CPM - Uk car park managment - Crawley

SirSiekier

I would like to use points thats someone else use in his popla appeal:

Dear POPLA,

I am the registered keeper and this is my appeal:

In summary I base my appeal on the following points:

1) Not a true contractual fee = breach of contract, requires a GPEOL
2) No Locus Standi
3) Signs - no contract with Driver
4) NTK - no keeper liability.
5) Unfair terms - Unenforceable Disguised Penalty
6) Unfair Payment Charges.

Could i do it?? Please for help I'm a bit lost now...

Redx

use the links from post #3 of the NEWBIES sticky thread to find suitable popla appeals

SirSiekier

Ok this is what i have for now...

I would like to use those words in my appeal:

I am the registered keeper of the above vehicle. I received a Notice Keeper from UK Car Park Managment (CPM) on 10 April 2014 for a parking charge of £100 issued on 2 March 2014 for a breach of contractual terms and conditions by the driver of the vehicle.
I have denied all liability to CPM. Following rejection of my submission I wish to appeal on the following grounds:

1. The parking charge of £100 is not a genuine pre-estimate of loss.
2. CPM have formed no contract with the driver (lack of signage, no consideration/acceptance).
3. CPM have no proprietary interest in the land and no standing.
4. The Notice to Keeper fails to establish 'keeper liability' under PoFA 2012. (I didnt buy the car at the time it got a ticket)
5. Unfair Payment Charges.

The other thing is there is no ticket machine at this site... the only bit i should have was a short note that Im a vistor to flat nr 5...

Those bits above i believe apply to my case. Can it be like that?

Regards

Redx

that is not bad for the bullet points that start the appeal, but I dont see the meat of the appeal which are those points expanded to the nth degree below those quick numbered bullet points

post 12) was similar , good start , no actual appeal

ColliesCarer

Here are you clicky links

http://zonkpl.w.interia.pl/pt.jpg for the sign

http://zonkpl.w.interia.pl/pt1.jpg

http://zonkpl.w.interia.pl/pt2.jpg

As red has said you are going to need to expand on those points and your not a genuine pre estimate of loss point will need careful wording as on the sign UKCPM are trying to claim it was a contractual fee - it's not because you can't enter into a contract to pay a fee to do something that's not permitted but your POPLA appeal needs to ensure it makes that point very clearly.

Also their rejection letter gives away that the charge is for breach of contract (they state a number of times that the charge is for breaching the parking terms) and so must be a genuine pre estimate of loss. Take a look at your NtK too - looking for similar wording that you can quote in your appeal.

Take a look at this appeal against UK CPM which a great example and is very easily adaptable for your appeal

https://forums.moneysavingexpert.com/discussion/comment/65848442#Comment_65848442

SirSiekier

Dear POPLA Assesor,

Re ********* parking charge notice ********
POPLA ref **********

I am the registered keeper and I wish to appeal this charge on the following grounds;
1. The Notice to Keeper fails to establish 'keeper liability' under PoFA 2012.
2. The parking charge of £100 is not a genuine pre-estimate of loss.
3. CPM have no proprietary interest in the land and no standing.
4. Unfair Payment Charges.

1.
The Notice to Keeper fails to establish 'keeper liability' under PoFA 2012. As the current keeper I purchased the car vehicle registration ....... on xx/xx/xx, at xx.xxpm. The PCN was issued at xx.xx.pm. At this time I was not the keeper of the car concerned. DVLA can confirm that the vehicle changed hands on that day.

2.
The charge of £100 is being sought for an alleged breach of the parking terms namely “parking without displaying a valid permit” consequently I contend, and the BPA code of practice states, that a charge for breach must be based on the genuine pre estimate of loss.

The Office of Fair Trading has stated to the BPA that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.

In the case of Dunlop Pneumatic Tyre co v New Garage Motor co (1915), Lord Dunedin stated 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" and "there is an assumption that it is penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

As the charge in this case is the same lump sum whether the vehicle is parked for 10 minutes or for 24 hours and the same amount is charged for any alleged contravention, it is clear that this is punitive and that no consideration has been given to calculating a genuine pre estimate of loss in this case.

I therefore require the Operator to submit a full breakdown of their genuine pre estimate of loss to show how this loss was calculated in this particular parking area and for this particular alleged breach.
Operational business costs cannot possibly flow as a direct result of any breach as the operator would be in the same position whether or not any breaches occur.

I would also refer them to the Unfair Terms in Consumer Contract Regulations, where it states that parking charges for breach on private land must not exceed the cost to the Landowner during the time the Motorist is parked there and remind them that the amount in this case is nothing.

The operator will no doubt state that loss was incurred as a result of the appeals process after the parking charge notice was issued but in order for this to represent a genuine pre estimate of loss, they must first show that they incurred an initial loss as a direct result of the alleged breach.

This initial loss is fundamental and without it, costs incurred subsequently cannot be reasonably claimed to have been caused by the breach and as I have stated earlier - there was no initial loss.

Christopher Adamson stated in a POPLA appeal against VCS Ltd that

"the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonable moved away from a strict interpretation of what constitutes a genuine pre estimate of loss, recognising that in complex commercial situations an accurate pre estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive. In this case it is clear that the dominant purpose of the charge is to deter parking for longer than the time paid for. Accordingly, I am not satisfied that the charge can be commercially justified".

In another recently upheld POPLA appeal, Marina Kapour did not accept a submission by the operator that the inclusion of costs which were made up of general business costs was commercially justified. She said:

"the whole business model of an operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre estimate of loss in order to be enforceable against the appellant".

The same applies in my case, and POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and can be neither be commercially justified or proved to be a genuine pre estimate of loss and I respectfully request that my appeal be upheld and the charge dismissed.

3.
The Operator does not own the land in question and have provided no evidence that they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary or agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I require that they provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).

In order to comply with the BPA code of practice, this contract must specifically grant the Operator the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons;

a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract nor that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practice to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.

b) In POPLA case 1771073004, it was ruled that a witness statement was 'not valid evidence'. If the Operator provide a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.

Even if a basic contract is produced that mentions parking charge notices, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.

I would remind the Operator of their obligation to provide the Appellant with a copy of any evidence provided to POPLA as requested sent with sufficient time for consideration and rebuttal.

4.
A charge of £1.50 for a debit card payment is a clear breach of recent legislation under the Consumer Rights (Payment Surcharges) Regulations 2012.

Is that a bit closer to the real thing.. as it should be send?

Dee140157

Perhaps just a little rewording of point one to fit in with language of rest of appeal

The Notice to Keeper fails to establish 'keeper liability' under PoFA 2012. As the current keeper I purchased the car vehicle registration ....... on xx/xx/xx, at xx.xxpm. The PCN was issued at xx.xx.pm. At this time I was not the keeper of the car concerned. DVLA can confirm that the vehicle changed hands on that day.

You also need a point about non-compliant signage. Always put that into an appeal. The onus is on the PPC to prove it is compliant .

Dee140157

Also taken from another couple of appeals how about the following points:

No Creditor identified on the Notice to Appellant
Failing to include specific identification as to who ‘the Creditor’ may be is misleading and not compliant in regard to paragraph 9(2)(h) of Schedule 4 of the Protection of Freedoms Act 2012. Whilst the Notice has indicated that the operator requires a payment to Athena ANPR, there is no specific identification of the Creditor who may, in law, be Athena ANPR or some other party. The Protection of Freedoms Act requires a Notice to Appellant to have words to the effect that ‘The Creditor is…’ and the Notice does not.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

Or perhaps this

On the date in question the vehicle was parked with a permit which was displayed on the windscreen. Their rejection of my appeal claims that no permission was displayed yet CPM fail to send any photographic evidence that this was not the case.

And for the GPEOL his long passage, some of which you have, but part of which refers specifically to CPM. The opening paragraph is particularly relevant to you.

2) The Operator has attempted to avoid the necessity of having to justify a pre estimate of loss by stating that this is a contractually agreed fee on their signage. However on both the parking charge notice (which is described as exactly that, NOT an invoice for an agreed fee) and the rejection letter to my appeal they state that I was "in contravention" of and "have breached" the terms and conditions of parking. In addition, the wording on their sign also states that "unauthorised parking may result in your vehicle being issued with a parking charge notice". The charge must be either for damages or a fee paid for parking (consideration) it cannot be for both and in order for it to be consideration, it would have to mean that the driver was given permission to park provided they paid a fee but clearly permission to "park in breach" cannot be granted and I therefore submit that it is clear that the amount sought is for those who are parked in breach and that the amount represents liquidated damages which is compensation agreed in advance.

I would like to highlight a similar appeal against CPM where POPLA assessor Marina Kapour found that "The charge must either be for damages as submitted by the Appellant, or for consideration - the price paid for the parking as submitted by the Operator. In order for the charge to be consideration, the parking charge must be paid in return for something, here permission to park beyond the permitted stay. In other words, the sign must permit the motorist to park beyond the maximum stay provided he or she pay the charge. Clearly, permission to park 'in breach' is not granted, and so the parking charge cannot be a contractual price. Instead, it is clear that the charge is in fact a sum sought as damages, and therefore must be a genuine pre estimate of the loss which may be caused by the parking breach. I find it seems clear that the signs in this car park do not give permission to park in return for the parking charge and so it cannot be consideration".

Christopher Adamson stated in a POPLA appeal against VCS Ltd that ''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”. This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonable moved away from a strict interpretation of what constitutes a genuine pre estimate of loss, recognising that in complex commercial situations an accurate pre estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive. In this case it is clear that the dominant purpose of the charge is to deter parking for longer than the time paid for. Accordingly, I am not satisfied that the charge can be commercially justified". In this case, the sole purpose of the charge is to deter unauthorised parking as per the wording on their signage and so the same must apply and this charge cannot be commercially justified.

The Office of Fair Trading has stated to the BPA that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. The BPA code of practise also states that a charge for breach must be based on the genuine pre estimate of loss and that if your parking charge is based on a contractually agreed sum, that charge cannot be punitive or unreasonable. In the case of Parking Eye v Smith in Manchester County Court December 2011, the Judge ruled that the only amount the Operator could claim is the amount that the Driver should have paid into the machine. In this case the vehicle was parked a FREE residents communal parking area and so no monetary loss occurred to either the Operator or to the Landowner. The operator will no doubt state that loss was incurred as a result of the appeals process after the parking charge notice was issued but in order for this to represent genuine pre estimate of loss, they must first show that they incurred a loss as a direct result of the alleged breach. Where initial loss is directly caused by the alleged breach, this loss would be obvious i.e an amount which should have been paid into a machine. This initial loss is fundamental and without it, costs incurred subsequently cannot be reasonably claimed to have been caused by the breach. I therefore require the Operator to submit a full breakdown of their genuine pre estimate of loss as to how this loss was calculated in this particular parking area and for this particular alleged breach. I would also refer them to the Unfair Terms in Consumer Contract Regulations, where it states that parking charges for breach on private land must not exceed the cost to the Landowner during the time the Motorist is parked there and remind them that the amount in this case is nothing.

In the case of Dunlop Pneumatic Tyre co v New Garage Motor co (1915), Lord Dunedin stated 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" and "there is an assumption that it is penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage". As the charge in this case is the same whether the vehicle is parked for 10 minutes of for 24 hours and the charge is the same for any alleged contravention, it is clear that this is punitive and that no consideration has been given to calculating a genuine pre estimate of loss in this case.

Operational business costs cannot possibly flow as a direct result of any breach as the operator would be in the same position whether or not any breaches occur. In another recently upheld POPLA appeal, Marina Kapour did not accept a submission by the operator that the inclusion of costs which were made up of general business costs was commercially justified. She said "the whole business model of an operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre estimate of loss in order to be enforceable against the appellant.

The same applies in my case, and POPLA must show consistency where similar agreements are raised by appellants. The amount of £100 demanded is punitive and unreasonable and can neither be commercially justified or proved to be a genuine pre estimate of loss and I respectfully request that my appeal be upheld and the charge dismissed.

ColliesCarer

For an appeal against UKCPM, you will need to include a challenge that the charge is not a contractual fee but is a disguised breach - see the wording in point 1) a) in the POPLA appeal I gave you the link to in post #12

Here is the link again

https://forums.moneysavingexpert.com/discussion/comment/65848442#Comment_65848442

Also you need to put headings on the detailed points - use the same ones you have included in your numbered list.

p.s. also take the point I've quoted below out - POPLA won't care


4.
A charge of £1.50 for a debit card payment is a clear breach of recent legislation under the Consumer Rights (Payment Surcharges) Regulations 2012.

SirSiekier

There is small problem... on the picture its showing the signage next to the car... So is that still the case to put that point in my appeal...

btw...
i update the note you gave me. Thank you.