CPMS POPLA appeal

MrManc

I received a PCN ticket on the windscreen of my car from CPMS (Car Parking Management Services) whilst parking in a friends building, in a allocated bay (my friend said it was not used and tickets aren't issued). The PCN was for £100, or £60 if paid within 28 days.

I sent off a template appeal via email from the newbie thread as we have recently moved, and I haven't updated my car registration yet, so didn't want the NTK going to my old address.

I received a rejection of my appeal today, please see below:

Dear Sir/Madam,
Re: Parking Charge Notice Number XXX (Vehicle: XXX)
Site: XXXX
Issue date: 07/06/2014
Thank you for your appeal received on 10/06/2014 regarding the above detailed Parking Charge Notice. We have
reviewed the case and considered the comments that you have made. This appeal has been considered in
conjunction with the evidence gathered by the parking attendant. Our records show that the notice was correctly
issued as your vehicle was parked in breach of the Terms and Conditions of Parking.
We are therefore unable to cancel the Parking Charge Notice as it was issued correctly. We have now extended
the discounted payment period by 14 days to allow you time to pay the discounted settlement amount. Please
now make payment of £60 to reach us by 30/06/2014 or £100 to reach us by 14/07/2014. We must advise you
that once the discounted settlement rate passes it will not be offered again.

Signs clearly state allocated parking only. May we also point out that nowhere on our signs does it make any
mention of pre estimate of loss.
Payments can be made by cheque or postal order made payable to Car Park Management Services. Please
ensure you write your Parking Charge Notice number clearly on the reverse. Please do not send cash through the
post. Payment can be made using a debit or credit card by calling the automated payment line on 0844 848 1410.
If you are unsatisfied with the outcome of this appeal, you may appeal to Parking On Private Land
Appeals (POPLA) by letter to:- POPLA , P O Box 70748, London, EC1P1SN or via e-mail -
appeals@popla.org.uk. Unique reference number - XXX

Yours sincerely,
Appeals Department
Car Park Management Services


I have checked the POPLA code and can confirm it is valid and generated on 16/6 with an appeal deadline of 14/7.

I'm a complete newbie to this, i'd really appreciate it of you could provide me some guidance with my POPLA appeal:

POPLA ********

Parking Charge date: *****
Car Registration: *****
Parking Charge Number: **********
Issuing Company: *********
Date of appeal rejection letter from CPMS: *******

I am the keeper of this vehicle and this is my appeal.
On the above date, the quoted PCN was issued quoting “Allocated parking only”. This charge has been contested directly with CPMS and rejected with a valid POPLA code.
I contest the charge and request it is dismissed on the following grounds:
1. No Genuine Pre-estimate of loss
2. The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver.
3. Lack of standing/authority from landowner
4. Unreasonable/Unfair Terms

1) NO GENUINE PRE-ESTIMATE OF LOSS.
The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could possibly have been suffered by the Landowner or the Operator. A CPMS sign states that a PCN would be issued for a “failure to comply” with the terms of parking, which indicates that the parking charge represents damages for a breach of the parking contract. Accordingly, the parking charge must be a genuine pre-estimate of loss. CPMS has not provided any evidence as to how and why the parking charge is a genuine pre-estimate of loss. Therefore the parking charge is punitive and an unenforceable penalty charge.

I put CPMS to strict proof that that their charge represents a genuine pre-estimate of loss. To date CPMS have refused to provide me with a detailed breakdown of how the amount of the “charge” was calculated in the form of documented, specific evidence applicable to this car park and this alleged incident. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business For example, were no breach to have occurred then the cost of parking enforcement (for example, wages, uniforms, signage, office costs) would still have been the same.

CPMS have helped prove my point by effectively confirming that their £100 charge cannot possibly represent a genuine pre-estimate of any loss caused by the parking event. In their rejection letter with the POPLA code, CPMS have varied their 'loss' claim massively, from £100 down to an accepted sum' of £60. Failure to pay the reduced fee, or to appeal to POPLA, would see the “charge” return to the full amount of £100. CPMS must explain in their evidence for POPLA, how a loss amount apparently flowing from a specific parking incident can suddenly be slashed, then leap back to £100. I put CPMS to strict proof otherwise.

The Department for Transport guidelines state that: "Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver." In the Office of Fair Trading information to the BPA about parking charges: ''The OFT expressed the view that a parking charge will not automatically be recoverable, simply because it is stated to be a parking charge. It cannot be used to create a loss where none exists.” The BPA Code of Practice states: “19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.

I put it to CPMS to prove that a loss has occurred at the time that this charge was levied and that the charge is a genuine pre-estimate of loss. I also request that careful consideration of CPMS’s own photographic evidence does indeed show that the car park in question was not full at this time or in any substantial use.

2) The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver.

Due to their high position, overall small size and the barely legible size of the small print, the signs in this car park are very hard to read, and do not provide any light. (see attached photo as provided by UKPC). I contend that the signs and any core parking terms the operator are relying upon were too small to see, read, understand or see during early hours or evenings.

I require that the Operator's provides documentary evidence and signage map/photos on this point, lighting at night, colours used in cases of driver colour blindness and compare the signs to the BPA Code of Practice requirements. I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach.


3) Lack of standing/authority from landowner
CPMS has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.
BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put CPMS to strict proof of the contract terms with the actual landowner (not a lessee or agent). CPMS have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that CPMS are entitled to pursue these charges in their own right.
I require CPMS to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

I would also contend that the lease/agreement the resident has overrides any attempt at a contract foisted upon them by a non-owner third party, especially when said resident holds a valid permit to park. I put it to CPMS to show evidence of such a contract with the landowner, to prove the resulting loss and to also make evident that their employee was NOT being unreasonable at this time.


4) Unreasonable/Unfair Terms
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

An unlit sign of terms placed to high to read, is far from 'transparent'.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

I contend it is wholly unreasonable to rely on unlit signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described and with their utter lie about the keeper's right to appeal 'only if the car is stolen' in mind, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

I therefore respectfully request that my appeal is upheld and the charge is dismissed.

Coupon-mad

(see attached photo as provided by UKPC).

You need to change the above! But the rest looks fine although I have only skim-read it.

bazster

Ah yes, CPMS Manchester. There's no such company, it's a sole trader, and it seems he's continuing to break the law by failing to declare his real name on his paperwork, and he's continuing to pretend to enter into contracts in the name of a legal entity which doesn't exist.

Up to you whether you put this in your appeal (if it were my appeal it would be the ONLY point) but it merits complaints to BPA Ltd., DVLA and Trading Standards.

MrManc

Ah, thanks for that, I've removed any reference to UKPC now, and amended the wording as I haven't had any photos from CPMS. I'd be very grateful if you could review this again before I launch my appeal.

POPLA ********

Parking Charge date: *****
Car Registration: *****
Parking Charge Number: **********
Issuing Company: *********
Date of appeal rejection letter from CPMS: *******

I am the keeper of this vehicle and this is my appeal.
On the above date, the quoted PCN was issued quoting “Allocated parking only”. This charge has been contested directly with CPMS and rejected with a valid POPLA code.
I contest the charge and request it is dismissed on the following grounds:
1. No Genuine Pre-estimate of loss
2. The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver.
3. Lack of standing/authority from landowner
4. Unreasonable/Unfair Terms

1) NO GENUINE PRE-ESTIMATE OF LOSS.
The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could possibly have been suffered by the Landowner or the Operator. A CPMS sign states that a PCN would be issued for a “failure to comply” with the terms of parking, which indicates that the parking charge represents damages for a breach of the parking contract. Accordingly, the parking charge must be a genuine pre-estimate of loss. CPMS has not provided any evidence as to how and why the parking charge is a genuine pre-estimate of loss. Therefore the parking charge is punitive and an unenforceable penalty charge.

I put CPMS to strict proof that that their charge represents a genuine pre-estimate of loss. To date CPMS have refused to provide me with a detailed breakdown of how the amount of the “charge” was calculated in the form of documented, specific evidence applicable to this car park and this alleged incident. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business For example, were no breach to have occurred then the cost of parking enforcement (for example, wages, uniforms, signage, office costs) would still have been the same.

CPMS have helped prove my point by effectively confirming that their £100 charge cannot possibly represent a genuine pre-estimate of any loss caused by the parking event. In their rejection letter with the POPLA code, CPMS have varied their 'loss' claim massively, from £100 down to an accepted sum' of £60. Failure to pay the reduced fee, or to appeal to POPLA, would see the “charge” return to the full amount of £100. CPMS must explain in their evidence for POPLA, how a loss amount apparently flowing from a specific parking incident can suddenly be slashed, then leap back to £100. I put CPMS to strict proof otherwise.

The Department for Transport guidelines state that: "Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver." In the Office of Fair Trading information to the BPA about parking charges: ''The OFT expressed the view that a parking charge will not automatically be recoverable, simply because it is stated to be a parking charge. It cannot be used to create a loss where none exists.” The BPA Code of Practice states: “19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.

I put it to CPMS to prove that a loss has occurred at the time that this charge was levied and that the charge is a genuine pre-estimate of loss. The car park in question was not full at this time or in any substantial use.

2) The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver.

Due to their high position, overall small size and the barely legible size of the small print, the signs in this car park are very hard to read, and do not provide any light. . I contend that the signs and any core parking terms the operator are relying upon were too small to see, read, understand or see during early hours or evenings.

I require that the Operator's provides documentary evidence and signage map/photos on this point, lighting at night, colours used in cases of driver colour blindness and compare the signs to the BPA Code of Practice requirements. I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach.


3) Lack of standing/authority from landowner
CPMS has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.
BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put CPMS to strict proof of the contract terms with the actual landowner (not a lessee or agent). CPMS have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that CPMS are entitled to pursue these charges in their own right.
I require CPMS to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

I would also contend that the lease/agreement the resident has overrides any attempt at a contract foisted upon them by a non-owner third party, especially when said resident holds a valid permit to park. I put it to CPMS to show evidence of such a contract with the landowner, to prove the resulting loss and to also make evident that their employee was NOT being unreasonable at this time.


4) Unreasonable/Unfair Terms
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

An unlit sign of terms placed to high to read, is far from 'transparent'.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

I contend it is wholly unreasonable to rely on unlit signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described and with their utter lie about the keeper's right to appeal 'only if the car is stolen' in mind, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

I therefore respectfully request that my appeal is upheld and the charge is dismissed.

MrManc

Bazster, do you have any links to any examples of where people have used this in their appeals before? The more chance of my appeal winning the better

bazster

Quicker just to write it than to dig up examples:

CPMS appears to be neither a limited company nor a limited liability partnership, and in fact seems to be a sole trader. For the avoidance of confusion there is a Car Parking Management Services Ltd. registered at Companies house but it's in liquidation and I believe has no connection with this operator.

CPMS cannot enter into a contract because there is no such legal entity. A sole trader can only enter into a contract in his real name, yet no such name was shown on the signage at the car park therefore there can be no contract.

I also put CPMS to strict proof that there is a valid contract with the landowner in the trader's legal name and not merely in a trading name.

A sole trader is required by law to show his real name on all his official business paperwork, but there is nothing to that effect on any papers received by me from CPMS. Accordingly I have been served with no lawful or valid notices, and all materials submitted by CPMS to PoPLA will be invalid and worthless unless they identify the true legal name.

MrManc

Thanks bazster, I've added this as point number 1.

Does this look good to send off now?

POPLA ********

Parking Charge date: *****
Car Registration: *****
Parking Charge Number: **********
Issuing Company: *********
Date of appeal rejection letter from CPMS: *******

I am the keeper of this vehicle and this is my appeal.
On the above date, the quoted PCN was issued quoting “Allocated parking only”. This charge has been contested directly with CPMS and rejected with a valid POPLA code.
I contest the charge and request it is dismissed on the following grounds:

1. CPMS appears to be neither a limited company nor a limited liability partnership, and in fact seems to be a sole trader
2. No Genuine Pre-estimate of loss
3. The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver.
4. Lack of standing/authority from landowner
5. Unreasonable/Unfair Terms


1) CPMS appears to be neither a limited company nor a limited liability partnership, and in fact seems to be a sole trader. For the avoidance of confusion there is a Car Parking Management Services Ltd. registered at Companies house but it's in liquidation and I believe has no connection with this operator.

CPMS cannot enter into a contract because there is no such legal entity. A sole trader can only enter into a contract in his real name, yet no such name was shown on the signage at the car park therefore there can be no contract.

I also put CPMS to strict proof that there is a valid contract with the landowner in the trader's legal name and not merely in a trading name.

A sole trader is required by law to show his real name on all his official business paperwork, but there is nothing to that effect on any papers received by me from CPMS. Accordingly I have been served with no lawful or valid notices, and all materials submitted by CPMS to PoPLA will be invalid and worthless unless they identify the true legal name.

2) NO GENUINE PRE-ESTIMATE OF LOSS.
The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could possibly have been suffered by the Landowner or the Operator. A CPMS sign states that a PCN would be issued for a “failure to comply” with the terms of parking, which indicates that the parking charge represents damages for a breach of the parking contract. Accordingly, the parking charge must be a genuine pre-estimate of loss. CPMS has not provided any evidence as to how and why the parking charge is a genuine pre-estimate of loss. Therefore the parking charge is punitive and an unenforceable penalty charge.

I put CPMS to strict proof that that their charge represents a genuine pre-estimate of loss. To date CPMS have refused to provide me with a detailed breakdown of how the amount of the “charge” was calculated in the form of documented, specific evidence applicable to this car park and this alleged incident. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business For example, were no breach to have occurred then the cost of parking enforcement (for example, wages, uniforms, signage, office costs) would still have been the same.

CPMS have helped prove my point by effectively confirming that their £100 charge cannot possibly represent a genuine pre-estimate of any loss caused by the parking event. In their rejection letter with the POPLA code, CPMS have varied their 'loss' claim massively, from £100 down to an accepted sum' of £60. Failure to pay the reduced fee, or to appeal to POPLA, would see the “charge” return to the full amount of £100. CPMS must explain in their evidence for POPLA, how a loss amount apparently flowing from a specific parking incident can suddenly be slashed, then leap back to £100. I put CPMS to strict proof otherwise.

The Department for Transport guidelines state that: "Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver." In the Office of Fair Trading information to the BPA about parking charges: ''The OFT expressed the view that a parking charge will not automatically be recoverable, simply because it is stated to be a parking charge. It cannot be used to create a loss where none exists.” The BPA Code of Practice states: “19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.

I put it to CPMS to prove that a loss has occurred at the time that this charge was levied and that the charge is a genuine pre-estimate of loss. The car park in question was not full at this time or in any substantial use.

3) The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver.

Due to their high position, overall small size and the barely legible size of the small print, the signs in this car park are very hard to read, and do not provide any light. . I contend that the signs and any core parking terms the operator are relying upon were too small to see, read, understand or see during early hours or evenings.

I require that the Operator's provides documentary evidence and signage map/photos on this point, lighting at night, colours used in cases of driver colour blindness and compare the signs to the BPA Code of Practice requirements. I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach.


4) Lack of standing/authority from landowner
CPMS has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.
BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put CPMS to strict proof of the contract terms with the actual landowner (not a lessee or agent). CPMS have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that CPMS are entitled to pursue these charges in their own right.
I require CPMS to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

I would also contend that the lease/agreement the resident has overrides any attempt at a contract foisted upon them by a non-owner third party, especially when said resident holds a valid permit to park. I put it to CPMS to show evidence of such a contract with the landowner, to prove the resulting loss and to also make evident that their employee was NOT being unreasonable at this time.


5) Unreasonable/Unfair Terms
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

An unlit sign of terms placed to high to read, is far from 'transparent'.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

I contend it is wholly unreasonable to rely on unlit signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described and with their utter lie about the keeper's right to appeal 'only if the car is stolen' in mind, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

I therefore respectfully request that my appeal is upheld and the charge is dismissed.

Dee140157

Looks good to go.

Umkomaas

You need headers to each of the appeal point sections to match (exactly) the bullet points at the opening of your appeal. Embolden them as a presentational point. Some sections (1 & 3) have no headers at all.

MrManc

Thanks I've amended this again, does this look good to go now?

POPLA ********

Parking Charge date: *****
Car Registration: *****
Parking Charge Number: **********
Issuing Company: *********
Date of appeal rejection letter from CPMS: *******

I am the keeper of this vehicle and this is my appeal.
On the above date, the quoted PCN was issued quoting “Allocated parking only”. This charge has been contested directly with CPMS and rejected with a valid POPLA code.
I contest the charge and request it is dismissed on the following grounds:

1. CPMS appears to be a sole trader
2. No Genuine Pre-estimate of loss
3. Unclear and non-compliant signage, forming no contract with drivers
4. Lack of standing/authority from landowner
5. Unreasonable/Unfair Terms


1) CPMS appears to be a sole trader

CPMS appears to be neither a limited company nor a limited liability partnership, and in fact seems to be a sole trader. For the avoidance of confusion there is a Car Parking Management Services Ltd. registered at Companies house but it's in liquidation and I believe has no connection with this operator.

CPMS cannot enter into a contract because there is no such legal entity. A sole trader can only enter into a contract in his real name, yet no such name was shown on the signage at the car park therefore there can be no contract.

I also put CPMS to strict proof that there is a valid contract with the landowner in the trader's legal name and not merely in a trading name.

A sole trader is required by law to show his real name on all his official business paperwork, but there is nothing to that effect on any papers received by me from CPMS. Accordingly I have been served with no lawful or valid notices, and all materials submitted by CPMS to PoPLA will be invalid and worthless unless they identify the true legal name.

2) No Genuine Pre-estimate of loss

The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could possibly have been suffered by the Landowner or the Operator. A CPMS sign states that a PCN would be issued for a “failure to comply” with the terms of parking, which indicates that the parking charge represents damages for a breach of the parking contract. Accordingly, the parking charge must be a genuine pre-estimate of loss. CPMS has not provided any evidence as to how and why the parking charge is a genuine pre-estimate of loss. Therefore the parking charge is punitive and an unenforceable penalty charge.

I put CPMS to strict proof that that their charge represents a genuine pre-estimate of loss. To date CPMS have refused to provide me with a detailed breakdown of how the amount of the “charge” was calculated in the form of documented, specific evidence applicable to this car park and this alleged incident. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business For example, were no breach to have occurred then the cost of parking enforcement (for example, wages, uniforms, signage, office costs) would still have been the same.

CPMS have helped prove my point by effectively confirming that their £100 charge cannot possibly represent a genuine pre-estimate of any loss caused by the parking event. In their rejection letter with the POPLA code, CPMS have varied their 'loss' claim massively, from £100 down to an accepted sum' of £60. Failure to pay the reduced fee, or to appeal to POPLA, would see the “charge” return to the full amount of £100. CPMS must explain in their evidence for POPLA, how a loss amount apparently flowing from a specific parking incident can suddenly be slashed, then leap back to £100. I put CPMS to strict proof otherwise.

The Department for Transport guidelines state that: "Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver." In the Office of Fair Trading information to the BPA about parking charges: ''The OFT expressed the view that a parking charge will not automatically be recoverable, simply because it is stated to be a parking charge. It cannot be used to create a loss where none exists.” The BPA Code of Practice states: “19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.

I put it to CPMS to prove that a loss has occurred at the time that this charge was levied and that the charge is a genuine pre-estimate of loss. The car park in question was not full at this time or in any substantial use.

3) Unclear and non-compliant signage, forming no contract with drivers.

The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver.

Due to their high position, overall small size and the barely legible size of the small print, the signs in this car park are very hard to read, and do not provide any light. . I contend that the signs and any core parking terms the operator are relying upon were too small to see, read, understand or see during early hours or evenings.

I require that the Operator's provides documentary evidence and signage map/photos on this point, lighting at night, colours used in cases of driver colour blindness and compare the signs to the BPA Code of Practice requirements. I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach.


4) Lack of standing/authority from landowner

CPMS has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.
BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put CPMS to strict proof of the contract terms with the actual landowner (not a lessee or agent). CPMS have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that CPMS are entitled to pursue these charges in their own right.
I require CPMS to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

I would also contend that the lease/agreement the resident has overrides any attempt at a contract foisted upon them by a non-owner third party, especially when said resident holds a valid permit to park. I put it to CPMS to show evidence of such a contract with the landowner, to prove the resulting loss and to also make evident that their employee was NOT being unreasonable at this time.


5) Unreasonable/Unfair Terms

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

An unlit sign of terms placed to high to read, is far from 'transparent'.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

I contend it is wholly unreasonable to rely on unlit signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described and with their utter lie about the keeper's right to appeal 'only if the car is stolen' in mind, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

I therefore respectfully request that my appeal is upheld and the charge is dismissed.

bazster

FYI CPMS has now been "outed" as one Lesley Cubbin of Wigan. Full address here:

http://forums.pepipoo.com/index.php?showtopic=91233&view=findpost&p=972423