VCS parking ticket at the gym.

bazster

Danbor wrote: »

I haven't said i was going to cancel it, because of the low cost of the membership. I guess the only way to put real pressure on him would be to get together a large number of disgruntled members, only then this matter might be taken seriously.

Did you include fake parking fines in the "low cost of membership"? And even if you don't pay them, the hassle you have to go through over them?

For me it's a point of principle: I will not do business with anyone who engages these parasites, even if it costs me more elsewhere. In some sectors (e.g. supermarkets) I'm running out of options locally, but so be it. And yes, I do always write to the CEO and say why I'm withdrawing my custom.

I abandoned the cheapest local gym a long time ago (not over parking) and bought a bicycle. Much more fun, and much cheaper.

Danbor

bazster wrote: »

Did you include fake parking fines in the "low cost of membership"? And even if you don't pay them, the hassle you have to go through over them?

For me it's a point of principle: I will not do business with anyone who engages these parasites, even if it costs me more elsewhere. In some sectors (e.g. supermarkets) I'm running out of options locally, but so be it. And yes, I do always write to the CEO and say why I'm withdrawing my custom.

I abandoned the cheapest local gym a long time ago (not over parking) and bought a bicycle. Much more fun, and much cheaper.

It's actually true from that perspective. If they engage in business with these scum what does that say about them… Thank you for your input. i sent complaint letters to every department in the company, so hopefully they'll get the message through. Do you think threatening them to go to Watchdog is a good move? I did the research on it it seems pretty straight forward. I've got the time and the will to do it as well.

Redx

Danbor wrote: »

So if i gave away the fact that i was the driver and my appeal was rejected, how would i refer about myself in the appeal to POPLA in order to make it right? Thanks.

as keeper, same as the template letter

if you admitted driving, your appeal would omit any POFA references but concentrate on not a gpeol, no contract and poor signage etc

ps?:- i complained to my MP, who was on TV last night complaining about it

Danbor

Redx wrote: »

as keeper, same as the template letter

if you admitted driving, your appeal would omit any POFA references but concentrate on not a gpeol, no contract and poor signage etc

ps?:- i complained to my MP, who was on TV last night complaining about it

Thanks Redx.

bazster

Danbor wrote: »

Do you think threatening them to go to Watchdog is a good move? I did the research on it it seems pretty straight forward. I've got the time and the will to do it as well.

Well it can't hurt but I doubt they'll find it particularly worrying. Watchdog probably has time to cover about 0.1% of the things people complain to it about.

You're more likely to get media coverage with the local newspaper, they love pictures of forlorn-looking people holding up fake parking fines to the camera.

Danbor

I'm not sure this is the way it should be done, but i left most of the legal issues and modified the arguments that i think suited me most.

Green=my own arguments/words
Orange=sections that doesn't a fit in my arguments, but unsure if should be taken out.

Thanks everyone.

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

POPLA APPEAL

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 without displaying a valid ticket/permit.

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. No Creditor on the Notice to Keeper & no evidence of Notice to Driver served (SHOULD I MAKE A POINT HERE OR IGNORE IT, SINCE I GAVE AWAY MY STATUS AS DRIVER IN MY APPEAL TO VCS?)
4. Unclear and Non-compliant Signage forming no contract with driver

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, 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. 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. 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. 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 the wording in the signage was unclear and vague, leading to obvious misinterpretations. (that’s my argument against the signage)

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 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

Danbor

Hi everyone again, the VCS pay day (after the appeal) is tomorrow, so need to send my appeal to POPLA today. Do i have to modify the letter more, adding some extra info about the fact that the agent lied about what the signage actually say or i just don't, as POPLA will probably ignore it? ?Thanks.

Redx

you can add anything you like as POPLA will just ignore whatever is not relevant

your last post isnt clear

either the POPLA deadline is tomorrow, or it isnt, nothing to do with VCS

ie:- this means nothing to me at all

the VCS pay day

please confirm the POPLA expiry date by checking with the parking cowboys code checker, for clarity

Danbor

POPLA deadline is in 12 days, tomorrow's VCS deadline.

bazster

What VCS deadline? It's hogwash, your PoPLA appeal is all that matters.