Uk cmp ltd ticket

Dee140157

Can you upload the picture to tinypic.com then when you get a URL for it, post it here with a gap between the http:// and the rest of it and one of us will do the rest.

Mighty_Atom

Thanks Dee140157, will have a go (probably tomorrow!)

Umkomaas

It goes on to say that "with regards to the fee, it is a pre-estimate of loss....attendant patrols/maintenance of motor equipment/PCN processing..".etc (I can give the full wording if wanted).

POPLA suicide for UKCPM - provided you get the right form of GPEOL words in your appeal

Mighty_Atom

http:// i1369.photobucket.com/albums/ag227/mattyhenno/photo2_zpsb98bee88.jpg

Here (hopefully) is the photo of the Parking Sign. I'm still composing my reply - will put it on here soon and would be grateful if someone could check it/help!

Dee140157

http://i1369.photobucket.com/albums/ag227/mattyhenno/photo2_zpsb98bee88.jpg

Dee140157

There are those magic words contractually agreeing.

You need to use a template similar to this one for the contractually agreeing part of the appeal.

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

Some of the points will need a tweak to make it relevant to you, but it will be a good start.

Mighty_Atom

[FONT=&quot]Thanks for that Dee140157 - that is the letter I had been looking at and amending today (to reflect my circumstances). I have enclosed my draft letter. I also looked at a template letter by "coupon mad" and have used a part of that too. I have made no mention of the parking circumstances of my case (car parked in a lay-by where there were no yellow lines) don't really know whether it is relevant. Would be so grateful for advice from the extremely kind "experts" and hope someone will check the letter and give me their views. Many thanks from a complete novice.
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[FONT=&quot]Dear POPLA Assessor,

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

I am the registered keeper and I wish to appeal this charge on the following grounds:

1. No Genuine Pre Estimate of Loss
2. Contract with Landowner
3. Misleading Signage[/FONT]
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1. a) The Charge is not a contractual fee – it is a disguised breach
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 Notice to Keeper and the rejection letter to my appeal the Operator states respectively that the charge is for “being in contravention of” and "breaching" 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 permission to park without a permit was given providing a fee was paid. Clearly permission to "park in breach" cannot be granted and I therefore submit that it is clear that the amount sought is for parking 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 one for damages as submitted by the Appellant, or 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 pays 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".

I would also highlight POPLA appeal reference 9663053967 where an initially refused appeal against the same Operator who again, made the same attempt to describe the charge as a contractually agreed fee on their signage was allowed by the Lead Adjudicator. It was found that the charge was a penalty and as such was not a genuine pre estimate of loss. I contend that 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 but is a disguised breach and must be shown to be a genuine pre estimate of loss to be enforceable.

b) The Charge is Not a Genuine Pre Estimate of Loss
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.

On the day in question there was neither damage nor obstruction caused (nor is any being alleged) and I therefore contend there was no loss caused to either the Operator, or the landowner, by any alleged breach.

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 reasonably 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 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.

2. Contract with Landowner
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 nor 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 or 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 provides 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.[/FONT]
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[FONT=&quot]3. Misleading Signs[/FONT][FONT=&quot]
Terms are only imported into a contract if they are clear and so prominent that the party 'must' have known of it and agreed. The terms are misleading, with wording that dresses up the charge as a 'contractual' fee. It is not; see point 1 a). [/FONT][FONT=&quot]

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[FONT=&quot]There was no agreement to pay. No consideration/acceptance flowed - so no contract exists. [/FONT][FONT=&quot]

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[FONT=&quot]The sign and the Notice to Keeper are ambiguous and contradictory. On the Notice to Keeper the sum is stated as a 'contravention' for 'breaching the terms and conditions' yet the sign misleadingly alleges a 'contractual' sum. If so, there would be a payment mechanism and a VAT invoice. There is none. This is not a transparent contract and is a disguised penalty. Terms must be clear otherwise under the doctrine of contra proferentem, the interpretation that favours the consumer applies.[/FONT][FONT=&quot]

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[FONT=&quot]In conclusion, I request that my appeal be upheld and the charge dismissed.
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Umkomaas

How can 'Unauthorised Parking' be a contractual agreement - agreeing to something you are not allowed to do. Complete BS!

If they are offering parking at £100, then that must surely be authorised? How can it not be?

Rectum and vanishing act spring to mind. :cool:

Coupon-mad

Re the signs being stuck on a corner of a wall and no lines being on the road in a lay-by which is, to any reasonable person, a place to park a car. If you have not sent the POPLA appeal yet you could beef up the signage section as shown below. If you've sent it already, wait for UKCPM to email/post you the evidence, as they have to before the decision is made, and then very quickly, email POPLA with your final word about signs and rebutting anything else silly they try to say:



3. Misleading Signs
Terms are only imported into a contract if they are clear and so prominent that the party 'must' have known of it and agreed. The terms are misleading, with wording that dresses up the charge as a 'contractual' fee. It is not; see point 1 a).

There was no agreement to pay. No consideration/acceptance flowed to and 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 'customers' of UKCPM and not expecting to read a contract when they park in an unmarked lay-by. It would be necessary for any signs at the lay-by to be so prominent that the terms must have been seen/accepted by the driver. That is not the case - there were not even any yellow lines to alert a person to read a sign on a corner wall, a sign which would otherwise be overlooked as perhaps, information about house/flat numbers, info about communal bins etc., general signs that one sees at any private housing estate (and does not stop to read).

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.'

The signs there now (which could have just been added because the area has only just been finished and landscaping etc was still being carried out when the driver parked) are certainly not 'startling'. Nor was there any lighting at night to illuminate the terms. The signs there now are few and far between, not at the roadside but stuck on walls on dark corners of the estate. The restrictions were not obvious and nor were the terms drawn to the driver's attention - and certainly not the risk of any hefty 'charge'.

The driver says that he doesn't even recall seeing any notices - without that, there is no contract at all. Pictures have been taken since the incident and whilst there are now some double yellow lines around the estate, these still do not extend INTO the lay-by, nor was there any 'no parking' sign at the lay-by itself. Why have a residential lay-by if it is not for parking, as any reasonable person would expect in the absence of visible signs at night?

The NTK shows 2 pitch black photos with just the numberplate illuminated and you can't really make anything else out on the photographs. The sign and the Notice to Keeper are ambiguous and contradictory. On the Notice to Keeper the sum is stated as a 'contravention' for 'breaching the terms and conditions' yet the sign misleadingly alleges a 'contractual' sum. If so, there would be a payment mechanism and a VAT invoice. There is none. This is not a transparent contract and is a disguised penalty. Terms must be clear otherwise under the doctrine of contra proferentem, the interpretation that favours the consumer applies.

In conclusion, I request that my appeal be upheld and the charge dismissed.[FONT=&quot]
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Mighty_Atom

Ah coupon-mad, that's brilliant; I haven't sent the letter yet, so I'll add your paragraph. Extremely grateful for your help, you have put the details of my case in words so much better than I ever could! Have just pointed a work colleague to this website as she's also fighting a ticket (with a different parking company). I will let you know how I go on. A big thank you to all, I really can't praise you enough!