CM Services Ltd

SteveNotts

Thanks for the replies. Please see my draft resposne below.

I have added point (d) and added text to the end of point 5 as advised in post #20 in this thread. Wasnt sure whether to delete point 5 and replace with text in post #20 or add it on the end like I have done?

Dear {put here the company name of this member of ''PPC World''},

PCN number xxxxxxx
I have received your parking 'invoice' impersonating a parking ticket. I decline your invitation to pay or name the driver, neither of which are required of me as the keeper of the vehicle. This is my appeal and all liability to your company is denied on the following basis:

A) The amount is neither a genuine tariff/fee for parking, nor is it based upon any genuine pre-estimate of loss to your company or the landowner.
You are not the landowner and do not have the standing to offer contracts to drivers nor to bring a claim in your own right.
C) Your signage was not sufficiently prominent nor clearly worded and consideration did not flow from both parties, so there was no contract formed. This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not your customers and are not parties of equal bargaining power. 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. 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): '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.'
D) The registered keeper is not liable as he/she was issued with a non compliant NTK which was outside the time frame demanded by law.

As you have failed to create any enforceable contract I suggest that you cancel this unjustified 'ticket'. If not, under your Trade Body's current Code of Practice you must issue a rejection letter which, in order to answer my appeal, must include:

1. The legal basis of your charge, which is not clear (i.e. breach, trespass or contractual fee?). As keeper, I cannot be expected to guess the basis of your allegation.
(i) if alleging breach of contract, please supply a breakdown of your alleged 'loss' and state the intention of your enforcement (i.e. deterrent or revenue?).
(ii) if alleging trespass, enclose evidence of the perpetrator, proof of the liquidated damages alleged and the calculation of this sum by the landholder.
(iii) if alleging 'contractual fee' I request a VAT invoice by return and your explanation of how you can allow drivers to park 'in breach' for a fee when your client originally contracted you in order to disallow and deter - not allow and profit from - unauthorised parking. I contend this charge is merely a penalty which is not recoverable in contract law (as found by Mr Recorder Gibson QC in the case of Civil Enforcement v McCafferty 3YK50188 (AP476) 21/2/2014 Appeal). Should you try to rely upon ParkingEye v Beavis & Wardley at independent appeal stage, I will of course point out that it was a flawed decision at small claim level so is not binding, and Mr Beavis is continuing his defence to the Court of Appeal. There is clearly no commercial justification for this punitive charge and no case law to support it.

2. Proof of your locus standi to offer contracts to drivers at this site and to bring a claim in your own right for this particular contravention. If you are not the landowner, I will need to see a copy of your contract, showing the restrictions, the charges, the dates and terms of business including any payments between yourself and your client and the definition of your status as agents or contractors and your assigned rights (if any). Such detail is necessary for me to make an informed decision. Failure to divulge your landowner contract (or heavily redacting it) will be deemed as withholding pertinent information and, of course, I will require it to be shown at independent appeal stage anyway. A witness statement will not suffice, nor a site agreement with a managing agent or other party who is not the landowner.

3. Your explanation of the consideration that you believe flowed from the driver, and from yourselves. Consideration from both sides is required for a contract.

4. A copy of the signage site map and close-up pictures of the signs in situ at the time, taken at a comparable time of day in similar light conditions.

5. The means to make an appeal to POPLA or the IAS. This must not be withheld or delayed, which would be a breach of the Code of Practice. The situation now is, all parking charges issued when an operator is a member of the BPA should be able to use POPLA to appeal. This is the official viewpoint of the BPA clarified by Steve Clark.

If you fail to simply cancel the charge or supply the means to independent appeal in your first reply you will also be reported to your applicable ATA and the DVLA. A certificate of posting will be obtained for all written communications for this appeal and complaint and I intend to claim my costs when I prevail.

Yours,



{the registered keeper's name}
ADD A SQUIGGLE IF POSTING IT - NO NEED TO USE A REAL SIGNATURE

Coupon-mad

That's fine, get it sent off.

Jim_AFCB

Just one thing - just reading back to the beginning of the thread.. wasn't the OP's invoice issued for a parking event after the PPC joined the IPC? In which case any reference to POPLA is irrelevent?

Dee140157

I think Jim is right. POPLA is not relevant here for appeal as the PPC had joined IPC by the time of the ticket. So OP will need to appeal to IPC of rejected.

What it does mean however is that when OP goes to IPC there will be lots of scope for appealing re signage since it was old BPA signage in car park as well as the non compliant NTK!

SteveNotts

Thanks for replies.

Are you saying I need to change the letter before I send it?

If so which parts do I need to alter please?

Thanks

Steve

Coupon-mad

Just get rid of this (below) if the date of the PCN is after the date on the IPC website of when this PPC joined as a member:


The situation now is, all parking charges issued when an operator is a member of the BPA should be able to use POPLA to appeal. This is the official viewpoint of the BPA clarified by Steve Clark.

SteveNotts

Thanks for your reply.

I have removed that line and added my name and address at the foot of the letter and the date at the top

Ill send it today and see what happens.

Thanks again

Steve

SteveNotts

Hi

Received reply today from CMS rejecting my appeal on all fronts.

Mentioned use of "stock" internet letter and they don't have to prove who the driver is just make it probable Which they say the replies in my letter do.

No mention of the out of date NTK in their reply.

Now have 21 days to IAS appeal.

Help!

Steve

Umkomaas

Received reply today from CMS rejecting my appeal on all fronts. Basically illegally parked, enough proof I am probably driver, that's it.

Do they actually say that in their letter?

SteveNotts

Probably better if I type of parts of the actual letter but no not those exact words.

Here is the letter about that

" Thank you for your correspondence regarding the above parking charge notice (PCN). After careful consideration of the circumstances we have found no grounds for cancellation of the charge.

The vehicle in question was parked on private land, quite simple you are not entitled to park on private land without the owners consent. In the case of this particular land, the land owner agreed to allow parking on the following terms, namely

a) That you have to display a valid permit, or alternatively
b) You agree to pay a charge of £100.00

The private land contained signs from CM Services Ltd confirming the terms and conditions prevalent in relation to the aforementioned private land in terms of parking. The terms and conditions of the parking on this private land were clearly set out on the signs and by parking your vehicle you accept those terms and conditions which were clearly stated in an unambiguous language.

As you are the registered keeper of the vehicle we our entitled to proceed on the basis that it is more likely than not that you were the driver of the vehicle. We would point out that in connection with civil claims we are only obliged to prove that you were the driver on a balance of probabilities i.e. that it was more likely than not that you were the driver of the vehicle in question. We are satisfied that you were the driver of the vehicle as your credibility must be in serious doubt bearing in mind the nature of your response for the following reasons:-

1. Your letter is a stock letter which we presume that you have downloaded from the internet. We have been receiving a number of these letters and it seems unbelievable that individuals who are registered keepers and receiving parking notices are coincidentally not the drivers of these vehicles in question.

2. You fail to identify the driver in question when this information should obviously be within your knowledge if you were not i fact driving the vehicle on the day in question.

3. You have failed to produce any evidence from a third party that that individual was indeed the driver. For example, you have failed to provide a witness statement of even a letter from the driver confirming that they in fact were driving the vehicle and the vehicle was not driven by the registered keeper.

We are therefore satisfied that we will be able to establish, on the balance of probabilities, that you were the driver of the vehicle.

If you believe this decision is incorrect, you are entitled to appeal to the Independent Appeals Service (IAS). In order to appeal the IAS will need your parking charge number, your vehicle registration and the date the charge was originally issued. Appeals must be submitted to the IAS within 21 days of this letter. For further information please visit www.theias.org"

To use their words, a pretty "stock" reply to me, proving in turn they have not read my letter as they have made no remark about the out of date NTK!