VCS parking ticket at the gym.

wigannwuk

I think they are playing games.....why would excel / VCS be swapping signs if they ceased trading???

Dee140157

Since VCS and Rxcel are sister companies, the gym may be fooled onto thinking they are going with a better company's and will get less complaints with Excel. They may be serving them up a different parking model.

If this is the case, then they will get just as many complaints. It sounds like the CEO or whoever is entering into the contracts is easily fooled!

wigannwuk

I doubt they are being fooled.....more like they think they are fooling their members. I can't believe how shoddily treated I've been...along with a lot of other people.

bazster

wigannwuk wrote: »

Well I've had an email off xercise4less saying the signs are being changed to benefit members but all existing fines still stand!! I'm not feeling much benefit.
I've got 8 months left in my contract and they want me to pay it up before I leave.
And yes expect it to be rebranded to excel.... That was the van that was spotted...so I bet nothing has changed as its the same company.

That's the trouble with gyms, long expensive contracts. Unless you can think of some way that the gym itself is in breach of contract you might be stuck with writing to them to give them notice that the contract will be terminated at the end of the 8 months, and tell them why. If you pay by DD don't forget to cancel that once the last payment has been made.

At least you've got 8 months to find an alternative gym!

Redx

wigannwuk wrote: »

Well I've had an email off xercise4less saying the signs are being changed to benefit members but all existing fines still stand!! .

I really hope they said this 4 letter F word (or 5 in this case), seeing as nobody but a judge or a court of law can actually "fine" you

it would be useful in the future as an extra appeal point, but this matter still needs to be solved at popla as the easy method of resolution seeing as the landowners wont cancel

wigannwuk

Redx the email is copy and pasted below...it is from xercise4less not VCS though.

VCS have come back to us and have stated that the change to the signs is an additional measure that they have added to benefit and assist members and as a result any charges that have been processed do still stand.
Unfortunately there is nothing more that we are able to do except to advise you to submit an appeal via POPLA who will consider your case.


You gotta love the support from xercise4less.

Redx

ah right, so you used the slang word, not them.

I was hoping you had more evidence of their incompetence in using words like fine or penalty, obviously not

wigannwuk

Yea..sorry....was angry typing lol

wigannwuk

Sorry Danbor - im not intending to hijack your thread ..ive got my own haha...just an interesting update.

xercise4less has emailed me to say they have taken the parking system out of the carpark....this has to be affecting more members than they are letting on. And they will let me know about the PArking charges....i wont hold my breath over that though.

They still want me to pay up my membership..cheeky gets!!

Danbor

This is the final version, minus a paragraph that wasn't relevant to my cause.

As the driver, 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. ANPR Accuracy and Compliance
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. ANPR Accuracy and Compliance

I require VCS to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that VCS must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

So, in addition to showing their maintenance records, I require VCS in this case to show evidence to rebut this point: I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from this Operator in this car park is just as unreliable as the ParkingEye system in the Fox-Jones case and I put this Operator to strict proof to the contrary.

In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:
''21 Automatic number plate recognition (ANPR)
21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''

[At this location, there are merely a couple of secret small cameras up high on a pole. No signs at the car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here. Unless the Operator can show documentary evidence otherwise, then this BPA Cop breach would also point to a failure to comply with the POFA 2012 (keeper liability requires strict compliance), a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary]. -→ THIS ISN’T RELEVANT TO MY CASE, BUT WOULD LIKE TO KNOW IF IT’S ACTUALLY NECESSARY TO ADD THIS?

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. As you may be able to tell from the photographic evidence I attached to the letter, the first line of the signage inside the gym states “you must enter your full vehicle registration number at reception when you arrive at the gym”. It is not sufficiently clear whether this should be done once (for initial registration – which I did when the ANPR system was installed), or at each subsequent visit (as stated by VCS in one of the letters sent to me after the parking charge was issued) which I did after the ANPR system was installed, or a.

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