Submitting Evidence Pack Rebut! (Decision Made 13th November!!)

RikG92

I recieved a parking charge notice from VCS in Newcastle on 30th August 2014, I then appealed to this charge considering the fact that I had a valid ticket but was showing the wrong side of the ticket, as evidence I have kept the ticket and have included pictures in my appeal to the VCS but they refused it. On my rejection letter (1st October) it states that VCS are a member of the BPA. The charge is £60 within 14 days but I don't want to pay that especially when I have a valid ticket. I know my next step is to appeal to POPLA and have looked at some template examples and have came up with this draft so far:-

Dear POPLA Assessor,

I am the registered keeper and driver of the vehicle above and I am appealing against the parking charge above. You may have outed yourself in admitting that you were the driver but the important thing is that VCS in their rebuttal of your POPLA appeal will, when it comes to GPEOL, come up with quite a load of incorrect costs. CM includes in the latest VCS POPLA appeal pre-empts the VCS comments with a vigorous rebuttal and with comments from a POPLA assessor in June 2014. I believe I am not liable for the parking charge on the grounds stated below; I would ask that all points are taken into consideration;

1) No standing or authority to pursue charges nor form contracts with drivers.

VCS have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents for the Train Operator. No evidence has been supplied lawfully showing that they are entitled or assigned any title/rights to demand money from me.

I require VCS to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with any landholder). In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner otherwise there is no authority.

2) No visual evidence of the alleged contravention provided: Beyond the assertion of the VCS parking attendant, no evidence has been provided by VCS (i.e. a photograph of my vehicle showing the displayed parking permit) has been offered by VCS to support the PCN they have issued. In this case the onus surely falls to VCS to provide sufficient evidence to prove that the claimed breach of their terms and conditions took place. I contend I paid and displayed and no contravention occurred.

3) No genuine pre-estimate of loss.

I would contest the parking charge as not being a GPEOL on the following points:

i. The parking permit has printed on both sides of the ticket, a 7 digit reference number. Even if the ticket were face down this would still be clearly visible and I contend, could have been used by VCS and their staff, to establish the veracity of the parking permit that I had purchased. That they have clearly not done so, I believe, is also further evidence that they have failed to make a genuine pre-estimate of loss.

ii. The correct charge for the period in question, which I paid in full, was the off-peak Saturday rate of £5.00, with the permit valid until 23:59. The parking contravention charge of £60 (within 14 days) is out of all proportion to any potential loss on the part of VCS and therefore does not represent a genuine pre-estimate of loss.

iii. There is no loss flowing from this parking event. This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

4) Unreasonable/Unfair Terms

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...''

Test of fairness:
''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.

5.1 Unfair terms are not enforceable against the consumer.

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.''

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.”

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.

5) The signage was not compliant with the BPA Code of Practice and was not seen before parking - so there was no valid contract formed between VCS and myself as driver.

As the driver I can confirm that there was no offer, consideration or acceptance flowing between this Operator and myself which could have created any contract for me to pay this extortionate sum over and above the correct tariff already paid.

I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs at the ticket machine failed to properly warn/inform the driver that an additional punitive charge would apply depending upon which way up the flimsy ticket ended up on the dashboard. Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, such as when the driver walks away. In breach of Appendix B (Mandatory Entrance Signs) VCS have no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.

I request that my appeal is upheld and for POPLA to inform VCS to cancel the PCN.
Yours faithfully,

(My Name)


Any help would be much appreciated.

Thanks.

Northlakes

Para 1 first line should read VCS

Paragraph headings should be in bold.

I will let one of the experts comment further.

Northlakes

Is this version not the later one you should be using?

http://forums.moneysavingexpert.com/showpost.php?p=66245932&postcount=15

RikG92

Changes made to first comment and for your second comment I have already stated that I was the driver?

Northlakes

RikG92 wrote: »

Changes made to first comment and for your second comment I have already stated that I was the driver?

You may have outed yourself in admitting that you were the driver but the important thing is that VCS in their rebuttal of your POPLA appeal will, when it comes to GPEOL, come up with quite a load of incorrect costs.

CM includes in the latest VCS POPLA appeal pre-empts the VCS comments with a vigorous rebuttal and with comments from a POPLA assessor in June 2014.

Just amend your earlier appeal to include these rebuttals. VCS in their submissions to POLA include a shed load of points which need answering. This latest appeal has these winning points.

RikG92

Thanks for your reply, where abouts would I include those 2 small paragraphs you stated?

Thanks.

Northlakes

As the assessor will go for GPEOL every time this always needs to be the first point. It saves the assessor going through the rest of the blurb.

The CM VCS rebuttal para should follow this within that heading. (Tidy this up a bit as CM is getting a bit angry at VCS for fictitious costs as they are after the event costs)
Even though this is not a court of law these assessors like to follow precedent.

Re-submit to this and one of the experts will then pick up any bits which have been missed and you have a winning appeal.

RikG92

Ok comments have been took in and I have changed the first paragraph, feedback on this please.

Thanks

Guys_Dad

RikG92 wrote: »

Ok comments have been took in and I have changed the first paragraph, feedback on this please.

Thanks

Pleas repost the current version as the thread is getting messy and your first attempt was badly cut and pasted.

RikG92

Fair enough, my current draft is:-

Dear POPLA Assessor,

I am the registered keeper and driver of the vehicle above and I am appealing against the parking charge above. You may have outed yourself in admitting that you were the driver but the important thing is that VCS in their rebuttal of your POPLA appeal will, when it comes to GPEOL, come up with quite a load of incorrect costs. CM includes in the latest VCS POPLA appeal pre-empts the VCS comments with a vigorous rebuttal and with comments from a POPLA assessor in June 2014. I believe I am not liable for the parking charge on the grounds stated below; I would ask that all points are taken into consideration;

1) No standing or authority to pursue charges nor form contracts with drivers.

VCS have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents for the Train Operator. No evidence has been supplied lawfully showing that they are entitled or assigned any title/rights to demand money from me.

I require VCS to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with any landholder). In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner otherwise there is no authority.

2) No visual evidence of the alleged contravention provided:

Beyond the assertion of the VCS parking attendant, no evidence has been provided by VCS (i.e. a photograph of my vehicle showing the displayed parking permit) has been offered by VCS to support the PCN they have issued. In this case the onus surely falls to VCS to provide sufficient evidence to prove that the claimed breach of their terms and conditions took place. I contend I paid and displayed and no contravention occurred.

3) No genuine pre-estimate of loss.

I would contest the parking charge as not being a GPEOL on the following points:

i. The parking permit has printed on both sides of the ticket, a 7 digit reference number. Even if the ticket were face down this would still be clearly visible and I contend, could have been used by VCS and their staff, to establish the veracity of the parking permit that I had purchased. That they have clearly not done so, I believe, is also further evidence that they have failed to make a genuine pre-estimate of loss.

ii. The correct charge for the period in question, which I paid in full, was the off-peak Saturday rate of £5.00, with the permit valid until 23:59. The parking contravention charge of £60 (within 14 days) is out of all proportion to any potential loss on the part of VCS and therefore does not represent a genuine pre-estimate of loss.

iii. There is no loss flowing from this parking event. This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

4) Unreasonable/Unfair Terms

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...''

Test of fairness:
''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.

5.1 Unfair terms are not enforceable against the consumer.

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.''

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.”

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.

5) The signage was not compliant with the BPA Code of Practice and was not seen before parking - so there was no valid contract formed between VCS and myself as driver.

As the driver I can confirm that there was no offer, consideration or acceptance flowing between this Operator and myself which could have created any contract for me to pay this extortionate sum over and above the correct tariff already paid.

I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs at the ticket machine failed to properly warn/inform the driver that an additional punitive charge would apply depending upon which way up the flimsy ticket ended up on the dashboard. Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, such as when the driver walks away. In breach of Appendix B (Mandatory Entrance Signs) VCS have no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.

I request that my appeal is upheld and for POPLA to inform VCS to cancel the PCN.
Yours faithfully,

(My Name)

Guys_Dad

I thought so !

I am now quoting from your appeal

I am the registered keeper and driver of the vehicle above and I am appealing against the parking charge above. You may have outed yourself in admitting that you were the driver but the important thing is that VCS in their rebuttal of your POPLA appeal will, when it comes to GPEOL, come up with quite a load of incorrect costs. CM includes in the latest VCS POPLA appeal pre-empts the VCS comments with a vigorous rebuttal and with comments from a POPLA assessor in June 2014. I believe I am not liable for the parking charge on the grounds stated below; I would ask that all points are taken into consideration;


Do you really want that in the appeal??

I suggest you proof read the whole appeal again very carefully.

Your numbering seems pants too.

4) Unreasonable/Unfair Terms

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...''

Test of fairness:
''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.

5.1 Unfair terms are not enforceable against the consumer.

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.''

It may be right in the original context, but this is not in context.

In breach of Appendix B (Mandatory Entrance Signs) VCS have no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival. They don't need to be. If you look at BPA CoP, appendix B signs, the example states that "see notices in car park for details" And if you think about it, there is no way that a decent Entrance sign meant to be read by a moving car driver could show all the t&c.

Now this may seem a harsh post. It is not meant to be. It is trying to help your appeal.