CM Services Ltd

SteveNotts

I have scanned front of NTK and sign and will annotate as described below.

Advices awaited!

Thanks :-)



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.

1. Notice To Keeper did not arrive within the statutory period
(See Attached File NTK1)

PCN Issued XXX (Marked (a) on NTK1
NTK issued XXX(Marked (b) on NTK1)

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.

2. Signage (Please see attached file Sign1)


1) It contains both BPA and IPC Logos, so is clearly non complaint.(Logos marked on attached file Sign1). CM Services Ltd were NOT BPA Members on the date the PCN was issued.
2) The sentence containing the amount of the contractual charge is clearly not prominent(Marked on attached file Sign1). Indeed in terms of size there are 5 other paragraphs of writing that are bigger than the line that contains the charge.(Marked on attached file Sign1) 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 it is unclear if the creditor is CMS or Metropolitan(Marked on attached file Sign1)
4) The sign doesn't create any contractual agreement with non-permit displaying cars, as it says parking is only permitted with a permit.

3. Genuine pre-estimate of loss(GPEOL)

There is'no GPEOL' since parking without a permit is not an omission of a contract, there is no contract except for people with a permit.


Yours faithfully



XXX XXX

The_Deep

What about v.a.t.?

SteveNotts

The_Deep wrote: »

What about v.a.t.?

Not sure what you mean?

ampersand

Quick spot and re-word. Assume you mean:

Parking without a permit is not an admission of contract. No contract applies except with permit holders.

bazster

SteveNotts wrote: »

Not sure what you mean?

If this is supposedly a contractual charge rather than damages for breach then it attracts VAT, therefore you can demand they furnish you with a VAT invoice.

Their response may go someway to establishing whether this really is a contractual charge.

Coupon-mad

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.

No you didn't! You aren't appealing as driver! IMHO the appeal should start:




Vehicle Reg: XXXXXXXX
Date of Issue of Notice to Keeper: xx/xx/xxxx
Date of alleged parking event: xx/xx/xxxx
Reference of alleged PCN xxxxxxxx
Company in question: CM Services Ltd

On the above date, I (the registered keeper) received a letter alleging that a parking event had taken place over 3 months before, at a time and place when it is not known who was driving since this 'Notice' showed no evidence whatsoever of the car in contravention of any lit signage, or evidence of the party they contend was the driver.

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.


**********************************************************************************************************************

QUESTIONS FOR YOU STEVENOTTS: Did the NTK have pics of the contravention and did it tell you what the EXACT issue was? What words were used? Have you got pics of both sides of the NTK for us to look at please?


**********************************************************************************************************************


Remove this line below, as there are no such requirements in law yet (it's a clause to cover possible future statute):


''(7) When the notice is given it must be accompanied by any evidence prescribed under paragraph 10.''


And change these to A and B as the appeal has too many numbers and gets confusing!:


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

A) The Notice To Keeper (NTK) did not arrive within the statutory period, therefore keeper liability cannot be applied.
I was NOT the driver at the time and therefore, the charge must be dismissed and the keeper appeal allowed. *


* (getting rid of 'in line with POFA 2012' since there's nothing in that Act about dismissing appeals).




And how about this for points 2 and 3?




2. Signage (Please see attached file Sign1)

The sign says specifically 'Parking in this area is permitted for: vehicles displaying a valid parking permit and parked fully within the confines of a marked bay'. So those persons are the only ones to be offered by the principal (Metropolitan, not CMS) the gift of parking 'in this area' - whatever that may mean. This 'charge' foisted upon me over 3 months later by letter, is not a pre-agreed term of any contract since the principal, Metropolitan, offers no permission to park to anyone else except those displaying a permit who are also parked in a marked bay.

The sign fails in that the vague words 'this area' is not defined at all, neither in words nor by any map or boundary on the sign . The drafting of this sign makes it unsaid where 'this' area might be. In accordance with the doctrine of contra proferentem, the conclusion most favourable to a consumer would be to interpret the sign's words 'this area' as meaning the bay or space immediately in the 'area' of 'this' sign. I have no evidence that the driver parked in 'this area' or 'this site', whatever that might mean within the land including the residential flats and surrounding car parks and driveways, pathways and verges. I do not accept any breach or omission occurred nor do I accept that any contract was ever formed with the driver. This is an old BPA sign and whilst lip service is paid to the IPC by the mere addition of a badge, bottom left, the sign fails to comply with the IPC Code.

The sentence containing the amount of the contractual charge is not prominent (marked on attached file Sign1). Indeed in terms of size there are 5 other paragraphs of writing that are bigger than the line that contains the charge (marked on attached file Sign1). It should identify the creditor (Schedule1, other signs, point 1), but it is unclear if the creditor is CMS or Metropolitan (marked on attached file Sign1) and indeed it appears to be the latter because CMS are acting 'on behalf of' a named principal, Metropolitan. In this scenario, CMS are a mere agent without authority to enforce any purported contract by litigating in their own name. The wording "on behalf of " is a clear indication of agency. Halsbury (on Agency at 157) says the wording "on behalf of" is "conclusive when qualifying the signature to negative responsibility of the signatory as principal.'' So if any consideration flowed at all it was from Metropolitan (not CMS) to those permitted to park (i.e. permit holders in a marked bay only).

The sign is also in an unlit place on a side fence, so a driver arriving and parking at dusk or the hours of darkness would not have seen it and could not have read the terms. I have seen no evidence that there is any lit, clear sign at the entrance which could have alerted an arriving driver to the terms the sign I have shown (in file Sign1) was attempting, but failing, to convey.

All terms on a sign in an unexpected 'take it or leave it' type of contract 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. On the balance of probabilities, no average 'person on the Clapham omnibus' would have seen let alone accepted such onerous parking terms I contend the 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). Lord Denning continued: '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.' Clearly the sign (copy attached) does not meet that criteria in terms of clarity, wording, lighting nor even in identifying the standing of the party purporting to have contracted with a driver 'on behalf of' another named party.

Even if the IAS believes that the sign was perhaps capable of forming a contract, it would only have been capable of charging the driver alone, since the sign says 'you agree to pay' and 'you will be liable' and CMS missed the deadline to serve a compliant Notice to Keeper to me, a fact as demonstrated by the date on the Notice in the attached file NTK1.



3. No genuine pre-estimate of loss (GPEOL) and no consideration flowing from CMS as agent.

The need to show the charge was based on a genuine pre-estimate applies in this instance since a driver cannot contract to park in such a way that the sign does not 'permit'. Parking 'otherwise' can only be a matter of breach of contract or trespass and the fact the Operator has added the word 'consideration' in the sign does not make it so - and nor is any consideration capable of being offered by this agent in view of the wording on the sign already discussed in point 2. CMS have also failed to include VAT in their charging invoice which shows that this is not a genuine contractual fee or tariff but a penalty clause applied in terrorem.

So I contend that this charge was neither consideration nor a genuine pre-estimate of loss and if the Operator thinks otherwise they are put to strict proof of one or the other, not a contrived calculation of 'costs' calculated after the event.

SteveNotts

Re NTK

Yes pictures, one of front of car with sticker on screen, one of back of car.

I have uploaded the front and back of the NTK (links below) but have removed the pictures. Do you need to see them?

http://i60.tinypic.com/b6rqc5.jpg

http://i59.tinypic.com/k04p38.jpg

Coupon-mad

Nope that's helpful as it is, thanks. So they have some photos so is this bit (at the start I suggested) right or wrong about a car not being shown in contravention of a LIT sign in the dark?

''this 'Notice' showed no evidence whatsoever of the car in contravention of any lit signage''

Can you show us the latest draft all put together if you are happy with what we've suggested so far? Need to review it now.

SteveNotts

Hi

I am quite happy to show the pics (if "safe" to do so)with the reg blanked out if that will help, but the pictures are taken in broad daylight .

On the picture taken from the rear, you can see what I think might be one of their signs a few cars along on a wall and the one from the front shows what might be one on a fence.

Subject to above, revised draft below

Many thanks

Steve


Dear Sir/Madam,

Vehicle Reg: XXXXXXXX
Date of Issue of Notice to Keeper: xx/xx/xxxx
Date of alleged parking event: xx/xx/xxxx
Reference of alleged PCN xxxxxxxx
Company in question: CM Services Ltd

On the above date, I (the registered keeper) received a letter alleging that a parking event had taken place over 3 months before, at a time and place when it is not known who was driving since this 'Notice' showed no evidence whatsoever of the car in contravention of any lit signage, or evidence of the party they contend was the driver.

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.



1. Notice To Keeper did not arrive within the statutory period
(See Attached File NTK1)

PCN Issued XXX (Marked (a) on NTK1
NTK issued XXX(Marked (b) on NTK1)

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



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

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


2. Signage (Please see attached file Sign1)

The sign says specifically 'Parking in this area is permitted for: vehicles displaying a valid parking permit and parked fully within the confines of a marked bay'. So those persons are the only ones to be offered by the principal (Metropolitan, not CMS) the gift of parking 'in this area' - whatever that may mean. This 'charge' foisted upon me over 3 months later by letter, is not a pre-agreed term of any contract since the principal, Metropolitan, offers no permission to park to anyone else except those displaying a permit who are also parked in a marked bay.

The sign fails in that the vague words 'this area' is not defined at all, neither in words nor by any map or boundary on the sign . The drafting of this sign makes it unsaid where 'this' area might be. In accordance with the doctrine of contra proferentem, the conclusion most favourable to a consumer would be to interpret the sign's words 'this area' as meaning the bay or space immediately in the 'area' of 'this' sign. I have no evidence that the driver parked in 'this area' or 'this site', whatever that might mean within the land including the residential flats and surrounding car parks and driveways, pathways and verges. I do not accept any breach or omission occurred nor do I accept that any contract was ever formed with the driver. This is an old BPA sign and whilst lip service is paid to the IPC by the mere addition of a badge, bottom left, the sign fails to comply with the IPC Code.

The sentence containing the amount of the contractual charge is not prominent (marked on attached file Sign1). Indeed in terms of size there are 5 other paragraphs of writing that are bigger than the line that contains the charge (marked on attached file Sign1). It should identify the creditor (Schedule1, other signs, point 1), but it is unclear if the creditor is CMS or Metropolitan (marked on attached file Sign1) and indeed it appears to be the latter because CMS are acting 'on behalf of' a named principal, Metropolitan. In this scenario, CMS are a mere agent without authority to enforce any purported contract by litigating in their own name. The wording "on behalf of " is a clear indication of agency. Halsbury (on Agency at 157) says the wording "on behalf of" is "conclusive when qualifying the signature to negative responsibility of the signatory as principal.'' So if any consideration flowed at all it was from Metropolitan (not CMS) to those permitted to park (i.e. permit holders in a marked bay only).

The sign is also in an unlit place on a side fence, so a driver arriving and parking at dusk or the hours of darkness would not have seen it and could not have read the terms. I have seen no evidence that there is any lit, clear sign at the entrance which could have alerted an arriving driver to the terms the sign I have shown (in file Sign1) was attempting, but failing, to convey.

All terms on a sign in an unexpected 'take it or leave it' type of contract 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. On the balance of probabilities, no average 'person on the Clapham omnibus' would have seen let alone accepted such onerous parking terms I contend the 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). Lord Denning continued: '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.' Clearly the sign (copy attached) does not meet that criteria in terms of clarity, wording, lighting nor even in identifying the standing of the party purporting to have contracted with a driver 'on behalf of' another named party.

Even if the IAS believes that the sign was perhaps capable of forming a contract, it would only have been capable of charging the driver alone, since the sign says 'you agree to pay' and 'you will be liable' and CMS missed the deadline to serve a compliant Notice to Keeper to me, a fact as demonstrated by the date on the Notice in the attached file NTK1.



3. No genuine pre-estimate of loss (GPEOL) and no consideration flowing from CMS as agent.

The need to show the charge was based on a genuine pre-estimate applies in this instance since a driver cannot contract to park in such a way that the sign does not 'permit'. Parking 'otherwise' can only be a matter of breach of contract or trespass and the fact the Operator has added the word 'consideration' in the sign does not make it so - and nor is any consideration capable of being offered by this agent in view of the wording on the sign already discussed in point 2. CMS have also failed to include VAT in their charging invoice which shows that this is not a genuine contractual fee or tariff but a penalty clause applied in terrorem.

So I contend that this charge was neither consideration nor a genuine pre-estimate of loss and if the Operator thinks otherwise they are put to strict proof of one or the other, not a contrived calculation of 'costs' calculated after the event.






Yours faithfully



XXX XXX

Coupon-mad

Oh OK so remove these bits:

since this 'Notice' showed no evidence whatsoever of the car in contravention of any lit signage, or evidence of the party they contend was the driver.

and

The sign is also in an unlit place on a side fence, so a driver arriving and parking at dusk or the hours of darkness would not have seen it and could not have read the terms. I have seen no evidence that there is any lit, clear sign at the entrance which could have alerted an arriving driver to the terms the sign I have shown (in file Sign1) was attempting, but failing, to convey.