Virgin Active Solihull - legit overstay £100 charge

Guys_Dad

I agree that it is sensible to involve all those who should be notified, but remember that the recipients are not as involved as you are and need one or two points made cleanly and un-obfuscated.

I tend to wince at everything but the kitchen sink POPLA appeals much preferring the to-the-point short versions that contain previous winning arguments. Similarly, with letters to landowners or clubs, keep it simple, non-hostile and business-like and you have a better chance of getting a result.

IamNotAllowedToUseMyName

Guys_Dad wrote: »

I agree that it is sensible to involve all those who should be notified, but remember that the recipients are not as involved as you are and need one or two points made cleanly and un-obfuscated.

I tend to wince at everything but the kitchen sink POPLA appeals much preferring the to-the-point short versions that contain previous winning arguments. Similarly, with letters to landowners or clubs, keep it simple, non-hostile and business-like and you have a better chance of getting a result.

Absolutely. DVLA have got a letter which tells them I am contacting them due to a ticket which is unfair from MET but not bothering them with the detail, and then suggesting it is not reasonable cause to use DVLA as contact of first resort at a private members' club. Virgin local management have had a request to reject the ticket, though SWMBO gained the impression that as part of Virgin's conditions they have to pay for any tickets they want cancelled as a courtesy for customers. Virgin central management have had a request to review the legality of conditions imposed by notice when there is an existing contract between the member and them, and also to consider whether the system of management is appropriate for a car park which is only used by their members and is I likely to get non-members parking in it, so the only people who are going to get hit with £100 bills are their own members. MET have been subjected to a 4 page diatribe as the point with them is that I want them to give up without even bothering to appeal, and I won't really need to write out an appeal again if I get a magic code instead of surrender.

The trouble with this ticketing scam is that works on the same principle as spam, they don't need to win all their cases as so many people just pay the "fine", so although the economics of the number of cases contested may not work out for them, the image of a system that looks properly managed at first glance is part of the con. The sensible companies know not to bother with the legal stuff, just take the easy tickets, and see if a few form letters gets in any more and ignore the rest. The stupid companies are the one who believe their own propaganda and so go to court forgetting it's a con.

4consumerrights

My wife has been a member there for many years, well over 5, and of course has a written contract with the club. Additionally there are terms and conditions on the main web site and there are notes about parking on the web site for this club.

It looks like VA haven't updated and communicated with their members for quite some time then. Of course, clamping on private land was only made illegal following the implementation of POFA 2012.

The following could be tweaked to be incorporated into a a formal complaint letter to the club:

As your wife has a written contract with the owners regarding benefits of using the facilities including parking, any new changes which alter this arrangement would need to be communicated in writing BEFORE they were instigated and both parties to agree new terms and conditions (Assisgnment of third party contract regs) and pre-existing contract obligations are in force here.

If your wife (as member) was not informed of any changes prior to MET mis-managing the car park - and did not agree to these new terms and conditions, then this would be unenforceable in court.


However though like always getting this parking charge quashed can be done quite easily via a simple complaint first and the if necessary via POPLA.

You should definitely include the paragraph here regarding claiming your expenses at initial appeal - would be worth your while to follow this through as a club member.

IamNotAllowedToUseMyName

Having done a "hard" appeal to MET, they have sent back their form letter with all the evidence needed to win at POPLA (e.g. non-compliant sign on entrance, clear explanation that the claim is liquidated damages based on a pre-calculation etc.) while of course failing to acknowledge any points made, which are clear paraphrases of the standard POPLA appeal.

I'm guessing that they have calculated that employing someone intelligent to read letters outweighs the costs of the occasional appeal.

I'd just add that having originally thought that a properly worded letter mirroring the can't fail popla appeal would save a bit of time, I now entirely understand the bemusement of the newbies.

I'm athome with a broken arm so I am tempted to see if I can come up with an entirely non-technical introduction for the sticky based on my last couple of weeks new found perspective,

Coupon-mad

IanMSpencer wrote: »

I'm athome with a broken arm so I am tempted to see if I can come up with an entirely non-technical introduction for the sticky based on my last couple of weeks new found perspective,

Great - always open to simplifying the sticky, seeing as newbies can't be arsed to read it!

IamNotAllowedToUseMyName

OK, checking on Popla stuff.

Going to use the MET examples. Not going to use the creditor para as they mention creditor in brackets in passing in the NTK.

Although I do not dispute the approximate timings, I note that the time stamp on the actual photos is different from the timestamp claimed on the letter, so that stuff on equipment goes in, just to be annoying.

As I wrote specifically that they could not justify the charge and they insist that they can, as a matter of principle I was thinking of putting a paragraph along the lines of "I must point out that as MET have previously lost appeals on gpeol and I have already asked them to justify this unreasonable charge, that to continue insisting that there has been a contractual loss of £100 represents a deliberate misrepresentation for gain which is a criminal offence under the Fraud Act 2002."

Trading Standards have called back...

Other fun points are the contradictory signage and their system for overstaying 4 hours yet there signs and letters only refer to a 4 hour maximum at the restaurant [sic] They do not have a specific entrance sign, just a very detailed sign as across the site so will use the unreadable while driving clause.

Also, the refusal letter says that it acknowledges that I am appealing as keeper on behalf of the driver. As I wrote that I was not appealing as I did not acknowledge the validity of the invoice and I specifically refused to name the driver, I must rebut that suggestion.

They make a general comment about MET being engaged by Virgin Active yet I am certain that they will only be leaseholders so the paragraphs on entitlement to enforce apply.

4consumerrights

Just to confirm here - a POPLA code was supplied here? It is time sensitive - have you checked its validity?

And was your original letter, by any chance based on that on Parking Cowboys website - which if it was tbh is not really suitable for an initial appeal using inappropriate wording and phrasing.

Btw - I enjoyed reading your thread about TPS and the wind up with the solar panels -:)

IamNotAllowedToUseMyName

4consumerrights wrote: »

Just to confirm here - a POPLA code was supplied here? It is time sensitive - have you checked its validity?

And was your original letter, by any chance based on that on Parking Cowboys website - which if it was tbh is not really suitable for an initial appeal using inappropriate wording and phrasing.

Btw - I enjoyed reading your thread about TPS and the wind up with the solar panels -:)

Home brewed letter I am afraid, but sufficient to prove that they are being deceptive. Popla code validated! I'm going to chat with Trading Standards tomorrow to see how nasty I think I can get away with but I am going to push to get Virgin to insist on the modification or removal of the misleading signs or else they are party to a fraud.

IamNotAllowedToUseMyName

Very first draft POPLA appeal:


In submitting this appeal as registered keeper I do not accept the validity of the claim by MET, I am simply using the appeal as a method of minimising the harassment as MET have made it clear in their response to my complaint that they are not acting reasonably.

My reasons for appeal are:
1. The charge is not a genuine pre-estimate of loss.
2. Signs are not compliant with BPA code.
3. Putative contract terms are misleading.
4. Pre-existing contract with VirginActive cannot be amended by signs.
5. No valid contract of enforcement with the landowners.

To expand on these points:

1. No genuine pre-estimate of loss
I have kindly put this point first to save you the bother of reading further as you will know this one is a sure fire winner. MET Parking Services state in their letter of rejection that the parking charge represents a claim for liquidated damages. Accordingly, the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable under contract law. The estimate must be based upon loss flowing from a breach of the parking terms.

I require MET to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. MET cannot lawfully include their operational day to day running costs (e.g. provision of signs, ANPR and parking enforcement) in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement ' would still remain the same.

According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the landowner does not impose a parking fee for the area in question, and further, the landowner invites members to park all day (see attachments x & y) there is no loss to MET nor the landowner. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.''


2. MET have kindly provided a document that they claim represents the type and location of the signs on the VirginActive Solihull site. You will note that there is no alternative entry sign of suitable design, MET have simply placed their standard sign facing the entrance. This is not compliant with BPA guidance, as detailed the notice cannot be read safely on entry, yet the presence of a non-compliant sign indicates there is no physical difficulty in installation. As there is no prominent wording on entry to the site, there is nothing to guide a driver, especially a regular user of the club, that there was signage that must be read before entry and therefore no contract could be formed.

3. Putative Contract Terms Misleading

Having investigated the signs subsequent to the incident, I note the following:
a) The damages are claimed for exceeding a 4 hour maximum stay. As the notice is clearly for overstay (as the car is not identified to VA or MET as part of the membership documentation it is clear that MET are not enforcing non-members staying less than 4 hours), MET are relying on the wording of the signs.
b) However, VA have prominent signage inviting members to say as long as they wish both on the VA web site and on the club entrance (see xxxxx) and further MET have provided VA with a system for logging extended stay for members at no charge. Clearly, under CPUTR 2008 contradictory and unfair terms are unenforceable and therefore there can be no breach as the time of stay claude must be deemed not to exist.
c) There is no putative contract that insists on a successful registration to allow extended parking.
d) Car parking is provided free with membership. In the event of an alleged breach, the charge must be reasonable. In this case, the charge represents approximately 3 months' membership fees which include the use of a wide range of sophisticated and expensive equipment with significant running costs with parking being a necessity to access the club being on an isolated site. Clearly, as the vast majority of members park without acquiring punitive charges, and have done for many years, the costs of an alleged minor infringement could not reasonably relate to the £100 figure, and no member would consider this a reasonable charge. As it is clearly disproportionate it must be considered an unfair term under CPUTR 2008 and no reasonable person would accept such a term.

4. As part of membership, the driver signed a contract with a third party PruHealth who contract with VA to provide health services. As part of that contract, the member agrees to abide by VA's rules as published on the website. The terms published (see attached xxxx) clearly reference car parking, including a reference to clamping (now of course unenforceable). These terms make no reference to time limits, though the same website invites members to park as long as they wish (subject to contacting reception). Having a signed contract, MET cannot seek to vary that contract unilaterally by the placement of signs,

5. The VA site is owned by a third party organisation trading as Blythe Valley Park. MET have made it clear in communication that their contract is with VA. MET do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that MET has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow MET to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between MET and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 (Transcript linked): http://nebula.wsimg.com/71a4eb1b5de25e5c60b4d5cacfed6b40?AccessKeyId=4CB8F 2392A09CF228A46&disposition=0&alloworigin=1

In that case the Judge found that, as the Operator did not own any title in the car park: 'The decision to determine whether it is damages for breach...or a penalty...is really not for these Claimants but...for the owners. We have a rather bizarre situation where the Claimants make no money apparently from those who comply with the terms...and make their profit from those who are in breach of their contract. Well that cannot be right, that is nonsense. So I am satisfied that...the Claimants are the wrong Claimants. They have not satisfied this court that they have suffered any loss...if anything, they make a profit from the breach.'

I challenge this Operator to rebut my assertion that their business model is the same 'nonsense', and is unenforceable. MET cannot build their whole business model around profiting from those they consider to be in breach of a sign, on land where they have no locus standi, and then try to paint that profit as a perpetual loss.

4consumerrights

You need to be consisent with the layout and numbering of the headings.

Quite a nicely worded appeal but I would lose the sarky beginning regarding the genuine pre-estimate of loss being a sure fire winner (it may be true but don't get the Assessor's back up needlessly!).

Sadly POPLA will not consider the point regarding the contract which cannot be unilaterally altered as pre-existing contract. POPLA's outlook is merely to assess the PPC "contract" and legality in relation to the BPA COP. Sadly legal aspects such as the Equality Act and contract law (such as lease rights in home owners) are overlooked Do leave it in though as they need to be reminded of other legalities.

I would also consider altering the wording of part 2:
Include in the heading:

No contract with driver/Signage not compliant with BPA COP.

The wording here could be improved upon under the signage too:
You should also write out in full the abbreviations used.
These points can also be integrated - you should work out where.

You could also consider adding that the basic criteria for forming a contract has not been fulfilled, eg meeting of minds, consent and agreement to terms.

Add too that by default this is an unenforceable penalty and that MET rely on breaches of contract to raise revenue.

If this was ANPR - then a section regarding how this cannot be relied upon and non-compliant with code could be introduced if you want to make MET jump through another hoop. (See Guys dad's template core points - coupon-mads wording page 2).

Being Picky here - in part 5 - you repeat Nor several times and use as start of sentence. That paragraph can be easily condensed and flow better - also whilst it is good to remind POPLA that a witness statement was not considered valid - change this wording. POPLA assessors are not always consistent - don't give them a chance to be.

Simply state that any signed witness statement does not provide the requisite proof that a valid contract is in place which grants MET the legal authority to pursue charges through the courts in their own name. Whilst a previous POPLA appeal.......... concurred that a signed witness statement was not "valid evidence", you require the full un-redacted contract to prove this fact.

One grammatical error - comma instead of full stop end of part 4.

One typo: clause not claude must be deemed not to exist.