PCN Notice from Vehicle Control Services Ltd

quadra660av

Hello again, I finally got a reply from VCS, and EnigmaPart1 you are absolutely right, they do stretch it to the last day....

here is the letter

hxxp://i1381.photobucket.com/albums/ah214/quadra660av/page1_zps27e65517.jpg

hxxp://i1381.photobucket.com/albums/ah214/quadra660av/page2_zps61b61748.jpg


Anyway, they obviously rejected my soft appeal, they only replied with a 3 page letter, together with a photo of my car showing no permit being display and a grainy notice right at the back wall. There is no evident pack with reams of paper. They just said the charge is a breach of 'parking contract' without any breakdown of GPEOL. They also stated that the charge is 'commercially justifiable'.

They also ask me to provide reasons and evidence why the charge is not appropriate.

Similarly they failed to provide any evidence of a contract with the landowner and said they will only provide it should a judge request one in court.

So I am thinking of rebutting them mainly with GPEOL, no authority in their own name and No creditor on the NtK.

Here is my draft appeal, most of text is from the sticky post, but have adapted for my letter from VCS. I have made the text which I have changed in BOLD, hope somebody will have a quick glance and see if I have missed anything.

Thanks in advanced.



[FONT=&quot]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. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I would like to appeal this notice on the following grounds:[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]1. Charge not a genuine pre-estimate of loss[/FONT]
[FONT=&quot]2. No authority or standing to pursue these charges in their own name as creditor in the Courts [/FONT]
[FONT=&quot]3. No Creditor on the Notice to Keeper & no evidence of Notice to Driver served[/FONT][FONT=&quot][/FONT]
[FONT=&quot]4. Unreasonable/Unfair Terms[/FONT]
[FONT=&quot]5. Unclear and Non-compliant Signage forming no contract with driver[/FONT]
[FONT=&quot] [/FONT]
1. Charge not a genuine pre-estimate of loss

[FONT=&quot]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:[/FONT]
[FONT=&quot]“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.''[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]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 only stated that it is commercially justifiable. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]VCS further asserts that it is for me to set out my reasons, along with relevant supporting evidence as to why the charge is not appropriate. However, it is in fact up to VCS to demonstrate to POPLA the “pre-estimate” loss as a result of the break of contract. As 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. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Assessor Nadesh Karunairetnam stated in September 2014 that:[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]“In order to show that the parking charge is not punitive, the parking charge should be shown to reflect a pre-estimate of the loss suffered by the operator as a result of that breach. The onus is on the operator to show this, in particular by providing a cost break down of the genuine pre-estimate of loss.”[/FONT][FONT=&quot][/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]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:[/FONT]

[FONT=&quot]''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.''[/FONT][FONT=&quot][/FONT]

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

[FONT=&quot]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.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I put VCS to strict proof by showing a copy of the contemporaneous and unredacted contract with the landowner. VCS has failed to provide any evidence in their reply to me regarding their contract with the landowner and state they will only provide them at the request of a judge.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]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.[/FONT]
[FONT=&quot] [/FONT]
3. No Creditor on the Notice to Keeper & no evidence of Notice to Driver served
[FONT=&quot] [/FONT]
[FONT=&quot]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.[/FONT][FONT=&quot][/FONT]

4. Unreasonable/Unfair Terms

[FONT=&quot]I would assert that the charge being claimed by VCS is a punitive sum. The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999': ''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Test of fairness:[/FONT]
[FONT=&quot]''A term is unfair if...contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers. [/FONT]

4.1 Unfair terms are not enforceable against the consumer.

[FONT=&quot]9.2 ...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''[/FONT][FONT=&quot][/FONT]

[FONT=&quot]The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I contend it is wholly unreasonable to attempt to profit by charging a disproportionate sum where no loss has been caused by a driver who has proved they paid the tariff and displayed the flimsy ticket in good faith. I put VCS to strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.[/FONT]

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

[FONT=&quot]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. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]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. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]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.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]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.'[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I therefore respectfully request that my appeal is upheld and the charge dismissed. [/FONT]
[FONT=&quot]Yours faithfully,[/FONT][FONT=&quot][/FONT]

Coupon-mad

So I am thinking of rebutting them mainly with GPEOL, no authority in their own name and No creditor on the NtK.

Here is my draft appeal, most of text is from the sticky post, but have adapted for my letter from VCS. I have made the text which I have changed in BOLD, hope somebody will have a quick glance and see if I have missed anything.

Looks good to me except you have 2 x point #4 when the last one should be point #5!

Also I couldn't see if you've told POPLA there was no initial loss because the car had a permit and so was authorised, as are all cars there because it's a secure gated car park? So you could add near the top:

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. However, this charge was not agreed by the driver, there was no initial loss because the car had a permit. So the vehicle was authorised, as are all cars there because it's a secure gated car park and the permit scheme is simply a revenue raiser for VCS, all victims being legitimate residents and their visitors. I consider this an unsolicited charge and an unfair business practice where VCS have made no attempt to mitigate any loss by simply keeping a white list of exempt cars, rather than having this punitive system set to trip drivers up for the most minor of issues. The EU are proceeding with a robust Consumer Rights Directive and this sort of hidden charge is not recoverable in law.

You could add this too, a new idea which will flummox them:

Failure to comply with the Consumer Contracts(Information, Cancellation and Additional Payments) Regulations 2013

http://www.legislation.gov.uk/uksi/2013/3134/pdfs/uksi_20133134_en.pdf

These Regulations apply to all UK consumer contracts from June 2014. This is a service contract* offered by written terms in print on a sign which is a means of distance communication (i.e. not a face-to-face contract in the simultaneous physical presence of the trader and the consumer).
In the UK Regulations:
* “service contract” means a contract, other than a sales contract, under which a trader supplies or agrees to supply a service to a consumer and the consumer pays or agrees to pay the price.''

From the EU Guidance behind the Directive upon which the UK Law is based:

http://ec.europa.eu/justice/consumer-marketing/files/crd_guidance_en.pdf

''Service contracts...should be included in the scope of this Directive, as well as contracts related to...the rental of accommodation for non-residential purposes.

For example, renting a parking space...is subject to the Directive. ''

Part 4 of these Regulations has provisions concerning protection from unsolicited sales and additional charges which have not been expressly agreed in advance (this was an unsolicited ‘service’ with a charge not expressly agreed at all, so this is a breach of the Regulations).
Regulation 39 introduces a new provision into the Consumer Protection from Unfair Trading Regulations 2008 which provides that a consumer is not required to pay for the unsolicited supply of products (as happened here – the NTK is an unsolicited invoice).
Regulation 40 provides that a consumer is not required to make payments in addition to those agreed for the trader’s main obligation, unless the consumer gave express consent before conclusion of the contract (no payments were expressly agreed at all and the car had a permit).

Information breaches of these Regulations:
VCS have failed to serve in a durable medium, ANY information as defined in these Regulations for Distance Contracts (i.e. not face-to-face) as set out in Article 13:
''Information to be provided before making a distance contract (13)
—(1) Before the consumer is bound by a distance contract, the trader — (a) must give or make available to the consumer the information listed in Sch. 2 in a clear and comprehensible manner, and in a way appropriate to the means of distance communication used, and (b) if a right to cancel exists, must give or make available to the consumer a cancellation form as set out in part B of Schedule 3.
(2) In so far as the information is provided on a durable medium, it must be legible.
(3) The information referred to in paragraphs (l), (m) and (n) of Schedule 2 may be provided by means of the model instructions on cancellation set out in part A of Sch.3;
(4) Where a distance contract is concluded through a means of distance communication which allows limited space or time to display the information—
(a) the information listed in paragraphs (a), (b), (f), (g), (h), (l) and (s) of Schedule 2 must be provided on that means of communication in accordance with paragraphs (1) and (2), but (b) the other information required by paragraph (1) may be provided in another appropriate way.
(5) If the trader has not complied with paragraph (1) in respect of paragraph (g), (h) or (m) of Schedule 2, the consumer is not to bear the charges or costs referred to in those paragraphs.
(6) Any information that the trader gives the consumer as required by this regulation is to be treated as included as a term of the contract.
(7) A change to any of that information, made before entering into the contract or later, is not effective unless expressly agreed between the consumer and the trader.

Confirmation of distance contracts (16)
(1) In the case of a distance contract the trader must give the consumer confirmation of the contract on a durable medium.
(2) The confirmation must include all the information referred to in Schedule 2 unless the trader has already provided that information to the consumer on a durable medium prior to the conclusion of the distance contract.
(3) If the contract is for the supply of digital content not on a tangible medium and the consumer has given the consent and acknowledgment referred to in regulation 37(1)(a) and (b), the confirmation must include confirmation of the consent and acknowledgement.
(4) The confirmation must be provided within a reasonable time after the conclusion of the contract, but in any event—
(a) not later than the time of delivery of any goods supplied under the contract, and
(b) before performance begins of any service supplied under the contract.
(5) For the purposes of paragraph (4), the confirmation is treated as provided as soon as the trader has sent it or done what is necessary to make it available to the consumer.

Burden of proof in relation to off-premises and distance contracts (17)
(1) In case of dispute about the trader’s compliance with any provision of regulations 10 to 16, it is for the trader to show that the provision was complied with.

Cancellation period extended for breach of information requirement (31)
(1) This regulation applies if the trader does not provide the consumer with the information on the right to cancel required by paragraph (l) of Schedule 2, in accordance with Part 2.
(2) If the trader provides the consumer with that information in the period of 12 months beginning with the first day of the 14 days mentioned in regulation 30(2) to (6), but otherwise in accordance with Part 2, the cancellation period ends at the end of 14 days after the consumer receives the information.
(3) Otherwise the cancellation period ends at the end of 12 months after the day on which it would have ended.''

Everything has been omitted, including no information given about the right to withdraw (there is no exemption from this even for distance contracts with limited space or time). If VCS counter this and contend theirs was not a distance contract then I disagree due to the alleged contract terms only being partially set out (with omissions) on a sign and on a permit which was not handed over in person, nor were the terms explained face-to-face, by VCS to the driver who only rented the apartment for a week and was not familiar with the terms & conditions of parking. But even if this was to be defined as an on-premises contract, they have failed to provide the specific level of information set out in the above linked Regulations. This would include the name and geographic address and phone number of themselves and their principal, for complaints resolution, and the other information set out in the link as required for an on-premises contract. The burden falls upon VCS to prove this to the contrary and to show they have fully complied with the new Regulations.

Consequently, should POPLA decide in favour of VCS I hereby give VCS notice that I am cancelling this alleged contract within the cancellation period extended to 12 months, as shown above, in cases where a company fails to provide the information required for a contract. This contract also fails the requirements for fair contracts within the EU Consumer Rights Directive and as such is not recoverable. As I have hereby cancelled it, there is no case to answer.

quadra660av

Thanks Coupon-mad!! Really really appreciate it.

Would like to see if the Assessor will take the Consumer Contract bit into account and comment on it as well. Potentially it could be a v good argument. Sadly VCS is no longer a member of the BPA but will be good for others to use this argument if possible.

I will tidy up the appeal over the weekend and send a final version here as reference for other people.

Coupon-mad

Yep I have suggested that argument for both IAS and POPLA appeals very recently and I am sure it will have Mr Renshaw-Smith scratching his head.

quadra660av

Hi, I have finalised my appeal and about to send it to POPLA. A few questions,

1) As I said my car had a permit and have paid for my parking during my stay, do I need to provide evidence, i.e. the agreement email between myself and the letting agent?

2) I also mentioned the car park is a secure gated car park that required a keycode to get in, I do have a photo to show the front entrance, should I include that as well?

Just not sure if the appeal itself is sufficient and I do have these information available should it help my case.

Thanks for your help again.

Umkomaas

No harm including them in. But the real winners are those tried and tested - no GPEOL, signage and no 'locus standi'. Don't miss those out in any attempt to use mitigation as the root of your appeal.

quadra660av

Right, I have submitted my appeal, here is the final version for anyone who may find it useful as a template. I have included the Consumer Contract bit... but have to take out the links as I cannot post hyperlinks yet.


POPLA APPEAL
[FONT=&quot] [/FONT]
[FONT=&quot]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. However, this charge was not agreed by the driver, there was no initial loss because the car had a permit. The vehicle in question was authorised, as are all cars there because it's a secure gated car park with a unique keycode entry (see enclosed photos as evidence) and the permit scheme is simply a revenue raiser for VCS, all victims being legitimate residents and their visitors. I consider this an unsolicited charge and an unfair business practice where VCS have made no attempt to mitigate any loss by simply keeping a white list of exempt cars, rather than having this punitive system set to trip drivers up for the most minor of issues. The EU are proceeding with a robust Consumer Rights Directive and this sort of hidden charge is not recoverable in law.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I would like to appeal this notice on the following grounds:[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]1. [/FONT][FONT=&quot]Charge not a genuine pre-estimate of loss[/FONT]
[FONT=&quot]2. [/FONT][FONT=&quot]No authority or standing to pursue these charges in their own name as creditor in the Courts [/FONT]
[FONT=&quot]3. [/FONT][FONT=&quot]No Creditor on the Notice to Keeper & no evidence of Notice to Driver served[/FONT][FONT=&quot][/FONT]
[FONT=&quot]4. [/FONT][FONT=&quot]Unreasonable/Unfair Terms[/FONT]
[FONT=&quot]5. [/FONT][FONT=&quot]Unclear and Non-compliant Signage forming no contract with driver[/FONT]
[FONT=&quot]6. [/FONT][FONT=&quot]Failure to comply with the Consumer Contracts (Information, Cancellation and Additional Payments) Regulations 2013[/FONT]
[FONT=&quot] [/FONT]
1. Charge not a genuine pre-estimate of loss
[FONT=&quot]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:[/FONT]
[FONT=&quot]“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.''[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]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 only stated that it is commercially justifiable. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]VCS further asserts that it is for me to set out my reasons, along with relevant supporting evidence as to why the charge is not appropriate. However, it is in fact up to VCS to demonstrate to POPLA the “pre-estimate” loss as a result of the break of contract. As 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. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Assessor Nadesh Karunairetnam stated in September 2014 that:[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]“In order to show that the parking charge is not punitive, the parking charge should be shown to reflect a pre-estimate of the loss suffered by the operator as a result of that breach. The onus is on the operator to show this, in particular by providing a cost break down of the genuine pre-estimate of loss.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Contrary to the assertion of the operator, it is unnecessary for the appellant to explain why they believe the charge does not reflect a genuine pre-estimate of loss. All the appellant needs to do is raise the issue and it is then for the operator to prove that the charge reflects the loss. The operator must demonstrate this with reference to an itemised cost break down of the loss.”[/FONT][FONT=&quot][/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]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:[/FONT]

[FONT=&quot]''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.''[/FONT][FONT=&quot][/FONT]

2. No authority or standing to pursue these charges in their own name as creditor in the Courts
[FONT=&quot]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.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I put VCS to strict proof by showing a copy of the contemporaneous and unredacted contract with the landowner. VCS has failed to provide any evidence in their reply to me regarding their contract with the landowner and state they will only provide them at the request of a judge in court.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]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.[/FONT]
[FONT=&quot] [/FONT]
3. No Creditor on the Notice to Keeper & no evidence of Notice to Driver served
[FONT=&quot] [/FONT]
[FONT=&quot]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.[/FONT][FONT=&quot][/FONT]


4. Unreasonable/Unfair Terms

[FONT=&quot]I would assert that the charge being claimed by VCS is a punitive sum. The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999': ''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Test of fairness:[/FONT]
[FONT=&quot]''A term is unfair if...contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers. [/FONT]

4.1 Unfair terms are not enforceable against the consumer.

[FONT=&quot]9.2 ...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''[/FONT][FONT=&quot][/FONT]

[FONT=&quot]The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I contend it is wholly unreasonable to attempt to profit by charging a disproportionate sum where no loss has been caused by a driver who has proved they paid the tariff and displayed the flimsy ticket in good faith. I put VCS to strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.[/FONT]

5. Unclear and Non-compliant Signage forming no contract with driver
[FONT=&quot]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. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]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. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]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.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]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.'[/FONT]
[FONT=&quot] [/FONT]
6. Failure to comply with the Consumer Contracts(Information, Cancellation and Additional Payments) Regulations 2013
[FONT=&quot]

These Regulations apply to all UK consumer contracts from June 2014. This is a service contract* offered by written terms in print on a sign which is a means of distance communication (i.e. not a face-to-face contract in the simultaneous physical presence of the trader and the consumer).
In the UK Regulations:
* “service contract” means a contract, other than a sales contract, under which a trader supplies or agrees to supply a service to a consumer and the consumer pays or agrees to pay the price.''

From the EU Guidance behind the Directive upon which the UK Law is based:

''Service contracts...should be included in the scope of this Directive, as well as contracts related to...the rental of accommodation for non-residential purposes.

For example, renting a parking space...is subject to the Directive. ''

Part 4 of these Regulations has provisions concerning protection from unsolicited sales and additional charges which have not been expressly agreed in advance (this was an unsolicited ‘service’ with a charge not expressly agreed at all, so this is a breach of the Regulations).
Regulation 39 introduces a new provision into the Consumer Protection from Unfair Trading Regulations 2008 which provides that a consumer is not required to pay for the unsolicited supply of products (as happened here – the NTK is an unsolicited invoice).
Regulation 40 provides that a consumer is not required to make payments in addition to those agreed for the trader’s main obligation, unless the consumer gave express consent before conclusion of the contract (no payments were expressly agreed at all and the car had a permit).

[/FONT]Information breaches of these Regulations:
[FONT=&quot]VCS have failed to serve in a durable medium, ANY information as defined in these Regulations for Distance Contracts (i.e. not face-to-face) as set out in Article 13:
''Information to be provided before making a distance contract (13)
—(1) Before the consumer is bound by a distance contract, the trader — (a) must give or make available to the consumer the information listed in Sch. 2 in a clear and comprehensible manner, and in a way appropriate to the means of distance communication used, and (b) if a right to cancel exists, must give or make available to the consumer a cancellation form as set out in part B of Schedule 3.
(2) In so far as the information is provided on a durable medium, it must be legible.
(3) The information referred to in paragraphs (l), (m) and (n) of Schedule 2 may be provided by means of the model instructions on cancellation set out in part A of Sch.3;
(4) Where a distance contract is concluded through a means of distance communication which allows limited space or time to display the information—
(a) the information listed in paragraphs (a), (b), (f), (g), (h), (l) and (s) of Schedule 2 must be provided on that means of communication in accordance with paragraphs (1) and (2), but (b) the other information required by paragraph (1) may be provided in another appropriate way.
(5) If the trader has not complied with paragraph (1) in respect of paragraph (g), (h) or (m) of Schedule 2, the consumer is not to bear the charges or costs referred to in those paragraphs.
(6) Any information that the trader gives the consumer as required by this regulation is to be treated as included as a term of the contract.
(7) A change to any of that information, made before entering into the contract or later, is not effective unless expressly agreed between the consumer and the trader.

Confirmation of distance contracts (16)
(1) In the case of a distance contract the trader must give the consumer confirmation of the contract on a durable medium.
(2) The confirmation must include all the information referred to in Schedule 2 unless the trader has already provided that information to the consumer on a durable medium prior to the conclusion of the distance contract.
(3) If the contract is for the supply of digital content not on a tangible medium and the consumer has given the consent and acknowledgment referred to in regulation 37(1)(a) and (b), the confirmation must include confirmation of the consent and acknowledgement.
(4) The confirmation must be provided within a reasonable time after the conclusion of the contract, but in any event—
(a) not later than the time of delivery of any goods supplied under the contract, and
(b) before performance begins of any service supplied under the contract.
(5) For the purposes of paragraph (4), the confirmation is treated as provided as soon as the trader has sent it or done what is necessary to make it available to the consumer.

Burden of proof in relation to off-premises and distance contracts (17)
(1) In case of dispute about the trader’s compliance with any provision of regulations 10 to 16, it is for the trader to show that the provision was complied with.

Cancellation period extended for breach of information requirement (31)
(1) This regulation applies if the trader does not provide the consumer with the information on the right to cancel required by paragraph (l) of Schedule 2, in accordance with Part 2.
(2) If the trader provides the consumer with that information in the period of 12 months beginning with the first day of the 14 days mentioned in regulation 30(2) to (6), but otherwise in accordance with Part 2, the cancellation period ends at the end of 14 days after the consumer receives the information.
(3) Otherwise the cancellation period ends at the end of 12 months after the day on which it would have ended.''

Everything has been omitted, including no information given about the right to withdraw (there is no exemption from this even for distance contracts with limited space or time). If VCS counter this and contend theirs was not a distance contract then I disagree due to the alleged contract terms only being partially set out (with omissions) on a sign and on a permit which was not handed over in person, nor were the terms explained face-to-face, by VCS to the driver who only rented the apartment for a week and was not familiar with the terms & conditions of parking. But even if this was to be defined as an on-premises contract, they have failed to provide the specific level of information set out in the above linked Regulations. This would include the name and geographic address and phone number of themselves and their principal, for complaints resolution, and the other information set out in the link as required for an on-premises contract. The burden falls upon VCS to prove this to the contrary and to show they have fully complied with the new Regulations.

Consequently, should POPLA decide in favour of VCS I hereby give VCS notice that I am cancelling this alleged contract within the cancellation period extended to 12 months, as shown above, in cases where a company fails to provide the information required for a contract. This contract also fails the requirements for fair contracts within the EU Consumer Rights Directive and as such is not recoverable. As I have hereby cancelled it, there is no case to answer.[/FONT][FONT=&quot][/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I therefore respectfully request that my appeal is upheld and the charge dismissed. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Yours faithfully,[/FONT]

System

I have been sitting silently and watching your thread, knowing that you are being given excellent, professional advice. Your appeal literature looks good but wait for a reply from Coupan-mad and Umkomass.

I followed their advice, and others, at the beginning of the year after my child parked on a TK MAAX car park. I gained a successful result and won the appeal.

Never, ever, ever, ignore a letter from parking companies! Never, ever, pay. Stand up to them!

Now UKPC have enormous 4ft x 3ft signs/billboard type all around the car park, No Football Parking, as well as the usual signs with the small print. However, I don't see how they can claim anyone has overstayed their welcome due to football parking. Surely no one would admit they had actually been to the match. Unless UKPC stalk people, which is an offence, I can't see how they can be of any use but it just shows what People Power can do and also makes them look desperate.

I wish Coupan-mad and Ukomass were both available on the Consumer Rights Thread. I am having issues with a new sofa, delivered,signed for as there were no seen faults. Two hours later, when moving the sofas to a different position, I found two unseen faults. Excessive movement in the frame and constant creaking. Company won't refund just repair. I am fighting for my rights. I explicitly rejected both sofas therefore their small print contract doesn't/shouldn't apply to me. Or does it... ? Technician's been today, I signed not accepting any repairs, waiting for the result.

Good Luck to you with your appeal and to anyone else who is appealing.

Folkiedave

Two things. As far as UKPC are concerned - how are you to know it is a day when a football match is taking place? Do they list the dates? No? thought not.

Slightly off -topic with the sofa - you have allowed them (the technician) to mitigate their loss. IF it is still not working try taking them to the Small Claims Court. I find this concentrates the minds of companies wonderfully well.

Umkomaas

Newlook wrote: »

I have been sitting silently and watching your thread, knowing that you are being given excellent, professional advice. Your appeal literature looks good but wait for a reply from Coupan-mad and Umkomass.

I followed their advice, and others, at the beginning of the year after my child parked on a TK MAAX car park. I gained a successful result and won the appeal.

Never, ever, ever, ignore a letter from parking companies! Never, ever, pay. Stand up to them!

Now UKPC have enormous 4ft x 3ft signs/billboard type all around the car park, No Football Parking, as well as the usual signs with the small print. However, I don't see how they can claim anyone has overstayed their welcome due to football parking. Surely no one would admit they had actually been to the match. Unless UKPC stalk people, which is an offence, I can't see how they can be of any use but it just shows what People Power can do and also makes them look desperate.

I wish Coupan-mad and Ukomass were both available on the Consumer Rights Thread. I am having issues with a new sofa, delivered,signed for as there were no seen faults. Two hours later, when moving the sofas to a different position, I found two unseen faults. Excessive movement in the frame and constant creaking. Company won't refund just repair. I am fighting for my rights. I explicitly rejected both sofas therefore their small print contract doesn't/shouldn't apply to me. Or does it... ? Technician's been today, I signed not accepting any repairs, waiting for the result.

Good Luck to you with your appeal and to anyone else who is appealing.

Hello Newlook, thanks for commendation.

I know a bit about parking legislation, I know very little about sofa legislation, but from the bits I know of both together, I'm more than handy at parking my derrière on our sofa! :rotfl: