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

RikG92

What is your advice then? Sorry if I come across very dull just I have no clue about these type of things and just want to send an appeal that will a winning one for my situation.

Thanks.

Guys_Dad

Can you not see that the bit in red is a comment we would make on here and shouldn't be in the appeal?? Surely???

The rest of it is basically ok, but try to lay it out with some Bold Appeal point headings - lots of examples already on here, say where 5.1 and 9.2 come from and use indents and italics .

I would take out the bit about Entrance signs needing to have the whole works on them as it is not realistic.

I am sure that the main thrust will win, but maybe some other regulars can do some proof reading too and help.

RikG92

Ok thanks for your reply and time to help me I do appreciate it, Here now is my latest draft:-

Dear POPLA Assessor,

I am the registered keeper and driver of the vehicle above and I am appealing against the parking charge above. 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 £100 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.

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

(My Name)

Northlakes

Your getting there but,

The GPEOL should be the No 1 point.

Your 3 i and ii do not belong there. They are not about GPEOL they are added points for later inclusion under separate headings but not mentioning GPEOL.

You have not included in GPEOL the comments of the assessor in June 2014

"Nor is the charge commercially justified. Assessor Chris Adamson stated in June 2014

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.''

I hope these help.

RikG92

I appreciate your feedback, you are saying a couple of points do not belong in heading 3 while the other experience person stated it all looked fine? I just want the best appeal or an appeal that will 100% win! If I could get some more people taking their time out to help me and comment whether it needs tweaked or it is good to go etc.

Just it is a little confusing as you told me to include a paragraph then the other guy said don't put it in.

Sorry for any confusion.

Thanks.

Northlakes

Point 3 i is about the attendant not wishing to read an upside down ticket. He is failing to mitigate loss which he/she is duty bound to do under contract law. It is not about the GPEOL.

Point 3 ii could be a statement before the GPEOL such as,

The driver paid the required parking fee. See copy on attachment

Under GPEOL heading.

I contest that the £60 penalty is a genuine pre-estimate of loss.

Is the £60 the discount sum? Should you not be putting the non-discounted amount?

See what others think

RikG92

Could you write that for me so I could just copy the whole thing into the draft please? Be alot easier as like I said I have no idea about this as I'm a newbie. £60 is the discounted sum but I have stated "(Within 14 days)".

Thanks

Northlakes

The policy of this forum is not for ordinary posters to write draft appeals but to encourage the OP to learn and help others in the future.

Your not answering the questions such as what is the gross sum mentioned in the PCN not the discounted amount (not the £60 before 14 days)

Your 3.1 is what happened on the day. The assessor doesn't want to know about that. They are only interested in points of contract law.

I pointed out in earlier posts CM's draft appeal. She is the real expert. That is already done for you with only slight alterations to your case. You have plenty of time to get this right.

RikG92

Ok the sum to pay is £100 after 14 days so I can easily change from £60 to £100, where about's is CM draft appeal I could maybe use then?

Thanks.

Northlakes

Way back in post 3