VCS WIN - PPCs can offer contracts

Guys_Dad

ManxRed wrote: »

1. PPCs lost in court left right and centre BEFORE the VCS ruling so no idea why this changes anything other than one single defence point of many on a PPC defence.

2. Interesting that this ruling clearly defines the charges as penalties - no VAT due - yet POPLA continue to define the charges as performance charges - hence rejection of POPLA appeals.

So in summary, the charges are diametrically opposite in definition, but both definitions are happily used in the PPC's favour in each circumstance.

How convenient. You can't have it both ways, or maybe you can (if POPLA is not as independent as it claims to be).

Good points. This may change POPLA appeals and wording to go in.

It also needs careful thinking as to whether there are any benefits from the vcs -v- hmrc latest appeal that are helpful, such as your point 2.

Certainly the original wording from the previous hearing that has been quoted many times on here as the bedrock for saying they have no authority seems to have been blown away and, therefore, can't be used in that way any more. Do you agree?

ManxRed

Not sure yet. The case and the appeal relates to permit parking.

bargepole

polyplastic wrote: »

They do provide an ability to pay. They write to you and ask you to pay.

If this was a genuine and legitimate charge, they should provide a means of payment at the time, as per any other legitimate business.

polyplastic wrote: »

Even after this decision you argue that a PPC cannot contract with a driver. Why?

I didn't argue that at all, I said I was assuming they could, for the purposes of this argument

polyplastic wrote: »

The POFA has established a new scenario. It provides for a contract sum. Look at para 19.5 and 19.6 of the BPA COP which sets out two different forms of claim. 19.6 being a contract sum.

The BPA is just a trade organisation with no statutory or regulatory powers. It's status is the same as the British Toilet Association.

polyplastic wrote: »

Don't jump to a conclusion based on some belief that case law, which has been overturned, says one thing. Look at the facts of the individual case that a PPC is arguing.

This ruling does not overturn case law on unlawful penalties. But yes, I would agree that each individual case needs to be looked at on its own merits.

polyplastic wrote: »

It is a well established principle that if the car park signage indicates a parking charge and you park, then you accept a liability to pay that charge.

Is it? Where, exactly?

polyplastic wrote: »

It's up to motorists...to move with the times, see that the game has changed., or carry on in the old way. Each time my guidance is challenged, the court seems to support it.

There have been a number of recent high profile cases, both pre- and post- POFA, where PPCs have lost spectacularly, so I don't know where you're getting this from. This latest ruling from the Court of Appeal seems perverse, and the comments of Lewison LJ "There is no legal impediment to my contracting to sell you Buckingham Palace. If (inevitably) I fail to honour my contract then I can be sued for damages" are laughable. I fully expect HMRC to challenge this in the Supreme Court.

polyplastic

Number of interesting points

1. No reports of folk getting two tickets for parking continuously for two or more days. Perhaps that is because motorists have better things to do.

2." Certainly the original wording from the previous hearing that has been quoted many times on here as the bedrock for saying they have no authority seems to have been blown away and, therefore, can't be used in that way any more. Do you agree?" The case highlights a situation I have mentioned on any number of occasions. That is that a contract can be created between the driver and a PPC in any number of ways. It is not limited to the PPC having a propriety interest in the land as was suggested by the original VCS decision. What many a poster used to advise was that VCS means that a PPC cannot contract. That was always poor advice, evidenced by this decision. The correct approach, when seeking to defend your position, has always been to look at your own particular circumstances to ascertain whether your PPC did contract with you. Simply hanging your hat on the original VCS decision encouraged drivers not to let the actual facts of their case get in the way.

3. Interesting that this ruling clearly defines the charges as penalties - -No it didn't. It indicated that if the charges were penalties then VAT is not due. Do not fall into the trap of misinterpreting a case to suit a particular argument. That only defeats any defence you may wish to put forward when that defence is based on that error.

4. Ignore seems to the best option in reality You could do, but then if your case is ever before any formal forum it would be the county court, by which time costs start to be added to the debt. Ignore and you accept the potential of that risk. On this message board recently a poster followed that advice and duly received court papers. If that poster included in his defence a reference to VCS to show to the Court that the PPC in his case could not claim against him then he needs to re-submit his defence before any hearing. That is a bit tricky now. It is a fact that if you run the wrong argument you can get the wrong result.

If you go to POPLA you can require the PPC to provide its contract with the landowner from which you can ascertain whether, on the facts, that PPC can contract with a driver, and have the necessary standing to sue you. You can get that for free. In the county court it may cost you if you lose. That is the risk. If you do not "ignore" but defend your position at POPLA you can do that for free. The court route, as I say can cost you.

5. "The case law from Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd [1914] UKHL 1, and Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1987] EWCA Civ 6 has not been overturned in the slightest." Correct, the case law on damages, and the need for them to be properly ascertained has not altered. The case of Thornton v Shoe Lane Parking Company has not changed either and that relates to your agreement to be bound by the conditions for parking such that the parking charge (not damages) is £100. Dunlop etc in this quote are cases that argue damages and which is a completely different issue. If the parking company is claiming damages then you can use those cases. If the PPC is not claiming damages you can't use those cases as part of your defence. Can you please look at the BPA COP paras 19.5 and 19.6. From that you will see two different forms of claim. One is for damages and the other for the contract sum. The COP had the nod from the Sec of State for transport as part of the run up to the introduction of POFA. So the Government has given tacit approval to £100 being reasonable.

6. The contract sum can still be a penalty Three issues here, One -you need to know whether they are claiming damages or a contract sum before you can argue that the contract sum is a penalty. Rules of evidence - you have to argue the correct case. One chap went to POPLA and argued that the damages were not a reasonable assessment of loss. He lost his case because the PPC said that it wasn't claiming damages but the contract sum. Argue the wrong case and you get the wrong result.
Two, if you are to argue that it is a penalty then that argument will be before POPLA or the county court. Ignore all the letters etc and if there is any hearing it will be before the county court. If you feel sufficiently confident to run a legal argument in front of a Judge distinguishing the difference between a penalty and a contract sum then feel free to do so. It's not as simple as just saying "It's a penalty M'lud" - you have to prove it. As I say the £100 level has support whether we like it or not.
Three. Just bear in mind that those who argue that all contract sums are penalties, have not taken into account the facts of your case nor the signage in the car park etc but just jumped to a conclusion. When defending your position you have to rely on the facts of your particular case and interpret those facts with the assistance of case law relevant to the point you are making. You can't decide on the case you want to rely on and then try to get the facts to fit. Life's not like that. Don't forget, many a poster has tried to get VCS to fit every case regardless of the facts. A more constructive approach to defending your corner is required. Times are changing, change with the times

We all have choices. We can give up and pay or fight. If you wish to fight, just ask your self
Did I break the car park rules? If the answer is yes then you can't argue that you didn't. If you get to the county court you have to sig a "statement of Truth". If you lie that is contempt. Recognise the risks of not being honest.

If I am guilty as charged then is the sum they are claiming lawful? Is the PPC claiming damages or a contract sum? They won't tell you unless you go to POPLA first.

So, What does the signage in the car park say? Does that give you any guide? You may need to take advice.

If they are claiming damages is the sum unreasonable, contrary to Dunlop?

If they are claiming the contract sum did the signage make that sum clear?

What is a penalty?

All kinds of potential defences but you have to ask yourself a whole range of questions and answer them honestly before you get into litigation. Don't use a one size fits all defence.

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). ..

OK then, let's accept that this is true.

So if I have a printed sign on my windscreen, which says "Notice To Car Park Operator: Any Parking Charge Notice placed on this vehicle attracts a £100 administration fee for dealing with correspondence. By placing a PCN on this vehicle, you agree to be contractually bound by these terms, and to pay a fee of £100 to the Registered Keeper (reduced to £60 if paid within 14 days)."

Does that not create an equally valid (or invalid) contractual liability?

peter_the_piper

Does not the £100 fee attract vat as its payment for a service?

ManxRed

Yes, and haven't we already pointed out the inadequacy of invoicing an unknown person after the event for providing a service? Payment needs to be facilitated at the time.

spacey2012

If you are claiming them to be damages for trespass, you are going to need to pay a solicitor at every County court hearing and a barrister at every appeal hearing.
You dont get that money back.
How very very stupid of you ?
What Right of audience do you have to represent a landowner for damages as litigant in person ?
Answer None.
Didn't, think that one through did you ?

peter_the_piper

So, by enterring into a contract when you pass the sign, which you can't read because off a tail back of cars, you then have to drive round and out again because its full, have the PPC broken their contract and entitle you to a compo?

Stroma

My advice is equally radical, ignore is the best option as if you don't enter into any communication unless its a company vehicle or similar, then there will virtually no cherry picking as you call it. The only communication is to the retailer or service provider with a complaint and a letter before action if appropriate.

Parking companies like before vcs v hmrc were routinely ignored, pofa 2012 doesn't alter that, there is far less than 1% chance of going to court, if that is explained on the advice given, then it's up to the motorist whether to pay, I would think that with a percentage of more than 99% of not going to court then it would be an easy choice IMO

By the way perky, how many did you take to court ever out of all invoices issued, the drivel that you have on your site is purely of desperation, nobody takes your company seriously as you are a two bit operation.