Help for PCN from IPC PPC

bod1467

You appeal. Despite what they say in the rejection, it IS a breach of contract and so No GPEOL is still valid. But you also still have no authority/standing etc.

Does the sign say how long you can park there if you pay the fee?

Probably best to wait for one of the better-versed regulars to look at this.

Stroma

I thought it was supposed be 14 days to submit a defence with this ATA ?

Coupon-mad

Oh yes, I think it is only 14 days to appeal - which is pathetic.

You need to read the IPC CoP to see what's what, urgently, as none of us have their particular CoP in our heads at all yet! I think you will need to go very strong on the fact this is clearly a matter of breach, not a genuine contract to park at all:

So include the stuff you said before, expand in more detail as best you can:


1. The signage was not seen, formed no contract with the driver, switches between 'contractual fee' and 'unauthorised parking' and does not meet the IPC guidelines. (show pics & explain the breaches, after Googling & reading the IPC CoP)
2. There are omissions of the statutory wording required under paragraph 8 of POFA2012, Schedule 4. The NTK does not invite the keeper to pass the Notice on to the driver, as required in 8(2)(e)(ii). The 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 by 8(2)(b). Where an Act states that such a Notice 'must' include certain prescribed words, any omission renders a document a nullity. Therefore, keeper liability has not been established.
3. 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.
4. The Operator is not the landowner and therefore has no standing and no case to recover damages or loss. I require this Operator to show IAS their contract with the landowner which must be IPC Code compliant and must assign this operator the right to make contracts with drivers and to pursue their charges in the courts in their own name. It must also set out the supposed 'contractual fees for the service/supply of parking' if that is the business model this Operator purports to be using.
5. As this charge is for an 'unauthorised' parking event (their word) it has to be shown to be a genuine pre-estimate of loss. There was no damage nor loss flowing from this parking event.
6. The driver and resident were not informed about any permit scheme. It transpires that permits are available for residents to give to visitors - and the driver was genuinely there to visit a resident. Any alleged liquidated damages cannot possibly reach £100 from this parking event. Further and in the alternative, if this is an alleged sum in the nature of a fee, it is unconscionable and an unrecoverable penalty.

Just because the charge is alleged to be a core business term of an Operator does not make it exempt from the overarching test of fairness for any contract. The sign is predominantly there to act as a deterrent and this charge is in fact an unrecoverable penalty... this needs more! Here are some quotes from other appeals about a charge not being a genuine contractual fee to park, and being instead a penalty. Build some of this (below) in at this point and see what others say because this is all a bit scattergun at the moment!


A driver cannot enter into a contract to pay for something that is expressly prohibited or unauthorised because that would make it a disguised penalty, according to the Office of Fair Trading. The signage and the Notice to Keeper are ambiguous but both give away the fact that it is not a contractual fee but a charge for 'unauthorised parking'. A genuine contractual fee would have a payment mechanism related to the true cost of the supply of a parking space, not charge the same punitive amount whether the car stayed for 1 minute or 24 hours.

The terms of this parking operation are unreasonable and unfair. The charges show no due regard to the legitimate interests of visitors such as this driver, who was invited to visit and park by a resident with more standing than this operator.

This charge represents an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says: ‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’

In the case of Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79, there is the classic statement, in the speech of Lord Dunedin, that a 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”.

The finding of Colman J in Lordsvale Finance Plc -v- Bank of Zambia [1996] QB 752 was that “whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provisions was to deter a party from breaking the contract or to compensate the innocent part for the breach [...] deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred”.

The Office of Fair Trading has stated that ‘a parking charge is not automatically recoverable simply because it is stated to be a parking charge.' In a document relating to bank charges the OFT stated the following about disguised penalties: "The analysis in this statement is in terms of explicit, transparent default fees. Attempts to restructure accounts in order to present events of default spuriously as additional services for which a charge may be made should be viewed as disguised penalties and equally open to challenge where grounds of unfairness exist. (For example, a charge for 'agreeing to' or 'allowing' a customer to exceed his credit limit is no different from a charge for the customer's 'default' in exceeding his credit limit.) The UTCCRs are concerned with the intention and effects of terms, not just their mechanism."

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.

Finally, if there is any ambiguity as to whether a term refers to a contractual charge or to liquidated damages for breach, then the doctrine of contra proferentem defines the term against the person who drafted it. Hence it becomes a matter of liquidated damages for breach and fails the test of being related to a genuine pre-estimate of loss. In any case, it is in the public domain that a matter of liquidated damages for breach is not an allowable business model of IPC members. The charge should be cancelled.

Stroma

So if it is 14 days to appeal, why are these lot saying in their letter you have 28 days? This will not be accepted by this ATA if it goes over 14 days. A compliant is needed on that point as it could trip up people.

magnoff

Thanks for the quick replies guys.

They did send notes on how to appeal. In there it says I have 21 days to appeal, where as the reply from the PPC says I have 28 days. Unfortunately I'm almost out of time. The PPC wrote to me on the 10th and 21 days wiil be Monday which doesn't give me much time.

Anyway I'll read up and get something out today so they should have it either tomorrow or perhaps at the latest by Monday.

I can scan and upload the notes they have sent if it will help

Coupon-mad

You can use the above wording, pretty much! If you can submit the appeal to the IAS electronically then just copy & paste and adapt the above and submit it now. Should be enough. Don't rely on the post unless you are given no option, because a late appeal will be refused I suspect.

da_rule

IAS appeals must be received within 21 days of the rejection by the PPC. If you've received a letter telling you 28 days I would complain to the IPC as this is obviously misleading (they probably haven't changed the template from their POPLA days).

magnoff

There doesn't seem to be a method to appeal online. The letter says I must appeal using the enclosed form

A quick check on google didn't bring anything up

da_rule

Look at the second page of this document: http://media.wix.com/ugd/bd9e08_cccb5fe12d24ae3ca26c8fe1ab5f947f.pdf there is an email address you can use.

Here is an electronic version of the appeals form: http://media.wix.com/ugd/bd9e08_07849864194c4a27aa22b156c9dcc630.pdf

magnoff

Ah yes - great thanks. I'll do it by email.

BTW your first link is broken. You need a space and change the extension to .pdf (remove the PDthere)