Parked on Council land ticketed by VCS

lazydaizy

Hi all,

Very stressed by VCS.

I have worked in the same building for 22 years which is were I got received my ticket.

I parked to the rear of the building, parked hard bank to building and over part of the our loading bay. This is double yellows and I believe this land belong to the council. I have contacted the council and they 'think' its their land. On top of the that the building landlords had gone into receivership and the land in question has just been bought by the council!. I have spoken to the council.

The lines where obscured by some rain puddles, not that I didn't know that you shouldn't park there because its a point of irritation for me on a daily bases. I took a picture of the obscured lines.

The reason I parked there in the first place is, I am one of two key holders for the loading bay doors and the normally park inside the building but the doors where broken due the building alarm going off and I was inside trying to fix the alarm, which in turn unlocks the loading bay doors!

I have written to VCS using your fab template saying they are not the land owners but they replied saying they are. They've also put in the letter 'May we highlight that we are aware of anecdotal information being presented via the internet on various websites and forums. You may have wished to follow this guidance, we would strongly suggest you take independent legal advice before placing any reliance on these statements.'

I have the POPLA. I am very nervous about getting pressure or CCJ's as I am in the process of trying to get a mortgage. Is this likely or should I just pay the £60?

Many thanks in advance and sorry for being a wus.

Redx

forget what happened and use the popla code to win at popla

check the newbies thread for the parking cowboys checker and check its expiry date

then look at post 3 , click on the link and find and adapt a suitable popla appeal, in notepad, as a draft , save it , copy onto here for checking (minus personal info) before submitting online to popla, ticking all boxes EXCEPT stolen

you cannot get a CCJ unless you are taken to small claims court, you lose, and you didnt pay the judgment within 28 days, it is after that process that a CCJ happens

with our help you will win at popla

Dee140157

And there will be no way they are landowners. VCS manage car parks, not own them.

In this instance I would try if you have time to get evidence from the council that they own the land you were parked on as this will form a strong part of one points in your appeal.

But remember you on.ynhave 28 days to appeal. So you are better going in without this evidence than missing the deadline whilst waiting for it.

Email evidence is fine.

lazydaizy

Hi Both

Dee is this evidence of the land owners?

Newpaper quotes:
Jan this year "However, property services company DTZ were appointed as receivers for this portfolio – which includes other commercial sites in York – last October, after its value plummeted over a six-year period."

June this year: "Recently City of York Council bought the land's freehold and the debate has found new momentum. Indeed, on Saturday a meeting will be held to discuss what could or should be done"

Also could you both look at my first attempt POPLA appeal and tell me what I need to alter?

Dear Sir/Madam

I as the registered keeper received an invoice from Vehicle Control Services Ltd (VCS) requiring payment of a charge of £100 (discounted to £60 if paid within 14 days) for the alleged contravention of breaching the car parks terms and conditions in the Privately Operated Car Park at the rear of xxxxxxx. The issue date on the PCN was xxxx 2014.

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. Unlawful Penalty Charge
5. Signage not compliant with the BPA Code of Practice/No valid contract formed between VCS and the driver.
6. No standing to bring a claim.
7. Unfair Terms
8. Summary

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.

I specified in my original appeal that I would like to see a breakdown of the costs incurred by Vehicle Control Services Ltd as a result of the alleged breach. Vehicle Control Services Ltd have failed to provide this information, stating in their appeal rejection letter (dated xxxxx, ”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. A full breakdown will be provided at the request of a Judge, but we would refer you to the outcome of the case: Parking Eye v. Mr Kevin Shelley (2013, and recommend that you read the full transcript.”

I refer you to:
Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has 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”.

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.''

As the registered keeper of the vehicle in question I do not believe that any damage, obstruction or material loss was incurred and that the charge levied is purely a fixed sum implemented in advance by VCS as a revenue-raiser. It does not represent a genuine pre-estimate of any loss following from
the incident. VCS cannot argue that this charge is made up of tax-deductible business costs because these would exist even if no cars stopped and got a ticket that day. It is also unreasonable and unfair; an unenforceable penalty dressed up as an imaginary loss, and as such, it breaches the Unfair Terms in Consumer Contracts Regulations 1999.

If VCS believes otherwise they must be able to show a full breakdown of the genuine pre-estimate of loss.
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. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance.”

“19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. If it is more than the recommended amount in 19.5 and is not justified in advance, it could lead to an investigation by The Office of Fair Trading”.
POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same. The estimate must be based upon loss flowing from a breach of the parking terms, and in this instance there was no such loss.

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

2. No authority to levy charges

VCS does not appear to own a car park at the rear of xxxxx and is assumed to be merely agents for the landowner. In their PCN and in their rejection letter, VCS has not provided me with any evidence that it has the landowner authority to pursue outstanding parking charges, as required by the BPA Code of Practice, Section 7. In particular, the issue of the requirement set out in section 7.2 paragraph (f): “whether or not the landowner authorises you to take legal action to recover charges from drivers charged for unauthorised parking” has not been addressed. In the absence of this evidence, I believe there is no contract with the landowner/occupier that entitles VCS to levy these charges and to pursue these charges in their own name as creditor in the Courts and therefore has no authority to issue charge notices at this location.

I put Vehicle Control Services Ltd 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 and VCS.

A witness statement signed by someone is not good enough, neither is a statement that a person has seen it. A copy of the original, showing the points above, is the only acceptable item as evidence that a contract exists and authorises Vehicle Control Services Ltd to write to an appellant chasing monies without taking them to Court, to pursue parking charges in their own name, to retain any monies received from appellants through to Court.

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. Unlawful Penalty Charge

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for the contravention of exceeding the duration of maximum stay permitted, it can only remain a fact that this “charge” is an attempt at extorting an unlawful charge in lieu of parking in this car park. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012). The operator could state the letter as an invoice or request for monies, but chooses to use the wording “PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.

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

5. Signage not compliant with the BPA Code of Practice/No valid contract formed between VCS and the 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. Further, because Vehicle Control Services Ltd are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance). 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. In breach of Appendix B (Mandatory Entrance Signs) Vehicle Control Services Ltd have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival. The only signs are up on poles and were not read or even seen by the occupants of the car.
Under Appendix B Entrance signs of the BPA Code of Practice it states “Signs should be readable and understandable at all times”

Following the receipt of the PCN xxxxx 2014, I personally visited the site in question, and the signage at this car park especially at the entrance is inadequate for numerous reasons.

As a POPLA Assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA Assessor would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding. The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

I therefore respectfully request that my appeal is upheld and the charge dismissed.
6. No standing to bring a claim.

VCS does not appear to own a car park at the rear of Stonebow House and is therefore assumed to be merely agents for the land owner. In their PCN and in the rejection letter, the operator has not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since I believe it holds neither interest, nor assignment of, title of the land in question.

I require VCS to provide a full copy of the actual contemporaneous, signed & dated contract with the landowner. A witness statement signed by someone is not good enough, neither is a statement that a person has seen it. A copy of the original, showing the points above, is the only acceptable item as evidence that a contract exists and authorises VCS to write to an appellant chasing monies without taking them to Court, to pursue parking charges in their own name, to retain any monies received from appellants through to Court.

I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.

I do not believe that the VCS has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I refer the Adjudicator to the recent Appeal Court decision in the case of VCS v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges.

It was stated that, "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be."

The ruling of the Court stated, "I would hold, therefore, that the monies that Vehicle Control Services Ltd collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services."

In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated losses, as set out above.

7.1 of the BPA Code of Practice make it a requirement that VCS either own the land, or have the written authorisation of the land owner to enable them to operate on the land. I, as registered keeper, put VCS to strict proof that a valid contract exists that enables them to act in this manner on behalf of the landowner. It is not an onerous task to produce the contract as section 8.1 of the code means it has to be available at all times.

19.5 of the BPA Code of Practice states, “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,”

There was no parking charge levied, the car park is “free”. On the date of the claimed loss it was not full and there was no physical damage caused. There can have been no loss arising from this incident. Neither can VCS lawfully include their operational day-to-day running costs in enforcing parking restrictions at the site (for example, by erecting signage and employing administration staff) in any 'loss' claimed. This does not represent a loss resulting from a breach of the alleged parking contract. In other words, where no breach has occurred, the cost of parking enforcement would still have been the same. This has been quoted by POPLA itself in adjudication.

I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.

The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges for all day parking. This is all the more so for the additional charges which VCS states accrue after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by 40% by early payment that it is unreasonable to begin with.

8. Unfair terms
The terms that the Vehicle Control Services Ltd is alleging create a contract, were not reasonable, not individually negotiated and caused a significant imbalance - to my potential detriment. Therefore, this charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says: ‘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.’

Further, the charge contravenes The Unfair Terms in Consumer Contract Regulations 1999 :
Schedule 2 : Indicative and non-exhaustive list of terms which may be regarded as unfair”
1(e) “Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.”
5(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 having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.''

From the Office of Fair Trading’s 'Guidance for the Unfair Terms in Consumer Contract Regulations 1999':
Group 5 : Financial penalties – paragraph 1(e) of Schedule 2:
5.1 “It is unfair to impose disproportionate sanctions for a 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.”
Group 18(a): Allowing the supplier to impose unfair financial burdens
'18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However, as already noted, transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.
19.14 The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term...will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term.'

I contend the above describes the charge exactly as an 'unfair financial burden'. The charge is designed ostensibly to be a deterrent, but is in fact a disguised penalty, issued by a third party agent which is not the landowner and has no assignment of title. Such a charge would normally be restricted to the landowner themselves claiming for any damages or loss - which was nothing as the driver was in Car Park which has free parking, if the driver had only been informed of that by clearer and transparent signage in the various areas of this car park. The charge of £100 imposed by VCS constitutes an unfair term as it is disproportionate with respect to the alleged infringement.

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

8. 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 code of practice and also fails to comply with basic contract law and I therefore respectfully request that my appeal is upheld and the charge dismissed.

Your Faithfully
TRK

Thanks in advance.

Dee140157

Following the receipt of the PCN xxxxx 2014, I personally visited the site in question, and the signage at this car park especially at the entrance is inadequate for numerous reasons.

Can you list any of the reasons here?

In the paragraphs about no authority to levy charges, you need to put about the council not owning the land and stating something about the fact it is your contention that VCS do not even have a contract with the new landowners. I suspect any contract they had is with the old landowners!

But point 2 & point 6 are really the same point so you can combine and make more concise (reduce the repetition)

Point 8 unfair terms is point 7 as your summary at beginning

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

I don't see the point of having these words more than once at the end.

But apart from all that a really good first attempt.

lazydaizy

Hi

POPLA have sent through an evidence pack and VCS have contributed a lot of information answering most of my submission including statement and legal about GPEol, legal arguements with Alfred McAlpine Capitol V's Tilebox, Parking Eye Vs Barry Beavis, Lord Justice Peter Gibson V's United Internal Pictures. A contract with the land owner. Pictures of the car. I have picked up some things from it.

The pictures of car demonstrate that most of the signs were put up after the incident.

The land owners contract has expired.

They have not identified the driver

The car was in front of a loading bay and I have a letter from the premise operator saying that I was need for delivery access.

Do I need to do anything. This is making me anxious?:(

Many thanks in advance.

Umkomaas

You definitely need to rebut their GPEOL statement (do a search on 'VCS GPEOL rebuttal'), you've already covered Beavis in your appeal, but you might like to re-emphasise that this is not a binding decision, and in any case it is currently proceeding to the Court of Appeal.

Anything else in their bundle that is patently incorrect, untrue or downright false should equally be exposed in your response and rebutted.

HTH

lazydaizy

My Rebuttal

Please will someone have a look and tell me if I am in the right area here.

I stated and replied via the points made.

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. Unlawful Penalty Charge
5. Signage not compliant with the BPA Code of Practice/No valid contract formed between VCS and the driver.
6. No standing to bring a claim.
7. Unfair Terms
8. Summary

My rebuttal to VCS is :-

1. To rebut their 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.
VCS’s quote of Parking Eye v Beavis & Wardley

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.
'a penalty is also permitted under Contract Law'

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'

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.
.Nor is the charge 'commercially justified'. If Excel cite 'ParkingEye v Beavis & Wardley' it's irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, 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 and likely to be broadly similar to any effort made by their sister firm, Excel - 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 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”.

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.''

My case is the same and Excel contracts are nothing like ParkingEye's contract in the Beavis case anyway, where Parking Eye paid £1000 per week for what was in effect a 'fishing licence' to catch victims and where the Operator made out they were the principal. In my case, Excel are merely agents at best, with a bare contractor's licence to put up signage and 'issue tickets' and they are known to be paid by their client so they have no standing nor loss to claim in their own right anyway. Of course money changing hands will affect any calculations of so-called 'loss' and is one of several reasons why I will require the landowner contract in full (unredacted) as per point #5

2. VCS failed to provide a relevant contract of land owner. Their current contract is with the receivers DTZ and the contract expired in February 2014. The ticket refers to a car park, there is no car park. The land since purchased by York City Council


5. Their pictures in fact demonstrate signage has been erected after the time of the incident. I can now further confirm that the Managers of both ground floor premises of which the signed is erected on, business one and business two will confirm this fact. (contact details supplied xxxxxxxxxxxxxxx) Furthermore, the car was accessing both these premises on necessary business and placed in front to the doors that access both businesses.

Based on all the points in my appeal and VCS’s evidence which I have rebutted, I respectively ask for my appeal to upheld.

Yours
RK

Coupon-mad

Not sure why your numbering is 1, 2, 5 and why you have a full list 1 - 8 at the top? Good rebuttal points though.

Umkomaas

My case is the same and Excel contracts are nothing like ParkingEye's contract in the Beavis case anyway, where Parking Eye paid £1000 per week for what was in effect a 'fishing licence' to catch victims and where the Operator made out they were the principal. In my case, Excel are merely agents at best, with a bare contractor's licence to put up signage and 'issue tickets' and they are known to be paid by their client so they have no standing nor loss to claim in their own right anyway. Of course money changing hands will affect any calculations of so-called 'loss' and is one of several reasons why I will require the landowner contract in full (unredacted) as per point #5

Excel has crept in here? I know they are a sister organisation to VCS, but is there a reason for Excel appearing, or just a copy and paste with edits overlooked?

lazydaizy

Good Morning All

And it is a good morning, I won and my appeal was allowed based on the Gpeol.

A huge thanks to Redx, Dee, Umkomass and Coupon-mad. I cannot lie I found the whole thing stressful and would not have been brave enough to fight it without the help of you wonderful people.

Here's what they said:-
The Operators's case is that the site's terms of parking state that the area in question is a restricted zone and no parking/waiting on paved areas is permitted at any time. The Operator says that the Appellant's vehicle was observed to be parked on double yellow line on the paved area adjacent to a warning sign.They have provided photographic images to demonstrate this point and a genuine pre-estimate report to support their case.

The Appellant has made a number of submissions, however, I will only
elaborate on the one submission that I am allowing this appeal on, namely that the parking charge notice is not a genuine pre-estimate of loss.

The Operator rejected the Appellant's representations because they state that by parking in a restricted area of the car park, the Appellant has breached the terms and conditions of the parking contract.They advise that the onus is on the motorist to provide supportive proof as to why the charge is not appropriate.They state that they have calculated this sum a genuine pre- estimate of loss as they incur significant costs in ensuring compliance to the stated terms and conditions and to follow up any breaches of these identified and these costs must be interpreted as a predicted charge or estimate prior to the breach. They submit that some of these costs include parking charge creation and issue, POPLA case management, costs of maintenance and the full costs incurred can be estimated in advance of any case to be a total of £166.69.

The Operator also cited case law judgments to support their case. They state that their liquidated damages clause is based on a genuine pre-estimate of loss which include losses that could conceivably follow a breach, not necessarily losses which are 'actual' or even likely to follow a breach. I find that the Operator has not adequately shown how they have come to these costs and they have not included figures representing such cots.

The parking charge must be an estimate of reasonable losses in order to be enforceable. Accordingly, any consequential loss must be based on an initial loss, and any heads claimed for must be in the reasonable contemplation of the parties at the time of issue of the parking charge notice.

Although the Operator has sought to justify the amount of the parking charge notice as being a genuine pre-estimate of loss, I am not satisfied that theperator has sufficiently shown an initial loss or has proved that this parking charge notice is a genuine pre-estimate of loss.

Accordingly, I allow this appeal