Hello all

I found this forum via Honest John -> Google search for Nev Metson -> Parking Cowboys -> here, after receiving an NtK from Excel Parking regarding an alleged failure to display a ticket at the Peel Centre in Stockport. They're after £100, or £60 if the PCN is paid cough up within 14 days if the issue date (so far, so standard ).

I fully intend to appeal the PCN since this whole situation appears to be nothing more than a (barely) legalised scam but I'm keen, having found PePiPoo et al early in the process, not to make any schoolboy errors in my dealings with Excel that may give them any advantage. The current "best practice" appears to be to appeal the PCN (waiting long enough to do so that Excel do not have time to send a corrected one) and in the mean time prepare the most finely honed POPLA appeal one can manage in the expectation that Excel will turn down the appeal. On that basis I've read up as much as I can to familiarise myself with how best to respond, but now I have some questions:

1. I've checked the PCN against the list of information it is supposed to contain (per PoFA) here, and it appears to fail on para 9 (2) (h) ie it doesn't "identify the creditor and specify how and to whom payment or notification to the creditor may be made". (I'm basing this on the fact that the Peel Centre is owned by Peel Holdings, who are not mentioned at all on the PCN) Does this give me any real advantage? According to the Parking Cowboys page this renders the PCN invalid, but I cannot see Excel actually acknowledging this failure.

2. If Excel are just going to overturn it as a matter of course, is there any merit to preparing a very robust appeal letter as a "dry run" for POPLA?

3. The charge for 3 hours parking (the minimum period that can be paid for at the Peel Centre) is £1.30 - is there any merit to offering to pay Excel this amount "in full and final settlement" - or would this constitute some sort of admission of fault?

4. It may be possible to locate evidence of genuine custom on the date of the "alleged contravention" - is it worth doing so?

I've kept the information on the case to a minimum here but can of course provide more details if needs be. Thanks very much in advance.

1. Whilst strictly true, it's a relatively weak point - one a Judge is unlikely to give much weight to. (Although you'd think they'd get the basics right as the PoFA has been around a while..)

2. I'd lean towards a 'hard' appeal to the PPC first - they may cancel it prior to POPLA and at least they can't whinge later.

3. Well, that plus a few quid 'admin' is what they are entitled to legally as a genuine 'loss' but they won't accept it - they want their 'penalty'.

4. Probably not as a P&D car park, 'genuine' customers have to pay anyway...

Thanks for the reply. To get down to a slightly more brass tacks level, I'm using the template on the Parking Cowboys website as a starter for 10. Clearly this is a "cover all possible bases" template to be cut down / altered to fit, so I'm trying to clarify the changes I need to make. Again, I've got some questions

The signage at the car park in question alludes to a period of 15 minutes to buy a ticket from entering the car park. If this was understood to mean a ticket did not need to be purchased unless one was intending to stay longer than 15 minutes, and hence a ticket was not purchased or displayed, would that change the nature of the contractual relationship? I'm not trying to construct any sort of "not liable unless ticket purchased" argument, I'm just wondering if that circumstance would change the arguments to put forward in the appeal, compared to eg having bought a ticket but stayed longer than the time allowed by that ticket?

The first point in the appeal letter template mentions whether the claim is for trespass, breach of contract or a contractual sum. I've removed "trespass" as it doesn't seem to apply to a retail car park. 'Damages for breach of contract' I understand - that would be the assertion that the alleged contravention caused damages to that value. But the "contractual sum" one seems slightly odd - is this the possibility that the PPC tries to assert that, as the penalty charge amount was mentioned in the Ts&Cs, that the person parking has assented to paying it? Or is this only really important so as to know whether to argue GPEOL or "Unfair Contractual terms" against the size of the charges? The wording of the PCN seems a bit vague on this point, although the reference to "Contravention" seems to suggest Excel are alleging a contractual breach?

I wouldn't use that template if it's the one that says 'unfair' and different headings...and starts 'before I deal with this...' (which Excel 'could' pretend isn't an appeal) and they've seen it so many times they will yawn and click 'computer says no'. You mean a template like this one which didn't impress a PPC and would not make them sit up & take any notice:

http://forums.pepipoo.com/index.php?showtopic=88497

As an alternative, I wrote a first appeal on MSE here:

http://forums.moneysavingexpert.com/showthread.php?t=4816822

Hot off the presses, only written in the last fortnight and already some PPCs have just cancelled PCNs as they can see it 's a forum appeal and not an old chestnut they've seen before. Only...they may have done because I am encouraging others to use it like I have just done here (Excel, Peel Centre!):

http://forums.moneysavingexpert.com/showthread.php?t=4914084

I've advised OPs several times to start the letter with the clear hard challenge to remove any wriggle-room

They can then continue with ...

If forced to refer the matter to POPLA I will request that you provide the following information followed by the template questions

I intensely dislike "Without prejudice" as the opening
It marks out that the writer is using irrelevant terms because they look "legal" and doesn't actually understand what he's written

Thanks again for the replies.

So I have checked out the letter on this thread and I agree it is a lot more direct and to the point (and crucially, very difficult for the PPC to later claim they did not think it was an appeal! )

It strikes me that in this instance, discussion of trespass would seem to be irrelevant. Whilst it's private land it is a car park the public are clearly invited into because of the shopping centre - so it seems worth removing the reference to trespass to make the letter more focused and specific?

Is it worth mentioning somehow that their NtK failed to name the party they are acting on behalf of? As noted above it is not an appeal winning point, but it shows them I have some idea what I am talking about.

The other thing I note about the text is that there is no specific reference to a POPLA code - presumably this would be the final thing to request in the list of points following this sentence?

Post #4 and especially #5 has what you need

I'm not sure I follow, in that both posts, whilst very helpful, do not specifically address whether to include trespass in the challenge letter, or whether to add specific wording on the template to request a POPLA code?

I waited until day 27 (ie today) of the appeal period to write back to Excel, and took the opportunity to do as much reading as possible . I am sending back a nearly-unedited version of SchoolRunMum's letter from MSE (many thanks for that! ), with one small addition, an explicit request to send me a POPLA code. I know they are meant to do that anyway, but I don't see that it hurts to point out their own Code of Practice requires it!

So we'll see what they come back with - anyone know how long they normally take to respond to an appeal notice?

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Dear Excel Parking

PCN number ************
As the registered keeper, I have received your parking invoice which I decline your invitation to pay. I wish to invoke your appeals process, since all liability to your company is denied on the following basis:

1) The amount being claimed is not a genuine pre-estimate of loss to your company or the landowner
2) Your signage does not comply with your ATA Code of Practice and was not sufficiently prominent to create any contract
3) You are not the landowner and do not have the standing to offer contracts nor to bring a claim for trespass

Please issue your standard cancellation letter or a specific, detailed rejection letter. If you choose to send the latter, it must state:

- the legal basis of your charge (i.e. breach, trespass or contractual fee?) as your signage was not seen or accepted by the driver and your recent Notice fails to make the basis of the charge clear. As keeper, I cannot be expected to guess the nature of the allegation.

- if alleging breach of contract, with your rejection letter I require a breakdown of the liquidated damages suffered, and by whom, and when this calculation was determined and how this particular 'loss' arose. Please also explain how/why you charge a fixed sum no matter whether the alleged contravention was trivial or more serious and how that can amount to a genuine pre-estimate of loss.

- if alleging trespass please enclose evidence of the perpetrator and proof of the liquidated damages alleged and the calculation of this sum.

- if alleging 'contractual fee' I require that you now send me a VAT invoice by return and explain the daily rate for parking and service provided for the fee. Failure to provide this information and a VAT invoice now that I have requested it, will be considered evidence that this was not in fact a genuine offer to park for a fee and is merely a penalty which is not recoverable in contract law (as found by Mr Recorder Gibson QC, on appeal at Luton County Court in the case of Civil Enforcement v McCafferty 3YK50188 (AP476) 21/2/2014).

If you reject my appeal and do not cancel the PCN, I require that you provide me a POPLA code as stipulated by the BPA Code of Practice.

Take formal note:

(a) Your unsupported, unsolicited invoice and any further letters if you persist, will constitute harassment. If you continue, your contact and that of any agent will be deemed a 'serious and persistent unwarranted threat' as found by Lord Justice Sedley in Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46 (10 February 2009) and I reserve the right to take the matter further. You have been informed that I consider this to be harassment so any decision to send further letters rather than cancel the invoice will reinforce the evidence of your persistent unwarranted threat and you may be required to justify your actions in court.

(b) Any obfuscation on your part, such as pretending I have to name the driver, alleging I am too late or unable to appeal as keeper or requiring more evidence when clearly I have already set out my full challenge for this stage, will be reported to the DVLA and to your respective ATA, as a sanctionable breach of your Code of Practice.

© If you reject my challenge and insist upon taking the matter further I must inform you that I may claim my costs from you and my time at the court rate of £18 per hour. The expenses I may claim are not exhaustive but may include the cost of stamps, envelopes, travel expenses and legal fees as well as liquidated damages for distress arising from harassment.

By continuing to pursue me you hereby accept liability to pay my costs when I prevail and you acknowledge and imply full understanding of the above.

Yours,

My Name

They have 35 days, or if they want longer they must write to you and explicitly tell you that.

Thanks ManxRed. I got an auto-bounce reply telling me this (didn't send the email until after I'd posted!)

The same email also contained a load of stuff about having to have the drivers name and address to process the appeal...I told them they already had my address, and that their requirement to have the drivers name was in error

May as well start work on my POPLA documents!

Send a copy of that email to the BPA Ltd and cc the DVLA (there are some email addresses on here somewhere) highlighting the phrase that states that they need the driver's name and address to process the appeal and ask them to investigate and take appropriate sanctions.

So, I got a letter back from Excel. Unsurprisingly it tries to convince me it would be a really good idea to pay the reduced charge sooner rather than go to POPLA, but they did provide a valid POPLA appeal code without any further mucking about. I've attached suitably redacted scans to this thread.

The letter makes repeated reference to "Parking Eye vs Mr Kevin Shelley (2013)" (which I tracked down to this thread) which tells the story of someone who ignored the initial letters from Parking Eye and thereby lost their opportunity to appeal to POPLA. I cannot see anything in that case that directly relates to my circumstances other than they were issued with a PCN by a PPO and lost, and Excel are trying to say "watch out, not everyone wins against us you know!" - have I missed something there?

Anyway, to business. Excel kick off their letter by talking about how their signs comply with the relevant guidelines, and that there are lots of them. They go on to confirm they are not alleging trespass by dint of the contract supposedly entered into by the driver on entering the car park. They they go on to say:

"We consider the amount on the PCN as a reasonable charge for liquidated damages in respect of a breach of the parking contract and contend that it is not a 'penalty' for a number of reasons."

They then go on to drop what seems like a bit of a clanger

"We have calculated this sum as a genuine pre-estimate of our losses as we incur significant costs in managing the parking location to ensure compliance to the stated Terms and Conditions and to follow up on any breaches of those identified."
(emphasis mine)

They then go on to mention how a full breakdown would be provided at the request of a judge and how I should really read about the fate of Mr Kevin Shelley.

Are they really trying to say that they are including their ongoing running costs of the car park in their GPEOL? If so then appeal point #1 would seem to be to point our how ongoing running costs that would be incurred regardless of any breach surely cannot be in a GPEOL, and to challenge them to produce a breakdown of costs that actually relate to an alleged breach.

Appeal point #2 would be to challenge them to provide evidence of their contract with the Landowner (ie Peel Holdings) to issue tickets (they say they hold a contract so producing this should be no problem, right?!)

Appeal point #3 would be the non-compliance of their PCN (ie failure to mention creditor as mentioned above).

Any thoughts on further substantive points to add welcomed! - I'd like my #3 above to be the last of four or five if I can.







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Looks like you have the right idea for your POPLA appeal. With Excel there's a new idea to add about the 'costs/loss' sums that they will try to throw in:

http://forums.moneysavingexpert.com/showth...89#post65550389

Basically saying that they are manipulating their figures to try to get a list that POPLA like the look of...so you can address that either in your POPLA appeal or when you see their 'evidence' you can send a follow up email to POPLA highlighting any changes to Excel's previous versions and pointing out that massaging figures after an event is not a 'PRE-estimate' of loss!

Where are you up to with this?
I am about to reply to my PCN for the same car park, I admire your work so far....
This whole process seems really stressful, it would be easier to be involved in a criminal process

Posts 1122 and 1124 here on MSE are from a poster who just beat them on no GPEOL alone without any need to start a thread, he just went for it (same car park):

http://forums.moneysavingexpert.com/showth...337&page=38

However we do normally suggest more appeal points - easily found if you search this forum and/or MSE forum there, for the single word 'Peel'.

You're not kidding it's stressful! I don't know if I'd be all that admiring until I come back and tell you it worked though!
I've submitted my POPLA appeal (Monday). Three points - 1. GPEOL, 2. legal right to issue tickets, 3. NtK not compliant with POFA 2012. Date for the assessment is in a month or so.

If it doesn't work, I'm probably just going to pay the damn thing. It galls me to say it but a (more than) full time job, a 10 month old who likes to wake up at 5am and a desire not to spend my entire life in front of a PC (which I already do for hours on end for work) means I don't have the time or energy to keep on with it.

I do now read the forums here and on MSE, and Parking Prankster on a regular basis though, I'm very interested to see how this whole private parking malarkey plays out over the next few years as the current situation is not sustainable for the PPCs, IMO. For instance, the <a href="http://[Commercial link removed]/2014/05/total-parking-solutions-set-overstay.html" target="_blank">vaguely sensible behaviour</a> going on in Devon



Not sure why it thought it was a commercial link, it's just Parking Prankster's blog post about an NHS trust and a PPC setting the charge for overstaying at £20, £12 if paid quicker...

How long does it take Excel to reply?
I emailed about 2 weeks ago appealing the grounds but as yet have heard nothing
Do they reply by email or post??

It took around a month for them to respond to my appeal email and supply the POPLA code, etc. Their response was a letter in the post rather than an email, though.

I don't think it's so irrelevant, because it bars the PPC to use the appeal letter (and more importantly any information contained therein) should this go to court. And given that most people don't really think about what they release in their letters it is probably reasonable to hold this as "without prejudice", so for example that the fact that the driver is revealed cannot be used in court against the letter writer.

Reply now received with popla code
I was advised to return here for advice how to
Any help welcome

Probably best to start a new thread to avoid cross-confusion. Happy to chip in with what little I can! I'd also strongly recommend you don't post any case specific details or mention any any opinions about what may or may not have happened - the PPCs do read these forums, and such details may allow them to match the discussion on here up to their records, which clearly you do not want

In other news, I've now received the "Evidence Pack" from Excel for the POPLA assessment. Does anyone happen to know if I can submit any further responses to POPLA in light of what Excel have sent? I'd like to address their description of their GPEOL, which tries to suggest that employing their POPLA admin and debt management teams (as well as a load of other things that are blatantly ongoing costs, since they'd have to pay them if no-one ever went in any of their car parks!) should be included

Covered here:

http://forums.moneysavingexpert.com/showthread.php?t=5001202

Of course you can email POPLA more last minute info, as per post #10 - which was me posting as Coupon-mad.

What number/reference is on the bottom of each page of their GPEOL document? Are they still at 1.8 or is this a new one?

I can't see any reference numbers other than "Rel:0614" (possibly indicating latest version as of June 2014?) in any of the GPEOL documentation. No version numbers in the form 1.x...possibly they have removed them?

I have read through your post on the other MSE thread, SchoolRunMum, and will send a rebuttal email later. I suspect it may be a bit late for me to do this since the latter I got after the appeal says it will be decided on or shortly after 01/07/14, but it can't hurt.

To close this off, I've just had email from POPLA to say my appeal has been upheld and the ticket is to be cancelled. I will come back to the detail of what and why in a later post as there's some points the board may (or may not!) find interesting, but I need to keep this brief as am at work.

A thousand thanks to everyone who posted with advice and suggestions, wrote FAQs etc

Well done - as expected of course as we haven't lost one for well over a year. Please do post more details.

Update.........

Popla today upheld my appeal based on the genuine estimate of loss issue.

My advice to others is always appeal the ticket never pay
Don't get stressed by all the reams of information on the web, keep it simple ask them to justify how they can charge £60/£100 based on the loss you have caused them, they won't be able to and popla will uphold your appeal

Kevin Shelley would be happy.