Help please - Appeal ignored

Thanks Coupon-mad, I had toyed with the idea of changing "Appellant" to "Keeper" but Appellant sounded, well, legal-ish so I wasn't sure if changing it changed anything important. I have added the extras you recommend:

POPLA Reference Number:
Vehicle Reg:
PPC: Vehicle Control Services Ltd.
PCN Ref:
Date of PCN: 27/04/13

I, as the registered keeper received an invoice from Vehicle Control Services Ltd (referred to hereafter as VCS) requiring payment of a charge of £100 (discounted to £60 if paid within 14 days) for the alleged contravention of parking without displaying a valid ticket/permit at Exeter Street & Exeter Place, Derby.

As the registered keeper, I would like to appeal this notice on the following grounds:
1. Charge not a genuine pre-estimate of loss
2. No authority to levy charges
3. No Creditor identified on the Notice to Appellant
4. Unclear and Non-compliant Signage

1. Charge not a genuine pre-estimate of loss
The demand for a payment of £100 (discounted to £60 if paid within 14 days) is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner / Landholder. The keeper declares that the charge is punitive and therefore an unenforceable penalty.
The BPA Code of Practice states:
“19.5 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.

VCS’ appeal rejection letter of 5th June 2014 states:
“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. 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 these identified. A full breakdown of loss will be provided at the request of a judge, but once again, we would refer you to the outcome of the case: Parking Eye y. Mr Kevin Shelley (2013).”

Thereby VCS asserts that the “charge” is actually damages to recover their losses through breach of contract, however not only do I contend that this is in fact a penalty and not a genuine pre-estimate of loss, VCS have also refused to present me with a breakdown of those losses and state they will only provide them at the request of a judge. These losses necessarily being a “pre-estimate” must by nature be already known to VCS and indeed they claim they have already calculated the sum (“...we have calculated this sum…”). If this figure is a genuine pre-estimate of loss as claimed, there can be no genuine reason, commercial or otherwise, for VCS to withhold or refuse to provide these on request, yet as they have both failed and are essentially refusing to provide a breakdown of their pre-estimate of loss I must contend that the quoted figure of £100 cannot be a genuine pre-estimate of loss.

I contend that the figure of £100 (reduced to £60 if paid within 14 days) in fact a penalty and cannot therefore be a genuine pre-estimate of loss.

POPLA Assessor Chris Adamson has stated in June 2014 upon seeing VCS' latest effort at a loss statement - their latest attempt to get around POPLA - that:

''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bank of Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.

This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

If VCS have since changed their GPEOL calculations from the version presented to the POPLA Assessor in June, then I contend that the calculation still fails as it is not a genuine PRE-estimate and in fact is a 'post-estimate' after the event, of figures designed to match the charge. Indeed, in the 2014 Annual Report prepared by the lead assessor, Mr Greenslade, he stated, “However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."

I therefore respectfully request that my appeal is upheld and the charge dismissed.

2. No authority to levy charges
A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner/landholder’s behalf and enforce for breach of contract. VCS must either produce evidence to demonstrate that it is the landowner/landholder or a contract that it has the authority of the landowner/landholder to issue charge notices at this location.
I believe there is no contract with the landowner/landholder and VCS which entitles VCS to levy these charges and to pursue these charges in their own name as creditor in the Courts and therefore I contend that VCS has no authority to issue charge notices.

I put VCS to strict proof to POPLA that they have the necessary legal authorisation at this location and I demand that VCS produce to POPLA the contemporaneous and unredacted contract between the landowner/landholder and VCS. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between VCS and the landowner/landholder and would contain nothing that VCS can lawfully use in their own name as a mere agent, that could impact on a third party customer.

I therefore respectfully request that my appeal is upheld and the charge dismissed.

3. No Creditor identified on the Notice to Keeper
Failing to include specific identification as to who “the Creditor” may be is misleading and not compliant in regard to paragraph 9(2)(h) of Schedule 4 of the Protection of Freedoms Act 2012. Whilst the Notice has indicated that the operator requires a payment to VCS there is no specific identification of the Creditor who may, in law, be VCS or some other party. The Protection of Freedoms Act requires a Notice to Appellant to have words to the effect that “The Creditor is…” and the Notice does not.

I therefore respectfully request that my appeal is upheld and the charge dismissed.

4. Unclear and Non-compliant Signage

The driver maintains that no signs were clearly visible in either the parking area or the immediate area. Accordingly I contend that if there were any signs present at the time of the alleged “breach of parking contract” then they must have been unclear to the point that any core parking terms VCS are relying on were not sufficiently clear and prominent for the driver to discern whilst parking and that they must also fail to comply with the BPA Code of Practice requirements. I request that POPLA must check the Operator's evidence and signage map/photos on this point, ensuring that any photographic evidence is taken from the position the driver would be in the parking space at the time of alleged infringement and at a similar time of day / light level (the time and date on the PCN is after sunset). I contend that the signs in that car park (wording, position, and clarity) do not comply and failed to properly warn/inform the driver of the terms and any consequences for breach (as in the case of Excel Parking Services Ltd v Martin Cutts, 2011). Terms are only imported into a contract if they are clear and so prominent that the party 'must' have known of it and agreed.

This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not VCS' customers and are not parties of equal bargaining power, nor are they even aware that any 'contract' is possible. Therefore ALL terms are required to be so prominent and the risk of a charge so transparent that the information in its entirety must have been seen/accepted by the driver. No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal). Lord Denning continued: 'The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.'

I therefore respectfully request that my appeal is upheld and the charge dismissed.

Summary

On the basis of all the points I have raised, this “charge” fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with basic contract law.

I therefore respectfully request that my appeal is upheld and the charge dismissed.



Yours faithfully

Coupon-mad wrote: »

Yep all good now except one more that should read 'Keeper':

''The Protection of Freedoms Act requires a Notice to Appellant''

All done, thank you very much for your help. I'll update as I hear anything.

Special thanks to Coupon-Mad, bazster and Redx.

From the initial VCS rejection letter:

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. 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 these identified. A full breakdown of loss will be provided at the request of a judge, but once again, we would refer you to the outcome of the case: Parking Eye v. Mr Kevin Shelley (2013).

So, obviously I contended that:

Thereby VCS asserts that the “charge” is actually damages to recover their losses through breach of contract, however not only do I contend that this is in fact a penalty and not a genuine pre-estimate of loss, VCS have also refused to present me with a breakdown of those losses and state they will only provide them at the request of a judge. These losses necessarily being a “pre-estimate” must by nature be already known to VCS and indeed they claim they have already calculated the sum (“...we have calculated this sum…”). If this figure is a genuine pre-estimate of loss as claimed, there can be no genuine reason, commercial or otherwise, for VCS to withhold or refuse to provide these on request, yet as they have both failed and are essentially refusing to provide a breakdown of their pre-estimate of loss I must contend that the quoted figure of £100 cannot be a genuine pre-estimate of loss.

But then VCS sent their "evidence" to POPLA, with some choice GPEoL related statements in their summary:

The appellant has not offered any evidence as to why the charge is not a genuine pre-estimate of loss; they have simply stated that in their opinion it is not. We contend that that the onus is on the motorist to lay out their reasons with supporting evidence as to why the charge is not appropriate.

and:
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We would state that a simple statement from a motorist that in their ‘opinion’, a parking charge is ‘unreasonable, excessive or punitive or not a genuine pre-estimate of loss’is insufficient in itself; the argument needs to be qualified with supporting evidence, as is done by the parking operator. If, in the adjudicator’s opinion, such evidence has not been adequately supplied by either party, then we request that further clarification should be sought, before the case is finally adjudicated upon. In any event, if the adjudicator considers that our pre-estimate of loss calculation is too high, or requires further clarification on any aspect; relevant details should be requested from the operator

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the highlighting is VCS' and not mine. My response to these "points" was

It is not up to me to provide evidence that the charge is not a genuine pre-estimate of loss, it is the responsibility of VCS. Clearly I cannot make a pre-estimate of loss to VCS without full access to VCS sensitive commercial data.

All in all it was an interesting process once I'd got past the initial shock of everything to learn. Well worth it to stick it out rather than cave as it both saved me £60 and cost VCS around £30 for the DVLA request and POPLA appeal.