PCN revoked if I pay cancellation fee? Advice please

ColliesCarer

nursejj wrote: »

Just an update. Been in contact with xercise4less but they cannot offer any support and advised me to seek guidance from POPLA!

What useless advice!!!
POPLA will not offer you guidance.

All they will do is assess an appeal from you which you can only submit once you have managed to get a POPLA code out of VCS.

So get your letter refusing their generous offer and requesting a POPLA code sent off to them and while you await their reply gen up on How to Win at POPLA by taking a look at post #3 of NEWBIES and following the link to example appeals.

Coupon-mad

nursejj wrote: »

Just an update. Been in contact with xercise4less but they cannot offer any support and advised me to seek guidance from POPLA!

Why the long face? We win at POPLA!

nursejj

I contacted VCS refusing their 'goodwill gesture ' and have since received a letter today with a POPLA code and basically telling me to pay £60 or send an appeal in. They have completely disregarded the evidence I sent them which I received from xercise4less to prove that I was in the gym that day! Does anyone have advice on appealing to POPLA?

Umkomaas

nursejj wrote: »

I contacted VCS refusing their 'goodwill gesture ' and have since received a letter today with a POPLA code and basically telling me to pay £60 or send an appeal in. They have completely disregarded the evidence I sent them which I received from xercise4less to prove that I was in the gym that day! Does anyone have advice on appealing to POPLA?

Yep, NEWBIES sticky, post #3 'How to win at POPLA'. Look for an appeal example for VCS (but not an airport one) and adapt it to cover your circumstances.

Also look at the POPLA Decisions thread where you will find examples of wins against VCS. Start from the most recent and work back.

Remember, no appeal to POPLA has ever been won on the basis of mitigation, ie, telling your story about how you were using the gym on the day and how unfair it is on you, but principally on technical and legal elements as per the examples.

Flash your draft appeal up here for critique before submitting to POPLA.

bazster

And find a new gym, not forgetting to tell this bunch of shysters why you are quitting.

nursejj

I have put together my appeal to POPLA and would just like some feedback on if I have done it correctly.
Thank you for all the feedback so far.


POPLA Code:


Vehicle Reg:


PPC: Vehicle Control Services LTD


PCN Ref:


Date of PCN:






As the registered keeper, I received an invoice from Vehicle Control Services Ltd (VCS) requiring payment of a charge for the alleged contravention of parking.

I would like to appeal this notice on the following grounds:

1. Charge not a genuine pre-estimate of loss


2. No authority or standing to pursue these charges in their own name as creditor in the Courts


3. Unclear and Non-compliant Signage forming no contract with driver


4. The driver was a bona fide authorised user of the free parking facility




1. Charge not a genuine pre-estimate of loss
The demand is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner. 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 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, These losses necessarily being a “pre-estimate” must by nature be already known to VCS. 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 not provide a breakdown of their GPEOL I must contend that the PCN figure cannot be a genuine pre-estimate of loss.

Nor is the charge commercially justified. Assessor Chris Adamson stated in June 2014 upon seeing VCS' latest effort at a loss statement - another 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 introduced new and duplicated layers of checks and balances to ensure the inflated 'staff costs' add up conveniently close to the amount of the PCN. This differs substantially from previous versions of their stated intentions for the charges at this place so it cannot be their original GPEOL by any stretch of the imagination. Most PCNs never involve anything but the most minimal staff time, let alone Management intervention, since VCS' Notices are automated and only 2% of PCNs ever go to POPLA.

As VCS have since changed their GPEOL calculations from the version presented to POPLA just months ago, then I contend that the calculation must fail as a GPEOL since it is not a PRE-estimate. In fact is a 'post-estimate' after the event, of figures designed to match the charge. Indeed, in the 2014 POPLA Annual Report prepared by the Lead Adjudicator, Mr Greenslade, he stated, “However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."

2. No authority or standing to pursue these charges in their own name as creditor in the Courts
A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner/landholder’s behalf. I believe there is no contract which entitles VCS to pursue these charges in their own name as creditor in the Courts and therefore I contend that VCS has no authority.

I put VCS to strict proof by showing a copy of the contemporaneous and unredacted contract with the landowner. Even if a basic site agreement sheet is produced and mentions the right to 'issue PCNs' this shows no standing nor right to litigate. 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.

3. Unclear and Non-compliant Signage forming no contract with driver
This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not VCS' customers and are not parties of equal bargaining power, nor are they even aware that any 'contract' is possible. Therefore all terms are required to be so prominent and the risk of a charge so transparent that the information in its entirety must have been seen/accepted by the driver. In this case, the driver maintains that no signs were seen in the immediate area.

Accordingly I contend that any signs must have been unclear to the point that any core parking terms VCS are relying on were not sufficiently prominent for the driver to discern before parking. Signage must also fail to comply with the BPA Code of Practice requirements. I put VCS to strict proof of clear signs at the entrance and all around this car park. Any photographic evidence must be taken at a similar time of day/light level as in my case.

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.

No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal). Lord Denning continued: 'The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. 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.'


4. The driver was a bona fide authorised user of the free parking facility

The driver was a bona fide authorised user of the free parking facility and a member at Xercise4less using the facilities at the time. Supporting evidence can be provided if required.

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

Dee140157

I have only just got back after long drive so too tired to read detailed POPLA appeals now. Will look back later when fed and watered. But if you do a forum search for the name of your exercise class you will see there are two other people dam or and wiganwuk (or something similar to that) who are fighting the same PPC in their area in Wigan. Not sure of they have writes their appeals yet, but might be worth a look.

nursejj

Thanks, I'll have a search for them.

Coupon-mad

That POPLA appeal looks absolutely fine to me, maybe just a bit of tidying up needed.

You could add specific objections about the signage wording - the other poster said it wasn't clear that Gym members had to register EVERY time they parked - he thought you just registered your car reg once at the Gym desk and then after that you'd be on a white (exempt) list. Because the signs weren't clear in that regard.

You could add somewhere in point #1 that VCS always use a generic 'GPEOL statement' which is nothing of the sort and includes irrelevant and unsubstantiated heads of cost such as “Central Payments Office (CPO) – Indirect Overheads”.

Just don't put this: '' Supporting evidence can be provided if required'' as POPLA won't 'ask' for more info, they can only go by what you show them. You could completely remove point #4 and just put this line (below) in at the very top of point #1 and continue to say 'so there was no initial loss and no consequential loss or damages caused by this parking event.'
The driver was a bona fide authorised user of the free parking facility and a member at Xercise4less using the facilities at the time.

nursejj

Thanks for reply. I will add those changes and send my appeal in.