VCS WIN - PPCs can offer contracts

ManxRed

Hiya Mike. Aren't you out celebrating yet?

Aretnap

SodG24 wrote: »

EDIT - so the Judges support a contract that allows towing which is illegal ?????

The case concerned contracts and tickets which pre-date the Protection of Freedoms Act, so towing was legal at the time.

ThischarmingManc

@Manx

You think just because I'm a new poster, I am a PPC employee or sympathiser, I assure you I’m not.

I first came to this board last year when I received an invoice, which I successfully ignored btw after reading this board, and have been reading for months but have never felt the urge to post. This judgement has got me a little concerned (and the fact that you think PPC’s should be celebrating means my concerns are probably not without merit) and my questions are genuine.

ManxRed

Why are you asking for legal advice for a case that was only published an hour or so ago and most of the regulars on here don't know about it yet, or at least haven't had time to digest it and prepare a proper response.

You're useless at this Mike. You should have waited a few days, then it might not have been so obvious.

Mike Perkins ought to be celebrating now, but that's not because this case might have any particular merit. If you want to read poor assumptions into what I'm typing then go ahead.

Half_way

Before HMRC vs VCS these parking charges were penalites, looks like that is still the case

Lord Justice Lewison:
The issue
The issue on this appeal is whether Vehicle Control Services Ltd ("VCS") is liable to pay VAT on parking penalty charges.

and further on

Although Mr Singh relied on clause 5 of the contract ("The Client request and authorise the Company to carry out its obligations hereunder") I do not consider that that single word will carry the weight that he suggests. It does not, to my mind, turn a contract for the provision of services into a contract of agency. Mr Singh also stressed the expectation that VCS would be paid for the provision of its parking control services, and that one would expect the consideration to flow from the landowner. I accept, of course, that VCS is in business to make money. But it does not follow that VCS expected to make money by being paid by the landowner. What it obtained under the contract (apart from the small fees charged for permits and signage) was the right to exploit the opportunity to make money from the motorists. The fruits of that exploitation cannot, in my judgment, sensibly be described as payment by the landowner. Mr Singh also accepted that if the contract between VCS and the landowner had given VCS the right to occupy the car park, then the penalty charges would not have been consideration for the supply of the parking services; and hence would have been outside the scope of VAT. But I do not see why that should make all the difference. Whether as occupier or merely as service provider, one of the rights that VCS acquired under the contract was the right to enforce parking restrictions and keep the proceeds

ripped_off_driver

Perky or whichever PPC thicko has posted this clearly does not understand what it is all about. It does NOT say that the PPC can form contracts with "stranger" motorists but that the terms of a permit scheme, if agreed to by motorists, can amount to a contract. There is nothing at all revolutionary in this.

Nor are the comments on trespass any use to PPCs. Because a historical right of towing was available the court rules this gave the PPC rights against trespassers. But in the first part of the judgement it is made clear that this decision relates to a permit scheme and only to a permit scheme and not to "pure" trespass.

So a decision made on narrow legal grounds on facts that no longer can apply, which does not bear the meaning that the PPC troll assigned. Move along now, nothing to see here.

polyplastic

Guys_Dad wrote: »

I think I would welcome some comment from polyplastic and other lawyers after then have studied the judgement to see exactly what this means to the much quoted vcs-v-hmrc foundation that we and others have been quoting for some time.

Nothing on pepipoo yet.

From the judgement - Moreover, in some cases a contracting party may not only be able to contract to confer rights over property that he does not own, but may also be able to perform the contract without acquiring any such right. Thus in Bruton v London and Quadrant Housing Trust [2000] 1 AC 406 a housing trust with no interest in land was held to have validly granted a tenancy of the land to a residential occupier. The tenancy would not have been binding on the landowner, but bound the two contracting parties in precisely the same way as it would have done if the grantor had had an interest in the land.

Too many pundits on message boards regarded the VCS case as evidence that a PPC cannot contract. That has never been the case. Because of the hierarchy of landownership a landowner has always been able to offer a subordinate legal interest to his own legal interest to someone else. e.g A freeholder can grant a lease and a licensee can grant a sub licence. A PPC is often a licensee

Further, before you bang in a defence you have to consider what evidence the landowner may give as to what powers he has actually given to its PPC. The contract that landowner has with the PPC may suggest that the PPC has limited powers to contract but in court the landowner may say, under oath, that it has given the PPC powers to do anything in relation to managing the car park. An evidential issue overlooked by so many folk who advise motorists to do nothing when they get a ticket or notice to keeper. That advice has, IMO. been rather blown out of the water. Motorists need to be a tad more savvy about their approach to parking tickets.

Don't take anything for granted - consider the actual facts of your case and not the facts as you want to believe them to be, or as some posters have been telling you is the case.

VCS could in fact perform the contract because the landowner allows it to.

It would seem, from anecdotal evidence, that PPCs are upping the number of cases taken to court. All of those cases presently awaiting a hearing and which motorists have used the VCS case to support their defence, will be looking a bit iffy now. Well, very iffy in fact.

Don't forget that VCS was about VAT recovery and not about car park management. Always think twice about offering as a defence a case that is the subject of an appeal. Always have a fall back just in case

As for the defence that the parking charge must be a reasonable assessment of loss as one poster has queried, that depends on just what is being claimed. POFA does not mention "damages" in relation to the wrongful use of a car park. If the PPC claims a contract sum for the use of the car park, that is not damages. If they say you can park for two hours for free and after that the charge is £100. Then £100 is not damages but the fee for parking. That is what you agree to pay when you park (dependent upon the wording of the car park signs).

You can offer a defence to damages if they are not a reasonable assessment of loss, but that defence is not available if the PPC claims that contract sum. That is what s6(2) of the Unfair Terms in Consumer Contracts says. Many a poster will tell you that that is not true, but remember that they also told you that VCS said that a PPC cannot contract with a motorist.

Like I said, the motorist has to get more savvy.

Polyplastic

bargepole

polyplastic wrote: »

... If the PPC claims a contract sum for the use of the car park, that is not damages. If they say you can park for two hours for free and after that the charge is £100. Then £100 is not damages but the fee for parking. That is what you agree to pay when you park (dependent upon the wording of the car park signs). ...

Firstly, if the £100 is a charge for using the car park after two hours, then there should be a means of paying it at the time of parking. But there never is.

Secondly, the PPC (assuming they are able to form a contract with the motorist) are attempting, by charging £100, to dissuade people from exceeding the two hours. It is, in effect, a penalty charge disguised as a contractual term. Irrecoverable under contract law, as demonstrated by Dunlop and many other precedents.

trisontana

And they never give a time limit for that £100 "charge". So,in theory, you could park there for ever.

surfboy1

bargepole wrote: »

Firstly, if the £100 is a charge for using the car park after two hours, then there should be a means of paying it at the time of parking. But there never is.

Secondly, the PPC (assuming they are able to form a contract with the motorist) are attempting, by charging £100, to dissuade people from exceeding the two hours. It is, in effect, a penalty charge disguised as a contractual term. Irrecoverable under contract law, as demonstrated by Dunlop and many other precedents.

Or, as going by the PPC signs forming the contract, if you park for longer then the 2 hours you agree to pay a parking charge of £100.
If you pay that £100, do you then have the right to unlimited use of that space?