CM Services Ltd

Dee140157

And if you can't post links yet, upload to eg tinypic and post here with the http:// missing.

SteveNotts

i58.tinypic.com/vz95hf.jpg

Link to sign above.

Memberships on board out of date.ie Not BPA members but sign says they are.

Guys_Dad

Steve - the IAS will view this as a contractual charge case, I am afraid, so no GPEOL will be considered.

However, as lawyers, they must follow the law and will.

Your "get me out of jail free" card and 1st appeal point must, as said previously, be the out of time NtK.

Now you had a windscreen ticket on 23/3/14.

The NtK was dated 8/7/14 (?).

POFA 2012 is explicit about the period in which Keeper Liability can be exercised.

(8) The notice must be given by:
(a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5) The relevant period for the purposes of sub-paragraph
(4) is the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given.
(6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales
(7) When the notice is given it must be accompanied by any evidence prescribed under paragraph 10.

State that as the NtK did not arrive within the statutory period, then keeper liability can not be applied. Then state that you were NOT the driver at the time and, therefore, the charge must be dismissed and the keeper appeal allowed.

Frankly, that should be all you need, but bung in anything else you feel might be needed, but precede this with
"Should the IAS choose to ignore POFA 2012 as above, and only if that is the case, then my further appeal points are............."

SteveNotts

Hi

Thanks for your reply.

I assume the appeal to IAS is done online?

I see in another thread that CMS are blaming the DVLA for the delayed NTK and IPC and the courts are aware? (Funny how they say I used a "stock letter downloaded from the interne" when it appears they use "stock" letters also to reply!)

http://forums.moneysavingexpert.com/showpost.php?p=66099582&postcount=7

I have drafted a response which is below

Dear Sir/Madam,


Parking Charge Notice (PCN): XXXXXX
Vehicle Reg: XXXXXXXX
Date of Issue: xx/xx/xxxx
Company in question: CM Services Ltd

On the above date, I (the registered keepr)was issued with a PCN for parking without a valid permit at XXXXXXX.

I challenged this notice on a number of issues with CM Services Ltd but I then received a rejection letter directing me to appeal to IAS.

PCN Issued XXX NTK issued XXX

POFA 2012 is explicit about the period in which Keeper Liability can be exercised.

(8) The notice must be given by:
(a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5) The relevant period for the purposes of sub-paragraph
(4) is the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given.
(6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales
(7) When the notice is given it must be accompanied by any evidence prescribed under paragraph 10.


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

1) The Notice To Keeper (NTK) did not arrive within the statutory period, therefore keeper liability cannot be applied.
2) I was NOT the driver at the time and therefore, the charge must be dismissed and the keeper appeal allowed in line with POFA 2012.


Yours faithfully



XXX XXX

Guys_Dad

That looks pretty good to me.

Coupon-mad

Hang on, if that's an IAS appeal it needs more and you need to attach evidence of the NTK and the sign. It doesn't create any contractual agreement with non-permit displaying cars, as it says parking is only permitted with a permit.

Also did you see the recent IAS appeal lost by this poster who also said the NTK was flawed?

https://forums.moneysavingexpert.com/discussion/5010924

The IAS decision said the argument had no merit and the appellant had not shown where the flaws in the NTK were.

Please, don't send that yet. The signs are relevant:

http://tinypic.com/view.php?pic=vz95hf&s=8#.U-unaE3wupo

and you need more careful and detailed wording, IMHO. Even just saying to the PPC that you 'were not driving' isn't enough to prove you are not liable, as the PPC could just say they think you were (and you can see from that outcome in the linked thread, what the IAS will say about that). If it were me I would be also enclosing a signed and dated witness statement confirming form another person that you were elsewhere (a bit like a Court defence level of evidence) and the NTK needs annotating and scanning in with numbered flaws highlighted, as another attachment.

There may be more too - I would certainly mention 'no GPEOL' since parking without a permit is not an omission of a contract, there is no contract except for people with a permit.

Dee140157

You need to mention the signage
1) It contains both BPA and IPC Logos, so is clearly non complaint.
2) the sentence containing the amount of the contractual charge is clearly not prominent. Indeed in terms of size there are 5 other paragraphs of writing that are bigger than the line that contains the charge. So it certainly does not draw the driver to the terms and conditions clearly
3) it should identify the creditor (Schedule1, other signs, point 1), but to me it is unclear if the creditor is CMS or Metropolitan

Coupon-mad

This really needs more work as long as your 21 days isn't nearly up. Please show us a draft to discuss further, with more information and appeal points in it. I am concerned this will lose if you read the thread by Daps as linked before, so we need to learn from that one and spell it out in a way the IAS has to consider (we managed it with POPLA, took a while but we did it).

SteveNotts

Hi

Thanks for all the replies.

I have a few weeks left so will have a look at modifying as best I can and hope to repost on here tomorrow.

Thanks again

Steve

PS I have read the link to the failed IAS appeal but notice even though they raised several arguments, my NTK was "out of time" so shouldn't this strengthen my case as a clear breach of POFA 2012. The IAS response in the failed appeal says they have failed to prove breach of POFA but surely a copy of my NTK with the correct wording should stand a better chance?

I notice in another thread CM Services stated in their rejection letter that the DVLA were responsible for the late NTKs and IAS and courts are aware?

Coupon-mad

SteveNotts wrote: »

I have read the link to the failed IAS appeal but notice even though they raised several arguments, my NTK was "out of time" so shouldn't this strengthen my case as a clear breach of POFA 2012. The IAS response in the failed appeal says they have failed to prove breach of POFA but surely a copy of my NTK with the correct wording should stand a better chance?

Yes I think it will - but I noticed that everything the other appellant said was dismissed as he 'hadn't shown the flaws' (I am reading between the lines and am guessing he didn't attach a copy of the NTK. IMHO the IAS were being utterly pathetic to chuck out that appeal and downright rude to call the appeal points 'well rehearsed and without merit' which to be frank was b@ll@ocks!). So let's be utterly pathetic and pedantic ourselves and win these in future! I just think it needs us to adjust our tactics - certainly in a case with a late NTK a keeper SHOULD win so let's achieve that!

I reckon that yes, you stand a good chance if you spell out as if for a 5 year old, what the flaws are in a numbered format, attaching a scan or pic of the offending NTK and annotating beside each flaw, what's wrong and the corresponding number in the margin to match your appeal.

So where the date is shown at the top of the NTK, your annotation would be '(1) this is xx days after the parking event so as keeper I am not liable' and so on with all omissions and wording errors, matching your IAS appeal points about the NTK where your point #(1) should be 'The Notice to keeper (copy attached) was not served in time for keeper liability under the POFA 2012 so as registered keeper I cannot be held liable in law'.

I also feel that a witness statement (piece of paper basically, scanned & attached) signed/dated by a colleague or family member stating you were elsewhere and were not driving the car registration xxx xxxx at the time of the alleged parking event (state the time and date) would drive home the point that 'I am only the keeper and I am not legally liable where a PPC has failed to invoke the requirements of Schedule 4 of the POFA 2012'.

I notice in another thread CM Services stated in their rejection letter that the DVLA were responsible for the late NTKs and IAS and courts are aware?

That's a lie. The POFA 2012 makes no excuses available - the deadlines are set in stone in the Act. Guess what I am going to suggest? That you refute that statement in your IAS appeal by saying that old chestnut is 'well rehearsed and without merit' because it is a fact that the POFA 2012 allows no reason or excuse whatsoever for missing the statutory deadlines. A PPC has to achieve the deadlines or they simply do not establish keeper liability, there is no 'middle ground excuse' acceptable in the Act to blame delays on the DVLA. A delay for any reason means a charge can only be aimed at a driver, the PPC loses the right to pursue a keeper under these circumstances.

And just to be pedantic quote Schedule 4 and the deadline for the NTK to be served, to show there is no allowance for delays.

So that just leaves the 'signage wording flaws/no contract with the driver' to add in nice and clearly which can be discussed on the forum once we see your draft.

I wouldn't bother with 'no standing/authority' in a IAS appeal as IMHO I can't see it winning as an appeal point like it does at POPLA. I do think you can win this though!