CM Services Ltd

SteveNotts

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.

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).

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

Actually now I read it I would remove this:

'', at a time and place when it is not known who was driving.''


but apart from that I can't think what else to add so see if anyone else chips in!

SteveNotts

Thanks Coupon-mad, you are a star :-)

"Final" version below.

I will wait 24 hours incase anyone else wants to add/change anything then Ill send it in - assume online?)

Thanks again

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.

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).

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

Guys_Dad

That would need a General Melchett to turn that down.

Dee140157

Have you sent this and what was the result?

SteveNotts

Well, finally got a reply today after 3 weeks and its a success!

Many thanks to all who posted on this thread especially Coupon Mad and Dee for their valuable input,

Keep up the good work!

Cheers

Steve

bazster

This IAS appeals malarkey is even more of a lottery than the County Court!

Guys_Dad

Did IAS give a reason for upholding your appeal?

SteveNotts

Guys_Dad wrote: »

Did IAS give a reason for upholding your appeal?

Hi

No, no explanation at all just that the ticket was cancelled.

Cheers

Steve

bazster

An IAS appellant on PePiPoo has submitted a Subject Access Request to the IAS. They have accepted the request, remains to be seen what they come back with.