Popla appeal advice

Popla Appeal letter:


Mr XXXXXXXX 09/11/2014
xx yyyy Street,
Anytown
POST CODE
Date & time of ticket issue: 31 ABC 2014
VCS Invoice no: xxxxxxxxx
Re verification code yyyyyyyyy
Vehicle reg: ZZZ ZZZZ

Dear POPLA,
As registered keeper, I wish to appeal because I am not liable for the parking charge and the car was not improperly parked. The background is that there was no windscreen ticket applied, at all, as admitted by VCS.

I received the Parking Charge Notice (the form filled out in biro with boxes ticked, with times, number plate, etc) through the post along with the Notice to Keeper, which states that "the alleged contravention was recorded at the Exeter St, Derby on 19/08/2014 but we were unable to affix the parking charge notice to the vehicle whilst it was stationary as the driver drove off."

I have the following appeal points:

1) There is no evidence of ‘no permit’

Because the driver did not remain in the car park - did not park - as VCS admit the car was driven away. VCS have not proved the absence of a permit and cannot have known if the driver had a permit, when and if the operative decided to take photos (none have been produced thus far) they he would have done so speculatively, when they saw the car pull over and without allowing any grace period for the driver to read the signs and/or display the permit if deciding to stay.

2) The NTK fails to establish ‘keeper liability’

As shown (these words are from paragraph 9 of Schedule 4.
http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

9(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with any paragraph if the following requirements are met. (2)The notice must:
(a)specify the...land on which it was parked and the period of parking to which the notice relates;
- fails to specify any 'period of parking'. It wrongly refers to an 'incident' at a certain time but no photo 'evidence', if a photo was taken it will only show the car pulled over with driver, before it was driven away. There are no other times on the NTK and the car was not parked - so the 'period of parking' is completely omitted.
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
- this NTK is a non-prescribed hybrid document sent because VCS admit the driver 'drove away'. VCS have implied that the driver of the vehicle 'now has 28 days to pay' (i.e. a payment now due in the future, counting from the date the PCN and NTK were strangely served together). VCS cannot say that the charges 'have not been paid in full' (past tense). VCS have omitted the mandatory wording from 9(b).
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose...;
- the NTK fails to describe any charges due from the driver 'as at the end of that period' {of parking} but merely introduces a charge they want the driver to pay 'now' (48 days later). If there was a charge that the driver should have paid as at the end of the (unspecified) period of parking, this tariff is not specified on this NTK so it must be zero.
(d)specify the total amount of those parking charges that are unpaid, as at a time which is—(i)specified in the notice; and (ii)no later than the end of the day before the day on which the notice is...sent by post...;
- the NTK fails to specify the total amount of any 'unpaid' parking charges because there were none. There is no 'time specified' except the time the PCN was observed (17:10) and then the time the PCN was issued (17.20 apparently but the car wasn't parked then). These times do not constitute a period of parking and neither did the driver have any obligation to pay anything at all, for deciding not to remain in the car park.
(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper— (i)to pay the unpaid parking charges; or (ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
- the NTK does not 'invite' me to pay/name the driver. It wrongly informs me that under the POFA I am 'required' to do so, which is misleads in order to make a keeper pay up.
(f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given (i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full & (ii)the creditor does not know both the name of the driver and a current address for service...the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
- the NTK fails to include the proviso 'if all the applicable conditions under this Schedule are met' even though VCS are aware their Notice is not compliant. They wrongly state as a fait accompli that they 'will...have the right' even though they do not have that right.
(h)identify the creditor and specify how to whom payment or notification ...may be made;
- the NTK fails to identify the creditor, who could be VCS, or the landowner, or a leaseholder, or occupier, or retailer, or business or managing agent for the site -or indeed another unidentified party. This is fundamental information and cannot be inferred from a letter heading or the fact that VCS request the payment, since any agent or even a debt collector, can act in a capacity to collect monies for a creditor. It does not follow and is not safe to ‘assume’ that VCS is the creditor.

The fact that some of this information may be implied or could be inferred by a reader familiar with the legal context of parking (unlike myself, who has had to spend hours researching it) does not mean that the NTK is compliant. This document must have the prescribed, mandatory wording. Where an Act states that such a Notice ‘must’ include certain words, then any omission, ambiguity or misleading information renders it invalid. As such, the charge is not enforceable against me as registered keeper.

3) Inadequate, unclear & non-compliant signs - Such as they are, the signs are unlit, so that in darkness no signs are visible and the words relating to the parking charge are very small indeed and certainly unreadable. I put VCS to strict proof otherwise; as well as a site map they must show photos in darkness taken without a camera flash. There is no adequate lighting on site and any of the sparsely populated signs that the driver may have passed once on site are certainly not prominent and do not appear to be reflective. The fact is that if the words are not readable then no contract was capable of being formed. The signs breach the BPA CoP Appendix B which effectively renders signs unable to form a contract with a driver in the hours of darkness: ''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit...should be made of a retro-reflective material similar to that used on public roads''.

The sign does not identify, as required for a 'distance contract' within the Consumer Contracts(Information, Cancellation & Additional Payments) Regs
http://www.legislation.gov.uk/uksi/2013/3134/pdfs/uksi_20133134_en.pdf
''(d) where the trader is acting on behalf of another trader, the geographical address and identity of that other trader;
(e) the geographical address of the place of business of the trader, and, where the trader acts on behalf of another trader, the geographical address of the place of business of that other trader, where the consumer can address any complaints;''

In case VCS protest that this type of contract is exempt from these regulations, I contend it is not because the only exemptions are listed in the Regs and a parking contract fits none of them. This is certainly not a simple, immediate ‘day to day transaction’ defined by the EU in the Guidance as ‘buying a cup of coffee or a newspaper’. In fact, providing parking spaces as a 'service' for a fee is specifically stated as covered by the Regulations, as shown here in the EU Guidance behind the original Directive upon which the UK Law is based: http://ec.europa.eu/justice/consumer-marketing/files/crd_guidance_en.pdf
'' Service contracts...should be included in the scope of this Directive, as well as contracts related to...the rental of accommodation for non-residential purposes.
For example, renting a parking space...is subject to the Directive. ''


4) No contract - and if POPLA find there was one, I hereby cancel it

VCS are fully aware that the elements of a contract are missing in this case and they should never have sent me a demand for money. Their 'service' of supposedly offering a parking space was not accepted by the driver. The driver had no opportunity to read any sign and was effectively chased away by the employee, who may have taken hasty photographs to try to suggest that the car was 'parked without a permit' even though the driver may well have had one. In this instance the alleged contract was not concluded by performance nor did consideration flow between the parties - in short, no parking 'service' was provided.

Yet VCS have sent me a NTK charging for a non-existent contract for an unperformed service. As such, under the Unsolicited Goods & Services Act I exercise my right to reject the invoice (NTK). And under the Consumer Regs linked in point #6 I hereby cancel the contract (which is denied anyway) and as soon as VCS read this they will be deemed to have received my Notice of Cancellation. This is not a situation where a trader can recover a charge and it also breaches the CPUTRs 2008, as amended by regulation 39 of the following:






5) Failure to comply with the Consumer Contracts(Information, Cancellation and Additional Payments) Regulations 2013


http://www.legislation.gov.uk/uksi/2013/3134/pdfs/uksi_20133134_en.pdf
These Regulations apply to all UK consumer contracts from June 2014. This is a service contract* offered by written terms in print on a sign which is a means of distance communication (i.e. not a face-to-face contract in the simultaneous physical presence of the trader and the consumer).
In the UK Regulations:
* “service contract” means a contract, other than a sales contract, under which a trader supplies or agrees to supply a service to a consumer and the consumer pays or agrees to pay the price.''

From the EU Guidance behind the Directive upon which the UK Law is based:
http://ec.europa.eu/justice/consumer-marketing/files/crd_guidance_en.pdf
''Service contracts...should be included in the scope of this Directive, as well as contracts related to...the rental of accommodation for non-residential purposes.

For example, renting a parking space...is subject to the Directive. ''

Part 4 of these Regulations has provisions concerning protection from unsolicited sales and additional charges which have not been expressly agreed in advance (this was an unsolicited ‘service’ not expressly agreed nor performed at all, so this is a breach of the Regulations).
Regulation 39 introduces a new provision into the Consumer Protection from Unfair Trading Regulations 2008 which provides that a consumer is not required to pay for the unsolicited supply of products (as happened here – the NTK is an unsolicited invoice).
Regulation 40 provides that a consumer is not required to make payments in addition to those agreed for the trader’s main obligation, unless the consumer gave express consent before conclusion of the contract (no payments were expressly agreed at all - the driver left).

Information breaches of these Regulations:
VCS have failed to serve in a durable medium, ANY information as defined in these Regulations for Distance Contracts (i.e. not face-to-face) as set out in Article 13:
Information to be provided before making a distance contract
''13.—(1) Before the consumer is bound by a distance contract, the trader — (a) must give or make available to the consumer the information listed in Sch. 2 in a clear and comprehensible manner, and in a way appropriate to the means of distance communication used, and
(b) if a right to cancel exists, must give or make available to the consumer a cancellation form as set out in part B of Schedule 3.
(2) In so far as the information is provided on a durable medium, it must be legible.
(3) The information referred to in paragraphs (l), (m) and (n) of Schedule 2 may be provided by means of the model instructions on cancellation set out in part A of Sch.3;
(4) Where a distance contract is concluded through a means of distance communication which allows limited space or time to display the information— (a) the information listed in paragraphs (a), (b), (f), (g), (h), (l) and (s) of Schedule 2 must be provided on that means of communication in accordance with paragraphs (1) and (2), but (b) the other information required by paragraph (1) may be provided in another appropriate way.
(5) If the trader has not complied with paragraph (1) in respect of paragraph (g), (h) or (m) of Schedule 2, the consumer is not to bear the charges or costs referred to in those paragraphs.
(6) Any information that the trader gives the consumer as required by this regulation is to be treated as included as a term of the contract.
(7) A change to any of that information, made before entering into the contract or later, is not effective unless expressly agreed between the consumer and the trader.''

“distance contract” means a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded'' (EU definition).

Everything has been omitted, including no information given about the right to withdraw (there is no exemption from this even for distance contracts with limited space or time).


6) No authority or standing to form contracts with drivers

A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner/landholder’s behalf. I believe there is no contract which entitles VCS to pursue these charges and to form contracts with drivers (being allowed to 'issue PCNs' is not the same thing as forming contracts with drivers). VCS appear to be just a debt collector, an agent acting on behalf of another principal and merely sending out paperwork. Any fee charged or remedy for breach/trespass is a matter for the landowner to pursue because VCS have not shown otherwise.

I put VCS to strict proof by showing a copy of the contemporaneous and unredacted contract with the landowner. Even if a basic site agreement sheet is produced and mentions the right to 'issue PCNs' this shows no standing to form contracts with drivers. 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, where VCS have negative responsibility.


7) No genuine pre-estimate of loss

There was no loss caused by this incident and no parking even occurred, let alone parking with/without a permit. In the case of Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79, there is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach”.

VCS have introduced new and duplicated layers of checks and balances to ensure the inflated 'staff costs' add up conveniently close to the amount of the PCN. This differs substantially from previous versions of their stated intentions for the charges at this place so it cannot be their original GPEOL by any stretch of the imagination. Most PCNs never involve anything but the most minimal staff time, let alone Management intervention, since VCS' Notices are automated and only 2% of PCNs ever go to POPLA. Every person served with a PCN cannot be expected to pay for staff time spent on the odd POPLA appeal, which is not an inherent feature of the vast majority of charges.

In October 2014 in a case involving PPS who also like to roll out new versions of 'GPEOL statements' to try to fool POPLA, the Assessor Christopher Monk disallowed any inclusion of duplicated staff time including imaginary and unnecessary checks by Management, saying: ''the operator states that; “before the completed evidence pack is then sent to POPLA and the complainant, a Company Director then reviews the appeal and the evidence pack.” This means that the Director is engaging in quality control or management functions, which are not activities which can properly be included in a genuine pre-estimate of loss arising from the charge. As it is not possible to ascertain how much of the sum is derived from the improperly included activities, the entire £71.65 claimed under this head must be disallowed.''

Further, I contend that the calculation must fail as a GPEOL since it is not a PRE-estimate. In fact is a 'post-estimate' after the event, of figures designed to match the charge. Indeed, in the 2014 POPLA Annual Report prepared by the Lead Adjudicator, 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."

There is also no case law to support a penalty being ‘commercially justified’ against a consumer. Motorists do not have equal bargaining power and whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.

8) Breach of DVLA KADOE contract. No audit trail and no reasonable cause.

VCS are only authorised under their KADOE contract with the DVLA to request keeper’s data if one of these two situations has arisen:

- where a PCN on a windscreen has already been issued, in the case of a manned car park.
OR
- where the issue of a PCN by post is planned (without a windscreen PCN) - this being allowed only in the case of an ANPR camera car park.

This case was neither. It lacks the required audit trail the DVLA insist upon from all AOS members. DVLA Inspectors enforce the rule: 'all vehicles should be ticketed where ANPR technology is not utilised'. This is a fact in the public domain via FOI:
https://www.whatdotheyknow.com/request/meetings_with_the_i
https://www.whatdotheyknow.com/request/226884/response/564615/attach/html/7/FOIR4117%20Devere%20Parking%20Services%20Ltd.pdf.h tml
Driver and Vehicle Licensing Agency - November 2012
‘‘I have since my visit taken further instruction on this procedure. Please would you note that if an operator has the ability to take a photograph of the offending vehicle they should also place a ticket on the vehicle and allow the transgressor time to pay before data is requested from DVLA. I advise that all vehicles should be ticketed where ANPR technology is not utilised.
Summary of Issues: {Operator} to cease making vehicle keeper enquiries to DVLA where ANPR technology has not been used, and vehicles have not been ticketed. (Lack of Audit Trail) ’’

This was not a car park with ANPR cameras. An operative may have taken manual photographs and the NTK says it was a ‘drive away’. So it is a non-ANPR case for which there MUST be a Notice to Driver served first and 28 days allowed for the driver to appeal or pay. VCS had no reason to obtain my data until 28 days had elapsed after a PCN had been served (and there was no PCN served so this should never have progressed). This is also a DVLA and ICO rules breach.

VCS have made a mockery of the DVLA KADOE contract, their ICO registration, the POFA, the BPA CoP and Consumer Protection regulations so I am certain POPLA will agree and uphold my appeal. I believe this is a case that should also be raised to the attention of the Lead Adjudicator for his next report and for POPLA to forward to the BPA as an example of expressly disallowed procedures, notwithstanding the fact that VCS have now ceased their BPA membership.



In light of all above points, I respectfully request that my appeal be upheld and the charge dismissed.


Yours faithfully

Dear Sirs

Ref. POPLA appeal xxxxxxxxxx

In response to the "evidence pack" VCS have submitted:
VCS Have submitted a 27 point ‘evidence’ pack in support of their speculative and disputed invoice. I do not intend to address each and every point they have raised in detail as their submission is clearly a quickly hashed template, much of which is repetitive or indeed irrelevant to the matter at hand.

In making their assessment I ask the POPLA assessor to consider the following in further support of my original POPLA appeal as submitted on 17/11/2014.

1. There is no Genuine Pre-estimated of Loss breakdown included to show how they have come up with £100: As business costs are not losses and they cannot be passed down to a motorist as GPEOL. VCS seem to infer that it is up to me to demonstrate how their £100 is not a GPEOL - I am not sure this is possible and is any case a moot point as the burden of proof is upon VCS to demonstrate the loss that has occurred as a result of the alleged breach. Despite submitting this huge 'evidence' pack they have failed to do this.
2. There seems to be no valid copy of an unredacted contract included between VCS and the Car Park, which could include information about 'money changing hands' in the contract - thus hiding information that could be relevant to the costs calculation fails to meet the strict proof of contract terms needed. In any case, the document submitted which VCS claim is an unredacted contract is dated after the alleged breach of contract took place.
3. Signage- The colours blue and yellow are specifically mentioned in the BPA Code of Practice as the sort of bright colour contrasts to avoid. Use of capital letters and mixing large and small font are also deemed unclear as far as signage is concerned. VCS have mixed this into their signs despite the fact they appear to be new and should match the requirements of the BPA CoP.
Furthermore it simply would not be possible to read any signs whilst in a moving car, and certainly not have read them sufficiently to have be deemed to fully understand the T&C's to which it is alleged I agreed as the registered keeper of the vehicle. VCS's own 'evidence' photos show that a number of the signs are perpendicular to the flow of traffic, and by their own admission since the driver "drove off" logically indicating they did not deem the contact acceptable thus rejecting it - Again there is no evidence of a contravention taking place as the vehicle was never parked. Points 18 & 24 in document B1 could not be more agreeable.

3. In the case of Dunlop Pneumatic Tyre Co
Lord Dunedin said that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach.''...''it is a penalty when a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

Furthermore I point the POPLA adjudicator to the follows verdicts from recent adjudications, circumstances which are virtually identical to this case in which the appeal was upheld on one or more of the reasons I cite in my appeal:

1. POPLA Assessor Chris Adamson has stated in June 2014 in response to VCS adjudication and GPEOL 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”

2. "...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.

The burden is on the operator to prove that the parking charge is a genuine pre-estimate of loss. Although a detailed breakdown may not necessarily be required to prove this, as the appellant has questioned the level of the charge in this case, it is necessary for the operator to provide an explanation as to how this sum was arrived at as an estimate of the damage which could be caused by the appellant’s alleged breach. However, the operator has not provided a breakdown of costs under each head of claim. I am unable to see how the parking charge amount has been calculated. In addition, the operator has included “Central Payments Office (CPO) – Indirect Overheads”. I do not accept that these costs have been incurred as a direct result of the appellant’s breach. As the operator has not produced a breakdown of costs, I am unable to determine the proportion of these costs in relation to other heads of claim listed by the operator. On this occasion, I am not satisfied that the operator has discharged the burden.

In consideration of all the evidence before me, I find 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."


Regards