Ticket from PCM. Stage 2: IPC/IAS Appeal

Coupon-mad

So make the wording more like the re-write in the linked thread I mentioned in post #19, literally pulling the NTK apart, sentence by sentence. Show us your next draft and maybe we'll all have more time next week to confirm it's the best it can be.

altalib

Hi again all,

@CM/Dee: I was hoping you could help me out with my draft if you had some time please, so i can get this sent off.

Many Thanks in advance.

Dee140157

I thought we were. We can't help till we have seen it though.

altalib

Sorry, of course you are, but i'm kind of lost on what to pull and what not.

Dee140157

Start with the points C-m made in post 19.

Add in what Northlake said.

Look at the IAS Decisions thread and read all the winning appeals. Use anything from those that are relevant.

Your core winning point is that the NTK was just out of time for keeper liability as C-M has explained.

You need to really re draft. We were expecting the changes mentioned to be in the appeal.

Take one section at a time. The NTK section is IMO the most important one to get right .

altalib

PCN Number: XXXX
Date PCN Issued: XXXX

Dear Indepent Parking Committee,

I am the registered keeper of vehicle reg: XXXX and I contend that I am not liable for the parking charge. I wish to appeal against the notice issued by Parking Control Management UK Ltd. (PCM) on the following grounds:

1) Failure to Comply with the Protection of Freedoms Act (POFA 2012) Schedule 4 - so there is no keeper liability.
(see file attachment NtK 1)
Keeper liability for private parking charges depends upon the Operator fulfilling certain mandatory conditions:
''Right to claim unpaid parking charges from keeper of vehicle
4(1)The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.
(2)The right under this paragraph applies only if—
(a)the conditions specified in paragraphs 5, 6, 9, 11 and 12 (so far as applicable) are met.

6(1)The second condition is that the creditor (or a person acting for or on behalf of the creditor)—
(a)has given a notice to driver in accordance with paragraph 7,

The requirements of Schedule 4 are prescriptive and this Notice to Keeper (NTK) fails to meet the 'second condition' for keeper liability.

Firstly, the NtK fails to comply with Schedule 4 of the POFA 2012 Paragraph 9 –
(5)“The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.”

(6) “A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.”

As can be seen from the NTK the alleged offence took place on 13/08/2014, yet the NTK was posted on 27/08/2014. According to paragraph 5,” 14 days beginning with the day after that on which the specified period of parking ended.” would fall on the 27/08/2014 and is therefore deemed to be late as the earliest it could have arrived if posted on the 27/08/2014 is the next day. Therefore, any action against the keeper should be withdrawn.


Secondly, 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'. The IPC CoP requires an Operator to observe a parked vehicle, allowing a suitable grace period for a newly-arrived driver to read a sign. I have seen no evidence that the person ticketing that day waited even 5 seconds before issuing a NtD.

A 'specified period of parking' is a timed period which will always differ from the 'time of issue' in view of the time taken to input, print and then finally serve a NtD. It cannot be assumed that any unsaid 'period of parking' was compliant with the observation and grace period requirements of the IPC CoP and so I contend the generic wording on the NtK is unfair and unclear. The IPC requirement to record both timings would prevent the possibility of taking an immediate photo and issuing a NtD within the site grace period, for instance, whilst the driver was merely reading the signs and then obtaining the P&D ticket from a machine.


Additionally, the NtK does not stipulate the time and date when the original Notice to Driver was given. This is a stipulation under the PoFA 2012, paragraph 8 (2) (c) where it states that the notice “states that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7 (2)(b)(c)(f)”. To clarify, paragraph 7 (2)(f) states that the notice must “specify the time when the notice is given and the date”. Whilst the NtK does state the date and time of what they describe as the “unauthorised parking event”, at no point is there any indication of the time and date the Notice to Driver was given, which could even have been 24 hours later, for example, if a car remained there for a long period. Again, this point also fails to meet standards as set by the IPC CoP, specifically Part C, 3.1(h) where it states that the NtK must “Specify the period of parking and the time and issue of the Notice to Driver”. Again, this is not just about interpreting the IPC CoP, however, it is about statutory wording on a document. Where the Schedule says “The notice must'' then the text which follows is prescriptive and mandatory and is not open to interpretation nor any assumption of a time and date when the original NtD was given.

The above words prove that more than one time is required to be shown in a NtK. But in addition, the keeper must be informed of the specified sum that related to the specified parking period (i.e. the applicable tariff, not just the £100 'parking charge' which in fact can only arise straight after the issue of a Notice). The 'unpaid parking charges' in the Schedule are stated as those which remained unpaid on or before ('no later than') the time when the NtD was given so this is not the £100 which happens also to be described as a 'parking charge'. There is no ambiguity because the Schedule defines the time applicable - the parking charge that remains unpaid is the 'sum in the nature of a fee or tariff' which arose during the 'specified period of parking' and not following the issue of a NtD.


2) Inadequate and Lack of IAS Compliant Signage (see file attachments Signage 1 & 2, Rejection Letter 1 & 2 and Evidence 1 & 2)

The signage on entry to the land is improper and insufficient. As such, the requirements for forming a contract such as a meeting of minds, consideration, acceptance, and certainty of terms were not satisfied. Even if there was a contract, which is denied, then it is unfair under the Unfair Terms in Consumer Contracts Regulations (UTCCRs1999).

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”. After revisiting the site since receiving the NtK, signage on entry to the land does not meet this criteria.
The signage (Sign1) is written in capital letters. The British Dyslexia Association and Gov.uk state that “Avoid text in block capitals: this is much harder to read”. This means that the signage provided can be argued as not easily legible and can cause problems for any driver that has dyslexia.
Additionally, the IPC CoP states under Schedule 1 that signs should “include a minimum of one phrase from Group A”.To clarify this point, Group A phrases are stated as the following :
Pay and display [free for blue badge holders]
[x minutes/hours] free parking [for customers only]
Pay on exit
Pay [on foot/at machine] when leaving
Parking for [business name] customers only
Permit Holders Only
As can be seen in attachment Sign1, there is no Group A text on this signage.

Upon entering the location where the contravention took place, the road had no signs and lines visible from any of the parking bays so no driver could have been expected to have entered into any contract. There was one non-visible sign hidden behind a tree (see attached Evidence copies). This sign poorly position and in any case obstructed. Within the IAS CoP Schedule 1 – Signage it clearly states on page 25 signage should “Signs must, where practicable, be placed at the entrance to a site. Otherwise the signage within the site must be such that it is obivious to the motorist” and on page 27 [Other Signs (4)] “Be clearly legible and placed in such a position (or positions) such that a driver of a vehicle must be able to see them clearly upon entering the site or parking a vehicle within the site”. A lack of signage on a site is a breach of the IAS CoP requirements stated.

Furthermore, due to the positioning along with the overall minute size of text used, the signage is barely legible making it difficult to read and understand. On page 26 of IAS CoP it clearly states that “The signs must be readable from far enough away so that drivers can read the text without needing to look more than 10 degrees away from the road ahead” and on page 27 “The signs must be at a suitable height – is suggest that no part of the sign which contains relevant text should be over 6’’, or under 12’’, from the ground level. Such text must be of a size which is easily legible having regard to the location and in any event should not be less than 5mm in height” (see attached Signage copies). However, the signage location was not prominent.

In addition the terms are misleading with wording that dresses up the charge as a ‘contractual’ fee, which it is not, (see point a). The fact that the sign states “Retrospective evidence of authority to park will not be accepted”, confirming that the sign is setting out that one group of drivers are ‘authorised’ to park and the other group are not (those without a permit). Therefore, there is no consideration/acceptance flowing from PCM to the second group of drivers to form a contract. If a firm wanted to make an ‘offer to park’ by way of consideration to the second group they should word there signs along the lines of parking is allowed/authorised for everyone (without a permit or out of a bay) at a daily tariff rate of £100. One cannot contract to be allowed to do something the sign states as not ‘allowed/unauthorised’.

Similarly, the IAS CoP as on page 27 [Other Signs (5)] states that signs must “Have clear and unambiguous wording and be designed such as to leave the driver under no doubt that he is entering into a contract with the creditor or committing trespass as the case may be” (see attached Signage copies). The sign fails this requirement as there was no agreement to pay. This is a non-negotiated and unexpected third party ‘charge’ imposed upon legitimate motorists who are not ‘customers’ of PCM and not expecting to read a contract when they park in an unmarked parking bay by. It would seen/accepted by the driver. That it is not the case, the absence of signage and yellow lines to alert a driver to read a sign on a lamp post, which would otherwise be overlooked due to its hidden location clearly invite a driver to believe they can park there without restriction (see attached Evidence copies).

The signage is ambiguous and contradictory. In the Notice to Keeper (NTK) the sum is stated as a contravention for ‘breaching’ the terms and condition’s yet the sign misleadingly alleges a ‘contractual’ sum (see attached NTK copies). If so, there should be a payment mechanism and a VAT invoice. There is none. This is not a transparent contract and is disguised penalty. Terms must be clear otherwise under the doctrine of contra proferentem the interpretation that favours the consumer applies.

I request the IAS to check the PCM’s evidence and signage map/photos on this point and compare the signs to the IAS Code of Practice requirements. I contend the signs in place on this land do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]. All of the points mentioned clearly justify how PCM have failed to fulfil the IAS CoP requirements with regard to signage.

a) The Charge is Not a Contractual Fee – it is a disguised breach

PCM 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 NTK and the rejection letter to my appeal PCM states respectively that the charge is for ‘breaching’ the terms and conditions of parking (see attached NTK and Rejection Letter copies).

Additionally, 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 considered, 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.

3) No Contractual Agreement with the Driver

The sign at the location where the car was parked does not create a valid contract between the driver of the vehicle and the landowner whereby the driver agrees to pay £100 consideration for the privilege to park the car (see attached Signage copies). The signage quite clearly states that there is ‘No Unauthorized Parking’ and “Parking is permitted for: vehicles fully displaying a valid parking permit within the windscreen and parked within an area appropriate to that permit” (see attached Signage copies). This statement clearly indicates that there is no valid contract for the driver to enter into, since by definition they are not allowed to park without a permit. If a driver parks on the site without displaying a valid parking permit the driver is not permitted to park and by doing so is acting in breach of the contract for parking.

Therefore, any charges that arise from the wording should be treated as a penalty. To attempt to levy a charge of £100 in those circumstances is nothing more than an attempt to ‘fine’ the driver for parking on private land. The signage goes on to state that “By parking or remaining on the site otherwise than in accordance with the above you, the driver, are agreeing to follow the contractual terms”. Moreover, this involves agreeing to pay £100 consideration.

However, the wording does not suggest that a contract is being entered into by the driver, instead it is worded clearly as a threat that if a driver parks in that location without a valid parking permit then they will be subject to a penalty charge of £100. The wording is clearly intended as a deterrent and therefore any charges that flow from that wording should be treated as penalty irrespective of the attempt in the signage to disguise this as ‘consideration’ for the right to park. This interpretation of the signage is supporting the disproportionate and punitive size of the ‘charge’. To charge £100 in those circumstances is clearly not a reasonable charge for the privilege to park.

In order for the £100 parking charge to be a genuine offer to provide a parking service, then it should be made explicit in a prominent position at the top of the signage (IAS CoP: Schedule 5 – Parking Charges). Equal weight should be given to that offer of a parking service as is given in the notice about parking being permitted for permit holders. As this is not the case the only interpretation of the signage is that the landowner is trying to deter people from parking on that land with an enforceable threat of a punitive charge.

The driver parking in breach of contract only allows the landowner to claim for a genuine pre-estimate of loss. Therefore, PCM must prove the charge to be a genuine pre-estimate of loss. However, there is no loss from the contravention due to the location being close to empty with only four cars present (see attached Evidence copies). PCM cannot demonstrate any initial quantifiable loss.

The parking charge must be an estimate of likely loss from the alleged contravention in order to be enforceable. If there is an initial loss directly caused by a vehicle parked within the unmarked bay in breach of the conditions (e.g. Loss of revenue from not having a permit) this loss will be obvious. The initial loss is a fundamental aspect of a parking charge, without it costs incurred from issuing the charge cannot be proven to have been caused by the drivers alleged breach. PCM’s operational costs, tax deductible office functions, debt collection and other operations cannot flow as a direct consequence of this parking contravention. PCM would have been in the same position had the parking charge notice not been issued, along with the same business overheads even if no vehicles breached terms and conditions.

4) Contract with Landowner

PCM does not own the land and are assumed to be merely agents for the owner or legal occupier. In their NTK and in the rejection letter, PCM LTD has not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment for the title of the land in question. Within the IAS CoP Part B, paragraph 2.1 states the requirement of such an agreement.

I request that the IAS check whether PCM have provided a full copy of the actual contemporaneous, signed and dated contract with the landowner/occupier (not just a signed slip of paper saying it exists or someone has witnessed it) and check that it specifically enables this operator to pursue parking charges in their own name as creditor and through the court system. ‘Witness statements’ instead of relevant contract show 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 ‘loss’ calculations.

Furthermore, it would not serve to provide proof that the contract includes the necessary authority required by the IAS CoP to allow the operator to pursue charges in their own name as creditor and to enter into contracts with drivers. I say that any contract is not compliant with the requirements set out in the IAS Code of Practice.

I do not believe that the operator has the necessary legal capacity to enter into a contract with a driver of the vehicle parked in the lay-by or indeed the legal standing to allege a breach of contract. I refer the adjudicator to the recent appeal court decision in the case of the Vehicle Control Services (VCS) v HMRC (EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking charges. It was stated that “If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other they are damages they will not be”. The ruling of the Court was that “I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not considered moving from the landowner in return for the supply of parking services”.

In other words, they are not, as the operators assert’s, a contractual term. If they were a contractual term, they are not as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply and to account to HMRC for the VAT element of the charge. The appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator’s charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses asset as set out above.

More so, the signage present at the location relied upon to create a contract between the landowner and the driver does not identify PCM as the creditor for any charges that arise out of the contract or damages following a breach of contract. Therefore, PCM is unable to pursue this claim since they have not been identified as a creditor (IAS CoP, Part B, paragraph 1).

Northlakes

Before I saw your post I was looking at the transcript of the 'Toothbrush' case mentioned in the Wigan Gym threads.
VCS v Ibbitson 16th May 2012 County Court, S!!!!horpe.


Judge McIlwaine in page 8 Line 16 clearly refers in this case to the employee of the claimant (parking attendant), for the need of that employee to bring to the attention of the driver any breach of terms of contract in order to mitigate any loss.


In your case this this was not done even though that employee was clearly in a position to do so. It is my opinion, that in addition to the other points raised in your appeal this would make void any perceived contract between you and the claimant.

altalib

5) The Charge is Not a Genuine Pre-Estimate of Loss

The charge of £100 is being sought for an alleged breach of parking terms, namely “parking without a valid permit” consequently I contend, and the IAS Code of Practice states, that a charge for breach must be based on the genuine pre-estimate of loss. The requirement to demonstrate that the charge was based on a genuine pre-estimate applies to this alleged contravention as a driver cannot contract to park in such a way that the sign does not ‘permit’.

Therefore, the charge is not a core price term and is clearly a matter of breach or trespass since the Operator states in their rejection letter (see attached Rejection Letter copies) that 'parking in this area is only permitted for vehicles wholly parked in a marked bay displaying a valid permit'. This is borne out by the large heading, the only offer on the sign 'parking is permitted for'and the only allowed parties are those displaying permits and parked in a marked bay. That sentence communicates clearly that any other parking behaviour is not 'permitted' at all - there is no equivalent sentence permitting them to park. Drivers without a permit or parking outside of an unmarked bay, being subject to a disproportionate 'charge' must therefore be concluded to be either trespassing or in breach. They are certainly not invited and allowed to park and there is no tariff nor payment mechanism provided for non permit holders, so there is no 'consideration' despite that word appearing on PCM's sign. This charge is not a core term for a 'service' and is not a contractual charge at all; it is a disguised penalty.

This contention is supported by the OFT’s view in a document available on the OFT website as oft842.pdf, link here which clearly states early on, “1.19 In our view the basic principles set out here also apply to other analogous default charges in consumer contracts’’:

hxxps://www.gov.uk/government/upload...445/oft842.pdf

"Attempts to restructure accounts in order to present events of default spuriously as additional services for which a charge may be made should be viewed as disguised penalties and equally open to challenge where grounds of unfairness exist. (For example, a charge for 'agreeing to' or 'allowing' a customer to exceed his credit limit is no different from a charge for the customer's 'default' in exceeding his credit limit.) The UTCCRs are concerned with the intention and effects of terms, not just their mechanism”.

My suggestion that this charge is a disguised penalty is further supported by the OFT's extensive guidance on the Unfair Terms in Consumer Contracts Regulations 1999. This is also available on the OFT website as oft311.pdf, link here.

hxxps://www.gov.uk/government/upload...426/oft311.pdf

The guidance includes the following advice:

“The Regulations apply a test of fairness to all standard terms (terms that have not been individually negotiated) in contracts used by businesses with consumers, subject to certain exceptions. The main exemption is for terms that set the price or describe the main subject matter of the contract (usually known as 'core terms') provided they are in plain and intelligible language. The Regulations thus apply to what is commonly called 'the small print' of standard form consumer contracts”.

“The Regulations are concerned with the intention and effects of terms, not just their mechanism. If a term has the effect of an unfair penalty, it will be regarded as such, and not as a 'core term'. Therefore a penalty cannot be made fair by transforming it into a provision requiring payment of a fee for exercising a contractual option”.

“The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term, or which purports to define what the consumer is buying, will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term”.

Therefore, according to the OFT, parking - indeed any - contracts specifying high charges for events which would normally be a breach of contract, described spuriously as if they are “core” prices for services delivered would still fall foul of the Regulations and would not be exempt from the test of fairness.

In the event of any ambiguity as to whether a term refers to a contractual charge or to liquidated damages for breach, then the doctrine of contra proferentem applies in favor of the consumer and thus, this charge has no genuine possibility of being viewed as a core term, falls foul of unfair terms regulations and is a penalty clause applied in terrorem.

Moreover, there can be no commercial justification for such a charge in a situation where the predominant purpose is to deter (as here in this car park for permit holders only) and the parties are not of equal bargaining power. Any reference to the ParkingEye v Beavis and Wardley case is unsupported by any case law and in any case, the Beavis judgment is now set for the Court of Appeal on the question of a penalty being justified. This PCM case is not comparable anyway because PCM are not the principal (unlike ParkingEye in that case where the Judge found they were because they were paying £1000 per week to penalise people at that site).

The IAS 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 be neither 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.

6) Business Rates and VAT applicable if the Charges are Contractual Agreements for the Provision of a Service (see attached VAT copies 1 & 2)

PCM has failed to include VAT in their charging invoice which further demonstrates that this is not a genuine contractual fee or tariff, but a penalty clause (see attached VAT copies). When PCM were contacted regarding the invoice, PCM simply issued a copy of the original PCN charge within a letter. Therefore, they have failed to answer my request for an invoice. PCM runs a business the specified location for revenue and profit, and their signage appears to attempt to create a contractual agreement for ‘services’.

I request confirmation from PCM that the land is registered at the council as business land and if the PCN in question is a business contract charge not a disguised damages case. Otherwise, I will be making a disclosure in the public interest to HM Revenue and Customs.

7) IPC code of proactive 14.1
There was a PPC employee on site; it was a clear duty of that employee to mitigate any potential loss. Not once was it mentioned that the vehicle was on private land and should be moved. Instead the driver was ambushed and the first course of action was to photograph the vehicle whilst the driver attended to his 7-week-old child. When questioned why photographs were being taken, the response was a crude remark. At first instance, the duty of mitigation and code of practice should have kicked in. Instead he continued to photograph the car determined to improve his statistics.

PCM’s failure to use consistent language to that of the IAS/IAS, long with inconsistent language within their own literature is at best a reflection of negligent and sloppy practice, and at worst, it could be seen as a deliberate attempt to frustrate the appeal process with the IAS. PCM cannot have a contract with the driver when they have to satisfy specific conditions, which in this case they did not from the points and evidence raised above.

This concludes my IAS appeal.

Yours Faithfully,

XXXX

altalib

Ok so thanks to Northlakes i have added the following:

7) IPC code of proactive 14.1 and VCS v Ibbitson 16th May 2012 County Court
There was a PPC employee on site; it was a clear duty of that employee to mitigate any potential loss. Not once was it mentioned that the vehicle was on private land and should be moved. Instead the driver was ambushed and the first course of action was to photograph the vehicle whilst the driver attended to his 7-week-old child. When questioned why photographs were being taken, the response was a crude remark. At first instance, the duty of mitigation and code of practice should have kicked in. Instead he continued to photograph the car determined to improve his statistics.

VCS v Ibbitson 16th May 2012 County Court, S!!!!horpe.

Judge McIlwaine in page 8 Line 16 clearly refers in this case to the employee of the claimant (parking attendant), for the need of that employee to bring to the attention of the driver any breach of terms of contract in order to mitigate any loss.

In this case this was not done even though that employee was clearly in a position to do so. It is my opinion, that in addition to the other points raised in the appeal this would make void any perceived contract between the driver and the claimant.

4consumerrights

Sorry I haven't time to proof read the content what you have read - will leave that to others to advise.

However that will not all fit in the appeal site on the IAS website which has a limited character count nor will you be able to copy and paste.

What I suggest you do is a brief synopsis on the site for each point and submit the rest of the appeal as a PDF attachment. PLEASE note do not submit the appeal until you have uploaded all the attachments and evidence together as otherwise it will NOT be considered.