Appeal rejected by PCN Mgt - IAS??

mikeb2_2

Hi

Went back to my PCM rejection letter where they insisted the matter was contractual, not gpeol. Didn't submit an elegant appeal to IAS, but juts tried to throw everything I had at them - submitted it in the evening of day 21, so close to the wire.

Received notification this morning (i.e. within 24 hours):

"Thank you for your recent appeal to the Independent Appeals Service (IAS).

We have received the outcome of your appeal and the IAS can inform you that your appeal has been successful. This means that Parking Control Management (UK) Ltd has cancelled the ticket with the details below"

:j


Thanks for the help... below is my diatribe - as I said, not elegant but it did work!!

Mike

There were no signs at the entrance to the business park to indicate that the property was subject to parking restrictions despite there being many obvious places to put such signage at the entrance.. The only signage was mounted on lamp posts parallel to the road and hence not clearly directed to drivers. A driver would have to be aware of their presence to notice them. The nearest sign to the site of the alleged offence was 60-80m distant and by their design it was not obvious they were related to parking.

Thus I dispute the fact that there was any contractual agreement as alleged by the operator. One has to agree explicitly to a contract one cannot be contracted in ignorance. Further, given PCM are not the owners of the land I do not see they have any right to enter into any such contract given they have provided no evidence of their right to do so.

At no point in the sign do Parking Control Management identify themselves as “the Creditor”. The sign neither communicates that the driver is entering into a contract nor committing trespass.
At no point have Parking Control Management provided any evidence that they have the permission of the land owner to provide the parking scheme.

I note also that the signage in use refers to the BPA rather than the IPC, which is inconsistent with PCM’s rejection of my appeal. Under which body is the operator?

In fact, on the site there were what appeared to be car parks, lengths of road marked with double yellow lines, and areas with no yellow lines. The driver of the car avoided the yellow lines and parked to avoid them on an unmarked length of road. It is normal practice that double yellow lines indicate areas where parking is prohibited, clearly implying areas without such lines permit parking.

The sign states that “failure to comply with the terms and conditions will result in a £100 parking charge notice”. This implies that if the driver uses the land other than in accordance with the terms and conditions then they are subject to a fixed fee. My understanding is that under the Code of Practice, this fee must then be based on a “genuine pre-estimate of loss”. In their reply to the initial appeal, the PCM Appeals Team state that “the driver had clearly entered into a contractual obligation”. In fact this is not the case - the only sign mentioning any restrictions/charge is an old BPA signs where PCM used to charge for 'breaches of contract' and they have not updated their signs at all. As such, they have not created a contractual fee situation in the car park so the driver has not entered into any contract to pay a 'contractual fee' to be allowed to park as an 'unauthorised' driver - in fact the sign disallows unauthorised parking.

Thus, the amount demanded is a penalty and not a Genuine Pre-estimate of loss. The charge has been given under the understanding that the signs were noted and an offense still committed. The legal wordings on the signs does not state the nature of the charge but as they are for “parking within the area without a Dart Parking Permit”. They must fall under a penalty and not a genuine pre-estimate of loss.

Therefore the parking charge does not represent a genuine pre-estimate of loss and is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. Parking charges cannot include business costs which would occur whether or not the alleged contravention took place. The amount claimed is excessive and is being enforced as a penalty for “breach of contract” and is not a genuine pre-estimate of loss. I would like PCM to supply a breakdown of the cost calculations relating to this charge; given all of the costs must represent a loss resulting from the alleged breach at the time.

In a case in June 2014 POPLA Assessor Chris Adamson stated that:
"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.

Given PCM signage linking to BPA, I note that 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.
19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable."
POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same. The estimate must be based upon loss flowing from a breach of the parking terms, and in this instance I cannot see how a solitary out of the way bike resulted in any loss. As NPE are charging me for a 'breach of contract' I would like them to show what the "genuine pre-estimate of loss" is and prove this is the case rather than a deterrent method to prevent a breach occurring in the first place, if they cannot then under the BPA Code of Practice, the charge is excessive and unenforceable.
The Notice to Keeper does not comply with the Protection of Freedoms Act 2012, Schedule 4. Instead of *inviting* the keeper to pay the charges or name the driver as set out in paragraph 8(2)(e), the Notice to Keeper states that the keeper is *required* to do so. The Notice to Keeper does not specify that it is the driver who should pay the sum as required under paragraph 8(2)(b).

Coupon-mad

Nice one - and I love the fact you even quoted POPLA stuff and BPA CoP which must have wound them up. I am wondering is IAS are always currently upholding appeals made where PCM haven't yet updated their signs.

It would need a brave person to test it by just appealing at both stages, saying 'PCM have only got old BPA signs up so these are not capable of creating a contractual fee/tariff scenario'. Or summat like that.