Some defence against PPCs questions

minion101

Hi All just a few questions I had around defending againstPPCs in court.



A little background first , I am currently in the chain letter mill with one of our friendly PPCs and a fewdays ago had a conversation with one of their tame debt collection agencies. I probably shouldn’t have, but I wanted to cite the ‘debt denied’ line and a few other things came out. To be honest I am not sure if they are going to be more or less likely to take me to court given they are now aware I have been reading some of their favourite forums lol.


Anyway to the questions.


With the recent S!!!!horpe decision I have seen two opposing views and wondered what the opinions of the experts on here were.

The PPCs, or at least one of them, believe that theircontract is enough to give them sufficient interest to form a contract with the car park customers. If that view is correct then presumably the other PPCs could simply renegotiate their contracts to close this loophole and it’s back to business as usual using the existing defences.

So what do you guys think, would the change of contract do it for the PPCs or is the ‘Interest in the Land’ independent of the associated contract and not affected by them?



Second question also on the above:

If we use the S!!!!horpe case as part of a defence do we have to prove that the PPC’s contract does not give them sufficient interest in the land, i.e. do we have to get a copy of the contract or can we just state it and force them to bring a copy of the contract to show otherwise?

Third question:

This relates to the PPCs trying to claim business costs as losses. It occurred to me that we might possibly be able to use a couple of arguments to disprove this, so I wanted to pass them by you guys.

Firstly:

If the £80, or whatever, charge truly represents a liquidated loss then could we argue that the portion they give to the landowner for each ticket, £10 or £15 or whatever, cannot possibly be a liquidated loss as the PPC would never see this money.


Secondly:

If this charge represents a loss then, as only 74% of the charges are paid i.e. they are losing 26% in unpaid losses, how do they make a profit, given this represents the vast majority if not all of their revenue stream? In the case of Excel how does the director afford to pay himself £400K salary and a £100k bonus if they are losing so much money?

Sorry for the length of post, but thanks in advance for all constructive answers :rotfl:

BASFORDLAD

The s!!!!horpe case was in a County Court so doesnt set a precedent

AlexisV

Have you read the HMRC ruling? http://www.tribunals.gov.uk/financeandtax/Documents/decisions/vehicle_control_services_v_hmrc.pdf

A licence to enter isn't sufficient - the PPC needs a licence to occupy (ie. lease) or own the land. Renegotiating contracts is possible, but if you were a landowner, would you sign over thousands of pounds worth of real estate?

PPC's usually sell themselves on the no hassle 'just let me on the land and I'll bring my own signs' business model.

Who is the PPC that believes their contracts already give them ownership or lease of all their clients' land?

minion101

Thanks Alexis for the reply to the first point.

Can't remember the PPC, there was a link on another forum to their website, CCP, CPC, CPS or something like that.

It wasn't that they believed that their contract gave them ownership or lease of the land, but that it explicitly allowed them to collect moneys and possibly create contracts with users of the car park iirc.

AlexisV

A landlord allowing contract signs to be installed on his land, by its very nature, is 'allowing' the parking company to form a contract with others who enter the land.

LincolnshireYokel

AlexisV wrote: »

A landlord allowing contract signs to be installed on his land, by its very nature, is 'allowing' the parking company to form a contract with others who enter the land.

this directly contradicts your previous posts. Unless they own the land, how does it not violate VCS vs HMRC ?

keystone

LincolnshireYokel wrote: »

this directly contradicts your previous posts. Unless they own the land, how does it not violate VCS vs HMRC ?

Actually I read it as allowing them the opportunity to try and form a contract. The fact that they can't by VCS v HMRC is a stage removed. Therefore not quite the same thing. Whether the landowner and the PPC realise this to be the case doesn't actually matter IMO at the time they allow them to erect their signs - assuming PP is required for the signs in question, has been applied for and granted of course.

Of course I could be wrong.

Cheers

AlexisV

LincolnshireYokel wrote: »

this directly contradicts your previous posts. Unless they own the land, how does it not violate VCS vs HMRC ?

I'm saying that you can't have a situation where the landowner allows signage to go up but won't allow the PPC to form contracts with motorists. So a PPC saying VCS HMRC doesn't apply to them because the landowner contract says 'you can form contracts with drivers' isn't relevant, unless they're trying to show they didn't sneak onto the land at night and stick the signs up without permission.

The issue is whether they have the legal right to offer a contract, not just whether they are working with landowner permission.

HO87

mtaylor00 wrote: »

the vcs case contract clearly lacked the required t&cs for the parking comany to enter into a contract with motorist and the fact they were trying to claim for trespass and a little bit of breach of contract i think is the number1 missing link here.

That simplifies matters and misses the nuances the tribunal placed in its judgment. It wasn't merely a matter of t&c's but of intention, as much as anything else.

mtaylor00 wrote: »

the tax tribunal also did not address if a valid contract existed between the parking company and the driver, it was not asked to as this was a tax issue and their remit was only to determine the status of the payment.

Your are correct insofar as your assertion that this was not a matter the tribunal was directly asked to address but nevertheless had to be considered as part of the overall assessment of the various payments made and received. As far as your assertion that the tribunal did not consider whether a contract existed, I'm afraid you are incorrect. I refer you to para. 40 of the judgment:-

On the facts of this case we do not consider that any offer was made by VCS that was capable of forming the basis for a contract between it and the motorist. VCS was not in a position, by virtue of its limited licence, to make any offer of a right to park. The ability to offer such a right was not conferred by the contract with the client, either expressly or by virtue of the nature of the interest in the car park conferred on VCS. That interest did not amount to a licence to occupy, or give VCS any right to possession. It merely conferred a right of entry to perform VCS’s obligations under the contract.

And at para. 44:-

We accordingly find that, contrary to the finding of the First-tier Tribunal in this respect, there was no contract between VCS and the motorist.

mtaylor00 wrote: »

the ibbotson case also showed that vcs lacked the correct authority to enter into contracts and sue for money owed for parking and i suspect they use/used a model contract for all clients.

Although the question of authority formed part of the concerns there were others; principally that the charges at the heart of the claim were not a genuine pre-estimate of the company's losses; that the claimant failed to mitigate the loss although he had a clear opportunity to do so and that the contract between VCS and Wickes did not provide them with the right/authority to issue proceedings on their account. I would also take issue with your assertion that:

mtaylor00 wrote: »

vcs lacked the correct authority to enter into contracts and sue for money owed for parking

This actually misrepresents VCS's case. They were seeking to collect a a genuine pre-estimate of their losses in pursuing Mr Ibbotson for having left the car park and, thereby, having breached the contract. He was not being pursued for monies owed for parking.

mtaylor00 wrote: »

the simple law of agency would apply for any landowner wishing to use a parking company under contract as long as they grant the parking company rights to enter into contracts with drivers when parking and assign all debts inccurred as a result of the parking over to the parking company it would stand up, thats what the law of agency is all about, that is of course if they are operating under contract law as opposed to trespass law which can only be acted upon if they have occupancy rights.

Again, this is true as far as it goes. Any contract between a landowner and a private parking company would have to provide them the right to offer car parking (probably as an agent) and to pursue cases that flowed from those activities (again, probably as an agent). Many car parks are not owned by their users and by the term "user" I mean the supermarket or retail park, for example, that provide the facility/attraction that brings traffic into the car park in question. The elephant in the room is that many such operators and often managing agents lack the authority themselves to contract with an agent such as to be able confer the right to offer parking. How many such car parks used by supermarkets are actually owned by local authorities, for example?

mtaylor00 wrote: »

imagine a person offering to fix your windscreen on a b&q carpark, b&q let them put up signs and do that service you go and get your windscreen fixed then you enter into a contract with the man fixing the windscreen and not b&q, the winscreen man does not have any land occupancy rights but he can enter into a contract with you to supply a service, if you do not pay the winscreen repair man he can sue you for breach of contract.

Relevance? The contract being offered in your example has no bearing on the use or rights to use the land or rights of access to the land. Have I missed something here? Sorry.

The_Shonko_Kid

minion101 wrote: »

If the £80, or whatever, charge truly represents a liquidated loss then could we argue that the portion they give to the landowner for each ticket, £10 or £15 or whatever, cannot possibly be a liquidated loss as the PPC would never see this money.

This is a point that I think is worth pressing further.

It seems clear that there must be a % of a PPCs revenue which is down to PCNs which are paid, as it appears that they issue so many of them.

If you assume that any sane contract between a CPO and a PPC would allow the PPC to operate the Car Park at a profit, then for a PCN to actually be a loss, this must be the case when the number of PCNs issued is 0. However, I suspect the case is that the PPC can only make a profit from a Car Park when it has issued X PCNs, so surely therefore the PCN cannot be a loss at all, but an integral part of the PPCs revenue stream.

All just conjecture of course.

HardWorker2010_2

vax2002 wrote: »

Anyone else had the threats about posting against PPC's.

No not me. No PMs on here or via my email.