Robin Hood Airport 'PCN'

Umkomaas

I know what the dossier is - I was highlighting, with irony, the PPC complaining about a template appeal by responding with a template response of their own.

Dee140157

Sorry it was the middle of the night, Insomnia struck again. And MSE was playing up for me hence double post (one now deleted)

Evela

hi guys,

would you look at this and give me your advice. im so bad at this, really need to send it tomorrow, after all these hours, i need to win!

Dear POPLA Assessor,

Find below my response to the evidence pack (93 pages) received on September 18th 2014.

Genuine Pre-Estimate of Loss

To rebut the 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.”

The driver was not at a car park as stated on the G3 GPEoL statement, (see F3 CCTV Image, provided by VCS) 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. VCS has not explained in any detail how the sum of £166.01 contained in its pre-estimate is calculated before it is reduced to £100. Also it is not clear whether these unrelated costs are significant. Accordingly, I am not satisfied the charge is a genuine attempt to pre-estimate its loss.

In the case of Dunlop Pneumatic Tyre Co. 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".

In the case of Clydebank Engineering and Talal el Makdessi, McAlpine and Filmcilik 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'.

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 now that Mr Beavis has lodged a case for the Court of Appeal to consider, rendering the original decision unreliable.

Signage

I have already sent a photograph showing signs that are not clearly displayed, and covered by flags. From the CCTV photographs of the vehicle, which is not parked on double yellow lines, you can also see that the sign is facing the opposite direction, which makes it difficult to read. I also feel that it is unsafe to try to read signs while concentrating on driving safely in an area that you could be unfamiliar with.

Would also like to add:

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 not startling whilst driving, and the camera vans were hidden. The driver had been unaware of the terms/risks of stopping.

To rebut this point: “the relevant charge is consequently recoverable 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' 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: http://eur-lex.europa.eu/LexUriServ/LexUri...93L0013:en:HTML (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.'

In conclusion, considering all the above, I feel the penalty is unjustified and hope for your agreement in this matter.

Evela

ooooh also do i need to explain to them why i stopped?

Dee140157

Nope. Don't explain Anything. You might say " I stopped" and that would be bad because?

Evela

Can can get you guys opinion to see if this is ok to send?
many thanks

Evela

last minute changes before i press send? anyone?

Dee140157

I think it will be fine in the absence of any other comments. They won't reqd 93 pages of nonsense either!

Evela

Guys just received my decision,
another win!!!
No way could I have done this without you, this forum is amazing and you take so much time to help people out.

It was the usual win of the old Gpeol!
Many many thanks!

Coupon-mad

I'm so bad at this

That wasn't the case at all was it? Well done - now you know what to do next time and can spread the word to friends & family.