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

RikG92

Apologies bod1467.

I have came up with this rebuttal so feedback on it would be great thank you.

Dear Sirs

Ref. POPLA appeal XXXXXXXXXX

In response to the email below:

VCS Have submitted a 27 point ‘evidence’ pack in support of their speculative and disputed invoice. I do not intend to address each and every point they have raised in detail as their submission is clearly a quickly hashed template, much of which is repetitive or indeed irrelevant to the matter at hand.

In making their assessment I ask the POPLA assessor to consider the following in further support of my original POPLA appeal as submitted on xx/xx/2014

1. There is no Genuine Pre-estimated of Loss breakdown included to show how they have come up with £100: As business costs are not losses and they cannot be passed down to a motorist as GPEOL. VCS seem to infer that it is up to me to demonstrate how their £100 is not a GPEOL - I am not sure this is possible and is any case a moot point as the burden of proof is upon VCS to demonstrate the loss that has occured as a result of the alleged breach. Despite submitting this huge 'evidence' pack they have failed to do this.

2. Signage- The colours blue and yellow are specifically mentioned in the BPA Code of Practice as the sort of bright colour contrasts to avoid. Use of capital letters and mixing large and small font are also deemed unclear as far as signage is concerned. VCS have mixed this into their signs despite the fact they appear to be new and should match the requirements of the BPA CoP.

Furthermore it simply would not be possible to read any signs whilst in a moving car, and certainly not have read them sufficiently to have be deemed to fully understand the T&C's to which it is alleged I agreed as the registered keeper of the vehicle; even VCS's own 'evidence' photos show that a number of the signs are perpendicular to the flow of traffic and particularly noticeable is that in the place where the alleged contravention occured (the only place VCS identify the vehicle as having stopped) there are NO signs.



VCS Mention several cases in their evidence pack in support of their claims to
which I respond to one as follows:

3. In the case of Dunlop Pneumatic Tyre Co
Lord Dunedin said that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach.''...''it is a penalty when a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".


Furthermore I point the POPLA adjudicator to the follows verdicts from recent adjudications, circumstances which are virtually identical to this case in which the appeal was upheld on one or more of the reasons I cite in my appeal:


1. POPLA Assessor Chris Adamson has stated in June 2014 in response to a VCS adjudication and GPEOL 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”


2. ...The appellant has made a number of submissions, however, I will only elaborate on the one submission that I am allowing this appeal on, namely that the parking charge amount is not a genuine pre-estimate of loss.

The burden is on the operator to prove that the parking charge is a genuine pre-estimate of loss. Although a detailed breakdown may not necessarily be required to prove this, as the appellant has questioned the level of the charge in this case, it is necessary for the operator to provide an explanation as to how this sum was arrived at as an estimate of the damage which could be caused by the appellant’s alleged breach. However, the operator has not provided a breakdown of costs under each head of claim. I am unable to see how the parking charge amount has been calculated. In addition, the operator has included “Central Payments Office (CPO) – Indirect Overheads”. I do not accept that these costs have been incurred as a direct result of the appellant’s breach. As the operator has not produced a breakdown of costs, I am unable to determine the proportion of these costs in relation to other heads of claim listed by the operator. On this occasion, I am not satisfied that the operator has discharged the burden.

In consideration of all the evidence before me, I find that the operator has failed to prove that the parking charge amount was a genuine pre-estimate of loss.

Accordingly, this appeal must be allowed.

Thanks,

XXXXXXX

Bobbydazzler

Bobbydazzler wrote: »

Use the search window at the top right hand side of forum page 1 (it has Search MSE... in it) ensure you search all posts???????

My apologies all. I misunderstood also.

Although I did reach the same out come (search all posts)

Trying to run again before I can walk tut tut

RikG92

Don't really have much time to send this rebut, POPLA will be deciding their decision on Thursday 13th November so I only really have one day so If anyone could quickly comment on my rebut draft pleaseeee!

bod1467

a 42 page not an 42 pages

Does the signage point (blue/yellow) apply to YOUR case? (I assume so since you've cherry-picked that point from the rebuttal I linked).

What about the contract point from that other rebuttal? (Have VCS included an unredacted contract in their evidence pack?)

And the PE vs Beavis point? (Have VCS not mentioned this in their evidence pack?)

RikG92

The sign telling the price of the cark park is blue, the sign that mentions about the PCN is red and white but has large writing and then small writing.

VCS have included a "Redacted contract" which expired 09/09/14 therefore that means it's clearly out of date.

PE vs Beavis has not been mentioned in their pack.


Also changed the 42 pages to 27 points.

RikG92

Here is my latest copy of my rebut. I am wanting to send this tomorrow morning the very latest so I would appreciate quick feedback.

Dear Sirs

Ref. POPLA appeal xxxxxxxxx

In response to the email below:

VCS Have submitted a 27 point ‘evidence’ pack in support of their speculative and disputed invoice. I do not intend to address each and every point they have raised in detail as their submission is clearly a quickly hashed template, much of which is repetitive or indeed irrelevant to the matter at hand.

In making their assessment I ask the POPLA assessor to consider the following in further support of my original POPLA appeal as submitted on xx/xx/2014

1. There is no Genuine Pre-estimated of Loss breakdown included to show how they have come up with £100: As business costs are not losses and they cannot be passed down to a motorist as GPEOL. VCS seem to infer that it is up to me to demonstrate how their £100 is not a GPEOL - I am not sure this is possible and is any case a moot point as the burden of proof is upon VCS to demonstrate the loss that has occured as a result of the alleged breach. Despite submitting this huge 'evidence' pack they have failed to do this.

2. There seems to be no copy of an unredacted contract included between VCS and the Car Park, which could include information about 'money changing hands' in the contract - thus hiding information that could be relevant to the costs calculation fails to meet the strict proof of contract terms needed.

3. Signage- The colours blue and yellow are specifically mentioned in the BPA Code of Practice as the sort of bright colour contrasts to avoid. Use of capital letters and mixing large and small font are also deemed unclear as far as signage is concerned. VCS have mixed this into their signs despite the fact they appear to be new and should match the requirements of the BPA CoP.

Furthermore it simply would not be possible to read any signs whilst in a moving car, and certainly not have read them sufficiently to have be deemed to fully understand the T&C's to which it is alleged I agreed as the registered keeper of the vehicle; even VCS's own 'evidence' photos show that a number of the signs are perpendicular to the flow of traffic and particularly noticeable is that in the place where the alleged contravention occured (the only place VCS identify the vehicle as having stopped) there are NO signs.


VCS Mention several cases in their evidence pack in support of their claims to which I respond to one as follows:

3. In the case of Dunlop Pneumatic Tyre Co
Lord Dunedin said that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach.''...''it is a penalty when a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".


Furthermore I point the POPLA adjudicator to the follows verdicts from recent adjudications, circumstances which are virtually identical to this case in which the appeal was upheld on one or more of the reasons I cite in my appeal:


1. POPLA Assessor Chris Adamson has stated in June 2014 in response to a VCS adjudication and GPEOL 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”

2. ...The appellant has made a number of submissions, however, I will only elaborate on the one submission that I am allowing this appeal on, namely that the parking charge amount is not a genuine pre-estimate of loss.

The burden is on the operator to prove that the parking charge is a genuine pre-estimate of loss. Although a detailed breakdown may not necessarily be required to prove this, as the appellant has questioned the level of the charge in this case, it is necessary for the operator to provide an explanation as to how this sum was arrived at as an estimate of the damage which could be caused by the appellant’s alleged breach. However, the operator has not provided a breakdown of costs under each head of claim. I am unable to see how the parking charge amount has been calculated. In addition, the operator has included “Central Payments Office (CPO) – Indirect Overheads”. I do not accept that these costs have been incurred as a direct result of the appellant’s breach. As the operator has not produced a breakdown of costs, I am unable to determine the proportion of these costs in relation to other heads of claim listed by the operator. On this occasion, I am not satisfied that the operator has discharged the burden.

In consideration of all the evidence before me, I find that the operator has failed to prove that the parking charge amount was a genuine pre-estimate of loss.

Accordingly, this appeal must be allowed.

Thanks,

xxxxxx

Coupon-mad

Yes that is much better and you and Bobbydazzler have found how to search the forum in a way that gets best results too. Never search the entire MSE forum, just 'this forum' and always 'show posts' as it narrows the results right down to posts with your keywords in, rather than 10 page threads spanning months!

Anyway email that to POPLA headed up in the subject line with the POPLA code (of course) and 'Urgent comments on evidence - please pass to Assessor immediately'.

RikG92

I Sent that through this morning, will find out the result tomorrow.

Praying that I win!

Ryan_Bryan

RikG92 wrote: »

I Sent that through this morning, will find out the result tomorrow.

Praying that I win!

Your GPEOL point should really make it a walkover so I'm very confident on your behalf, though I understand if you're worried.
You might like to see how it feels to beat the scammers though. Enjoy DJBenz post today on the POPLA appeal success thread.

http://forums.moneysavingexpert.com/showpost.php?p=66968091&postcount=1533 :T

RikG92

Recieved my appeal response this morning from POPLA and I won! I just want to say a big thank you to everyone for their help and comments.