IPC appeal PCN NW Limited

Coupon-mad

Please show us your draft appeal first. Unlike POPLA you CANNOT add more info later so please don't submit it without running it by us first. If the signage and the rejection letter talk about 'breach' then you need to seize on that, point it out and state that the charge is not a genuine pre-estimate of loss.

Also you said 'From research there are also two different companies on the signage!' well that's a point to cover as well. And the usual stuff about no contract with the landowner that gives PCN(NW) any standing to allege breach of contract nor to form contracts with drivers.

I guess you have already outed yourself as the driver?

You really must show us your draft first because, did you realise, if you lose this appeal then PCN(NW) will almost certainly try a small claim on the back of it? So, we want you to win - even though you are one of the first here being coached about an IPC appeal, we are very experienced at winning similar appeals at POPLA so we can help. PLease do not rely on the appeal being impartial...time will tell.

Don't forget you only have 14 days to submit this...when is your deadline?

bod1467

There's also the point that there was a PPC representative on site, and they took no action to mitigate any loss.

Kc85

Hi All

Thanks for all your replys and help, the letter is confusing as one part says i have 21 days and another states 28 days, ideally i need to submit it tomorrow! Anyway here is my attempts from all your advice and using the useful links on here:

The Independent Appeals Service


26th January 2014


Dear Sir/Madam,
RE: ISA number:

Without prejudice

Civil Parking Notice (CPN):
Vehicle Reg:
Date of Issue: 19/12/13
Company in question: PCN (NW) Ltd

I am the registered Keeper of the above vehicle and I am appealing against above charge. I contend that I am not liable for the parking charge. On the above date, I (the keeper of the vehicle) was issued with a CPN for parking without a valid permit at St Helens College Brook Street Camp. There were no signs near the car and no signs were observed on entry to the area. The signage was extremely poor, with there most significantly not being any signs at all around where the car was parked.

I challenged this notice on a number of issues. I then received a rejection with regards to the alleged contravention. Attached to the rejection was the IPC form and IAS number.

I would like to appeal this notice on the following grounds.

1. The contradicting and unclear signage which creates no contract between a driver and PCN (NW) Ltd Lack of signage
2. No contract with the site that permits levying charges- Not Compliant with the BPA Code of practice and no legal status to offer parking or enforcement charges.
3. Inappropriate parking charge, the amount demanded is not a Genuine Pre-estimate of loss.
4. No breach/trespass

1. The contradicting and unclear signage which creates no contract between a driver and PCN (NW) Ltd Lack of signage

There is/was categorically no contract between the driver and PCN (NW) Ltd. No signs were observed. There were no large BPA standard signs when the car park was first entered therefore there was no idea of any alleged contract or restrictions.

As an AOS member, their entrance signage must be prominent and readable from a seated position, with terms & conditions in the driver's clear view on arrival when a vehicle first turns into a car park

There were no signs at all located near where the car was parked.

I require PCN (NW) Ltd to provide IPC with evidence that its signage is compliant with BPA rules upon both entry and where the car in question was parked.





2. No contract with the site that permits levying charges- Not Compliant with the BPA Code of practice and no legal status to offer parking or enforcement charges.

I doubt that PCN (NW) Ltd has the legal status and overriding right to pursue parking charge notices. I therefore require PCN (NW) Ltd to supply and IPC to review:

• A copy of the current signed site agreement or contract with the landowner/occupier of that site
• A copy of the wording of the current imposed permit scheme with proof that the landowner has agreed to/been informed about it.
• A current map of all the areas and bays of that car park where the permit scheme is and is not applicable, as agreed with the landowner/occupier.
• Contemporaneous photos of the actual signs on site

Furthermore, I require that the PCN (NW) Ltd show IPC proof that they have the right to charge and pursue motorists (including threats of debt recovery and court action).

PCN (NW) Ltd do not own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, PCN (NW) Ltd have 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 of title of the land in question.

I would also request that IPC to please check whether PCN (NW) Ltd have provided a full copy of the actual contemporaneous, signed & 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 and through the court system. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.

I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, 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 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 hand, 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 consideration moving from the landowner in return for the supply of parking services." In other words, 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. I assert 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, as set out above.

3. Inappropriate parking charge, the amount demanded is not a Genuine Pre-estimate of loss.

The demand for a payment of £100 as noted within the Parking Charge is a punitive amount that 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.”

“19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable.”

This charge does not represent a genuine pre-estimate of loss and therefore is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. PCN (NW) Ltd may try to allege their minimal signage creates a contractual agreement, but this is denied. In any case, PCN (NW) Ltd's letter clearly states that this parking incident relates to an alleged 'breach of contract' (their words). So the entirety of the parking charge must be a genuine pre-estimate of loss in order to be possibly enforceable. PCN (NW) Ltd in this case cannot possibly justify £100 as a genuine pre-estimate of loss. In addition to this from completing further research it has come to my attention that there are currently two different companies listed on the signage. Therefore, if the driver is forming a contract it is unclear who they are forming it with.

The Office of Fair Trading has also stated to the BPA Ltd 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. Parking charges cannot include tax-deductible business costs for running a parking company, such as site signage and maintenance, staff employment, membership fees, postage, etc. It shouldn’t be recoverable as it is being enforced purely as a penalty. Since there is no other income at this site, these PCNs represent the only profit for PCN (NW) ltd and it is clear that they cannot be operating at a permanent loss.

I require PCN (NW) Ltd to provide a detailed breakdown of how the amount of the 'charge' was arrived at. I am aware from court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimate losses.

To show compliance with the BPA CoP section 7, I require PCN (NW) Ltd to produce the landowner contract - not just an inadmissible 'witness statement' saying such a contract exists - since they do not own the land. I contend that any business arrangement for parking services (if it exists) is merely an agency matter between the landowner and PCN (NW) Ltd

It has also been widely reported that some parking companies have provided photocopied “witness statements” instead of the relevant contract. These highly questionable documents from parking operators have been exposed in the public domain as sometimes having had the date added after 'witness signature' by another person, adding a random date to suit a court or POPLA case. These witness statements are therefore not relevant to a specific event and the details are far too unreliable to confirm compliance of the contract as defined in the BPA CoP and would fail to meet the level of certainty required for a POPLA or court decision. If PCN (NW) Ltd produce a 'witness statement' I contend that there is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted instead of the landowner contract itself, that this is disregarded and that the Chief Adjudicator is required to investigate this issue and consider carefully the serious irregularities known about these documents if the assessor in my case is minded to consider one as evidence.
Finally, a third party agent cannot pursue such a charge anyway, as was found in ParkingEye v Sharma: Case No. 3QT62646 in the Brentford County Court23/10/2013. District Judge Jenkins dismissed the case on the grounds that the parking contract was a commercial matter between Parking Eye and the landowner, and didn’t create any contractual relationship with motorists who used the car park. I submit that this applies in this case as well.

There was no parking charge levied, the car park is “free”. On the date of the claimed loss it was not at full capacity and there was no physical damage caused. There can have been no loss arising from this incident. Neither can PCN NW Ltd lawfully include their operational day-to-day running costs in any 'loss' claimed. I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.

The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges for all day parking. This is all the more so for the additional charges which operator states accrue after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by 40% by early payment that it is unreasonable to begin with.


4. No breach/trespass

If there was no contract, then at most the allegation can only be a civil trespass. This is denied - however, for the avoidance of doubt, if PCN (NW) Ltd do now try to allege that this is the nature of this 'charge' then the driver would be potentially only be liable for damages owed to the owner/occupier who may have suffered a loss. Since no ‘damage’ occurred in the car park and also given the fact that the car park was not completely full in the short time the car was on site, there was in fact no loss at all and this charge is purely a profiteering penalty, out of all proportion.

In addition, I would also like to point out that no barriers were in place restricting entrance to the car park nor was anyone stopping cars entering the car park via the entrance that does not divert to the immediate left. The parking attendant James Simmons whom the PCN was discussed with at the time, did not at any point advise anyone on the car park or entering where they could or could not park, nor was he operating the barrier system to restrict access. James Simmons when questioned following the PCN being left only advised that he didn’t mind if cars were parked in an unallocated bay as long as they were in the permitted area.

With all this in mind, I require IPC to inform PCN (NW) Ltd to cancel the CPN.

Yours Sincerely,

Kc85

This might sound silly but i have thought of complaining to watchdog and adding it into the letter?

kirkbyinfurnesslad_2

no thts irrelevent, first of all remove "with out prejudice from the top of the letter", its not relevent to this and no point using it !

4consumerrights

You've referred to the BPA and their COP and POPLA all the way through this appeal - the IPC have their own and completely different code of practice:

Here's their website: http://www.theipc.info

Please do have a very careful look through

I think the appeal also needs a little more work

@coupon the appeal has to be submitted within 21 days from the date of the operator's rejection letter.

Kc85

Thanks I will remove that point now.

would you suggest I take the BPA and POPLA out- it's mainly letters I've changed around a bit from on here, with the IPC being new there is no other templates to use.

I will check the link out now thanks

4consumerrights

You can use core appeal points such as no contract, lack of authority to pursue in court, signage, no gpeol etc.

But the IPC have a completely different code of practice - it is on their website - so read and apply to your situation - post up appeal before sending.

Leave in the reference about the OFT guidance on parking charges (just delete the BPA part)

Edit and leave in the court case reference.

Kc85

so I need to build this in..

The IPC operates a Code of Practice that encourages good practice and facilitates the fair release of data where there is a right to recover parking charges. The fair release of data is instrumental in protecting the rights of land owners and now has statutory recognition since the 1st October 2012 with the enactment of the Protection of Freedoms Act

Ok I will re-work it now

Kc85

I've found the code of practice document now- thanks