POPLA Appeal agains VCS

Umkomaas

In the rejection letter the PPC refers to a court case (just going to read up on these), as well as giving reasons against all the other points mentioned in the challenge letter.

They always do, and always lose (to a forum-advised appeal).

You can add to the 'Signage' appeal point the specifics of the car park you visited if you wish, but the onus, once it has been raised, to prove the signage is compliant rests with the PPC; it's not for you to prove otherwise.

Ensure you stick within the POPLA deadline (there's no extension available) and put your draft up here for fine-tuning advice before submission.

Paddyathome

Hi

I have just completed my POPLA Appeal and wondered if some kind person could review it for me before I submit it please. I seem to have spent many an hour reading, reading copying and pasting and must have changed an started again at least 10 times:D

One thing I think I may have slipped up on was when registering on POPLA I only ticked the "Not Liable" box, does this matter? or is it possible to change it?

I have photographic evidence of a missing sign on the entrance to the car park for the day following the receipt of the PCN and also the day after receiving the soft appeal rejection letter. I have refered to this in the appeal but wondered if it was worth including as I expect to win with No GPEoL

Anyway here is my POPLA Appeal for review (Think I might have too much in it though)

POPLA Reference Number:
Vehicle Reg:
PPC: Vehicle Control Services Ltd.
PCN Ref:
Alleged Contravention Date & Time:
Date of PCN:

I as the registered keeper received an invoice from Vehicle Control Services Ltd (VCS) requiring payment of a charge of £100 (discounted to £60 if paid within 14 days) for the alleged contravention of exceeding the duration of the maximum stay permitted at XXX Car Park. The issue date on the PCN was ??/??/??.

As the registered keeper, I would like to appeal this notice on the following grounds:

1. Charge not a genuine pre-estimate of loss
2. No authority to levy charges
3. No Creditor identified on the Notice to Appellant
4. Unlawful Penalty Charge
5. ANPR Accuracy
6. Signage not compliant with the BPA Code of Practice/No valid contract formed between VCS and the driver.
7. No standing to bring a claim.
8. Unfair Terms
9. Summary

1. Charge not a genuine pre-estimate of loss

The demand for a payment of £100 (discounted to £60 if paid within 14 days) is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner.
I specified in my original appeal that I would like to see a breakdown of the costs incurred by Vehicle Control Services Ltd as a result of the alleged breach. Vehicle Control Services Ltd have failed to provide this information, stating in their appeal rejection letter (dated ??/??/??), ”We consider the amount on the PCN as a reasonable charge for liquidated damages in respect of a breach of the parking contract and contend that it is not a ‘penalty’ for a number of reasons we have calculated this sum as a genuine pre-estimate of our losses as we incur significant costs in managing the parking location to ensure compliance to the stated Terms and Conditions.”

As the registered keeper of the vehicle in question I do not believe that any damage, obstruction or material loss was incurred and that the charge levied is purely a fixed sum implemented in advance by VCS as a revenue-raiser. It does not represent a genuine pre-estimate of any loss following from the incident. VCS cannot argue that this charge is made up of tax-deductible business costs because these would exist even if no cars stopped and got a ticket that day. It is also unreasonable and unfair; an unenforceable penalty dressed up as an imaginary loss, and as such, it breaches the Unfair Terms in Consumer Contracts Regulations 1999.

If VCS believes otherwise they must be able to show a full breakdown of the genuine pre-estimate of loss.

The BPA Code of Practice states:

“19.5 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.”

“19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. If it is more than the recommended amount in 19.5 and is not justified in advance, it could lead to an investigation by The Office of Fair Trading”.
POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same. The estimate must be based upon loss flowing from a breach of the parking terms, and in this instance there was no such loss.

I therefore respectfully request that my appeal is upheld and the charge dismissed.

2. No authority to levy charges

VCS does not appear to own the XXXXXX car park and is assumed to be merely agents for the landowner. In their PCN and in their rejection letter, VCS has not provided me with any evidence that it has the landowner authority to pursue outstanding parking charges, as required by the BPA Code of Practice, Section 7. In particular, the issue of the requirement set out in section 7.2 paragraph (f): “whether or not the landowner authorises you to take legal action to recover charges from drivers charged for unauthorised parking” has not been addressed. In the absence of this evidence, I believe there is no contract with the landowner/occupier that entitles VCS to levy these charges and to pursue these charges in their own name as creditor in the Courts and therefore has no authority to issue charge notices at this location.
I put Vehicle Control Services Ltd to strict proof to POPLA that they have the necessary legal authorisation at this location and I demand that VCS produce to POPLA the contemporaneous and unredacted contract between the landowner and VCS.

A witness statement signed by someone is not good enough, neither is a statement that a person has seen it. A copy of the original, showing the points above, is the only acceptable item as evidence that a contract exists and authorises Vehicle Control Services Ltd to write to an appellant chasing monies without taking them to Court, to pursue parking charges in their own name, to retain any monies received from appellants through to Court.

I therefore respectfully request that my appeal is upheld and the charge dismissed.

3. No Creditor identified on the Notice to Appellant

Failing to include specific identification as to who “the Creditor” may be is misleading and not compliant in regard to paragraph 9(2) (h) of Schedule 4 of the Protection of Freedoms Act 2012. Whilst the Notice has indicated that the operator requires a payment to VCS, there is no specific identification of the Creditor who may, in law, be VCS or some other party. The Protection of Freedoms Act requires a Notice to Appellant to have words to the effect that “The Creditor is…” and the Notice does not.

I therefore respectfully request that my appeal is upheld and the charge dismissed.

4. Unlawful Penalty Charge

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for the contravention of exceeding the duration of maximum stay permitted, it can only remain a fact that this “charge” is an attempt at extorting an unlawful charge in lieu of parking in this car park. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012). The operator could state the letter as an invoice or request for monies, but chooses to use the wording “PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.

I therefore respectfully request that my appeal is upheld and the charge dismissed.

5. ANPR Accuracy

VCS are obliged to make sure the APNR equipment is in working order, as described in paragraph 21.3 of the BPA Code of Practice.

I require Vehicle Control Services Ltd to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times.

In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:

“21 Automatic number plate recognition (ANPR)
General principles

21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action.
21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with. The processes that you use to manage your ANPR system may be audited by our compliance team or our agents.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks”.

No signs at the car park clearly tell drivers about this technology or how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here. Unless the Operator can show documentary evidence otherwise, then this BPA Cop breach would also point to a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary with records and photos.

I therefore respectfully request that my appeal is upheld and the charge dismissed.

6. Signage not compliant with the BPA Code of Practice/No valid contract formed between VCS and the driver.

I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because Vehicle Control Services Ltd are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance). Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) Vehicle Control Services Ltd have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival. The only signs are up on poles and were not read or even seen by the occupants of the car.
Under Appendix B Entrance signs of the BPA Code of Practice it states “Signs should be readable and understandable at all times”

Following the receipt of the PCN (Dated ??/??/??), I personally visited the site in question, and the signage at this car park especially at the entrance is inadequate for numerous reasons. One of the signs at entrance of the car park appears to be missing? (Photos attached) another entrance sign is also situated on the passenger side of the road on a standard right hand UK car and is situated around 8ft high on a brick wall, this makes it difficult for drivers to see or read from inside the car regardless of which side of the road the car park is entered from. All these reasons make it possible for drivers to enter the car park without seeing the signage upon entering. I subsequently visited the car park, after receipt of the Rejection Letter (Dated ??/??/??), and the entrance sign was still missing (Photo Attached) this brings into question the maintenance carried out on this car park.

As a POPLA Assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA Assessor would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding. The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

I therefore respectfully request that my appeal is upheld and the charge dismissed.

7. No standing to bring a claim.

VCS does not appear to own the XXXXXX car park and is therefore assumed to be merely agents for the land owner. In their PCN and in the rejection letter, the operator has not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since I believe it holds neither interest, nor assignment of, title of the land in question.

I require VCS to provide a full copy of the actual contemporaneous, signed & dated contract with the landowner. A witness statement signed by someone is not good enough, neither is a statement that a person has seen it. A copy of the original, showing the points above, is the only acceptable item as evidence that a contract exists and authorises VCS to write to an appellant chasing monies without taking them to Court, to pursue parking charges in their own name, to retain any monies received from appellants through to Court.

I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.

I do not believe that the VCS has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I refer the Adjudicator to the recent Appeal Court decision in the case of VCS v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges.

It was stated that, "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 ruling of the Court stated, "I would hold, therefore, that the monies that Vehicle Control Services Ltd collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services."

In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated losses, as set out above.

7.1 of the BPA Code of Practice make it a requirement that VCS either own the land, or have the written authorisation of the land owner to enable them to operate on the land. I, as registered keeper, put VCS to strict proof that a valid contract exists that enables them to act in this manner on behalf of the landowner. It is not an onerous task to produce the contract as section 8.1 of the code means it has to be available at all times.

19.5 of the BPA Code of Practice states, “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,”

There was no parking charge levied, the car park is “free”. On the date of the claimed loss it was not full and there was no physical damage caused. There can have been no loss arising from this incident. Neither can VCS lawfully include their operational day-to-day running costs in enforcing parking restrictions at the site (for example, by erecting signage and employing administration staff) in any 'loss' claimed. This does not represent a loss resulting from a breach of the alleged parking contract. In other words, where no breach has occurred, the cost of parking enforcement would still have been the same. This has been quoted by POPLA itself in adjudication.

I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.

The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges for all day parking. This is all the more so for the additional charges which VCS states accrue after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by 40% by early payment that it is unreasonable to begin with.
8. Unfair terms
The terms that the Vehicle Control Services Ltd is alleging create a contract, were not reasonable, not individually negotiated and caused a significant imbalance - to my potential detriment. Therefore, this charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says: ‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’

Further, the charge contravenes The Unfair Terms in Consumer Contract Regulations 1999 :
Schedule 2 : Indicative and non-exhaustive list of terms which may be regarded as unfair”
1(e) “Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.”
5(1) ''A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer. (2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.''

From the Office of Fair Trading’s 'Guidance for the Unfair Terms in Consumer Contract Regulations 1999':
Group 5 : Financial penalties – paragraph 1(e) of Schedule 2:
5.1 “It is unfair to impose disproportionate sanctions for a breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law.”
Group 18(a): Allowing the supplier to impose unfair financial burdens
'18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However, as already noted, transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.
19.14 The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term...will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term.'

I contend the above describes the charge exactly as an 'unfair financial burden'. The charge is designed ostensibly to be a deterrent, but is in fact a disguised penalty, issued by a third party agent which is not the landowner and has no assignment of title. Such a charge would normally be restricted to the landowner themselves claiming for any damages or loss - which was nothing as the driver was in Car Park which has free parking, if the driver had only been informed of that by clearer and transparent signage in the various areas of this car park. The charge of £100 imposed by VCS constitutes an unfair term as it is disproportionate with respect to the alleged infringement.

I therefore respectfully request that my appeal is upheld and the charge dismissed.

9. Summary

On the basis of all the points I have raised, this “charge” fails to meet the standards set out in paragraph 19 of the BPA code of practice and also fails to comply with basic contract law and I therefore respectfully request that my appeal is upheld and the charge dismissed.

Yours faithfully TRK

Thank you in advance

Paddy

Hot_Bring

Winner :T:T:T:T:T:T

HO87

Hot_Bring wrote: »

Winner :T:T:T:T:T:T

+1

Agreed - well laid out.

Paddyathome

Just reading the comments by Umkomaas (#36) on the following thread

[URL="http://https://forums.moneysavingexpert.com/discussion/4890536[/URL]

and am now thinking my appeal is maybe a bit over the top?

what do you think.

Paddy

Coupon-mad

It's not over the top - VCS are though - and in the end, you will win.

Paddyathome

Thanks Coupon-mad. Have you had a read of my appeal? and if so have you any comments to make?

Umkomaas

Your appeal is fine, although my eyes did glaze over in your appeal point 7 'No Standing to bring a Claim' as there seems to be a bit of a mishmash and repetition of other appeal points you've made.

Are VCS claiming this is a contractual charge or for breach of contract? If the latter, I'm not sure what your point is re VAT? Also the VCS v HMRC case quoted related to parking permits provided by VCS, and doesn't really apply to your case (unless I'm missing something?).

But rather than spend any more time grinding over this and re-gilding the lily, leave it as it is, it won't do your case any harm, and I rather suspect that even if the assessor gets to point 7 it will only be skim read as point 1 will have already 'done the deal'.

A final point from me, and just for completeness, you need to embolden your appeal point 8 header and paragraph it to follow the formatting of the rest of your appeal.

Then - send it off!

Paddyathome

Umkomaas wrote: »

Your appeal is fine, although my eyes did glaze over in your appeal point 7 'No Standing to bring a Claim' as there seems to be a bit of a mishmash and repetition of other appeal points you've made.

Are VCS claiming this is a contractual charge or for breach of contract? If the latter, I'm not sure what your point is re VAT? Also the VCS v HMRC case quoted related to parking permits provided by VCS, and doesn't really apply to your case (unless I'm missing something?).

But rather than spend any more time grinding over this and re-gilding the lily, leave it as it is, it won't do your case any harm, and I rather suspect that even if the assessor gets to point 7 it will only be skim read as point 1 will have already 'done the deal'.

A final point from me, and just for completeness, you need to embolden your appeal point 8 header and paragraph it to follow the formatting of the rest of your appeal.

Then - send it off!

Hi Umkomaas, Yea i did think point 7 was a bit repetitive at first but decided to leave it in until it had been reviewed on here.

On the soft appeal rejection letter it was quoted "you were found to be in breach of the car parks terms and conditions by parking for longer than the maximum stay period" so as you suggest it is for breach of contract so I will remove point 7 completely and send it off.

Thanks for your comments

Paddy

Paddyathome

Just to let you know I submitted my Appeal to POPLA today. Fingers crossed.

Paddy:beer::beer::beer: