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can i use links? (POPLA Appeal)
arold1968
Posts: 4 Newbie
i am sending off my popla statement today , but was wondering , could i include a youtube link as to dispute the signage at the area in question ? this is the link i drove around the area today yo show clearly that it was impossible to read & fully comply with the signage
cant put link in , new user
also , how does this sound any information would be greatly appreciated
m hearing is this Thursday the 17th so I'm looking to get it right quite sharpish
Dear POPLA
Re verification code xxxxxxxxx
As the driver of the veh I wish my appeal to be considered on the
following grounds:
1) Amount demanded is a penalty not a genuine pre estimate of loss
2) The alleged contravention did not take place
3) No landowner contract nor legal standing to form contracts or charge
drivers
4) No Contract with driver
5) Misleading and unclear signage
6) Non-compliant ANPR 'hidden camera van' at this location which is not
a car park
1) The amount demanded is a penalty and not a Genuine Pre-estimate of
loss.
The parking charge does not represent a genuine pre-estimate of loss
and therefore is unfair as defined in the Unfair Terms in Consumer
Contracts Regulations 1999. Parking charges cannot include business
costs which would occur whether or not the alleged contravention took
place. The amount claimed is excessive and is being enforced as a
penalty for allegedly stopping and is not a genuine pre-estimate of
loss. As VCS are alleging a 'failure to comply' yet cannot show this is
a genuine pre-estimate of loss, they have breached the BPA Code of
Practice, which renders this charge unenforceable. I would also like to
see a breakdown of the cost calculations relating to this charge; given
all of the costs must represent a loss resulting from the alleged
breach at the time.
' POPLA Assessor Chris Adamson has stated in June 2014 upon seeing VCS'
latest effort at a loss statement - their latest attempt to get around
POPLA - that:
''I am not minded to accept that the charge in this case is
commercially justified. In each case that I have seen from the higher
courts, including those presented here by the Operator, 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
Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bank
of 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”.
This supports the principle that the aim of damages is to be
compensatory, beginning with the idea that the aim is to put the
parties in the position they would have been in had the contract been
performed. It also seems that courts have been unwilling to allow
clauses designed to deter breach as this undermines the binding nature
of the initial promise made. Whilst the courts have reasonably moved
away from a strict interpretation of what constitutes a genuine
pre-estimate of loss, recognising that in complex commercial situations
an accurate pre-estimate will not always be possible, nevertheless it
remains that a charge for damages must be compensatory in nature rather
than punitive.'
VCS have stated in treir gpeol statement “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.
2) The alleged contravention did not take place
The notice issued states ‘You are notified under Paragraph 9 (2) (b) of
Schedule 4 Of the Protection of Freedoms Act (POFA) 2012 that the
driver of the motor vehicle is required to pay this Parking Charge
Notice in full.
The relevant part of the POFA states –(The notice must) inform the
keeper that the driver is required to pay parking charges in respect of
the specified period of parking and that the parking charges have not
been paid in full.
This paragraph in no way applies to the alleged contravention which is
‘Stopping on a roadway where stopping is prohibited’. The Parking
Charge Notice does not apply to the driver of the vehicle having
entered a car park where charges apply nor does it refer to any
specified period of parking where parking charges apply.
The photographs on the parking charge notice clearly show the car
stopped on a road and not in a car park. There was no parking
contravention at all. VCS are not able to refer to a regulation that
applies to stopping on the road. No contravention applicable to POFA
actually took place.
In addition, VCS have admitted that they "are outside the delivery
timescales for maintaining [their] rights to keeper liability",
rendering this PCN unenforceable.
3) No landowner contract nor legal standing to form contracts or charge
drivers
As VCS are not the owners of this land and as such they cannot form a
contract with the driver, I wish VCS to provide me with a full
un-redacted copy of their contract with the landowner which allows them
to form such a contract. A witness statement as to the existence of
such a contract is not sufficient. I believe there is no contract with
the landowner that gives VCS the legal standing to levy these charges
nor pursue them in the courts in their own name as creditor. This was
shown to be the case by District Judge McIlwaine in VCS v Ibbotson,
Case No 1SE09849 16.5.2012 (transcript in the public domain). So as
regards the strict requirements regarding the scope and wording of
landowner contracts, VCS have breached the BPA Code of Practice section
7 and failed to demonstrate their legal standing, which renders this
charge unenforceable.
4) No contract with driver.
If a contract is to be formed, upon entering the site a driver must be
able to read, understand and agree to the terms and conditions (see
'misleading and unclear signage' below). A driver could not stop in
order to read the signs as they enter the road as they by doing so they
would block the junction. In any case, as VCS are only an agent working
for the owner, mere signs do not help them to form a contract. VCS
-v-HMRC 2012 is the binding decision in the Upper Chamber which covers
this issue with compelling statements of fact about this sort of
business model. In this instance, there was no contract formed
whatsoever, no consideration was capable of being offered.to the
driver, who was simply queuing on a road in traffic and saw no
pertinent signs nor accepted these terms whilst driving.
5) Misleading and unclear signage.
The alleged contravention is 'stopping on a clearway' which is a
misleading term because of its similarity to the Highways Agency term
'urban clearway'. If VCS intend this apparently private road to treated
by drivers as an urban clearway then the signs and terms used must be
compliant with the TRSGD2002 or they will be misleading and confusing
to drivers. The signs at this location do not comply with road traffic
regulations or their permitted variations and as such are misleading.
Any repeater signs in this area do not face the oncoming traffic and
are sporadically placed if at all at this junction. So they are unable
to be seen by a driver and certainly cannot be read without stopping,
and therefore do not comply with the BPA code of practice. VCS are
required to show evidence to the contrary.
I would draw the assessor's attention to the 'No Stopping Zones'
section of the Chief Adjudicator's first Annual POPLA Report 2013:
''It is therefore very important that any prohibition is clearly
marked; bearing in mind that such signage has to be positioned, and be
of such a size, as to be read by a motorist without having to stop to
look at it. Signs on red routes, unlike those indicating most parking
restrictions, are generally positioned to face oncoming traffic, rather
than parallel to it.''
6) Non-compliant ANPR 'hidden camera van' system at this location which
is not a car park
The BPA code of practice contains the following:
''21 Automatic number plate recognition (ANPR)
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. Full details of
the items you should check are listed in the Operators’ Handbook.
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.''
At this location, the secret camera van does not operate in a
reasonable, consistent and transparent manner and I contend that VCS
have failed to meet the requirements of all of the above points in the
BPA Code of Practice. They will need to show evidence to the contrary
on every point, and explain how this hidden camera van can be compliant
when this is not a car park, it is a road, and there is no opportunity
for drivers in moving traffic to be informed that this technology is in
use and what VCS will use the data captured by ANPR cameras for. VCS
have breached the BPA Code of Practice as regards the use of a
non-compliant ANPR system being merely a van fitted with a hidden
camera, patrolling land which is not a 'car park' and neither
'managing, enforcing nor controlling parking'.
Legal argument .
VCS have used the case Dunlop pneumatic co ltd v New garage moter ltd (1915).
My response :- 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".
VCS have used the case Clydebank Engineering, McAlpine, Filmcilik and Talal el Makdessi .
My response:- 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 have used the case Parking Eye v Beavis & Wardley
My response :-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 have used the case :- Dir.Gen of Fair Trading v First National Bank.
""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."
My response:-'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' on this road & 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.
my video link would preferably go here
In summing up their legal argument, VCS state:-'a penalty is also permitted under Contract Law'
My response:-
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:
link to relevent site
(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.'
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: 'the above costs must be read as a predicted charge or estimate, prior to the breach, hence the term Pre-Estimate.'
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.
Yours sincerely,
cant put link in , new user
also , how does this sound any information would be greatly appreciated
m hearing is this Thursday the 17th so I'm looking to get it right quite sharpish
Dear POPLA
Re verification code xxxxxxxxx
As the driver of the veh I wish my appeal to be considered on the
following grounds:
1) Amount demanded is a penalty not a genuine pre estimate of loss
2) The alleged contravention did not take place
3) No landowner contract nor legal standing to form contracts or charge
drivers
4) No Contract with driver
5) Misleading and unclear signage
6) Non-compliant ANPR 'hidden camera van' at this location which is not
a car park
1) The amount demanded is a penalty and not a Genuine Pre-estimate of
loss.
The parking charge does not represent a genuine pre-estimate of loss
and therefore is unfair as defined in the Unfair Terms in Consumer
Contracts Regulations 1999. Parking charges cannot include business
costs which would occur whether or not the alleged contravention took
place. The amount claimed is excessive and is being enforced as a
penalty for allegedly stopping and is not a genuine pre-estimate of
loss. As VCS are alleging a 'failure to comply' yet cannot show this is
a genuine pre-estimate of loss, they have breached the BPA Code of
Practice, which renders this charge unenforceable. I would also like to
see a breakdown of the cost calculations relating to this charge; given
all of the costs must represent a loss resulting from the alleged
breach at the time.
' POPLA Assessor Chris Adamson has stated in June 2014 upon seeing VCS'
latest effort at a loss statement - their latest attempt to get around
POPLA - that:
''I am not minded to accept that the charge in this case is
commercially justified. In each case that I have seen from the higher
courts, including those presented here by the Operator, 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
Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bank
of 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”.
This supports the principle that the aim of damages is to be
compensatory, beginning with the idea that the aim is to put the
parties in the position they would have been in had the contract been
performed. It also seems that courts have been unwilling to allow
clauses designed to deter breach as this undermines the binding nature
of the initial promise made. Whilst the courts have reasonably moved
away from a strict interpretation of what constitutes a genuine
pre-estimate of loss, recognising that in complex commercial situations
an accurate pre-estimate will not always be possible, nevertheless it
remains that a charge for damages must be compensatory in nature rather
than punitive.'
VCS have stated in treir gpeol statement “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.
2) The alleged contravention did not take place
The notice issued states ‘You are notified under Paragraph 9 (2) (b) of
Schedule 4 Of the Protection of Freedoms Act (POFA) 2012 that the
driver of the motor vehicle is required to pay this Parking Charge
Notice in full.
The relevant part of the POFA states –(The notice must) inform the
keeper that the driver is required to pay parking charges in respect of
the specified period of parking and that the parking charges have not
been paid in full.
This paragraph in no way applies to the alleged contravention which is
‘Stopping on a roadway where stopping is prohibited’. The Parking
Charge Notice does not apply to the driver of the vehicle having
entered a car park where charges apply nor does it refer to any
specified period of parking where parking charges apply.
The photographs on the parking charge notice clearly show the car
stopped on a road and not in a car park. There was no parking
contravention at all. VCS are not able to refer to a regulation that
applies to stopping on the road. No contravention applicable to POFA
actually took place.
In addition, VCS have admitted that they "are outside the delivery
timescales for maintaining [their] rights to keeper liability",
rendering this PCN unenforceable.
3) No landowner contract nor legal standing to form contracts or charge
drivers
As VCS are not the owners of this land and as such they cannot form a
contract with the driver, I wish VCS to provide me with a full
un-redacted copy of their contract with the landowner which allows them
to form such a contract. A witness statement as to the existence of
such a contract is not sufficient. I believe there is no contract with
the landowner that gives VCS the legal standing to levy these charges
nor pursue them in the courts in their own name as creditor. This was
shown to be the case by District Judge McIlwaine in VCS v Ibbotson,
Case No 1SE09849 16.5.2012 (transcript in the public domain). So as
regards the strict requirements regarding the scope and wording of
landowner contracts, VCS have breached the BPA Code of Practice section
7 and failed to demonstrate their legal standing, which renders this
charge unenforceable.
4) No contract with driver.
If a contract is to be formed, upon entering the site a driver must be
able to read, understand and agree to the terms and conditions (see
'misleading and unclear signage' below). A driver could not stop in
order to read the signs as they enter the road as they by doing so they
would block the junction. In any case, as VCS are only an agent working
for the owner, mere signs do not help them to form a contract. VCS
-v-HMRC 2012 is the binding decision in the Upper Chamber which covers
this issue with compelling statements of fact about this sort of
business model. In this instance, there was no contract formed
whatsoever, no consideration was capable of being offered.to the
driver, who was simply queuing on a road in traffic and saw no
pertinent signs nor accepted these terms whilst driving.
5) Misleading and unclear signage.
The alleged contravention is 'stopping on a clearway' which is a
misleading term because of its similarity to the Highways Agency term
'urban clearway'. If VCS intend this apparently private road to treated
by drivers as an urban clearway then the signs and terms used must be
compliant with the TRSGD2002 or they will be misleading and confusing
to drivers. The signs at this location do not comply with road traffic
regulations or their permitted variations and as such are misleading.
Any repeater signs in this area do not face the oncoming traffic and
are sporadically placed if at all at this junction. So they are unable
to be seen by a driver and certainly cannot be read without stopping,
and therefore do not comply with the BPA code of practice. VCS are
required to show evidence to the contrary.
I would draw the assessor's attention to the 'No Stopping Zones'
section of the Chief Adjudicator's first Annual POPLA Report 2013:
''It is therefore very important that any prohibition is clearly
marked; bearing in mind that such signage has to be positioned, and be
of such a size, as to be read by a motorist without having to stop to
look at it. Signs on red routes, unlike those indicating most parking
restrictions, are generally positioned to face oncoming traffic, rather
than parallel to it.''
6) Non-compliant ANPR 'hidden camera van' system at this location which
is not a car park
The BPA code of practice contains the following:
''21 Automatic number plate recognition (ANPR)
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. Full details of
the items you should check are listed in the Operators’ Handbook.
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.''
At this location, the secret camera van does not operate in a
reasonable, consistent and transparent manner and I contend that VCS
have failed to meet the requirements of all of the above points in the
BPA Code of Practice. They will need to show evidence to the contrary
on every point, and explain how this hidden camera van can be compliant
when this is not a car park, it is a road, and there is no opportunity
for drivers in moving traffic to be informed that this technology is in
use and what VCS will use the data captured by ANPR cameras for. VCS
have breached the BPA Code of Practice as regards the use of a
non-compliant ANPR system being merely a van fitted with a hidden
camera, patrolling land which is not a 'car park' and neither
'managing, enforcing nor controlling parking'.
Legal argument .
VCS have used the case Dunlop pneumatic co ltd v New garage moter ltd (1915).
My response :- 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".
VCS have used the case Clydebank Engineering, McAlpine, Filmcilik and Talal el Makdessi .
My response:- 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 have used the case Parking Eye v Beavis & Wardley
My response :-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 have used the case :- Dir.Gen of Fair Trading v First National Bank.
""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."
My response:-'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' on this road & 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.
my video link would preferably go here
In summing up their legal argument, VCS state:-'a penalty is also permitted under Contract Law'
My response:-
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:
link to relevent site
(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.'
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: 'the above costs must be read as a predicted charge or estimate, prior to the breach, hence the term Pre-Estimate.'
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.
Yours sincerely,
0
Comments
-
Did you originally appeal as driver not keeper?
Veh? Vehicle?
I doubt you need a video with this appeal.
Was ths an airport and is the land relevant land for POFA 12?Newbie thread: go to the top of this page and find these words: Main site > MoneySavingExpert.com Forums > Household & Travel > Motoring > Parking Tickets, Fines & Parking. Click on words Parking Tickets, Fines & Parking. Newbie thread is the first post. Blue New Thread button is just above it to left.0 -
If you post the link without the http:// part, we will still be able to use it, but the forum software won't see it as a link and will hopefully allow you to post.
P.S: I've added "POPLA Appeal" to the title of your thread so regulars know what the thread's about.
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I assumed OP meant sending a link to POPLA not posting it here.Newbie thread: go to the top of this page and find these words: Main site > MoneySavingExpert.com Forums > Household & Travel > Motoring > Parking Tickets, Fines & Parking. Click on words Parking Tickets, Fines & Parking. Newbie thread is the first post. Blue New Thread button is just above it to left.0
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thank you for the replies , and the edit to give a brief view of events
i was trying to attempt delivery at speke international business park on private land , due to shift change i was unable to enter the premises and was stuck in a line of traffic trying to enter the place . I was stationary for 3 minutes and was told by the company you are too early come back later .
a week later i come to start my shift and was presented with a form to sign saying they would (the company i work for) be deducting 60 pounds out of my bank for a parking fine . i told them i wasn't parked i was attempting a delivery . the company then appealed the pcn (but had already paid) . standard response saying name the driver . they then gave my name , I appealed and was rejected then the popla stage .... submitted just within the time period (durin this time the company has continued to demand repayment of the "fine" which i have declined ... I have now been on a discipline interview & await the outcome)
last Wednesday I received the vcs pack of legal jargon and is i've only just got home i need to send off the response the link i feel would greatly help my case
xxx.youtube.com/watch?v=HBYdThe4aNw&feature=youtu.be0 -
Newbie thread: go to the top of this page and find these words: Main site > MoneySavingExpert.com Forums > Household & Travel > Motoring > Parking Tickets, Fines & Parking. Click on words Parking Tickets, Fines & Parking. Newbie thread is the first post. Blue New Thread button is just above it to left.0
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Yes you could attach that link to an email to POPLA, since you are saying that POPLA appeal is already lodged and you are in fact just about to rebut VCS' GPEOL rubbish!
Your pepipoo thread I remember:
http://forums.pepipoo.com/index.php?showtopic=90527&st=20&start=20
I post as SRM over there so I was the one who posted the rebuttal for you to send by email. That clip you've taken is good too, so you would just need to add a short paragraph about the signs and what's in your video in terms of evidence of twisted/missing and utterly unreadable repeater signs, to the bottom of the rebuttal.
You will win. PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
all sent off this morning . fingers crossed0
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:beer: received the email yesterday , appeal upheld . pre estimate of loss . a big thank you to couponmad for all the assistance and of course everyone else .0
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Good news. Can you post the decision on the POPLA decisions thread along with assessors name please.
Did you send your video link? It's a shame they didn't rule on that as it was good!Newbie thread: go to the top of this page and find these words: Main site > MoneySavingExpert.com Forums > Household & Travel > Motoring > Parking Tickets, Fines & Parking. Click on words Parking Tickets, Fines & Parking. Newbie thread is the first post. Blue New Thread button is just above it to left.0
Http://www.youtube.com/watch?v=HBYdThe4aNw&feature=youtu.be[/url]
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