Parking Charge Notice - Adam Street Cardiff (Vinci) POPLA APPEAL?

cfam

Hello,

I parked at Adam Street (Cardiff) 'pay and display' car park last week and paid to park for 24 hours. On returning to my car 6 hours later, I notice I had a Parking Charge Notice stuck to my windscreen for £100 for breach code 01 - parking without displaying a valid payment. Shocked I looked for the ticket on my dashboard only to find it was faced the wrong way up.

When I got home I emailed Vinci and scanned the ticket hoping that if I provide proof that I had paid for 24 hours they would waiver the fee. I did not mention that it was faced the wrong way. They responded saying that I failed to 'display the ticket correctly' and the fee of £100 would still be upheld....or if I paid within 14 days I would only have to pay £50!!! I have asked for photographic evidence but they have not provided this as of yet.

Annoyed I googled this and found that many other people on here had experienced the exact same thing and had won their appeals with POPLA.

I have started drafting an appeal to POPLA and wondered if you think I'm on the right tracks as I am totally new to this and am not very knowledgeable on this topic. Also, if you think I stand a good chance as otherwise I will have to pay £100 (as it will take longer than 14 days if I appeal)?

Here is my POPLA appeal (draft)..............

I parked at Adam Street Car park on XXX and purchased a ‘pay and display’ ticket for 24 hours. Idisplayed this on my dashboard but on returning to my car 6 hours later Ireceived a parking charge notice for breach code: 01 – Parked withoutdisplaying valid payment and have received a parking charge notice of £100.

I have contacted Vinci Park Services Ltd byemail who have informed me that my ticket was not displayed correctly and theparking charge penalty will still be upheld. I have asked for photographicevidence and further details regarding this but have not received a responseback as of yet. They also stated in their email ‘When you park yourvehicle in a parking bay for which the permit is valid, you must display thepermit in the protective cover provided so that all the details on the face ofthe permit may readily be seen from the front nearside of the vehicle’ - thereis no protective cover provided.

I would like to appeal this parking chargenotice due to the following reasons:

It is not a genuine pre-estimate of loss
With regards to the request of payment of £100 for breach code 01 - parkingwithout displaying a valid payment. The amount claimed by Vinci is liquidateddamages and, as such, the Operator may only charge a genuine pre-estimate ofloss that arise from the alleged breach.

The entirety of the parking charge must be a genuine pre-estimate of loss.However, the cost of £100 does not represent a loss resulting from the allegedbreach as I paid for 24 hours parking and left the car park within 6 hours. Forexample, were no breach to have occurred, then the cost of parking enforcement,such as erecting signage, would still have been the same. Furthermore, theticket number is printed on both sides of the parking ticket and the number is visibleif they were to check had they noticed the ticket was not displayed the correctway.

I request Vinci to issue a breakdown of their loss as my car was parked with a valid ticket in the correctbay and causing no obstructions. The Office of Fair Trading has stated to theBPA Ltd that ''a parking charge is not automatically recoverable simplybecause it is stated to be a parking charge, as it cannot be used to state aloss where none exists''.

Unreasonable/Unfair Terms
I would assert that the charge being claimed by Vinci Parking Service Ltd is apunitive sum. The following refers: Office of Fair Trading 'Guidance for theUnfair Terms in Consumer Contracts Regulations 1999': ''It is unfair to imposedisproportionate sanctions for breach of contract. A requirement to pay more incompensation for a breach than a reasonable pre-estimate of the loss caused tothe supplier is one kind of excessive penalty. Such a requirement will, in anycase, normally be void to the extent that it amounts to a penalty under Englishcommon law.''

Test of fairness:
''A term is unfair if...contrary to the requirement of good faith it causesa significant imbalance in the parties' rights and obligations under thecontract, 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 adequatenotice at the time of entering the contract may not be binding under thegeneral law, in any case, especially if they are onerous in character.''

The charge that was levied is an unreasonable indemnity clause pursuant tosection 4(1) of the Unfair Contract Terms Act 1977 which provides that: "Aperson cannot by reference to any contract term be made to indemnify anotherperson (whether a party to the contract or not) in respect of liability thatmay be incurred by the other for negligence or breach of contract, except in sofar as the contract term satisfies the requirement of reasonableness.”

I believe this is an unreasonable and unfairattempt by Vinci to profit from me by charging £100 when I paid for the full 24hours and displayed the ticket. I ask Vinci to prove that their charge, underthe circumstances described, does not cause a significant imbalance to mydetriment and to justify that the charge does not breach the UTCCRs and UCTAct.

Lack of signage - no contract with driver

The signage at Adam Street car park fails to comply with the BPA Code ofPractice section 18 and Appendix B. The signs fail to properly warn or informthe driver of the terms and any consequences for breach. There is a lack of signageat the entrance informing people before they park and a lack of signs in thecar park in general.

No standing or authority to pursue charges

Contract with the Landowner is not compliant with the BPA Code of practise andno status to Offer Parking or enforce tickets.

Vinci do not own this car park and are acting merely as agents, Vinci has notprovided me with any evidence that is it lawfully entitled to offer parkingspaces, allege breach of contract or enforce parking charges (as evidenced inthe Higher Court findings in VCS v HMRC 2012), UKPC has no proprietary interestor assignment of title of the land in question.

I require Vinci to provide a full copy of the contemporaneous, signed &dated contract with the landowner (not just a headed signed piece of paper fromsomeone) because even if one exists, I say it does not specifically enableVinci to pursue parking charge in the courts. This would not be compliant withthe requirements set out in the BPA Code of Practice.

I therefore respectfully request that my appeal is upheld and the charge isdismissed on the reasons I have stated in this appeal.

Many Thanks

cfam

Thank you in advance to anyone who can help me with this. It will be greatly appreciated :-)

Umkomaas

You seem to be a bit ahead of yourself here. Have you made a formal appeal to Vinci and had a formal rejection with a POPLA code back from them?

From what you've said in your opening post you made a bit of an error in identifying yourself as the driver rather than, as advised in most windscreen ticket cases, to await the next move from the PPC in the shape of a Notice to Keeper.

If you've not had a POPLA code you need to submit a formal written appeal to Vinci to extract from them your POPLA code.

All this is contained in the NEWBIES sticky at the top of the forum index. Do have a good read through that and come back with your POPLA draft once you've had your POPLA code.

cfam

Many thanks for your message. Yes I put it in writing (via email) to Vinci and they responded saying that the parking charge notice will still be upheld as I had not displayed it correctly and have provided me with a POPLA appeal form and number.

I only found this forum after I had sent an email to them and had received a response from them. So have already identified myself to them :-(

Coupon-mad

OK, so that is a bit of an old template as it mentions VCS v HMRC 2012 which doesn't help your argument as it was appealed! Some parts of your appeal are pretty short too, could be stronger. Have a look at adapting some of this wording which was about a similar issue:

https://forums.moneysavingexpert.com/discussion/comment/65369960#Comment_65369960

You can add some points to your appeal or you could use that one as your template and just change all the 'NCP' to 'Vinci' and of course change the details about how much was paid. Show us the final draft you come up with as we want you to maintain our 100% win rate, of course!

cfam

Thank you very much Coupon-mad for your help and guidance - it's really appreciated as I'm out of my depths here! I've edited the wording to suit my case and wondered what you think? Do I need to add/change anything? Thank you again in advance

POPLA APPEAL NO: XXX
PARKING CHARGE NOTICE NO: XXX
VEHICLE REGISTRATION NUMBER: XXX
VEHICLE MAKE: XXX

Dear Popla Assessor,

I parked at Adam Street Car park in Cardiff on XXX and purchased a ‘pay and display’ ticket for 24hours. I displayed this ticket on my dashboard but on returning to my car 6 hours later I received a parking charge notice for breach code: 01 – Parked without displaying valid payment and have received a parking charge notice of £100.

I have contacted Vinci Park Services Ltd by email who have informed me that my ticket was not displayed correctly and the parking charge penalty will still be upheld. I have asked for photographic evidence and further details regarding this but have not received a response back as of yet. They also stated in their email ‘When you park yourvehicle 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’ - there is no protective cover provided.

I am appealing against the parking charge above. I believe I am not liable for the parking charge on the grounds stated below; I would ask that all points are taken into consideration;

1) No standing or authority to pursue charges nor form contracts withdrivers. Vinci Park Services Ltd 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 Operator. No evidence has been supplied lawfully showing that they are entitled or assigned any title/rights to demand money from me.

I require Vinci Park Services Ltd to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. Isay that any contract is not compliant with the requirements set out in the BPACode 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.

2) No visual evidence of the alleged contravention provided: Beyond the assertion of the Vinci Park Services Ltd parking attendant, no evidence has been provided by Vinci Park Services Ltd (i.e. a photograph of my vehicle showing the displayed parking permit) to support the PCN they have issued. In this case it is Vinci Park Services Ltd responsibility to provide sufficient evidence to prove that the claimed breach of their terms and conditions took place. I contend I paid and displayed and no contravention occurred.

3) No genuine pre-estimate of loss.
I would contest the parking charge as not being a GPEOL on the following points:

i. 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 Park Services Ltd and their staff, to establish the veracity of the parking permit that I had 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.

ii.The correct charge for the period in question, which I paid in full, was £6.00 for a period of 24 hours. I left the car park after 6 hours. The parking contravention charge of £100 is out of all proportion to any potential loss on the part of Vinci Park Services Ltd and therefore does not represent a genuine pre-estimate of loss.

iii. There is no loss flowing from this parking event. 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.

4) Unreasonable/Unfair Terms
I would assert that the charge being claimed by Vinci Park Services Ltd is a punitive sum. The following refers: Office of Fair Trading 'Guidance for theUnfair Terms in Consumer Contracts Regulations 1999': ''It is unfair to imposedisproportionate sanctions for breach of contract. A requirement to pay more incompensation for a breach than a reasonable pre-estimate of the loss caused tothe supplier is one kind of excessive penalty. Such a requirement will, in anycase, normally be void to the extent that it amounts to a penalty under Englishcommon law...''

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

5.1Unfair terms are not enforceable against the consumer.

9.2...terms of whose existence and content the consumer has no adequate noticeat 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 section4(1) of the Unfair Contract Terms Act 1977 which provides that: "Aperson cannot by reference to any contract term be made to indemnify anotherperson (whether a party to the contract or not) in respect of liability thatmay be incurred by the other for negligence or breach of contract, except in sofar 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 Park Services Ltd to strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to my detrimentand to justify that the charge does not breach the UTCCRs and UCT Act.

5)The signage was not compliant with the BPA Code of Practice and was not seen before parking - so there was no valid contract formed between Vinci Park Services Ltd and myself as driver.
As the driver I can confirm that there was no offer, consideration or acceptance flowing between this Operator and myself which could have created any contractfor me to pay this extortionate sum over and above the correct tariff already paid.

I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs at the ticket machine failed to properly warn/inform the driver that an additional punitive charge would apply depending upon which way up the flimsy ticket ended up on the dashboard. Any alleged contract (denied in this case) could only be formed at the entrance to the car park,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) Vinci ParkServices Ltd have no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.

I therefore respectfully request that my appeal is upheld and the charge is dismissed on the reasons I have stated in this appeal.

Many Thanks,
(NAME)

cfam

Could anyone offer me any advice on the above POPLA appeal letter? Do I need to add/change anything?

Thank you :-)

Coupon-mad

Yep that's fine seeing as you appear to have already admitted you were driving and we normally would not. So the way you have adapted that template is good and should be submitted to POPLA!

Tick 3 out of 4 online appeal reasons boxes. No need to attach anything except maybe the P&D ticket to show the ref number appears on both sides.

cfam

Okey dokey great thank you very much! Have just sent off my POPLA appeal and proof of pay and display ticket on both sides via email. Fingers crossed!!

Could kick myself for identifying myself straight away to them after reading all the posts on here too!! Doh!

Thank you for your help Coupon-mad! I'll post on here when I get an outcome from POPLA :-)