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

RikG92

I need some more feedback from more experienced people as well to see which appeal is more likely to win. Either the appeal from post 14 or the following:-

As the registered keeper, I received an invoice from Vehicle Control Services Ltd (VCS) requiring payment of a charge for the alleged contravention of parking without displaying a valid ticket/permit.

I would like to appeal this notice on the following grounds:

1. Charge not a genuine pre-estimate of loss
2. No authority or standing to pursue these charges in their own name as creditor in the Courts
3. No Creditor on the Notice to Keeper & no evidence of Notice to Driver served
4. Unclear and Non-compliant Signage forming no contract with driver

1. Charge not a genuine pre-estimate of loss

The demand is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner. The BPA Code of Practice states:
“19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.''

VCS asserts that the “charge” is actually damages to recover their losses through breach of contract, however not only do I contend that this is in fact a penalty and not a genuine pre-estimate of loss, VCS have also refused to present me with a breakdown of those losses and state they will only provide them at the request of a judge. These losses necessarily being a “pre-estimate” must by nature be already known to VCS. If this figure is a genuine pre-estimate of loss as claimed, there can be no genuine reason, commercial or otherwise, for VCS to withhold or refuse to provide these on request, yet as they are essentially refusing to provide a breakdown of their GPEOL I must contend that the PCN figure cannot be a genuine pre-estimate of loss.

Nor is the charge commercially justified. Assessor Chris Adamson stated in June 2014 upon seeing VCS' latest effort at a loss statement - another attempt to get around POPLA - that:

''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bank of Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”. This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

VCS have introduced new and duplicated layers of checks and balances to ensure the inflated 'staff costs' add up conveniently close to the amount of the PCN. This differs substantially from previous versions of their stated intentions for the charges at this place so it cannot be their original GPEOL by any stretch of the imagination. Most PCNs never involve anything but the most minimal staff time, let alone Management intervention, since VCS' Notices are automated and only 2% of PCNs ever go to POPLA.

As VCS have since changed their GPEOL calculations from the version presented to POPLA just months ago, then I contend that the calculation must fail as a GPEOL since it is not a PRE-estimate. In fact is a 'post-estimate' after the event, of figures designed to match the charge. Indeed, in the 2014 POPLA Annual Report prepared by the Lead Adjudicator, Mr Greenslade, he stated, “However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."

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

A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner/landholder’s behalf. I believe there is no contract which entitles VCS to pursue these charges in their own name as creditor in the Courts and therefore I contend that VCS has no authority.

I put VCS to strict proof by showing a copy of the contemporaneous and unredacted contract with the landowner. Even if a basic site agreement sheet is produced and mentions the right to 'issue PCNs' this shows no standing nor right to litigate. The lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between VCS and the landowner/landholder and would contain nothing that VCS can lawfully use in their own name as a mere agent, that could impact on a third party customer.

3. No Creditor on the Notice to Keeper & no evidence of Notice to Driver served

Failing to include specific identification as to who “the Creditor” may be is misleading and not compliant in regard to Schedule 4 of the Protection of Freedoms Act 2012. Whilst the Notice has indicated that the operator requires a payment to VCS there is no specific identification of the Creditor who may, in law, be VCS or the landowner, a managing agent for the land, a debt collector or indeed some other unidentified party. The POFA requires a Notice to Keeper to have words to the effect that “The Creditor is…” and this Notice does not.

There is also no evidence that a Notice to Driver was ever served and - where a NTK alleges a NTD was served - evidence of both documents are required, with the NTK following strictly between day 29 and day 56.

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

This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not VCS' customers and are not parties of equal bargaining power, nor are they even aware that any 'contract' is possible. Therefore all terms are required to be so prominent and the risk of a charge so transparent that the information in its entirety must have been seen/accepted by the driver. In this case, the driver maintains that no signs were seen in the immediate area.

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, position, and clarity) do not comply and failed to properly warn/inform the driver of the terms and any consequences for breach.

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

(My Name)

Northlakes

Your copying and pasting but not reading and understanding what it says.

Don't be in such a hurry.

RikG92

I have read through it just there and can't seem to understand it properly, like I've stated before I just want to have the best appeal that is likely to win in the situation I am in and I appreciate any feedback regarding this.

Thanks.

Redx

RikG92 wrote: »

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

either you read and learn and follow the link in post #3 of the newbies thread, and adapt it for your case

OR

you pay PTAS appeal services £16 to do as you have asked and do it all for you , nobody here is going to just roll over and do all the work for nothing

forum members are here to help to guide you, nothing more, which is the service you are getting for free (guidance, not spoon feeding and not having it done for free whilst you do nothing)

hope that explains the 2 scenarios , ie:- DIY (with guidance) or pay for a professional service , there is no in-between

RikG92

Hi Redx,

Would you say that the latest draft in post 22 is close to my situation? Does it look ok? What points need changing if doing so? That would help as I would have a read through them points again and link it with my situation.

Thanks.

Redx

as I said earlier, people are not going to spend time reading through all these different appeals and checking their validity against the individual circumstances, so no I decline to spend half an hour of my time checking your contravention and seeing what I think of it in regards to popla (or to spend the rest of my day doing the same for the dozens of other similar threads on here either) , pay a professional if you want that doing as they then get paid for that specific service and I already gave you the words to put into google

I will tell you where to look (newbies thread post #3) for similar appeals you can adapt and use , so guidance is what is provided for free here, if you want a bespoke service then pay for it, sorry

RikG92

I don't mean to be a pain or anything so I apologise. I just would like feedback on my draft that is all I don't expect anyone to do it for me. Another point is, where could I state that I still have the current valid ticket to prove I paid for it etc?

Can you give me some feedback on my new POPLA draft:-

As the registered keeper, I received an invoice from Vehicle Control Services Ltd (VCS) requiring payment of a charge for the alleged contravention of parking without displaying a valid ticket/permit.

I would like to appeal this notice on the following grounds:

1. Charge not a genuine pre-estimate of loss
2. No authority or standing to pursue these charges in their own name as creditor in the Courts
3. No visual evidence of the alleged contravention provided
4. Unreasonable/Unfair Terms
5. Unclear and Non-compliant Signage forming no contract with driver

1. Charge not a genuine pre-estimate of loss

The demand is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner. The BPA Code of Practice states:
“19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.''

VCS asserts that the “charge” is actually damages to recover their losses through breach of contract, however not only do I contend that this is in fact a penalty and not a genuine pre-estimate of loss, VCS have also refused to present me with a breakdown of those losses and state they will only provide them at the request of a judge. These losses necessarily being a “pre-estimate” must by nature be already known to VCS. If this figure is a genuine pre-estimate of loss as claimed, there can be no genuine reason, commercial or otherwise, for VCS to withhold or refuse to provide these on request, yet as they are essentially refusing to provide a breakdown of their GPEOL I must contend that the PCN figure cannot be a genuine pre-estimate of loss.

Nor is the charge commercially justified. Assessor Chris Adamson stated in June 2014 upon seeing VCS' latest effort at a loss statement - another attempt to get around POPLA - that:

''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bank of Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”. This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

VCS have introduced new and duplicated layers of checks and balances to ensure the inflated 'staff costs' add up conveniently close to the amount of the PCN. This differs substantially from previous versions of their stated intentions for the charges at this place so it cannot be their original GPEOL by any stretch of the imagination. Most PCNs never involve anything but the most minimal staff time, let alone Management intervention, since VCS' Notices are automated and only 2% of PCNs ever go to POPLA.

As VCS have since changed their GPEOL calculations from the version presented to POPLA just months ago, then I contend that the calculation must fail as a GPEOL since it is not a PRE-estimate. In fact is a 'post-estimate' after the event, of figures designed to match the charge. Indeed, in the 2014 POPLA Annual Report prepared by the Lead Adjudicator, Mr Greenslade, he stated, “However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."

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

A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner/landholder’s behalf. I believe there is no contract which entitles VCS to pursue these charges in their own name as creditor in the Courts and therefore I contend that VCS has no authority.

I put VCS to strict proof by showing a copy of the contemporaneous and unredacted contract with the landowner. Even if a basic site agreement sheet is produced and mentions the right to 'issue PCNs' this shows no standing nor right to litigate. The lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between VCS and the landowner/landholder and would contain nothing that VCS can lawfully use in their own name as a mere agent, that could impact on a third party customer.

3. No 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.

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. 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 no signs were seen in the immediate area.

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, 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.

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,

(My Name)


Thanks very much.

Redx

put it at point 6), but if you check the POPLA website it actually tells you that it wont accept mitigation, which includes not accepting that a ticket was purchased (or you had a valid permit or ticket)

as for checking appeals, I no longer do so due to their length , complexity , individuality and the fact that the companies keep moving the goalposts every time they lose, plus are being schooled in their popla appeals and have now had 2 years to refine them , hence all the changes to their evidence packs this year , meaning each case has to be read, understood , all the latest changes kept up with and then time taken to proof read each appeal , so I dont think £16 is enough remuneration for this onerous task and my hat goes off to PTAS for doing so for so little reward

others may do this task for you, but I help dozens on here to go in the right direction, but have stopped proof reading or analysing popla appeals and dont even touch any IAS appeals any more , especially when any comments that are not 101% correct get shot down by other members

RikG92

I'll just leave it out the appeal then, Just hoping someone will have a read through my POPLA appeal draft and give me feedback.

Thanks for your time.

Coupon-mad

I skim-read the headings & the fact the first point is long enough & has the usual stuff in it - so send it to POPLA online. Tick 3 out of 4 boxes.

But - please, please don't come back asking for help with the reply from VCS you will receive (their emailed pathetic and looong 'evidence pack') without reading other threads first and drafting your version to rebut their evidence. We are not able to write a rebuttal of an evidence pack from scratch when there are dozens of threads always discussing 'GPEOL rebuttal'. Look at the most recent Excel threads now, to see what VCS will send you (both firms are owned by the same person). We will help if you need it to finalise your own rebuttal of their evidence, just not from scratch - so 'read ahead' now on Excel and recent VCS POPLA threads.