Popla appeal advice

syf277

Hi all,
I was issued a parking ticket by VCS for stopping at the side of a road some moths back and a NTK was issued. Ofcourse i sent a strongly worded letter (template used from a thread in this forum) pointing out several contention points which was completely ignored.

To cut a long story short, i was finally issued with a Popla code and am in the process of preparing my appeal. I wanted to see if the popla appeal letter in the forum is still ok to use

forums.moneysavingexpert.com/showthread.php?p=66245932#post66245932[/url]

I know the template link says windscreen ticket but i was never issued with this, simply a NTK within a week arrived unexpectedly.

Thanks a lot in advance.

I forgot to ask in my original post, how long after i get the code from the PPC should i post my letter of appeal to Popla?

Umkomaas

Please copy and paste your draft appeal into this thread, but please do any marginal amendments reflecting your own case before posting. It's difficult to switch back and to between different threads. Posting it up here keeps everything in your developing case in one place.

HTH

syf277

Firstly, Thanks for the reply Umkomaas.

I was looking over the stickies section and hope someone can help decipher PoFA.

Since i never actually got a windscreen ticket, the NTK seems not to conform to the following, would it be worth mentioning them in my popla appeal letter:

1. The creditor is not identified on the NTK.
2. I have read that an NTK must be accompanied by any evidence (which it was not, NTK simply states "photographic evidence may be held on file to support the claim").

I think its important to point out, i was not actually in the car park, i stopped at the side of a main road, not entering the car park, could this be the reason no evidence was attached to the NTK?

Please help, its all getting a bit confusing now :sad:

syf277

Hiya,
Ok, i have now followed the advice on the stickies and written my first draft letter of appeal to Popla.

I would really appreciate it if one of the great experts would review and advise... Thanks soo much for your help everyone here is doing a wonderful job (especially for a newbie like me



Dear POPLA,

VCS Invoice no: xxxxxxxxxxx
Re verification code xxxxxxxxxxx


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
5 Failed to Comply with initial request for a POPLA Code.

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, 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.'

5. FAILED TO COMPLY WITH INITIAL REQUEST FOR A POPLA CODE
I contacted VCS on 06/10/14 and clearly stated that I denied all liability to their company and required a POPLA verification code for me to appeal independently as per the BPA Code of Practice. I had nothing further to add, and will not respond to any correspondence from VCS unless it contains the POPLA code. I would assume the appeal will be deemed accepted if there is no POPLA code on any rejection that you supply within the time frame stipulated above.

VCS ignored this requirement. They therefore failed to comply with the BPA Code of Practice.


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

syf277

No replies??
.....Come on guys, the letter can't be that bad can it?

syf277

My original ntk
replace httpz with http
httz://i44.photobucket.com/albums/f3/syf277/NTK_zps1fb8bbd5.jpg

syf277

And i thought this was somewhere to get help..! My Mistake.

stargazer7

Patience! There are probably only a handful of people on here who have the experience and the time to fine tune these appeals, and they have a lot to get through. Plus I'd imagine they have lives too!

It looks pretty good to me though, you've made all the right points in the right way, it makes the same arguments, more or less, as a successful appeal I submitted to POPLA earlier in the year so unless there has been a big change in the way they assess these things, I'd be quite confident with that.

syf277

Hi Stargazer,
I was starting to think there was something majorly wrong with me, my profile or maybe my post. thanks for the response, I have a few days left for popla so can wait a few days.

but thanks muchly for your response
I will try not to panic next time

stargazer7

If it's any consolation, I'm in the same boat (or should I say my other half is), only a few days left until POPLA deadline and it hasn't been checked by the regulars yet (although I have had some useful advice). I'm not too worried though, I'm pretty confident with what I've got, always nice to have an expert opinion though! There are some really clued up people on here who must give up a fair amount of their time to help, for no financial reward. The forum regulars as far as I know have a 100% record and like I say, it must take time to go through every appeal and make sure it's a guaranteed winner.

Umkomaas

syf277 wrote: »

And i thought this was somewhere to get help..! My Mistake.

Hmmm!

There are no more than about 6 very regular contributors working on this forum, day in, day out, which can see hundreds of threads needing 'urgent' attention for their authors. We all give absolutely freely of our time to help others with their problem. We do it willingly, without any recompense.

Coupon-mad has spent hundreds of hours putting her time into the most comprehensive guide to dealing with private parking tickets - anywhere on line. It includes a specific section 'How to Win at POPLA' with loads of links to winning appeal formulas The POPLA Decisions thread shows examples of winning appeals. The information is out there! Yet we are called on day after day to check through draft appeals of War and Peace proportion - most of which are perfectly 'good to go', provided the OP has properly proof read their output.

And that's where the rub lies - half the stuff posted up shows that the OP has just copied and pasted almost any old thing that looks OK, then leaves it to regulars to plough through it, correcting the most basic schoolboy errors - like copy and pasting an appeal for an entirely different PPC than the one they are dealing with! Do you know how tedious and frustrating it is to have to read through 5,000 words which need significant time input to correct? There is often the temptation to by-pass it and let the OP get on with it themselves if their own input has been so minimal. But then the PPC's win!

So we put our time in to correct that appeal, knowing full-well that the next thread we open there's likely to be another 5,000 word 'wall of text' proudly presented to the 'experts' for checking.

And it certainly doesn't help to have anyone prodding, a couple of hours after posting, with a 'Come on guys, I thought this was somewhere to get help. My mistake'. Anyone wanting such service really should be consulting a solicitor at £500 per hour!

Anyway - rant over, and turning to your appeal. Thankfully not of War and Peace magnitude - and it looks more or less good to go.

A couple of points:

1. Presentationally I would embolden each of the appeal paragraph headings, makes each section stand out better.

2. 'No creditor' point. It is not essential to identify 'the creditor' UNLESS they are pursuing keeper liability. So in itself it's not a 'fail' not to include it, but it definitely is a 'fail' if they are pursuing the keeper. So the point you need to make here is that as the NtK fails to identify the creditor the PPC cannot invoke keeper liability under PoFA 2012, and are therefore pursuing the wrong person.

3. Signage. I'm not sure that this sentence makes much sense.

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.

Other than above, it's good from my point of view.