Help please - Appeal ignored

LM9

Good morning. I have read the forums and I believe I have a reasonable understanding of the process, however I am in need of some guidance as to how to proceed.

On 27/3/14 my partner's car received a windscreen parking ticket from VCS for parking on private land.

I have been dealing with it for her and so far I have followed the recommendations given here:
Firstly we waited for the NTK which was dated 01/05/14 and arrived a few days after that.

We then responded with the template letter provided on this forum declining to pay and invoking their appeals process on the basis of Signage, GPOL and no standing to offer contracts which was sent on 03/05/14.

We then received a reply dated 17/5/14 which states "We acknowledge receipt of your appeal/challenge in relation to the above PCN which we received on 6th May 2014." It then states they are looking into it and we should have a response "..no later than 35 days from the date we received your appeal/challenge..."

We then hard nothing until this morning when we received a letter from VCS Litigation Department which is headed in red "NOTICE OF INTENDING COURT PROCEEDINGS" and goes on to state that we had the chance to appeal and failed to do so and we have not paid the PCN.

It follows with a threat to commence legal proceedings if it is not settled by 8th August

I would be very grateful for some advice about how to approach this, should I ignore it and let them do their worst given they have failed to meet their own deadlines and I have contradictory letters from them about the appeal or is it best I write them a letter pointing out we have already appealed? I would be happy to go to court but my partner who is the keeper would not want to have to attend court over this.

I was not the driver.

Thanks,

LM

Redx

the RK complains to the BPA and the DVLA as per post #6 of the newbies thread , enclosing copies of all paperwork

I would also REPLY and tell VCS you were still awaiting their decision after receiving your appeal and that no proceedings should be undertaken once that appeal had been received, so also inform them you have had no popla code or any other paperwork and have now also complained to the dvla and bpa

bazster

Dear Simon,

I trust the horses are well and the yacht is not giving trouble.

Unfortunately I must decline your invitation to contribute to their upkeep. I appealed this fake fine on 03/05/2014, and you kindly acknowledged receipt of same on 17/05/2014. Please find attached a copy of your acknowledgement.

According to the BPA AOS Code of Practice which you have committed to follow (I know, I know, it's a bore and you forgot all about it, but there it is) you are required to respond to an appeal within 35 days. You didn't, so that's that. I deem my appeal to have been accepted.

Should you disagree feel free to send a PoPLA code, and you can pay them £27 to dismiss your spurious claim. And in the unlikely event that you really intend to take court action and you are not lying through your teeth, I look forward to explaining to the court your failure to comply with your own trade association's Code of Practice.

Oh, and much as I hate to end this little chat on a sour note, I'm sorry to have to inform you that I feel duty-bound to report your breach of that Code of Practice to BPA Ltd. and DVLA.

LM9

Thank you Redx and bazster for your replies.

I shall get the response and complaints composed and sent.

I'll update as I hear anything further.

LM

laertes

LM9, this is exactly what has happened to me, including timescale and operator. I did not receive an initial appeal rejection letter, they went straight to the "NOTICE OF INTENDED COURT PROCEEDINGS". They have subsequently sent an initial rejection letter and POPLA details.
I appealed to POPLA, but they have rejected the appeal as it is outside the 28 days despite my explaining the late arrival of the rejection letter.
I have written to POPLA explaining that their process is flawed and open to abuse. I am awaiting a reply.

LM9

laertes wrote: »

LM9, this is exactly what has happened to me, including timescale and operator. I did not receive an initial appeal rejection letter, they went straight to the "NOTICE OF INTENDED COURT PROCEEDINGS". They have subsequently sent an initial rejection letter and POPLA details.
I appealed to POPLA, but they have rejected the appeal as it is outside the 28 days despite my explaining the late arrival of the rejection letter.
I have written to POPLA explaining that their process is flawed and open to abuse. I am awaiting a reply.

Morning laertes, I have also just received a "we sent a letter, it's not our fault if the post office don't deliver it" letter from VCS but they have given a new POPLA code which shows up as OK on Parking Cowboy's POPLA code checker. I'll update as I go through the process.

Coupon-mad

LM9 wrote: »

Morning laertes, I have also just received a "we sent a letter, it's not our fault if the post office don't deliver it" letter from VCS but they have given a new POPLA code which shows up as OK on Parking Cowboy's POPLA code checker. I'll update as I go through the process.

Almost makes you think they might be lying doesn't it?! The new POPLA code gives it away...

bazster

Coupon-mad wrote: »

Almost makes you think they might be lying doesn't it?! The new POPLA code gives it away...

Surely not...

bazster

Sooner or later someone's going to simply invent a valid PoPLA code (it's not difficult) and see if they get their appeal upheld without anyone noticing!

LM9

Surely VCS are being entirely fair and honest, I mean how more fair and honest can you get than:

From the "honestly we sent this" letter:
"[FONT=&quot]We responded to your appeal by letter on XX June 2014 and whilst our records confirm that it was posted that day we cannot be held responsible for losses or delays in the post. "

Which ties in perfectly with their rejection letter:
"[/FONT][FONT=&quot]Alternatively you can pay by cheque or postal order through the post. It is the motorist’s responsibility to ensure that payment is received within our office, and by the relevant date as outlined above"

Seems perfectly fair and all above board to me: if the postal service fail to deliver one of their letters it's my fault, and equally if the postal service fail to deliver one of my letters then that is also my fault.
[/FONT]

LM9

I am now ready to submit a POPLA appeal, I would be grateful if the experts here could have a quick proof read through this and offer any helpful advice that might come in useful:

POPLA Reference Number:
Vehicle Reg:
PPC: Vehicle Control Services Ltd.
PCN Ref:
Date of PCN: 27/04/13

I, as the registered keeper received an invoice from Vehicle Control Services Ltd (referred to hereafter as VCS) requiring payment of a charge of £100 (discounted to £60 if paid within 14 days) for the alleged contravention of parking without displaying a valid ticket/permit at Exeter Street & Exeter Place, Derby.

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. Unclear and Non-compliant Signage

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 / Landholder. The keeper declares that the charge is punitive and therefore an unenforceable penalty.
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.

VCS’ appeal rejection letter of 5th June 2014 states:
[FONT=&quot]“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 and to follow up on any breaches of these identified. A full breakdown of loss will be provided at the request of a judge, but once again, we would refer you to the outcome of the case: Parking Eye y. Mr Kevin Shelley (2013).”[/FONT]

Thereby VCS asserts that the “charge” is actually damages to recover their losses through breach of contract, however not only do I contend that this is in fact a penalty and not a genuine pre-estimate of loss, VCS have also refused to present me with a breakdown of those losses and state they will only provide them at the request of a judge. These losses necessarily being a “pre-estimate” must by nature be already known to VCS and indeed they claim they have already calculated the sum (“...we have calculated this sum…”). If this figure is a genuine pre-estimate of loss as claimed, there can be no genuine reason, commercial or otherwise, for VCS to withhold or refuse to provide these on request, yet as they have both failed and are essentially refusing to provide a breakdown of their pre-estimate of loss I must contend that the quoted figure of £100 cannot be a genuine pre-estimate of loss.

I contend that the figure of £100 (reduced to £60 if paid within 14 days) in fact a penalty and cannot therefore be a genuine pre-estimate of loss.

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

2. No authority to levy charges
A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner/landholder’s behalf and enforce for breach of contract. VCS must either produce evidence to demonstrate that it is the landowner/landholder or a contract that it has the authority of the landowner/landholder to issue charge notices at this location.
I believe there is no contract with the landowner/landholder and VCS which entitles VCS to levy these charges and to pursue these charges in their own name as creditor in the Courts and therefore I contend that VCS has no authority to issue charge notices.

I put VCS 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/landholder and VCS. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between VCS and the landowner/landholder and would contain nothing that VCS can lawfully use in their own name as a mere agent, that could impact on a third party customer.

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. Unclear and Non-compliant Signage

The driver maintains that no signs were clearly visible in either the parking area or the immediate area. Accordingly I contend that if there were any signs present at the time of the alleged “breach of parking contract” then they must have been unclear to the point that any core parking terms VCS are relying on were not sufficiently clear and prominent for the driver to discern whilst parking and that they must also fail to comply with the BPA Code of Practice requirements. I request that POPLA must check the Operator's evidence and signage map/photos on this point, ensuring that any photographic evidence is taken from the position the driver would be in the parking space at the time of alleged infringement and at a similar time of day / light level (the time and date on the PCN is after sunset). I contend that the signs in that car park (wording, position, and clarity) do not comply and failed to properly warn/inform the driver of the terms and any consequences for breach (as in the case of Excel Parking Services Ltd v Martin Cutts, 2011). Terms are only imported into a contract if they are clear and so prominent that the party 'must' have known of it and agreed.

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

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 CoP and also fails to comply with basic contract law.

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



Yours faithfully