Is this company classed as a small company in the flowchart?

Edna_Basher

NobleSX wrote: »

Any advice thankfully received.

Given how the IAS seem to expect everything to be spoon-fed to them, I think that it would be best to split the contents of your Point 2) into three separate sections:

2) Inadequate and Insufficient Signage
3) The intention of the signage to impose a charge for trespass and / or breach of contract, as opposed to being based upon a contractually-agreed sum
4) The Parking Charge does not represent a Genuine Pre-Estimate of Loss

Dee140157 has given you some good tips to beef up your points about inadequate and insufficient signage.

Here is a suggestion for Point 3) to add some more meat on to the contra proferentem bone.

“Even if the car park signs were capable of forming a binding contract with the driver (which I deny), it must be noted that there was no scope for the driver to negotiate the terms and conditions detailed on the signs. Accordingly, under the principle of contra proferentem, I am entitled to apply my own reasonable interpretation of their meaning.

The sign lists just three classes of vehicle where permission has been given to park i.e. vehicles parked fully within the confines of a marked bay and which display either;

• a valid blue badge
• a valid pay and display ticket
• a valid parking permit

The sign does not explicitly state that this list is non-exhaustive and it is therefore reasonable to infer that these are the only three classes of vehicle permitted to use the car park.

It therefore follows that parking otherwise than in accordance with "the above" (e.g. outside of the confines of a marked bay, or without displaying a valid blue badge, pay and display ticket or parking permit) is not permitted.

It is a basic rule of Contract Law that a valid contract cannot be formed in respect of a forbidden act. Therefore, parking otherwise than in accordance with “the above” can only be either an act of trespass or a breach of contract. In both of these cases, the Unfair Terms in Consumer Contracts Regulations 1999 dictate that the amount of the parking charge shall be limited to no more than the Genuine Pre-Estimate of Loss to the landholder arising from any act of trespass or breach of contract”.


This can lead you into Point 4), where you can pick a suitable GPEOL argument from the examples on this forum.

Dee140157

Just to remind you the clock is ticking on this one. You received rejection 19/08. That means appeal has to be in by 9th. And I would send it by 8 th to be absolutely sure. That gives you max 3 days left to get this sorted.

You need to get a wriggle on.

Coupon-mad

Was the rejection actually dated 19th August or earlier?

NobleSX

I can't copy/paste into the IAS comment box on their webform. Am I to rewrite the appeal all over again?

NobleSX

Sorry, I wasn't receiving notifications that poeple were posting replies to this (I originally was receiving them) so I thought I was on my own with this until just now.

As I believed this I had made the following appeal that I am about to send:

Dear Sir/Madam,

Vehicle Reg:
Date of Issue of Notice to Keeper:
Date of alleged parking event:
Reference of alleged PCN
Company in question:

On the above date, I (the registered keeper) received a letter alleging that a parking event had taken place.

I challenged this notice on a number of issues with Link Parking Ltd but I then received a rejection letter directing me to appeal to IAS.


1. Notice To Keeper is not compliant with IPC Code of Practice (COP)
(See Attached File NTK1)

At no point on the NtK is the 'period of parking' specified as a time period. Under Paragraph 8 (2)(a), it states that “The notice must – specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates”. Again, the IPC CoP raises this point under Part C, 3.1(h) in that the NtK must “Specify the period of parking and the time of the issue of the Notice to Driver”. The word 'and' shows the IPC intend that two distinct times must be shown. In the POFA 2012 Schedule 4, the 'period of parking' is a time that must be recorded and shown on a Notice to Driver (NtD) and a NtK. In practice it must be a period of time spanning several minutes and it is not enough for an Operator to use generic wording to the effect that this is just the 'period that preceded the NtD'.
In breach of the IPC CoP, and crucially in flagrant breach of paragraph 8 of Schedule 4 of the POFA 2012, the NTK makes no reference to an independent appeals process. There is nothing at all about how to appeal or the existence of an IAS appeal stage.


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

A) The Notice To Keeper (NTK) is not compliant as it did not contain required information on an appeals process.
I was NOT the driver at the time and therefore, the charge must be dismissed and the keeper appeal allowed.
C) The signage is not compliant as the wording to inform a driver of the details of a contract are illegibly small and beyond reasonable distance and angle from the road.



2. Signage (Please see attached file Sign1)

The sign says specifically 'Parking in this area is permitted for: vehicles displaying a valid disabled blue badge when parking fully within the confines of a marked disabled bay,
vehicles fully displaying a valid pay-and-display ticket and parked fully within the confines of a marked bay,
vehicles displaying a valid parking permit and parked fully within the confines of a marked parking bay'.
So those persons are the only ones to be offered the gift of parking 'in this area' - whatever that may mean. This 'charge' is not a pre-agreed term of any contract since it 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.

The sentence containing the amount of the contractual charge is not prominent (marked on attached file Sign1). Indeed in terms of size there are at least 5 other paragraphs of writing that are bigger than the line that contains the charge (marked on attached file Sign1).

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 or lighting.

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'.
The sign photographed as evidence for this appeal was high atop a post and was obtained by squeezing through parked cars, standing carefully on a fence with the camera at full zoom. In reality the sign is positioned so high and with text so small making it unreadable to a driver.
As suggested under Schedule 1 of the IPC CoP “The sign must be readable from far enough away so that drivers can read all of the Group A and Group B text without needing to look more than 10 degrees away from the road ahead”.



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. Link Parking 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 sincerely,

Dee140157

I know nothing about the website.

However looking on the IPC website it says

Make sure that you provide all of the information that is requested of you along with your contact details and ALL of the evidence you would like to rely on.
Alternatively you can lodge your appeal by downloading the appeal form, completing it, and emailing it, with all your evidence to contact@theipc.info.

So I would email it to them.

NobleSX

I am using https://www.theias.org website. I never even knew I could file the appeal to the IPC direct.

Dee140157

Ooh, your appeal looks very short. Have you compared it to the ones in the
IAS Decisions thread

https://forums.moneysavingexpert.com/discussion/5052217

Have you included Edna's thoughts?

At no point on the NtK is the 'period of parking' specified as a time period. Under Paragraph 8 (2)(a), it states that “The notice must – specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates”. Again, the IPC CoP raises this point under Part C, 3.1(h) in that the NtK must “Specify the period of parking and the time of the issue of the Notice to Driver”. The word 'and' shows the IPC intend that two distinct times must be shown. In the POFA 2012 Schedule 4, the 'period of parking' is a time that must be recorded and shown on a Notice to Driver (NtD) and a NtK. In practice it must be a period of time spanning several minutes and it is not enough for an Operator to use generic wording to the effect that this is just the 'period that preceded the NtD'.
In breach of the IPC CoP, and crucially in flagrant breach of paragraph 8 of Schedule 4 of the POFA 2012, the NTK makes no reference to an independent appeals process. There is nothing at all about how to appeal or the existence of an IAS appeal stage.

I would break the above paragraph into bullet points as it is very difficult to see how many things you are complaining about. 2/3/4?

Have you underlined the points on a copy of the NTK and lined the, to the points in your appeal.

We do want to help, but leaving it this late does not make life easy.

Dee140157

Let me check, I may have misread and erred in what I typed. So I think I may have given you the wrong advice on the email address, so hold your horses. It's trying to do things last minute for you!

Dee140157

They do I have a contact us page. Wing them an urgent email tomorrow morning if you can't get the appeal to upload through the site.

Don't know what else to suggest.