VCS Windscreen Ticket - Media City UK - POPLA

CoreDefect

Evening all,

My first ever parking appeal so you'll have to bear with me as i'm extremely rusty with this stuff.

I'll start by saying that I have read the NEWBIE thread, waited for the NTK and then sent my soft appeal using the copy & paste template (although I've used an older version - it seems to have been updated since I used it).

As expected, VCS have rejected my appeal and given me a POPLA code.
Deadline information
Your appeal deadline is Tue Nov 04 2014
You have 19 day(s) remaining for your appeal to reach POPLA

I was on holiday from 7th for a week, and obviously only saw the letter when I returned so i've already lost 9 days from the timer so i'm working against the clock.

To sum this up, i'm been searching the forums for previous VCS POPLA appeals (both wins and the 1 loss I found (which was for mitigating circumstances anyway which is why it failed)) and am wanting to construct mine ASAP.

I've noticed from a newer thread that Excel have updated their GPEOL statement/calculations. My question is, as Excel and VCS appear to be run by the same parent (they both hand out tickets in Media City) do Excel's new GPEOL statement/calculations also apply to VCS appeals? If so, will I need to adjust the VCS template I found here (https://forums.moneysavingexpert.com/discussion/comment/66245932#Comment_66245932) before I start working it into my own?

Also, the above template is in regards to not displaying a valid permit whereas mine was for an alleged contravention of overstaying.

Any help here would be appreciated. I have photographs showing the bay my vehicle was ticketed in which I could provide if you need them. I can also provide a copy of the rejection letter they sent me after my appeal (although I'm sure you've seen it all before so might not be required)

Thanks in advance.

Coupon-mad

Also, the above template is in regards to not displaying a valid permit whereas mine was for an alleged contravention of overstaying.

So you'll need to borrow some wording from an 'overstaying' example that also has a section about dodgy ANPR (e.g. look at the G24 example in 'How to win at POPLA' as that was written recently and would be about an overstay recorded by ANPR cameras). Or was your car actually manually ticketed in a bay for overstaying? If so you could look at other examples in 'How to win at POPLA' in post #3 of the Newbies thread and find something similar about a windscreen ticket case & nick the wording that makes most sense.

As regards the newly written GPEOL statement, that example you found already has a strong no GPEOL argument including 'As VCS have since changed their GPEOL calculations...' so it would be OK in that section. Make sure the No GPEOL paragraph is your strongest suit in any draft, and that one is a good example as it's recent enough.

What you are best advised to do is to rebut VCS' evidence pack when you get sent a copy of their rubbish. As discussed on quite a few threads recently, in the last month, talking about how to rebut VCs' GPEOL statement. But that would be in 6 weeks time when you get to that stage so plenty of time to read up about that and how to get the last word.

CoreDefect

Thanks Coupon-Mad, your input is much appreciated.

Yes, my car was manually ticketed.

I will use that template and build my appeal up from there, with the obvious changes from 'permit' to 'overstay' and i'll be sure to research some POPLA wins for overstays to get an idea on how to word it.

I'll post back when i've got my appeal drafted so you can have a look over it, if you wouldn't mind of course.

Coupon-mad

Oh, slightly unusual to get a windscreen ticket about an overstay. But quite similar to all other windscreen ticket examples of POPLA appeals, just needs adapting.

CoreDefect

Hi,

Apologies for the late reply on this one. It's been a mind-boggling experience trying to take in the vast amount of information available on the forum but it's definitely been a good read!

I've constructed my first draft of the POPLA appeal below. I would be every so grateful if someone could take a glance over it and see if there is anything I should add/subtract from it before sending it across for consideration. I'm not 100% sure if i've made my GPEOL argument strong enough (already off to a bad start!)

RE: VCS PCN, Reference xxxxxxxx
POPLA Code: xxxxxxxx

I am the registered keeper and wish to appeal the above parking charge issued by Vehicle Control Services for overstaying the permitted time limit.

I have the following appeal points:

1) No genuine pre-estimate of loss
2) The signage was inadequate, unclear & non-compliant
3) No standing or authority to pursue charges or form any contract with drivers
4) The Notice to Keeper is not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012

1. No genuine pre-estimate of loss

This car park is a multitude of free stay bays limited to 20 minutes. It is alleged that my vehicle overstayed this by 14 minutes. At the time the charge was issued, all surrounding shops were closed, and the car park empty as a result, so there cannot be any genuine loss as a result of my vehicle being parked there.

Therefore, the demand is punitive, unreasonable, and excessive 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 claims that the ‘charge’ is actually a calculation of their losses as a result of liquated damages through breach of contract. Not only do I contend that this is, in fact, a penalty and not a genuine pre-estimate of loss, VCS have also failed to present me with a breakdown of these losses. These losses, claimed to be pre-estimates must, by nature, already be known to VCS so there is no genuine reason, commercial or otherwise, for VCS to withhold this information when it is requested. As VCS are essentially refusing to provide a breakdown of their pre-estimate losses 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, 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. The signage was inadequate, unclear & non-compliant

The occupant(s) of the vehicle at the time of the breach explained that the signage in the car park was non-existent. All terms on signage must be so prominent and the risk of a charge so transparent that the information it 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.

Since receiving the Notice to Keeper, I have paid a visit to the car park myself and have made some observations.

It’s not clear where the entrance and exit of this car park is; nor is there any signage to state where this might be. Also, the area that the driver has indicated the vehicle was parked in actually has no nearby signage at all. Due to this, I rebut VCS’ claim that “The Terms and Conditions of parking at the Media City Car Park were displayed on numerous Information Boards situated throughout the area”.

VCS have also failed to present the photographic evidence of the signage that they claim to have enclosed in the Notice to Keeper.

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 comply with the BPA code of practice. 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 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.'

3. No standing or authority to pursue charges or form any contract with drivers

A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner/landholder’s behalf. VCS have refused to provide me with a copy of this contract unless a judge requests it. Therefore 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 or 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.




4. The Notice to Keeper is not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012

The following points (A)-(E) may be observed on the Notice to Keeper, making this a non-compliant Notice to Keeper under the POFA 2012, Schedule 4 paragraph 8:
(A) The 'period of parking' is not shown, only the time of issue of an alleged Parking Charge Notice (as required by POFA 12 Schedule 4 paragraphs 8(2)(a) and 8(2)(b));
(B) It does not repeat the information on the parking charge notice (as required by POFA 12 Schedule 4 paragraph 8(2)(c))
(C) It specifies that there are unpaid parking charges “for the specified period of parking” (which was not specified), even though there are no unpaid charges for parking (in contravention of POFA 12 Schedule 4 paragraph 8(2)(d));
(D) It does not identify the creditor (as required by POFA 12 Schedule 4 paragraph 8(2)(h)).
(E) The ‘date on which the notice is sent’ is not explicit (as required by POFA Schedule 4 paragraph 8(2)(i)).

The fact that some of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the Notice to Keeper is compliant. A Notice to Keeper is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 as regards the wording in a compliant Notice to Keeper is prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out even some of the mandatory Notice to Keeper wording means there is no 'keeper liability'.

I therefore respectfully request that my appeal is upheld and the charge dismissed.

Yours faithfully,

Coupon-mad

That's great! All I would say is, add this to the first point as long as there was no 'tariff' which arose after 20 minutes:


There was no loss of potential income in a free car park after closing time, so 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.

CoreDefect

Thanks Coupon-mad, i've added that wonderful little paragraph in.

I'll submit it shortly and await the outcome.

CoreDefect

Actually, quick question:

Which of these do I tick?

Why are you appealing? (Please tick)

I was not improperly parked.

The parking charge (ticket) exceeded the appropriate amount.

The vehicle was stolen.

I am not liable for the parking charge.

I'm inclined to choose them all bar the stolen one of course.

Coupon-mad

I'm inclined to choose them all bar the stolen one of course.

Correct - you are getting good at this! Stick around and help other newbies - it's how we all started!

CoreDefect

Stick around and help other newbies - it's how we all started!

I will certainly become less of a lurker and interact more, if only to help others in my situation.

All submitted.

Thanks CM - just got to sit tight and wait for that victory now.

Coupon-mad

But if/when you get VCS' evidence pack (usually by email) have a look and be ready to rebut it just to make sure, with a 'final word' email summary of your representations against the 'evidence' to POPLA.