Ticket from PCM. Stage 2: IPC/IAS Appeal

Northlakes

County Court S!!!!horpe,


Cut out my personal opinion in the last line.

Northlakes

Can't understand why S!!!!horpe will not print out on MSE!

Northlakes

Try again to print S!!!!horpe

Coupon-mad

It's the swear filter and you can't type those missing 4 letters together.

I have some changes I am going to suggest but give me a while to put it together. Some important stuff - like the NTK flaws have to be shown to breach paragraph 9 not paragraph 8 of the POFA, as there was no Notice to Driver in your case.

I will add more in the small hours!

In the meantime look at this thread and how NobleSX has just submitted his long appeal as a PDF and written a polite synopsis in the comments box for the IAS:

https://forums.moneysavingexpert.com/discussion/5002855

and he's attached a copy of the NTK and signs as well as the PDF of his full appeal wording.

Coupon-mad

Here you go, I got rid of 'authority/contract with the landowner' as the IAS always dismiss that.

And I have had to remove 'not mitigating loss' because you went to town saying who was driving which would have blown your entire winning points about the flaws in the NTK out of the water!! PLEASE EDIT YOUR POSTS ABOVE ABOUT THAT, IN YOUR DRAFT AS SHOWN ABOVE.



PCN Number: XXXX

Dear IAS,

I am the registered keeper of vehicle reg: xxxxx 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, followed by a notice to keeper in accordance with paragraph 8; or
(b)has given a notice to keeper in accordance with paragraph 9.''

In my case, PCM have not served a Notice to Driver, but instead sent a postal Notice, purporting to be a Notice to Keeper (NTK) which they would contend is in accordance with paragraph 9 of the Schedule. I say it is not compliant and so the 'second condition' for keeper liability has not been met for the following reasons:

(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 printed - and can have been posted no earlier than - 27/08/2014. The 'relevant period' expired on the 15th day, being 28/08/2014. But the NTK is deemed to have been 'given' two working days after posting - i.e. at the earliest, 29/08/14 which is too late.

Further, the following mandatory wording (where shown in red bold) is either omitted or paraphrased which is not acceptable for prescriptive statutory sentences. My comments in blue:

9(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
(2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates; {NB: the land is only stated to be 'College Way' which is extremely vague and would seem to describe a road, yet the photos appear to show a car park. The location stated omits the town and does not identify the car park either, so that I have not been properly informed of the location. The 'period of parking' is also not 'specified', merely the time that the NTK states the car was driven away which would have been after any 'period of parking'}.
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full; {completely omitted}
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable; {completely omitted}
(d)specify the total amount of those parking charges that are unpaid, {completely omitted} as at a time which is—
(i)specified in the notice {completely omitted}; and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper {completely omitted}
(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper {the NTK misleadingly says the POFA 2012 'requires' the keeper to pay, which the Act does not}—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver{completely omitted}
...
(h)identify the creditor {completely omitted} and specify how and to whom payment or notification to the creditor may be made;
...
(4)The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period. {it was sent too late for this}


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).

PCM's own photos show the land had no signs and lines visible from the parking bays so no driver could have been expected to have entered into any contract. I have visited where I think this location must be and found one non-visible sign hidden behind a tree (see attached Evidence copies). This sign is poorly positioned and in any case, it is obstructed.

In the IPC CoP it says: “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. On page 25 of the CoP it states: “Signs must, where practicable, be placed at the entrance to a site. Otherwise the signage within the site must be such that it is obvious 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”.

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.

In addition the terms are misleading with wording that dresses up the charge as a ‘contractual’ fee, which it is not. The fact that the sign states “Retrospective evidence of authority to park will not be accepted”, confirms 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 anyone 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. 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 - a lack of lines and signs suggests that parking is unrestricted.

The signage is ambiguous and contradictory. In the rejection letter and in the Notice to Keeper (NTK) legal document, the sum is stated as being for parking in ‘breach’ (PCM's own word; see attached NTK and Rejection Letter copies). Yet the sign misleadingly contrives to allege a ‘contractual’ fee applies as consideration. If so, there should be a payment mechanism and a VAT invoice. There is none.

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 be a fee paid for parking (consideration); it cannot be for both. Clearly permission to “park in breach” (unauthorised) cannot be granted.

This is not a transparent contract - it is a disguised penalty. Terms must be clear otherwise under the doctrine of contra proferentem applies and the interpretation that most favours the consumer must prevail.


3) No Contractual Agreement with the Driver
(see attached Signage copies).
The sign at the (vague) location where I have had to assume 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. Firstly, the wording “unauthorised parking may result in your vehicle being issued with a parking charge notice” fails to create certainty of terms, by the use of the word 'may' instead of 'will'.

The signage states “Parking is permitted for: vehicles fully displaying a valid parking permit within the windscreen and parked within an area appropriate to that permit”. So there is no valid contract offered for a driver to accept, in the absence of a permit. By definition they are not allowed to park without a permit, so is acting in breach of the contract for parking. It is worded as a deterrent, that if a driver parks in that location without a valid parking permit then they will be penalised.

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 a threat of a punitive charge.


4) The Charge is a deterrent but PCM have shown no Genuine Pre-Estimate of Loss
If damages are sought for breach of contract (given away by the word 'breach' in the NTK and the rejection letter) and the predominant purpose of the charge is as a deterrent then the sum must represent a genuine pre-estimate of loss, decided in advance. Therefore, the charge is not a core price term, not consideration 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 favour 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).


5) 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.

I respectfully ask the IAS assessor to consider my points and photographic evidence and order that this charge be cancelled.

This concludes my IAS appeal.

Yours Faithfully,

altalib

Thank you so much all, i really don't know how to show my gratitude. I have edited the above as advised. Will go over it today to better word Not Mitigating Loss section UNLESS you all think i should omit it from the appeal.

Dee140157

I have reworded it for you, so to remove all references to people in car:

7) Failure to mitigate loss.

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 there was a PPC employee on site, who had a clear duty to mitigate loss. This was not done in accordance with IPC code of practice 14.1 even though that employee was clearly in a position to do so. I contend that in addition to the other points raised in the appeal this would make any perceived contract void.

Hope that helps. - do put the full place name in your appeal though. Just can't do it on forum due to filter.

Coupon-mad

I am not convinced you need it - but it is VCS v Ibbotson and if you quote it you must attach the court transcript as evidence (say 'see attached transcript' and refer to it by the claim number):

http://forums.pepipoo.com/index.php?act=attach&type=post&id=16231

Don't forget in your version, to save it as a PDF AFTER changing the hxxp links back to http and check they work as links (near the bottom of your appeal, they are shown as shortened and non-working links so need to be restored fully). And to change the word S!!!!horpe back to a readable town name (or remove it as the attached court transcript shows the court)! And to summarise your appeal headings in the comments box referring to 'the full appeal in the attached PDF' and to attach the evidence PDFs before hitting submit!

You don't get a second chance to send more stuff to the IAS after submitting the comments so keep your finger away from the 'submit' button until you've fully attached all the PDF evidence especially the appeal and NTK which is why I feel you will win this one.

altalib

Hi All,

So i have the final draft ready, thanks to you guys. Just a few questions before i hopefully post today.

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

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

I'm not too sure what the items in bold above are referring to?

Stroma

I will let others deal with the appeal for you.

Quick couple of questions, do they give you a postal address to appeal with? If so can you tell me how they tell you what that is, and can you give us the address ?

Sorry for the interruption , I just want to see if these are as unfair as popla with appeals for people without internet.