair/unreasonable charge

Even if there was a contract (which is denied), the following matters are relevant: 3(a). Punitive

The parking charge you are imposing is punitive and therefore void (i.e. unenforceable). The £[insert amount] parking charge is arbitrary and disproportionate to any alleged breach of contract or trespass. This would also apply to any mention of any costs incurred through debt recovery unless it followed a court order.

3(b). Unfair

The £[insert amount] parking charge you are imposing is an unfair term (and therefore not binding) under the Unfair Terms in Consumer Contracts Regulations 1999. In

particular, Schedule 2 of those Regulations which 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) says:

 

‘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), which 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.’ 3©. Unreasonable

The £[insert amount] parking charge you are imposing 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 information I require you to provide and take notice of:

Please note specifically that this letter is not an appeal however, it is a challenge to the issue of the Notice to Driver/Keeper (delete as appropriate) as set out in the BPA AOS Code of Practice B.22. I should be grateful for answers to all questions raised. In this respect I remind you of the obligations set out in the current Practice Direction on Pre-Action Conduct. 4(a). Cause of action.

 

Please make this clear. If it is your claim that the driver entered into a contract, please send me a complete version of the terms and conditions of that contract to which you say the driver agreed to.

 

4(b). Further to the above please explain fully on which of the following grounds your claim is based:

 

(i) Damages for trespass

(ii) Damages for breach of contract

(iii) A contractual sum

5. Your loss.

 

If it is your case that that a trespass was committed or that a contract was breached such that your claim is one for damages, please give me a full breakdown of the actual loss you say was suffered by your business or the landowner/landholder.

6. Appeals procedure.

 

I require a copy of any appeal procedure you follow, along with details of what factors you take into account; who is the judge or arbitrator and whether they are independent; whether you require oral or written submissions; whether it is governed by the Arbitration Act 1996 and any other relevant factors. In addition, please give me disclosure of any arguments you would put forward on this matter in any subsequent appeal process so that either the registered keeper or the driver might consider his or her response to any existing or new issues which are raised. 8. Your status.

 

Your Notice to Driver/Keeper (delete as appropriate) simply mentions [insert name of parking company if that is who is named on the NTD/NTK]. Please tell me who is the actual creditor making this £[insert amount] parking charge demand. I need to know exactly who is making the claim and in what capacity.

 

9. Ownership of premises.

 

Please tell me who owns the car park as I wish to send them a copy of this letter.

10. Contract to operate.

 

Please provide me with a copy of the contract between your company and the landowner/landholder.

11. Involvement of landowner/landholder.

 

Please explain any involvement, if at all, of the landowner/landholder with the management of parking at this site and specifically with regard to the issue and enforcement of your Notices to Driver/Keeper. (delete as appropriate)

12(a). Photographs- handling.

 

Your notice refers to ‘photographic evidence’. Please send me a copy of your procedures for handling and processing that evidence and the relevant audit trail. Furthermore, under section 7 of the Data Protection Act 1998 please send me a copy of all such photographs along with a copy of all other data you hold relating to me. As this would be required to be disclosed in any event as part of your evidence bundle in the small claims process, I do not expect to pay for the release of my personal data which you hold.

12(b). Photographs – evidence.

 

The copies of the photographs that you have provided along with the Parking Charge Notice merely show my vehicle entering and leaving the car park but do not show the actual alleged parking contravention on which your Parking Charge Notice has been issued. Please therefore provide me with copies of all photographs that evidence the actual alleged parking contravention itself

 

13. Signage.

 

If it is your case that a contract has been breached or that a contractual sum is now due, please send me photographs of the signs that you display and upon which you seek to

evidence that a lawful and legally enforceable contract was been entered into. Please ensure that the photographs show the terms and conditions in a clear and legible manner. Please provide me with a diagram showing the locations and layout of those signs at the car park. Also provide evidence that the wording is in plain and intelligible language and in sufficiently large print as to be legible to a driver at the car park’s entry point.

14. Legal representation.

Please provide me with the name and address of your solicitors, if any, in order that I may copy them into this correspondence.

15. To avoid doubt, please do not do any of the following:

(i) Send any further correspondence or documents to me or try to communicate with me in any way except to address in writing the specific points I have raised in this letter.

(ii) Send me any document purporting to be from the county court unless it is a valid claim form duly issued.

(iii) Write to me threatening to send bailiffs to my address without first issuing a court claim form and obtaining judgment.

(iv) Send me any standard letters from your company or debt collectors.

16. If you wish to make a claim you may do so online. My address for service is set out at the top of this letter. If you do decide to issue proceedings, please note that:

(i) I reserve the right to add further arguments to the defence

(ii) I or my representative will be happy to attend any court mediation that might be offered.

17. I look forward to receiving your acknowledgement within 14 days and a comprehensive reply within 35 days (in accordance with the BPA AOS Code of Practice B.22.8). I will then be able to make an informed decision as to how I shall respond to your Notice to Driver/Keeper (delete as appropriate).

18. If you reject this challenge or fail to address the issues that have been raised then, in accordance with the BPA AOS Code of Practice 22.12, please ensure that you enclose all the required information (including the necessary ‘POPLA code’) so that I may immediately refer the matter for their decision.

19. If you fail to follow any of the procedures outlined in the BPA AOS Code of Practice or your legal requirements under the Protection of Freedoms Act, or the requirements of the Practice Direction on Pre-Action Conduct then I will make a formal complaint to the DVLA Data Sharing Policy Group, D16.

Please Note: Unless you have specifically requested it and received my express permission, you do not have my authority to disclose or refer this letter or any other communication from me to any other person or organisation.

Yours

Edited September 18, 2013 by Crocdoc

[danieltaylor]

Hi i actually had two parking fines at the exact same place a couple weeks apart. iv used this letter to contest both of them. Ill post the replys up when i get them

[DBC]

Theses are not "fines", they are just invoices.

[Gareth Lewis]

Am I right in assuming therefore that Excel check number plates coming in and then match the registration to the number you put in the payment machine? If there is not record of payment then you get a notice?

 

If so this is very scary as we have just received a Parking Charge Notice for a visit on 31st December. My wife is in a wheelchair and we parked in a disabled bay and displayed her blue badges but unbeknown to us disabled visitors have to pay as well which is extremely uncommon in large shopping parks. It never crossed our minds to check.

 

The reason it is scary is that we did exactly the same thing on the 5th January when we went back to ironically return some of the goods we bought on 31st!

 

We could end up with £120 of fines for a £20 purchased item!

 

I have appealed the first notice but I'm not holding my breath.

[Gareth Lewis]

I wish you well danieltaylor. Read my post above - I may be doing the same!

[DBC]

These are not FINES!

[armadillo71]

Am I right in assuming therefore that Excel check number plates coming in and then match the registration to the number you put in the payment machine? If there is not record of payment then you get a notice?

 

If so this is very scary as we have just received a Parking Charge Notice for a visit on 31st December. My wife is in a wheelchair and we parked in a disabled bay and displayed her blue badges but unbeknown to us disabled visitors have to pay as well which is extremely uncommon in large shopping parks. It never crossed our minds to check.

 

The reason it is scary is that we did exactly the same thing on the 5th January when we went back to ironically return some of the goods we bought on 31st!

 

We could end up with £120 of fines for a £20 purchased item!

 

I have appealed the first notice but I'm not holding my breath.

 

 

You have no reason to be scared.... You are reading this forum,so surely you can see that they are NOT fines?

What was in your 1st appeal?

[danieltaylor]

Iv recieved a letter saying they are dealing with these two appeals and will get back to me in due course. in the next 10 days i think. Ill post back

[ericsbrother]

There is an argument for the disabled parking and that is you werent parked but loading and unloading as defined in the 2004 road Traffic Act. If they disagree then let them spell out their legal definition and why it differs from the rest of the country's.

[blackdoguk]

Hi JD

I have just won at POPLA with the same mistake you made at this car park (wrong reg entered)

below is the e-mail fron POPLA with there comments

genuine pre estimate of loss is the killer..they have to prove it!

 

Reasons for the Assessor’s Determination

The Operator issued parking charge notice number XXxxxxxxxx arising out of the presence at the Peel Centre, on xxxx 2013, of a vehicle with registration mark Xxx xxx for parking without clearly displaying a valid ticket or permit.

It is the Operator’s case that the Appellant’s vehicle was parked without clearly displaying a valid ticket or permit and this was a breach of the terms and conditions of parking as set out on signage at the site.

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 the parking charge amount is not a genuine pre-estimate of loss.

As the Appellant has raised the issue of the charge not being a genuine pre- estimate of loss, the onus is on the Operator to prove that it is. The Operator has produced a breakdown of costs that they incur in managing the car park, however, this list does not fully address the loss that was caused by the Appellant’s breach of the terms and conditions of parking.

I have looked at all of the evidence and have decided to allow this appeal on the basis that the Operator has failed to prove that the parking charge amount was a genuine pre-estimate of loss.

Accordingly, this appeal must be allowed.

 

Assessor

 

Dont let the bullies win!

Edited January 25, 2014 by blackdoguk

[f16]

blackdoguk, good for you. That's cost them £29.50 Every Little Helps

[blackdoguk]

blackdoguk, good for you. That's cost them £29.50 Every Little Helps

 

yep...charge them back..lol

 

Hopefully JD will win aswell, that will be another £29 for these cowboys to pay