Vinci Popla Appeal - Help Please

Scooby11

Hello, I recently received a parking charge from Vinci in Cardiff, I bought a ticket but it must have turned over on the dashboard when I opened the boot. My initial appeal to them failed so I am going the Popla route. I have drafted a letter using help from the Newbie thread, but would appreciate it if someone could have a quick look to check if you think it is ok. Many Thanks.

Dear Popla

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

1. The Charge not a genuine pre-estimate of loss and is punitive
2. Incorrect/misleading information provided by Vinci

1. The Charge not a genuine pre-estimate of loss

The wording on the parking charge notice refers to a breach of the terms and conditions of the parking contract, and it is my understanding that the entirety of the paring charge must therefore be a genuine pre-estimate of loss following an alleged breach in order to be potentially enforceable.

No initial loss was directly caused by the presence of the vehicle in alleged breach of the conditions, due to the facts that a valid ticket was purchased and the driver returned to the vehicle within the allotted 2 hours (ticket provided); the car was parked in such a way as to cause absolutely no damage or obstruction and therefore no loss arose from this incident; and at the time of the alleged incident, the car park was less than half full so there would be no loss of income due to potentially losing business. The Operator would have been in the same position had the parking charge notice not been issued.

The parking charge is disproportionately high and fails to reflect the actual loss suffered as a result of the breach. The Unfair Terms Consumer Contracts Regulations 1999, was brought in to protect consumers from unfair contracts made with traders and to prevent a trader punishing a consumer financially as part of a contract. Since this private parking ticket was supposedly issued under contract law, and the parking charge is greatly disproportionate compared to the cost of parking at £2 for up to 2 hours, and the potential cost or consequential loss to the landowner, the £100 parking charge notice is punitive. This is especially noticeably when put up against the fact that some other sites in Cardiff managed by the same company (Vinci) have much lower ‘parking charges’ of £40, or £16 for early payment.

2. Incorrect/misleading information provided by Vinci

In the response received from Vinci, stating the reasons the appeal had been rejected by them, was the following paragraph:
“the Terms and Conditions are very specific on where the permit should be placed. On the back of her permit it states ‘When you park your vehicle in a parking bay for which the permit is valid, you must display the permit in the protective cover provided so that all the details on the face of the permit may readily be seen from the front nearside of the vehicle’ “
However there was no protective cover provided to display the permit in, which goes against their own argument. This information from Vinci is incorrect and also proves they provide generic responses to cases and not individual ones.

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

Redx

that looks nothing like a popla appeal to me and not long enough and the legal appeal points dont seem well argued

are you sure you used post #3 of the newbies thread to find a suitable popla appeal for this car park and PPC ?

nothing about signage, nothing about contract , etc

Coupon-mad

Why not just copy from one of the examples under 'How to win at POPLA' and choose one that's about a windscreen ticket where the person had paid? I can't make the examples any more clear than they are and I KNOW there's one there like it! Please check out post #3 of the NEWBIES thread and look again at 'How to win at POPLA' and don't clutch at the first one you see. Read what I have written next to the links, I say 'this one's suitable for...blah blah'. So find the closest one and adapt it.

Scooby11

Ok, so I've had another go, but as I am not entirely sure of all the legal terms/arguments, I don't know if it is now too long and repeats itself.




Dear Popla Assessor


I am the keeper of the vehicle which was issued with a PCN for parking without displaying a valid payment. I would like to appeal this notice on the following grounds.

1. Not a genuine contractual fee nor genuine pre-estimate of loss
The parking charge notice states the charge is for 'not fully complying with the conditions' so this Operator must prove the charge to be a genuine pre-estimate of loss. This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

The car was parked in such a way as to cause absolutely no damage or obstruction and, because a ticket was purchased and the car park was not even half full, there was no loss of potential income from other vehicles using the car park, therefore no loss arose from this alleged breach.


The parking charge demand is a punitive amount that was not a contractually agreed parking tariff and bore no relationship to any loss. The Operator would have been in the same position had the parking charge notice not been issued. Vinci notices allege breach of terms/failure to comply and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from a parking event.

I require Vinci to provide a detailed breakdown of their loss and on what basis this can be their loss at all, when the car was parked with a valid ticket in the right bay. The Office of Fair Trading has stated to the BPA Ltd 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''.

Neither can the charge be 'commercially justified', if Vinci attempt that argument. POPLA Assessor Chris Adamson stated in June 2014 that:
''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.



Further, the correct charge for the period in question, which was paid in full, was the rate of £2 for up to 2 hours. The parking contravention charge of £100 is out of all proportion to any potential loss on the part of Vinci and therefore does not represent a genuine pre-estimate of loss. Added to which, the parking permit has printed on both sides of the ticket, a 6 digit reference number. Even if the ticket were face down this would still be clearly visible and I contend, could have been used by Vinci and their staff, to establish the veracity of the parking permit that the driver purchased. That they have clearly not done so, I believe, is also further evidence that they have failed to make a genuine pre-estimate of loss.


2. Unreasonable/Unfair Terms
I would assert that the charge being claimed by Vinci Parking Service is a punitive sum. The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999': ''It is unfair to impose disproportionate sanctions for 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...''

Test of fairness:
''A term is unfair if...contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.

5.1 Unfair terms are not enforceable against the consumer.

9.2 ...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "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.”

I contend it is wholly unreasonable to attempt to profit by charging a disproportionate sum where no loss has been caused by a driver who has proved they paid the tariff and displayed the flimsy ticket in good faith. I put Vinci to strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.


3. Lack of signage - no contract with 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. 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. There is a lack of entrance signage and the car park generally is not fully covered by signage at all bays.


Neither do the signs state in clear terms that a driver has to 'continuously display' a permit nor how to display it. If this Operator wanted to impose a requirement to continuously display permits and where exactly to place them, and which way up, then they should have drafted their signage in clear terms to that effect. They did not.


4. No standing or authority to pursue charges nor form contracts with drivers.


Vinci Park Services have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents for the Land Owner. No evidence has been supplied lawfully showing that they are entitled or assigned any title/rights to demand money from me.

I require Vinci to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with any landholder). In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner otherwise there is no authority.


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

Coupon-mad

Yep looks absolutely spot on as long as you close the gaps! Tick 3 out of 4 boxes on the POPLA website for appeal reasons (just not 'stolen car') and put that wording above as your appeal, into the appeal box. No need to attach any evidence, no permit, nothing else. Then let us know in August when you win!

Scooby11

Thanks, I'll let you know when I get the decision.

Scooby11

I finally got the appeal decision today and it's good news, I won. I've copied the decision below:


Reasons for the Assessor’s Determination
It is the Operator’s case that a parking charge notice was correctly issued, giving the reason as: ‘Parked without displaying valid permit’. The Operator submits that a parking charge is now due in accordance with the clearly displayed terms of parking.
It is the Appellant’s case that:
a) The parking charge does not represent a genuine pre-estimate of the loss which could have been caused by the alleged breach.
b) There was no contract between the parties.
c) The Operator does not have sufficient authority to issue a parking charge notice in relation to the land in question.
Membership of the Approved Operator Scheme does require the parking company to have clear authorisation from the landowner, if it is not itself the landowner, as to its role in relation to the parking control and enforcement. This is set out in the BPA Code of Practice. However, as with any issue, if the point is specially raised by an Appellant in an appeal, then the Operator should address it by producing such evidence as it believes refutes a submission that it has no authority.
The Operator has not produced any evidence to demonstrate that it is the land-owner; or, that it has the authority of the land-owner to issue parking charge notices at this site. Once the issue is raised by an Appellant, it is for the Operator to demonstrate that it has authority, and a mere statement to the effect that it has a contract will not be sufficient.
Consequently, I must find that the Operator has failed to produce sufficient evidence to refute the Appellant’s submission that it did not have authority to issue a parking charge notice.
Accordingly, I must allow the appeal. I need not decide any other issues.
Christopher Adamson Assessor

Coupon-mad

Well done!