PCN from PCM Ltd. Stage 2: IPC/IAS Appeal

PCN Number: XXXX
Date PCN Issued: XXXX

Dear Indepent Parking Committee,

I am the registered keeper of vehicle reg: XXXX and I contend that I am not liable for the parking charge and the vehicle was not improperly parked. I wish to appeal against the notice on the following grounds.

1) Inadequate and Lack of IPC Compliant Signage

The signage was not seen, formed no contract with the driver, switched between ‘contractual fee’ and ‘unauthorised parking’ and does not meet the IPC guidelines. Terms are only imported into a contract if they are clear and so prominent that the party ‘must’ have known about it and agreed. The signage relied upon to create the contract between the landowner and the driver does not identify PCM LTD as a creditor for any charges that arise out of the contract or damages following a breach of the contract. Consequently, should a contract be found to exist between the landowner and the driver, PCM LTD not having been indetified as a creditor are unable to pursue this claim. To date, no authority has been provided that establishes that PCM LTD are authorised to pursue this claim on behalf of the landowner.

Upon entering the location where the contravention took place, there was only one visible sign approximately 2 metres above on a lamp post hidden behind a tree on the other side of the road from where the vehicle was positioned. This sign was completely obstructed should a car park away from it. Within the IPC Code of Practice Schedule 1 – Signage it clearly states signage should “Be clearly legible and placed in such a position (or positions) such that a driver of a vehicle must be able to see them clearly upon entering the site or parking a vehicle within the site.” Furthermore, due to the high positioning along with the overall minute size of text used, the signage is barely legible making it difficult to read and understand. I contend that the signs and any core parking terms PCM LTD are relying upon being too small for any driver to see, read and understand (Schedule 1 – Signage). The terms are misleading with wording that dresses up the charge as a ‘contractual’ fee, which it is not, see point a). There was no agreement to pay. No consideration/acceptance flowed to and from both parties, so there was no contract formed. This is a non-negotiated and unexpected third party ‘charge’ foisted upon legitimate motorists who are not ‘customers’ of PCM LTD and not expecting to read a contract when they park in an unmarked layby. It would seen/accepted by the driver. That it is not the case – there were not even any yellow lines to alert a person to read a sign on a lamp post, a sign which would otherwise be overlooked as, perhaps, information about house/flat members, info about communal bins etc., general signs that one sees at any private housing estate (and does not stop to read). The signage is ambiguous and contradictory. On the Notice to Keeper (NTK) the sum is stated as a contravention for ‘breaching’ the terms and conditions’s yet the sign misleadingly alleges a ‘contractual’ sum. If so, there should be a payment mechanism and a VAT invoice. There is none. This is not a transparent contract and is disguised penalty. Terms must be clear otherwise under the doctrine of contra proferentem the interpretation that favours the consumer applies. I request IPC to check the Operator’s evidence and signage map/photos on this point and compare the signs to the IPC Code of Practice requirements. I contend the signs in place on this land (wording, positioning, clarity) do not comply and fail 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 and Waltham Forest v Vine [CCRTF 98/1290/B2].

a) The Charge is Not a Contractual Fee – it is a disguised breach

PCM LTD has attempted to avoid the necessity of having to justify a pre-estimate of loss by stating that this is a contractually agreed fee on their signage. However, on both the NTK and the rejection letter to my appeal PCM LTD states respectively that the charge is for ‘breaching’ the terms and conditions of parking. In addition, the wording on their sign also states that “unauthorised parking may result in your vehicle being issued with a parking charge notice”. The charge must be either for damages or a fee paid for parking (consideration) it cannot be for both and in order for it to be considered, it would have to mean that permission to park without a permit was given providing a fee was paid. Clearly permission to “park in breach” cannot be granted and I therefore submit that it is clear that the amount sought is for parking in breach and that the amount represents liquidated damages which is compensation agreed in advance.

2) The Charge is Not a Genuine Pre-Estimate of Loss

The charge of £100 is being sought for an alleged breach of parking terms, namely “parking without a valid permit” consequently I contend, and the IPC Code of Practice states, that a charge for breach must be based on the genuine pre-estimate of loss. The Office of Fair Trading has also stated that a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. On the day in question there was neither damage, nor obstruction caused (nor is any being alleged) and I therefore contend there was no loss caused to either the operator, or the landowner, by any alleged breach.

In the case of Dunlop Pneumatic Tyre co v New Garage Motor co (1915), Lord Dunedin stated that 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” and there is an assumption that it is penalty when a single lump sum is made payable bway of compensation on the occurrence of one or more or all of several events, some of which may occasion and others but trifling damage”.

As the charge in this case is the same lump sum, whether the vehicle is parked for 10 minutes or for 24 hours and the same amount is charged for any alleged contravention, it is clear that it is punitive and that no consideration has been given to calculating a genuine pre-estimate of loss in this case. In the case of Parking Eye v Smith in Manchester County December 2011, the judge rules that the only amount the operator could claim is the amount that the driver should have paid into the machine. In this case, as stated earlier, no monetary loss occurred to either the operator or to the landowner. I therefore require the operator to submit a full breakdown of their genuine pre-estimate of loss to show this was calculated in this particular parking area and for this particular alleged breach. Operational business costs cannot possibly flow as a direct result of any breach as the operator would be in the same position whether or not any breaches occur.

I would also refer them to the Unfair Terms in Consumer Contract Regulations, where it states that parking charges for breach on private land must not exceed the cost to the landowner during the time the Motorists is parked there and remind them that the amount in this case is nothing. The operator will no doubt state loss was incurred as a result of the appeals process after the parking charge notice was issued, but in order for this to represent a genuine pre-estimate of loss, they must first show that they incurred an initial loss as a direct result of the alleged breach. This initial loss is fundamental and without it, costs incurred subsequently cannot be reasonably claimed to have been caused by the breach and as I have stated earlier – there was no initial loss.

I cite the OFT's extensive guidance on the Unfair Terms in Consumer Contracts Regulations 1999. This is also available on the OFT website as oft311.pdf. “The Regulations are concerned with the intention and effects of terms, not just their mechanism. If a term has the effect of an unfair penalty, it will be regarded as such, and not as a 'core term'. Therefore a penalty cannot be made fair by transforming it into a provision requiring payment of a fee for exercising a contractual option”. “The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term, or which purports to define what the consumer is buying, will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term”.

Group 18(a): Allowing the supplier to impose unfair financial burdens
‘'18.1.3…transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.’’ Therefore according to the OFT guidelines, car park contracts specifying excessively high charges as “core” prices for services delivered (rather than being linked to a breach of contract) would still fall foul of the Regulations on the basis that they have the same effect as an unfair penalty clause.

The same applies in my case, and the IPC must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and can be neither commercially justified or proved to be a genuine pre-estimate of loss and I respectfully request that my appeal be upheld and the charge dismissed.

3) No Contractual Agreement with the Driver

The sign at the location where the car was parked (see evidence enclosed) does not create a valid contract between the driver of the vehicle and the landowner whereby the driver agrees to pay £100 consideration for the privilege to park the car. The signage quite clearly states that “Parking is permitted for: vehicles fully displaying a valid parking permit within the windscreen and parked within an area appropriate to that permit.” This statement clearly indicates that if a driver parks on the site without displaying a valid parking permit the driver is not permitted to park and by doing so is acting in breach of the contract fro parking. To attempt to levy a charge of £100 in those circumstances is nothing more than an attempt to ‘fine’ the driver for parking on private land.

The signage goes on to state that “By parking or remaining on the site otherwise than in accordance with the above you, the driver, are agreeing to follow the contractual terms.” It then goes on to state that this involves agreeing to pay £100 consideration. However, the wording does not suggest that a contract is being entered into by the driver, instead it is worded clearly as a threat that if a driver parks in that location without a valid parking permit then they will be subject to a penalty charge of £100. The wording is clearly intended as a deterrent and therefore any charges that flow from that wording should be treated as penalty irrespective of the attempt in the signage to disguise this as ‘consideration’ for the right to park. This interpretation of the signage is supporting the disproportionate and punitive size of the ‘charge’. To charge £100 in those circumstances is clearly not a reasonable charge for the privilege to park.

In order for the £100 parking charge to be a genuine offer to provide a parking service, then it should be made explicit in a prominent position at the top of the signage. Equal weight should be given to that offer of a parking service as is given in the notice about parking being permitted for permit holders. As this is not the case the only interpretation of the signage is that the landowner is trying to deter people from parking on that land with an enforceable threat of a punitive charge.

4) Failure to Comply with Statutory Requirements under Paragraph 8 of POFA 2012, Schedule 4

There are omissions of the statutory wording required under paragraph 8 of POFA 2012, Schedule 4. The Notice to Keeper (NTK) does not inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full as required para. 8(2)(b). The NTK does not invite the keeper to pass the Notice on to the driver, as required in para. 8(2)(e). Moreover, the NTK does not state that the keeper would become liable for the charge only if the applicable conditions under this Schedule are met which is not in accordance with para. 8(2)(f). Furthermore, paragraph 8(2)(h) states that the NTK must identify the creditor and specify how and whom the payment or notification to the creditor may be made. The NTK in this matter does not identify the creditor and does not comply with this requirement. In addition, the NTK failed to inform the keeper of the arrangements and contact details for resolution of disputes or complaints to the Information Commissioner (see evidence enclosed). The NTK from PCM LTD indicates that they are a member of the IPC and abide by the committees’ code of conduct. The failings identified above of the NTK also breach the IPC code of conduct. Where an Act states that such a Notice ‘must’ include certain prescribed words, any omission renders a document a nullity.

In addition the NTK did not include any photographic evidence that the vehicle was parked there at all. I require photographic evidence and put the operator to strict proof on this point. Therefore PCM LTD are unable to establish keeper liability of the vehicle for the alleged parking charge and consequently any action against the keeper of the vehicle should be withdrawn.

5) Contract with Landowner

PCM LTD does not own the land and are assumed to be merely agents for the owner or legal occupier. In their NTK and in the rejection letter, PCM LTD has not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment for title of the land in question. I would also request that the IPC check whether PCM LTD have provided a full copy of the actual contemporaneous, signed and dated contract with the landowner/occupier (not just a signed slip of paper saying it exists or someone has witnessed it) and check that it specifically enables this operator to pursue parking charges in their own name as creditor and through the court system. ‘Witness statements’ instead of relevant contract show no proof that the alleged signatory has ever seen the contract or that they are employed by the landowner. Such a statement would not show whether any payment has been made to the operator which would obviously affect ‘loss’ calculations. Furthermore, it would not serve to provide proof that the contract includes the necessary authority required by the IPC Code of Practice to allow the operator to pursue charges in their own name as creditor and to enter into contracts with drivers. I say that any contract is not compliant with the requirements set out in the IPC Code of Practice.

I do not believe that the operator has the necessary legal capacity to enter into a contract with a driver of the vehicle parked in the lay-by or indeed the legal standing to allege a breach of contract. I refer the adjudicator to the recent appeal court decision in the case of the Vehicle Control Services (VCS) v HMRC (EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking charges. It was stated that: “If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other they are damages they will not be.” The ruling of the Court was that “I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not considered moving from the landowner in return for the supply of parking services.” In other words, they are not, as the operators assert’s, a contractual term. If they were a contractual term, they are not as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply and to account to HMRC for the VAT element of the charge. The appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator’s charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses asset as set out above.

6) Business Rates and VAT applicable if the Charges are

Contractual Agreements for the Provision of a Service
PCM LTD runs a business the specified location for revenue and profit, and their signage appears to attempt to create a contractual agreement for ‘services’. I put PCM LTD to strict proof that business rates are being paid to the local authority valuation office in respect of this ‘contractual parking service’ business, and that they are paying VAT to HM Revenue and Customs.

PCM LTD’s failure to use consistent language to that of the IPC/IAS, long with inconsistent language within their own literature is at best a reflection of negligent and sloppy practice, and at worst it could be seen as a deliberate attempt to frustrate the appeal process with the IAS. I respectfully ask the IPC assessor to consider my points and photographic evidence and order that this charge be cancelled

Yours Faithfully,

XXXX

@Coupon-mad yeah sure @Dee140157 has been helpful in posting up the proper links