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

NobleSX

I had taken what Edna had posted but not entirely. Here's my final attempt before I save it as a PDF for appeal tonight. I've included everything exactly as Edna typed particualrly in expanding point 3 into it's own piece:

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. Inadequate and insufficient signage (Please see attached file Sign1 and attachment Sign2)

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. 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

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”.



4. The Parking Charge does not represent a Genuine Pre-Estimate of Loss.

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,

Edna_Basher

Dee140157 wrote: »

Why not save the appeal as an image and upload as evidence then with all the other pieces of evidence? There is the option to upload jpegs etc as evidence. So simply say in box, appeal has been uploaded with the evidence .

If needs be upload as several images with page 1 / 2 etc on them as long as PCN number is on all pages.

Do you think that would work?

If the website allows, that would be a very good idea.

I agree with Dee140157 that you could do with more detail in your appeal, especially in your point 3) on GPEOL. I still think it would be a good idea to split this into two separate points:

3.a) Point out exactly how and why the signs fail to establish a contractual agreement for parking contrary to what was permitted by the signs. Your point about no VAT is a good one and should be retained; however, I think your appeal will be much stronger if you refer to the specific clauses in the signs, giving a step-by-step explanation as to why it is reasonable to infer that parking without a permit or outside of a marked bay can only be an act of trespass or a breach of contract. Please refer to my earlier post.

3.b) Having established that the parking charge could only have arisen from an alleged trespass or breach of contract, hit them with a full GPEOL argument.

Best of luck.

NobleSX

I will use the following picture attachments as NTK1, Sign1 & Sign2 as evidence:

http://i206.photobucket.com/albums/bb171/NobleSX/B2292C70-007D-455C-8C8F-8DC4FE52CEF3_zpstegjim5t.jpg

http://i206.photobucket.com/albums/bb171/NobleSX/IMG_0933_zps1b5e73bd.jpg

Notice the red ring around te NtK non-compliance for time period:
http://i206.photobucket.com/albums/bb171/NobleSX/NTK1edit_zps729751b0.jpg

Dee140157

Sorry, I can't add any more tonight, struggling to stay awake after long day at work.

Hopefully C-M will pop in later. I think you will be alright if you send tomorrow if I remember. Let her add her thoughts. You received rejection by email on Tuesday 19th. Day 21 is therefore Tuesday 9th . Definitely cutting it fine.

NobleSX

I've updated the appeal to include Edna's paragraphs for point 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

Reading it all back to myself again, I think I've copied all the advice from Edna, Dee and C-M into my appeal. If I'm missing anything specific, I can't see it.

NobleSX

Thanks. Much appreciated. For the timebeing I've converted it to PDF ready to fire.

Edna_Basher

Thanks, NobleSX.

As I was composing my last post, I see that you've beefed up the piece about demonstrating that the signs lead to trespass / breach rather than a contractual agreement where parking is outside of the list of permitted ways to park.

Hopefully, you're just about there. However, if you still have time I think it would be worthwhile adding more detail on GPEOL - you just can't be sure how fussy the IAS will be.

I'd certainly make specific mention of the Unfair Terms in Consumer Contracts Regulations 1999 upon which the requirement of GPEOL is based.

4consumerrights

@NobleSX - I haven't time to proof read or advise on your content of the appeal however the IAS appeal site only has a limited character count for appeals and you cannot copy and paste.

I would suggest that you submit a brief synopsis of each point you want to be considered and refer the Assessor to the full appeal which you can upload as a PDF attachment - make sure that it contains your details of course

NB PLEASE DO NOT SUBMIT YOUR APPEAL UNTIL YOU HAVE UPLOADED ALL THE DOCUMENTS AND EVIDENCE YOU WISH TO BE CONSIDERED OTHERWISE THEY WILL NOT BE CONSIDERED.

NobleSX

Thanks 4consumer. I've written the following brief comment in the field referencing my main points and the pdf attachment I made:

Dear Sir/Madam,

I wish to appeal the parking notice and have attached the PDF (titled: IAS Appeal.pdf) which contains my full appeal due to the limited word count within this comments field.

In brief I am appealing on the following points (again, which are fully explained in the pdf attachment along with other supporting attachments):

The Notice to Keeper is not compliant with the IPC Code of Practice or the POFA 2012;
Inadequate and insufficient signage;
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;
The parking charge does not represent a Genuine Pre-Estimate of Loss.

I have laid out my appeal fully in the attachments.

Kind regards,

******

---

*******

And here's my confirmation from the website:
http://i206.photobucket.com/albums/bb171/NobleSX/IASsubmission_zps8ba8af85.jpg

NobleSX

Edna, I made a few tweaks to the GPEOL point. Without copy/pasting the entire appeal again, here's the GPEOL point I tweaked:

4. The Parking Charge does not represent a Genuine Pre-Estimate of Loss.

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.
Specifically highlighting Unfair Terms in Consumer Contracts Regulations 1999 upon which the requirement of Genuine Pre-Estimate of Loss is based. There is no contract between Link Parking Ltd and the driver (or the registered keeper), and I consider this charge to be unfair and non-binding based on the Unfair Terms in Consumer Contracts Regulations 1999. There is a clear list of terms that apply:

2. (1) (e) Terms which have the object or effect of requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation.

5. (1) 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.

5. (2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

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.