POPLA Appeal agains VCS

Paddyathome

Just a quick question about the POPLA Appeal.

When should I receive the Evidence Pack from VCS?

1. Before/After the closing date that POPLA gave for submission of TRK appeal.

The appeal was sent well before this date but not received anything from VCS or POPLA yet.

Regards

Paddy

Paddyathome

Just a quick question about the POPLA Appeal.

When should I receive the Evidence Pack from VCS?

1. Before/After the closing date that POPLA gave for submission of TRK appeal.

The appeal was sent well before this date but not received anything from VCS or POPLA yet.

Regards

Paddy

Oops just read the POPLA Appeal acknowledgement letter and it states

"We have received your appeal.

This will now be sent to Vehicle Control Services Limited. The operator will send their evidence to us and to you before the scheduled date of hearing.

Your appeal will be considered on or soon after xxx 2014.

You will be notified of the decision as soon as it is available, in the manner you selected.

Yours sincerely"

Should have read it first sorry

Paddyathome

The RK of this case today received the evidence pack and it is quite substantial and well above my level of intelligence and knowledge.

Their GPEOL statement is not like any I have seen on here before so if anyone wants to see a copy just PM me and I will be happy to oblige.

Will just have to keep fingers crossed that POPLA agree with the RK's appeal.

Paddy

Coupon-mad

We've seen it - I will pm you a response to email to POPLA as I think it shouldn't go without comment.

Paddyathome

Coupon Just sent you a PM but it is not showinh up in my sent box? did you get it?

kirkbyinfurnesslad_2

Once you get it off, please do let us know the result

kirkbyinfurnesslad_2

I would also suggest you copy rreeve@popla.org.uk when you email the rebuttal

Paddyathome

Thanks to kirby and coupon for the help, email submitted

Coupon-mad

Paddyathome wrote: »

The RK of this case today received the evidence pack and it is quite substantial and well above my level of intelligence and knowledge.

Their GPEOL statement is not like any I have seen on here before so if anyone wants to see a copy just PM me and I will be happy to oblige.

Will just have to keep fingers crossed that POPLA agree with the RK's appeal.

Paddy

To help others who may get a similar pile of drivel in POPLA evidence, this is more or less what I suggested to this poster but I know that he's also had very useful input from KIFL and the Prankster too. Anyhoo, this was my take on what to email POPLA with now:



If your version of the GPEOL calculation letter (page one) from VCS cites:
7. Dunlop Pneumatic Tyre Co.
you reply:
Lord Dunedin said that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach.''...''it is a penalty when a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

if VCS cite
{various Combined Parking Solutions cases}.
You can say:
Combined Parking Solutions cases are irrelevant to VCS as CPS operate a contractual fee model of allowing parking 'any which way' for a price. This is not comparable.

if VCS cite
Mayhook v National Car Parks and Fuller [2012]
You can say:
During the trial NCP tried to salvage the case by reducing their 'loss' to £12. NCP still lost! The case was a clamping case so not comparable. Ultimately Mr Mayhook won and claimed thousands in legal costs and (unusually) an injunction to get his car back. Not helpful to VCS.

Legal Argument - VCS says:
Clydebank Engineering
and
Talal el Makdessi
and
McAlpine,
and
Filmcilik

You can say:
These are commercial cases between two large companies of equal bargaining power whereas I am a consumer & no contract was ever negotiated with me. Consumer law prevails; there can be no 'commercial justification'.

VCS says:
Parking Eye v Beavis & Wardley
You can say:
This is a County Court case, considered flawed. HHJ Moloney went out on a limb and expects the case to go to the Court of Appeal. The charge WAS found to be a penalty which is wholly unsupported by any case law. Not a persuasive nor binding argument, especially whilst still within the appeal window.

VCS says:
Dir.Gen of Fair Trading v First National Bank
Lord Bingham:
[FONT=Calibri,Calibri]"The requirement of good faith in this context is one of open and fair dealing. Openness requires that the terms should be expressed fully, clearly and legible containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which are detrimental to the consumer[FONT=Calibri,Calibri]."[/FONT][/FONT]
You can say
'Appropriate prominence' was not given to VCS' signage. In my POPLA appeal I covered this but would like to add in rebuttal:

In J. Spurling v. Bradshaw Lord Justice Denning: ''Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient.''
He repeated this in Thornton v. Shoe Lane Parking Ltd. ''a court should not hold any man bound by it unless it is drawn to his attention in the most explicit way. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling."

The signage was certainly not 'startling' in this busy car park & the cameras were covert. Not an example of 'good faith in terms of openness and fair dealing'. More startling was the unexpected arrival of the PCN. The driver had been unaware of the terms/risks of parking.

I attach photo and video evidence that at least one of the signs was/is missing.


VCS' NEW GPEOL ARGUMENT: REBUTTAL

To rebut the sentence: “We calculate this pre-estimate of loss on the basis of a charge applicable in all instances of this nature, calculated from the costs incurred by us on an annual basis in dealing with material breaches of the parking terms and conditions we impose at this car park and others.”

This shows an unreasonable approach to arriving at a 'pre-estimate of loss' as it is far too wide a pool of information to create a single fixed charge.

Many of these 'costs' are the tax-deductible costs of running any business. Other costs such as handling 'further stage appeals', debt collection preparation and POPLA, rarely occur. POPLA 'costs' cannot be passed onto the motorist, not even via backdoor accounting methods, and is especially unreasonable since only 1 - 2% of cases ever go to POPLA - a figure which VCS is well aware has remained fairly constant.




To rebut their final sentence:
'a penalty is also permitted under Contract Law'
You say:
Not in Consumer law, and specifically not when the predominant aim of a charge is as a deterrent, which is one of the main reasons why the First National Bank decision differs.

Also VCS have contradicted their own argument because in the GPEOL statement they say 'the amount of the PCN...cannot therefore be construed in this context as a 'penalty'

So, are VCS saying it's actually not a penalty but if POPLA think it is then it's OK anyway, depending on which suits? They seem to have got over excited following a County court case ParkingEye's barrister recently railroaded past a Judge and which is likely to go to the Court of Appeal.

By contrast, European Directives are binding on member states. The EC13/93 Directive on Unfair Contract Terms set out the basis for the UK regs and it says:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31993L0013:en:HTML
(3) 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 individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract.

An indicative and non-exhaustive list of the terms which may be regarded as unfair:
(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;
(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;
(o) obliging the consumer to fulfil all his obligations where the seller or supplier does not perform his.'


Finish by concluding:
Finally, I would like to add that this PCN was from several months ago when VCS were using a different 'pre-estimate of loss' calculation (version 1.4). Clearly the word PRE-estimate shows that it MUST reflect the intention at the time of setting the charge - not how cleverly a PPC think they have reworded their GPEOL argument over the ensuing months SINCE the PCN!

Helpfully, VCS admit this: [FONT=arial,helvetica,sans-serif]'the above costs must be read as a predicted charge or estimate, prior to the breach, hence the term Pre-Estimate.'

[/FONT]In a POPLA decision about a car park at Hull Docks, regarding (PPC number 686) Premier Parking Solutions' GPEOL argument in February 2014, Assessor Chris Adamson summed up this fundamental principle:
'Whether or not the charge represents a genuine pre-estimate of loss is to be ascertained by an objective assessment of the intentions of the parties at the time the contract was made. Accordingly, the Operator must be able to say what its intentions actually were, and cannot rely on the charge being either a tariff, or a charge for damages, depending on which suits.

Paddyathome

Received email from POLPA and Appeal Allowed :beer::beer::j:j:j:T:T:T

The reason was GPEOL even though VCS used their newest version of their loss statement.

Thanks to all that assisted me, especially coupon-mad and kirbyinfurnesslad, in putting together the POPLA appeal and subsequently the further challenge to the evidence pack submitted by VCS.

I will of course publish the full result document on the POPLA wins thread. http://forums.moneysavingexpert.com/showpost.php?p=65763062&postcount=1178

once again thank you all.

Paddy

"(Appellant)
-v-
Vehicle Control Services Limited (Operator)

The Operator issued parking charge notice number xxx arising out of the presence at xxxxx Retail Park, on xx March 2014, of a vehicle with registration mark xxxx.

The Appellant appealed against liability for the parking charge.

The Assessor has considered the evidence of both parties and has determined that the appeal be allowed.

The Assessor’s reasons are as set out.

The Operator should now cancel the parking charge notice forthwith."