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  • Coupon-mad
    As long as you attach pics of the signs as well before hitting submit (the IAS expect you to provide all evidence), I would just amend it to (my changes in red) and you may have to put a brief synopsis/bullet points in the IAS word-count restricted box then - BEFORE clicking submit! - attach this full appeal as part of your evidence along with the photos):




    I challenge this 'Parking Charge Notice' as keeper of the car, on the following grounds:

    1 Misleading Action under the CPUTRs
    a) The rejection letter is misleading as it states that the car park is operated in accordance with British Parking Associations (“BPA”) Code of Practice; however, G24 Limited (“they”, “G24”) were not, and still not, BPA members on the date material to this case and therefore cannot operate under a Code of Practice which they are not fully signed up members.

    b) G24 have failed to prove that the signage is in accordance with the Independent Parking Commissions Code of Practice. It is however clear that they are in breach of both Codes of Practice on the car park in question due to severely damaged signs which cannot be clearly read by the driver of the vehicle. Furthermore the signage also contradicts other signage within the car park in question. Photographs of the signage can be found attached to this appeal.

    It is prohibited and an unfair commercial practice in the CPUTRs to state that a trader adheres to a Code of Practice (BPA or IPC) but in fact does not:
    ''Prohibition of unfair commercial practices 3. (1) Unfair commercial practices are prohibited.
    (2) Paragraphs (3) and (4) set out the circumstances when a commercial practice is unfair.
    (3) A commercial practice is unfair if—
    (a)it contravenes the requirements of professional diligence; and
    (b)it materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to the product.
    (4) A commercial practice is unfair if—
    (a)it is a misleading action under the provisions of regulation 5;
    Misleading actions
    5. (1) A commercial practice is a misleading action if it satisfies the conditions in either paragraph (2) or paragraph (3).
    (2) A commercial practice satisfies the conditions of this paragraph—
    (a)if it contains false information and is therefore untruthful in relation to any of the matters in paragraph (4) or if it or its overall presentation in any way deceives or is likely to deceive the average consumer in relation to any of the matters in that paragraph, even if the information is factually correct; and
    (b)it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.
    (3) A commercial practice satisfies the conditions of this paragraph if—
    (b)it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with, if—
    (i)the trader indicates in a commercial practice that he is bound by that code of conduct, and
    (ii)the commitment is firm and capable of being verified and is not aspirational...
    (4) The matters referred to in paragraph (2)(a) are — ... (f) any statement or symbol relating to direct or indirect sponsorship or approval of the trader or the product; ''

    Consumer Protection from Unfair Trading Regulations 2008

    http://www.legislation.gov.uk/ukdsi/2008/9780110811574/contents

    It is no defence under the CPUTRs for G24 to say the information was not deliberately 'false'. I am saying as a fact, as an average consumer, that the reference to compliance with the BPA/IPC (and the presence of ATA symbols on some signs) did mislead me and was 'likely' to cause me to take a transactional decision I would not otherwise have done (i.e. I might have believed they were compliant with their Trade Body - or previous Trade Body - and might have paid them).

    Further, leaving signs up which are so weatherworn as to be unreadable (see attached picture) contravenes the CPUTRs requirement for professional diligence, especially with an 'implied consent' charge where the signs are the only way the trader alleges a contract may have existed (a contract which is denied).

    2. G24 have failed to provide me, the registered keeper, with their genuine pre-estimate of loss calculation (“GPEOL”) or state when this was calculated as to which might attempt to justify the parking charge for where there is a breach of terms. As they have failed to provide me with this information, I must infer that GPEOL has not been considered and therefore I am not liable for any alleged loss.

    It is not for me to prove there was no GPEOL - it is trite law that the burden of proof for this falls upon a claimant (unlike the burden of proving a charge is a penalty which is the other way around). My appeal point here is that I am putting G24 to strict proof of their GPEOL, bearing in mind this is a free car park so there was no unpaid tariff, no initial loss. And that burden remains theirs alone.

    In the unlikely event of the Assessor for the IAS disagreeing about this burden of evidence falling upon the Operator, I quote from Murphy on Evidence:

    http://books.google.co.uk/books?id=hc6cAQAAQBAJ&pg=PA80&lpg=PA80&dq=&f=false #v=onepage&q&f=false

    ''4.5.2.1. Contract
    The claimant bears the burden of contract, the due performance of conditions precedent, breach of contract by the defendant and consequent loss to the claimant.''


    3. The sign which was nearest to the car, according to the driver, was severely weather worn and unreadable, therefore no contract was formed due to the terms not being clear. Additionally, the sign appears to be from the landowner and not G24, therefore they cannot enforce a charge based on signage and terms which are not theirs.

    4. The signs which can be read are outdated BPA signs, of which G24 are not members. Further, this sign:

    https://www.dropbox.com/s/z31zt93vzwmrecu/2014-11-22%2010.43.25.jpg?dl=0

    creates no contract to pay 50 for the driver staying longer than three hours in the car park. The ‘3 Hours Free Parking’ quoted on the signage is merely a statement of fact and can be seen as a heading to attract customers to the site, not a contractual term or obligation. The contractual terms are clearly those in the five pictograms, none of which were breached.

    5. As the signage is inadequate to form a contract to charge 50 for the driver staying longer than three hours, it is therefore the fault of person drafting the sign, not the fault of the driver. Perhaps G24 could explain to the IAS why their sign has no terms set out regarding what happens if a driver stays for longer than 3 hours - do they have to pay 1, do they have to pay 1000? It is anyone's guess. The sign does not say what happens after the free parking time and does not state staying longer is even a 'contravention'. It merely says 'if you breach any of the above terms and conditions' but there is no term/condition relating to any maximum stay, or any obligation not to stay longer than 3 hours. It cannot be assumed or inferred - just because of the advertised fact that the first 3 hours are free. No such chargeable term about 'not staying longer' or perhaps, 'agreeing to pay a charge for staying longer', exists on the sign at all.

    In any event, the doctrine of 'contra proferentem' applies and the interpretation which most favours the consumer must prevail which is, that the only contraventions are those shown in the pictograms.

    The Operator has failed in their burden to prove there was any contract, or any breach of contract, or any loss.
    Last edited by Coupon-mad; 07-12-2014 at 9:49 PM.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

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