Some defence against PPCs questions

SodG24

vax2002 wrote: »

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

Nope - who from ? Care to provide more details ?

BASFORDLAD

vax2002 wrote: »

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

Please elaborate

ripped_off_driver

mtaylor00 wrote: »

the vcs case only questioned tickets issued under certain situations and noteably not ones for people who did not have any right to park there in the first place. they only looked at situations where a motorist had a right to park as they had a permit but for some reason forgot to display it or parked incorrectly.
from a legal viewpoint and this was confirmed the motorist had already entered into a contract to park with the landowner for a fee and then a contract was created then vcs attempted to issue a ticket for a breach to a contract that they had no part to in the first instance as the motorist held it with the landowner and privity of contract excludes the third party.
i suspect if they had purchased the permit from vcs originally as opposed to the landowner then vcs could have issued a charge for whatever but they did not.
the last bit about agency is very valid either a person is entitled to enter into a contract with a third part or they are not the circumstances or service being offered is irrelevant in my b&q example there is permission by the landowner for the windcscreen guy to operate and that is all thats needed and the same can and does apply to b&q giving a company rights to manage the car park and charge people for using it.
the ibbotson case really did not get past first base as the judge did not make any judgement on either sides merit and its wrong to guess what he was thinking the only thing certain was the contract that vcs had with the landowner did not give them any right to pursue a charge in its own right and the case ended there.
both of these vcs cases are easuly remedied as asked by the original poster by he contracts giving explicit rights except in ones that there is already a contract in place with the landowner and driver such as permits to which the parking company are not party to.

This is totally wrong. The VCS precedent as correctly quoted by HO87 has much wider application and cannot be remedied by simply changing the signage or the landowner contract, other than by giving the PPC a proprietary right on the land. The decision says as much.

mtaylor00, your argument sounds suspiciously like that espoused by a moronic hothead called Perky who has been the butt of jokes on this and other sites for many a year. Would you happen to know the idiot in question?

HO87

mtaylor00 wrote: »

the vcs case only questioned tickets issued under certain situations and noteably not ones for people who did not have any right to park there in the first place. they only looked at situations where a motorist had a right to park as they had a permit but for some reason forgot to display it or parked incorrectly.

In the original (first tier tribunal) case the circumstances were indeed limited but not quite in the way you suggest. In any event, that became irrelevant as it was superseded by the findings at the appeal (upper tier tribunal) where it was found that VCS was in no position to offer any form of contract.

mtaylor00 wrote: »

from a legal viewpoint and this was confirmed the motorist had already entered into a contract to park with the landowner for a fee and then a contract was created then vcs attempted to issue a ticket for a breach to a contract that they had no part to in the first instance as the motorist held it with the landowner and privity of contract excludes the third party.
i suspect if they had purchased the permit from vcs originally as opposed to the landowner then vcs could have issued a charge for whatever but they did not.

A rather convoluted summation of the what the court said. The court held that VCS acted as the landowner's agent in the collection of the fees. The matter of privity did not enter into the equation at all.

mtaylor00 wrote: »

the last bit about agency is very valid either a person is entitled to enter into a contract with a third part or they are not the circumstances or service being offered is irrelevant in my b&q example there is permission by the landowner for the windcscreen guy to operate and that is all thats needed and the same can and does apply to b&q giving a company rights to manage the car park and charge people for using it.

I disagree. This is not simply a matter of agency although agency forms part of it. An operative contract drawn up between the PPC and and the landowner must confer sufficient interest for the PPC to "occupy the land" and therefore incorporates a significant element of licence.

mtaylor00 wrote: »

the ibbotson case really did not get past first base as the judge did not make any judgement on either sides merit and its wrong to guess what he was thinking

The summation I gave above is based on the transcript of the case. I employed no guesswork and based my comments on what the judge said. Nothing more.

mtaylor00 wrote: »

the only thing certain was the contract that vcs had with the landowner did not give them any right to pursue a charge in its own right and the case ended there.
both of these vcs cases are easuly remedied as asked by the original poster by he contracts giving explicit rights except in ones that there is already a contract in place with the landowner and driver such as permits to which the parking company are not party to.

I would agree that the situation may be remedied although I would be reluctant to employ the word "easily" for the reasons set out above. It would be very unwise to assume that car park "owners" have the legal capacity to offer a licence to PPC's or would necessarily be prepared to do so. One should also bear in mind that any new contract will be discoverable and subject to scrutiny. Capacity and performance will become the new issues.

Finally, which PPC do you work for?

minion101

Thanks for all the reponses, but please refrain from derailing the thread with issues about Mods, important though they may be :rotfl:

Some interesting arguments have been put forward and I finally got round to reading the transcript from the VCS v HMRC, linked by AlexisV for which thank you.


First to say I am absolutely no legal expert, but I read this as follows and I think this agrees with what some of you are saying, but not all.


The judgement has two sections the first deals with trespass and the second deals with the issue of a contract between VCS and the motorist.


If I have understood correctly then for the first issue, 'trespass', the judgement says that as VCS had insufficient interest in the land, specifically the right to 'occupy' then there could be no claim as trespass and that only the landowner or someone who had the 'right to occupy' could do this.


For the second section concerns whether there existed a contract between the motorist and VCS and the answer was no as the landowner was the one that issued the permits even though VCS printed them, thus the landowner had already given permission to the motorist to park and the contract was between the landowner and the motorist because of this.

It also states that becuase of this VCS is collecting money on behalf of the landowner who then lets VCS keep the money for providing running the carpark, i.e. a payment for services thus liable to VAT.


What I am not sure about is whether the ruling on the contract part holds up if there is no permit involved. Is the fact that the Landowner has allowed their land to be used as a carpark enough to form a contract between the motorist and the landowner and thus negate any idea that a contract exists between the PPC and the motorist?

Points 4o and 41 seem to be the important part and it may be here that PPCs can tighten up their contracts with the landowners to allow them to do what they are doing.

However, even if they do, the following point was also made in section 35:

"(The fact that penalties may not be enforceable as a matter of English contract law, as will become apparent, was not material to our decision.)"

HO87

minion101 wrote: »

What I am not sure about is whether the ruling on the contract part holds up if there is no permit involved. Is the fact that the Landowner has allowed their land to be used as a carpark enough to form a contract between the motorist and the landowner and thus negate any idea that a contract exists between the PPC and the motorist?

The findings are quite clear. The court found that VCS were in no position, legally, to offer any contract to park whether than involved a permit or otherwise. I refer you again to para. 40:-

VCS was not in a position, by virtue of its limited licence, to make any offer of a right to park.

minion101

Thanks HO87, but I read licence as being the specific contract they had at the time, i.e. if the contract was more tightly worded then they would be able to. To me it didn't look as if that contract / licence would have to go as far as to give right's of occupancy, but it doesn't state that either way.

What it might mean is that if VCS, and others, have used some sort of pro forma contract for all the car parks, then currently all of them fall afoul of para 40.

I am not sure that couldn't be corrected going forward with a change in contract with the landowner that doesn't mean the landowner loses their own rights to the land.

Thoughts??

minion101

Sorry HO87, I think you might be right.

I reread that para 40 and it does expressly say that VCS did not have a 'licence to occupy' or 'right of possession' therefore could not 'offer a right to park'.

The implication being that unless a landowner gives them such rights, and as AlexisV said in an earlier response, what landowner is going to do that, then the PPCs are stuffed. :rotfl::j:beer:

Game Over!!!

AlexisV

The requirement that occupation or ownership of the land is required is more difficult than rewording the contract.

The PPC business model is one of "we'll sort out your parking problems, install signs and send a bloke round every so often to ticket cars. Just sign on the dotted line".

If the landowner turns round and says "hold on, it says here you get to lease the land", what's the PPC going to say?

The other option is for the landowner to make the contractual offer himself on his signage, with payment instructions to the PPC below. The tickets would also have to be from the landowner. The PPC would become a factoring company, and have to charge VAT.

This would be possible in some locations, but many landowners would be reluctant to get involved in this. Suddenly, the separation between the PPC and landowner doesn't exist any more.

And that's before the complication of a PPC client that doesn't own the and themselves. They could end up subletting to a PPC and breaching their own lease.

HO87

And what happens to a PPC that chases the debts, owed to the landowner, from private individuals? Suddenly they would have to obtain CCA licences before they could trade any further.

As I suggested, this is far from the straightforward situation you seem to want to characterise it as, mtaylor.