VCS rejection letter

JB93_2

Hi,

Have received a few fake PCNs in Nottingham, where I'm at University, for parking on an (empty) side-street 'without a valid permit'. As per the advice on here, I waited for the NTK to be sent to my home address (In Manchester) and sent an appeal based on the template.

I received this letter back - have attached photos. I wonder if someone could take a look at it, and let me know if I'm good to use the template POPLA appeal (VCS windscreen ticket - summer 2014) as a basis for my appeal.







Given that they begin by claiming to be 'aware of anecdotal information being presented on the internet', there were just a few things that concerned me. Firstly their assertion that they will 'rigourously defend their position on the level of the PCN charge'. I was going to go down the tried and tested route of 'no GPEOL', as £100 is a ridiculous amount to charge for this contravention; am I still best doing this, or does their claim that the £100 is 'commercially justifiable' as their company would 'cease to exist' if they were unable to regulate their car parks with these charges to enforce the terms & conditions have any grounding?

Another thing I spotted, near the end of the letter, the mention 'settling the PCN at the discounted rate' and then give £100 per notice, which is the full amount?

As you may expect, they seem to have ignored the majority of the appeal and responded simply to some choice areas.

I'm currently preparing my POPLA appeals, and just hoped someone could put my mind at rest that there's still a good chance of it working.

Thanks in advance, really appreciate any help with this!

JB

Redx

I would ignore their drivel and take each and every case to popla, using the example for no permit in the post #3 link , adapting it for your own self and then submitting each and every one separately

the likelihood is that the assessor will accept the not a gpeol point, but dont rely on one point , use as many as you can

good luck

Dee140157

And if you get an evidence pack from VCS with all their fake justifications, strongly rebut them. But that will come later.

Put draft appeal here if you wish us to check it.

JB93_2

Thanks, I'll post the draft appeal on here before sending it off!

JB93_2

Here's a draft POPLA appeal, taken largely from the 'VCS windscreen' template, and also a 'no permit' template. Have adapted to better fit my case and include quotes from my letter.

Wasn't sure whether to include the last section on the signage, as it is actually pretty clear and they've included a photo in the letter.

Would really appreciate it if someone could just have a quick check over!

Cheers



As the registered keeper, I received an invoice from Vehicle Control Services Ltd (VCS) requiring payment of a £100 charge for the alleged contravention of parking without displaying a valid permit.

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

1. Charge not a genuine pre-estimate of loss
2. Contract with Landowner & no authority or standing to pursue these charges in their own name as creditor in the Courts
3. No Creditor on the Notice to Keeper
4. Unclear and Non-compliant Signage forming no contract with driver

1. Charge not a genuine pre-estimate of loss

The demand for £100 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 £100 "charge” represents “a sum for liquidated and ascertained damages in respect of a breach of the ‘parking contract’"; however, I contend that this is in fact a penalty and not a genuine pre-estimate of loss. VCS have refused to present me with a full breakdown of their losses, stating instead that “it is commercially justifiable that the operator seeks to enforce its terms and conditions". However, 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 are essentially refusing to 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. Contract with Landowner & 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.

VCS does not own the land in question and have provided no evidence that they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary or agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I require that they provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).

In order to comply with the BPA code of practice, this contract must specifically grant VCS the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons;

a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract nor that they are employed by the Landowner. Such a statement would not show whether any payment has been made to VCS which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practice to allow VCS to pursue charges in their own name as creditor and to enter into contracts with drivers.

b) In POPLA case 1771073004, it was ruled that a witness statement was 'not valid evidence'. If VCS provide a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.

Even if a basic contract is produced that mentions parking charge notices, 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 containing nothing that VCS can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.

I would remind VCS of their obligation to provide the Appellant with a copy of any evidence provided to POPLA as requested sent with sufficient time for consideration and rebuttal.


3. No Creditor on the Notice to Keeper & no evidence of Notice to Driver served

Failing to include specific identification as to who “the Creditor” may be is misleading and not compliant in regard to 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 the landowner, a managing agent for the land, a debt collector or indeed some other unidentified party. The POFA requires a Notice to Keeper to have words to the effect that “The Creditor is…” and this Notice does not.

There is also no evidence that a Notice to Driver was ever served and - where a NTK alleges a NTD was served - evidence of both documents are required, with the NTK following strictly between day 29 and day 56.

4. 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.'

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