VCS WIN - PPCs can offer contracts

jkdd77

polyplastic wrote: »

jkdd77 my reference to 19.5 and 19.6 in the COP was not to enhance the reputation of the COP but merely to draw to the attention of readers that there are more potential claims against the motorist, from PPCs than just damages. There are statutory defences to damages, as well as the support of the Dunlop case, which can assist the driver. However, if the claim is for a contract sum it becomes an uphill struggle to challenge that if the signage is correct. There is case law against you; there is s6(2) of the Unfair Terms in Consumer Contracts Regs against you; there is the COP against you; POFA against you. Motorists must not believe that a claim may be solely about damages.

Polyplastic

It's far from an "uphill struggle" to challenge a claim for a supposed "contractual sum"- most PPCs have attempted to bring such a claim on that ground, and usually lost, and the vast majority of solicitors (including those interviewed on TV for Watchdog) agree that PPC invoices are invariably unenforceable, and remain so even after the commencement of Schedule 4 last October.

There is no (English) case law against the motorist in such 'parking penalty scenarios', Dunlop does cover hidden penalties when disguised as contractual charges (as is usually the case in practice), and there is helpful obiter dicta and persuasive lower court rulings in favour of the motorist.

Furthermore, the BPA CoP is completely irrelevant, and the POFA is also irrelevant if the identity of the driver is known, or if the RK was the driver anyway.

If a supposed "contractual charge" could not be challenged solely because it was the amount stated on the sign, then every landowner would charge £1,000,000 as a "contractual charge" for unauthorised parking. Of course, landowners who are not PPCs don't necessarily need to be members of the BPA to get RK details.

Of course, this would be voided as a disguised penalty, just as £100 or even £75 would also be voided for the same reason.

I support paying the legitimate charge for parking, and do not condone parking when not entitled to do so. Most posts from OPs are not because an OP is taking the mickey, but rather because the PPC has played "gotcha" in order to maximise their profits (e.g. the well-known "first in, last out" trick with ANPR.

Furthermore, your posts on the "perils of litigation" are very helpful in illustrating precisely why ignoring is usually the best option- the perils of litigation apply equally to PPCs considering whether to sue, and PPCs don't usually do court because chasing claims with (at best) a 50% chance of success is a losing business model in the long term.

Guys_Dad

polyplastic wrote: »

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.

I am in much admiration of your contributions and welcome you on our side here. May I pick you up on one point from your previous post?

As far as I can see from POPLA adjudications, the motorist is not privy to the contract between the PPC and the landowner. Only the adjudicator sees this and interprets it in order to make his/her adjudication.

I believe that they have much looser criteria to decide this than the court, or at least seem to, and I suggest that it would only be in a full court that the motorist would have the opportunity to read the contract, unless as one PPC appears to , the PPC willingly provided this.

On another point, and with reference to the COP 19.5 - 19.7, I have asked POPLA whether an appeal based solely on a PPC either exceeding the £100 demand or not offering a discount of at least 40% could succeed.

These are not included in the narrow band of 4 appeal reasons that the POPLA web site defines. Curiously enough, neither is the point of whether or not the contract is valid, despite the lovely Shona throwing out some appeals for that very reason.

I will let you know POPLA's answer.

Guys_Dad

ReturnOfTheGoat wrote: »

Feed The Goat x

Thank you for coming onto the forum. You may be feeling up at the moment because of an obscure win in a VAT case and a summary judgement that you might get someone to explain to you. Or, of course, take the benefit from some of the informed legal advice being given out on here by those who do know the law.

If I were you, I would be very afraid. Once you start taking lots of court actions, win or lose, people on here are going to start picking over all the published judgements and contacting their local councils in droves.

Why? Because they will be itching to show that the car park is the PPC's main source of income. That makes it a commercial venture and liable to full rate business tax. Being strapped for cash, the councils will definitely try it on and your landowner ain't going to like that, is he?

In addition, with POPLA and the BPA, their COP puts constraints on you guys to follow the guidelines to the letter. See where it says in 19.6

If the parking charge that the driver is being asked to pay
is for a breach of contract or act of trespass, this charge
must be based on the genuine pre-estimate of loss that
you suffer. We would not expect this amount to be more
than £100. If the charge is more than this, operators must
be able to justify the amount in advance.

That means that in EVERY car park you "manage" the charges will have to be exactly the same. How could your loss in one car park be different from another if you issue PCN's centrally? So, we find 1 car park where the charges are less that you are claiming, and the motorist has a case for POPLA and the courts. Remember McIlwaine? NO? We do and believe me his words will be referred to, even if he is not an appeal judge.

And remember that to most of us, it's just a few quid but a principle. To you, it's your mortgage money.

So, Goaty or Piggy, keep watching and contributing, but be afraid.

Half_way

Theres far too much doom and gloom on here, and some people are offering realy crap advice, such as pay up ( in caps)
The VCS vs HMRC ruling added an extra string to the bow of those who oppose the methods used by PPCs, however without this string there are still plenty more strings left in the bow.
An unfair cotract is still an unfair contract, a penalty is still a penalty, and it still gets dark at night, just like it did before the original HMRC vs VCS ruling, so lets cut the !!!!!!!! and get on with things.

This forum is suposed to be here to offer advice and help to those who need it, and save them the expense, and worry of paying for something that they dont have to pay for (ie falling for what is still to all intents and purposes a scam.)
If a new poster/member reads some of the !!!!!! above then God help them.


in the gand scheme of things nothing has changed the private parking tickets tickets are still complete garbage, just as before

Guys_Dad

Half_way wrote: »

.................. so lets cut the !!!!!!!! and get on with things.

This forum is suposed to be here to offer advice and help to those who need it, and save them the expense, and worry of paying for something that they dont have to pay for (ie falling for what is still to all intents and purposes a scam.)
in the gand scheme of things nothing has changed the private parking tickets tickets are still complete garbage, just as before

Good rallying speech, nearly as good as William Wallace's in Braveheart. :beer:

But remember what happened to him in the end. The game changed, the tactics by the other side altered.

The same has happened here since October 2012 and, as polyplastic and other enlightened people have said, we need to take on board the changes, use them to our advantage.

POFA has more elements than you may be prepared as those with legal knowledge have advised.

POPLA is a reality and despite an uneven playing field, does have some things we can use to our advantage if we take time and exploit the t&c PPCs have to adhere to.

PPCs have lost their low hung fruit - the ability to clamp and tow which forced 95% of motorists to part with extortionate sums virtually on the spot. Obviously they are going to push much harder on PCN recovery or go out of business.

The establishment in the shape of the government have, by part of POFA and the establishment of POPLA, tacitly given approval to apprporiate recompense for parking on private land, and some of the courts have already accepted that sub £100 charges are acceptable, so, regrettably do not agree that the PPC contracts are unfair. And whereas I would much, much prefer to have you as the judge, regrettably it's them and not you who have the job.

So I am with those who say don't pay.

I am with those who say "Ignore" but prefer those who say "Go through POPLA" with a well constructed appeal.

I worry about those who say "Follow my advice. I am a regular, but if you get into trouble, go to pepipoo"

And I am 100% behind those who recognise it is a changing scenario and are re-appraising their advice in the light of that.

So, yes, we keep advising MSE members not to pay. We ask for even more detail about their case, particularly in respect of any areas of procedure, process or failure of the PPCs to follow their own Association's COP, for that is the real winning tactic.

But above all, we all should remember that, with notable others who "BUT" in (Goat..... but.....never mind!) we are all on the same side.

HO87

Half_way wrote: »

Theres far too much doom and gloom on here, and some people are offering realy crap advice, such as pay up ( in caps)
The VCS vs HMRC ruling added an extra string to the bow of those who oppose the methods used by PPCs, however without this string there are still plenty more strings left in the bow.
An unfair cotract is still an unfair contract, a penalty is still a penalty, and it still gets dark at night, just like it did before the original HMRC vs VCS ruling, so lets cut the !!!!!!!! and get on with things.

This forum is suposed to be here to offer advice and help to those who need it, and save them the expense, and worry of paying for something that they dont have to pay for (ie falling for what is still to all intents and purposes a scam.)
If a new poster/member reads some of the !!!!!! above then God help them.

in the gand scheme of things nothing has changed the private parking tickets tickets are still complete garbage, just as before

And thank you for, perhaps inadvertently, quoting from my earlier post on PPP (doom and gloom).

Firstly, the truth is that the 2012 VCS decision related to a narrow set of circumstances but provided an expansive judgment (as described earlier here) that had a wider application. To suggest otherwise is both unfair and disingenuous. For anyone of a legal bent to denigrate those representing an opposing view and exploiting the effect or impact of a particular case is simply par for the course. Were the boot on the other foot one would hardly expect our PPC friends to be silent about it. And on the basis of current posts I rest my case...

Secondly, the current judgment does little more than reset the clock and, legally, we are now where we were twelve months ago - and that applies to both sides. However, POFA now applies and like it or not PPC's are constrained by it in their seeking payment of their charges whether they are dressed up as damages in trespass, genuine pre-estimates of loss for breaches of contract or as contractual charges.

The lack of any consistency in this regard by PPC's on the one hand and POPLA's repeated attempts to butter-pat cases into the contractual charge box on the other is indicative of both the substantial lack of understanding of the legalities and, thus, the real focus of PPC World.

Lastly, for it to be suggested that POPLA has some legal weight is to overblow its role. In the loosest sense it represents nothing more than a means of ADR (albeit that there is a clear perception of bias). Like other means of ADR its machinations are of little consequence to the court and simply because facts were not argued to POPLA but are later argued in court, or vice versa, is of no consequence.

We should also keep in mind that POPLA was established as the government required quid pro quo for the provision of keeper liability. For it to be suggested that it is some form of consumer-focused concession is, again, unfair and disingenuous.

Cumbrian_Male

It seems fairly straight forward to me. The driver enters into contract with the PPC by virtue of the signage. The PPC can only bring one of 3 claims. 1. Damages for trespass 2. Damages for breach of contact or 3. Collection of contractual sum.

I would suggest that the contract is only with the driver and not the RK and no private individual has to keep a log of who drives their vehicle therefore ANPR is obsolete as not notice is served on the driver.

Where a PCN is issued then for 1. & 2. the damages must be a genuine pre estimate of loss and for 3. as the sign offers not negotiation of contract with the driver then UTCCR 99 applies.

Seems to me we are back to not replying to PCN and when NtO is received RK was not driver and no obligation to name driver.

Comments please? polyplastic your take on it?

bargepole

Another gem from the Appeal Court Judgment:

"The issue on this appeal is whether Vehicle Control Services Ltd ("VCS") is liable to pay VAT on parking penalty charges. If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be"

The decision was that the charges were not VATable, and therefore they are damages - in other words, despite whatever the signage might say, they are penalties and not a contractual term.

The PPCs therefore need to be put to strict proof to show how the £100 represents their losses, or is a genuine pre-estimate of loss. When PPCs have previously tried to do this, they generally include elements of fixed cost, such as the attendant's uniform, office costs etc. These are normal business expenses which would be incurred whether the breach occurred or not. They can only claim for losses arising directly out of the breach of terms, and I would suggest the amount in most cases is much nearer to £10 than £100.

Guys_Dad

And this is even in the BPA. COP.

The interesting thing is that with no PCN issued against people who do not contravene, no regular income from their clients, then they must run at a perpetual loss.

Any additional cost to process a PCN is , as you and Judge McIlwaine say, minimal and £10 would be over generous!