Welcome. Please show us the N1SDT Claim Form you received. Only redact your personal details, the claim number, your VRM and the MCOL password. Leave everything else showing, especially the Particulars of Claim (PoC) and all dates, especially the issue date.
Has Excel issued the claim themselves or have they used a bulk litigator such as Elms Legal or DCB Legal? You will know this by the name in the address for correspondence to send to, if it is not blank.
You have not shown us the original Notice to Keeper (NtK) that was received or the wording you put in your appeal. It helps us to advise accordingly if that information is provided.
This scam by Excel Parking is well known. Your photo of the sign has cropped the terms on the right side which will show the clause requiring payment within 5 minutes of entering the car park although they are repeated in minuscule text near the bottom of the sign. That clause is considered a "penalty clause", (although interpreted by some judges as simply a clause that simply "penalises" the driver. Either way it is easily defended.
Under English law, a penalty clause is one that imposes a detriment on a party for breaching a contract, where that detriment is not a genuine pre-estimate of loss or is disproportionate to any legitimate interest of the other party. A clause that "penalises the driver if they breach it", inherently suggests the clause imposes a penalty for non-compliance. This aligns with the essence of a penalty clause.
Any assertion that the clause "is not a penalty clause" but "penalises the driver" conflates the clause's punitive nature with its enforceability. If the clause's purpose is to penalise rather than compensate for actual loss, it is, by definition, a penalty clause.
In light of
Cavendish Square v Makdessi and
ParkingEye v Beavis, the clause should be examined as follows:
1. Legitimate Interest:
• Does the 5-minute limit serve a legitimate interest of the parking operator (e.g., ensuring prompt payment or turnover of parking spaces)?
While there may be some legitimate interest, the clause's effect of penalising non-compliance, particularly given the practical impossibility of compliance, suggests it is disproportionate.
2. Proportionality:
• Is the detriment imposed (e.g., a fine or charge) out of proportion to the legitimate interest?
The time limit starting from the ANPR camera entry, combined with the impracticality of complying, means that the clause is unreasonable and therefore, punitive.
3. Practical Feasibility:
• The clause requires actions (finding a space, reading terms, setting up payment) that are almost impossible to complete within 5 minutes. This undermines the fairness of the clause and its enforceability.
Argument as to why the Clause is a Penalty• The strict 5-minute timeframe effectively sets up drivers to fail, especially considering the logistical realities of parking and reading extensive contractual terms.
• The operator suffers no tangible loss if the payment is made later, undermining any argument that the charge represents a genuine pre-estimate of loss.
• The clause appears to deter breaches rather than protect a legitimate interest, making it punitive and unenforceable.
How to Challenge the Clause if it goes to court• You would highlight the practical impossibility of complying with the clause, rendering it inherently unfair.
• You would argue that the charge imposed is not a genuine pre-estimate of loss and is disproportionate to any legitimate interest.
• You would refer to Consumer Rights Act 2015, which requires terms to be fair and transparent. An unachievable requirement is neither.
So, if the clause
penalises the driver for breaching it and imposes an unachievable requirement, it is inherently a
penalty clause, as its purpose is punitive rather than compensatory or proportional to any legitimate interest.
