Postal Notification of Parking Charge

aleem321

Hello everyone, its time to update. I would like to thanks to everyone who has contributed their time to look in my case and tried to help me out. On Saturday 19 Oct I submitted my appeal to IAS at 22.00 and got the reply from them today morning at 09.30. My appeal has been successful and the PCN has been cancelled..
My speacial BIG THANKS to Coupon-Mad who guided me all times and wrote an appeal for me. I would not have won the case without Coupon-Mad.
Coupon_mad please check your e-mail.

Coupon-mad

I will post the appeal used later!

EnigmaPart1

I assume given the timings given you didn't actually get a reason for your appeal success, if that's the case then it means it never actually left Gladstones offices
If you did get the appeal reason, please post it up

Coupon-mad

Yep I thought the same as you, EnigmaPart1. Hurley saw the flaws & cancelled it. May have even been point #1 that did it!


This was the appeal - the final point ''11) Breach of DVLA KADOE contract.No audit trail and no reasonable cause.'' should be used for any 'drive-away' allegation (like Park Direct try at Uxbridge) where a PPC has sent a postal PCN as if they are a Council! The point is, they cannot send such a postal PCN (ANPR only).

The appeal covers these next three posts:

PCN Number: xxxxxx


Dear Independent Parking Committee,

As registered keeper, I appeal against the notice issued by Parking Control Management UK Ltd. (PCM). No formal admissions have been made as regards the driver, nor are PCM nor the IAS safe to 'assume' who was driving, as there are several male drivers of this car. There is no obligation in the POFA 2012 for me to help PCM patch the gaps in their evidence by naming the driver.It is trite law that the onus is on the creditor to identify the party with whom they purport to have any contract.
I am not liable for this charge, the car was not improperly parked and the charge exceeds the appropriate amount. I have 11 appeal points, listed and explained below:

1) The car was not parked at 10.42 so the Notice to Keeper (NTK) is factually wrong. See the photographs, showing the car with driver at 10.35 until 10.37 only.


2) There was no ‘PCN issued’ on 18th September so the NTK is factually wrong. There appears in two places on the Notice, the wholly wrong statement 'date PCN was issued: 18/9/2014'. Yet PCM also admit there was no PCN issued, hidden within another paragraph.The misinformation claiming a PCN was issued initially caused me to research paragraph 8 of the POFA 2012 instead (for cases where a windscreen ticket was applied).The deadlines for service of an NTK and other facts differ, so this hybrid document was ambiguous, unfair and could have jeopardised my appeal.


3) There is no evidence of ‘no permit’ because there are no photos of the dashboard.PCM have shown the driver merely asking where to park and looking for signage (signs were not seen because he then drove away).PCM have not proved the absence of a permit and cannot have known if the driver had a permit. The operative decided to take photos speculatively from a distance as soon as they saw the car pull over, and then omitted to show the dashboard as evidence.


4) PCM's NTK fails to establish ‘keeper liability’ as shown (from paragraph 9):
http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted
(see file attachment photos of both sides of NTK)
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...land on which it was parked and the period of parking to which the notice relates;
- fails to specify the land. No town, city, postcode or college (if any) is stated and there was no PCN given which could have informed me. So ‘College Way’ is a vague locus.
- fails to specify any 'period of parking'. It wrongly refers to an 'incident' at 10.42 but the photo 'evidence' only shows the car pulled over with driver, at 10.36 to 10.37. There are no other times on the NTK so the period of parking is completely omitted.
(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;
- this NTK is a non-prescribed hybrid document sent because PCM admit the driver 'drove away'. PCM have had to add the word 'now' in the sentence 'the driver of the vehicle now has 28 days to pay' (i.e. in the future) so did not state that the charges (past tense) 'have not been paid in full'. PCM have omitted the mandatory wording from 9(b).
(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...;
- the NTK fails to describe any charges due from the driver 'as at the end of that period' {of parking} but merely introduces a charge they want the driver to pay 'now' (from ten days later).If there was a charge that the driver should have paid as at the end of the (unspecified) period of parking, this tariff is not specified on this NTK.
(d)specify the total amount of those parking charges that are unpaid, as at a time which is—(i)specified in the notice; and (ii)no later than the end of the day before the day on which the notice is...sent by post...;
- the NTK fails to specify the total amount of any 'unpaid' parking charges because there were none. There is no 'time specified' except 10.42 which is not the period of parking and neither is it a time when the driver had any obligation to pay anything at all.
(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— (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;
- the NTK does not 'invite' me to pay/name the driver. It wrongly informs me that under the POFA I am 'required' to do so, which is misleads in order to make a keeper pay up.
(f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given (i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full & (ii)the creditor does not know both the name of the driver and a current address for service...the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
- the NTK fails to include the proviso 'if all the applicable conditions under this Schedule are met' even though PCM are aware their Notice is not compliant. They wrongly state as a fait accompli that they 'will...have the right' even though they do not have that right.
(h)identify the creditor and specify how to whom payment or notification...may be made;
- the NTK fails to identify the creditor, who could be PCM, or 'paymypcn' to whom online payments are to be made, or the landowner, or a leaseholder, or occupier, or managing agent for the site or indeed another unidentified party. This is fundamental information and cannot be inferred from a letter heading or the fact that PCM request the payment, since any agent or even a debt collector, can act in a capacity to collect monies for a creditor. It does not follow and is not safe to ‘assume’ that PCM is the creditor.

The fact that some of this information may be implied or could be inferred by a reader familiar with the legal context of parking (unlike myself, who has had to spend hours researching it) does not mean that the NTK is compliant. This document must have the prescribed, mandatory wording.Where an Act states that such a Notice ‘must’ include certain words, then any omission, ambiguity or misleading information renders it invalid.As such, the charge is not enforceable against me as registered keeper.
Further, the failings identified above breach the IPC CoP page 14, Part C para. 2.


5) Inadequate, unclear & non-compliant signs
(see file attachments: pictures of just one sign behind a bush, beyond the car's arrival route)
The sign was completely obstructed should a car stop at the first bay, as was the case, and there were no lines in the bay to suggest any restrictions applied. The sign was not seen, formed no contract with the driver, was clearly a matter of breach if ‘not permitted’ and the positioning/wording breaches the IPC CoP and breaches the requirements for communicating a contract, set out in UK Consumer Contract Regulations.

Firstly, terms are only imported into a contract if they are clear and prominent that the party ‘must’ have known about it and agreed. It is clear this was not the case, from my photos and those supplied by PCM.There appears to be just one sign which is not in the line of sight of the driver, completely hidden by the leaves of a bush several metres ahead of the car.No signs are shown to exist on the route the driver took, nor any signs adjacent to the car, which had only just stopped.The driver had no chance to even read the sign because he drove away when the employee rushed over to take closer photos.The employee gave no information about where to park and did not even check if the driver had a permit, nor did they take any pictures of the dashboard.

In the IPC CoP page 25 it says: “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”. On page 26: “signs must be readable from far enough away so that drivers can read all the of the Group A and Group B text without needing to look more than 10 degrees away from the road ahead” and on page 27 “text must be of a size which is easily legible having regard to the location''. and {other signs} must “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”.

If the IAS Adjudicator is satisfied that the driver would be likely to have seen, read and understood the sign then I would stress this is denied because the driver was looking where to park, pulled over to ask/look for a sign, then drove off after a minute or so.

But just in case, I will deal with the failings of the sign itself:

- the driver did not contravene the sign. It says 'if unsure please seek further advice or refrain from parking' (he had only pulled over, did seek advice and then drove away immediately).It also says 'by parking or remaining at this site...' (the driver did not park nor remain at the site. The car was never parked which is why PCM could not serve a PCN). Further, the sign says 'parking is permitted for vehicles fully displaying a valid parking permit' yet the evidence from PCM shows no photo of the dashboard.On the NTK the two photos are at such a distance that it seems the employee was stalking cars, taking speculative photos with no knowledge of whether a driver had a permit.

- the sign in the picture does not identify PCM as a creditor for any charges that arise out of the contract or damages following a breach of the contract.

- the sign does not identify, as required for a consumer contract within the Consumer Contracts(Information, Cancellation & Additional Payments) Regs
http://www.legislation.gov.uk/uksi/2013/3134/pdfs/uksi_20133134_en.pdf
''(d) where the trader is acting on behalf of another trader, the geographical address and identity of that other trader;
(e) the geographical address of the place of business of the trader, and, where the trader acts on behalf of another trader, the geographical address of the place of business of that other trader, where the consumer can address any complaints;''

“distance contract” means a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;

In case PCM say this type of contract is exempt from these regulations, I contend it is not because exempt contracts are listed in the Regulations and a parking contract is certainly not a simple, immediate ‘day to day transaction’ defined by the EU in the Guidance as ‘buying a cup of coffee or a newspaper’.In fact, providing parking spaces as a 'service' for a fee is specifically stated as covered by the Regulations, as shown here in the EU Guidance behind the original Directive upon which the UK Law is based:
http://ec.europa.eu/justice/consumer-marketing/files/crd_guidance_en.pdf
'' Service contracts...should be included in the scope of this Directive, as well as contracts related to...the rental of accommodation for non-residential purposes.
For example, renting a parking space...is subject to the Directive. ''

- In addition the terms are misleading with wording that dresses up the charge as a ‘contractual’ fee, which it is not. This is not a core price term. The fact that the sign states “restrospective 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 notauthorised to park (those without a permit). There is no consideration flowing from PCM to the second group of drivers. If a firm wanted to make an ‘offer to park’ by way of consideration to the second group they would have signs stating that parking is allowed/authorised for everyone at a daily fee rate which could be shown as zero for the first group and £100 for the second group.It is a legal nonsense to offer a non-permitted, unauthorised trespasser the right to 'continue to trespass' for a fee.

- If there was a valid, transparent, genuine offer to park without a permit, then as well as a clear unambiguous statement offering this as a service, there would also be a payment mechanism for the driver (any means to make payment) and a VAT invoice. This is not a transparent contract - it is a disguised penalty applied in terrorem.


6) Breach of the Unsolicited Goods and Services Act 1971 (as amended)
This 'service' was unsolicited and no contract was performed or concluded.Traders who provide unsolicited services and then demand payment are guilty of an offence and liable to a fine. It is also an offence to threaten legal proceedings to a consumer for failure to pay for an unsolicited service, or indeed a service which was never provided.

PCM are fully aware that the elements of a contract are missing in this case and they should never have sent me a demand for money. Their 'service' of supposedly offering a parking space for a fee was not accepted by the driver.He had no opportunity to read any sign and was effectively chased away by the employee, who had taken hasty photographs from distance, to try to suggest that the car was 'parked without a permit'.In this instance the alleged contract was not concluded by performance nor did consideration flow between the parties - in short, no parking 'service' was provided.

Yet PCM have sent me a NTK charging for a non-existent contract for an unperformed service. As such, under the Unsolicited Goods & Services Act I exercise my right to reject the invoice (NTK).A trader cannot recover an unsolicited charge and it also breaches the CPUTRs 2008, as amended by regulation 39 of the following:

Coupon-mad

7) Failure to comply with the Consumer Contracts (Information, Cancellation and Additional Payments) Regulations 2013
(see file attachment of both sides of NTK)
http://www.legislation.gov.uk/uksi/2013/3134/pdfs/uksi_20133134_en.pdf
These Regulations apply to all UK consumer contracts from June 2014. PCM charges a daily rate for a parking space so this is a service contract* offered by written terms in print on a sign which is a means of distance communication (i.e. not a face-to-face contract in the simultaneous physical presence of the trader and the consumer).
In the UK Regulations:
* “service contract” means a contract, other than a sales contract, under which a trader supplies or agrees to supply a service to a consumer and the consumer pays or agrees to pay the price.''

From the EU Guidance behind the Directive upon which the UK Law is based:
http://ec.europa.eu/justice/consumer-marketing/files/crd_guidance_en.pdf
''Service contracts...should be included in the scope of this Directive, as well as contracts related to...the rental of accommodation for non-residential purposes.

For example, renting a parking space...is subject to the Directive. ''

This contract certainly purports to offer the daily 'rental' of/use of a parking space:
http://www.thefreedictionary.com/rent
RENT - 1. a. Payment, usually of an amount fixed by contract, made by a tenant at specified intervals in return for the right to occupy or use the property of another. b. A similar payment made for the use of a facility, equipment, or service provided by another.

Part 4 of these Regulations has provisions concerning protection from unsolicited sales and additional charges which have not been expressly agreed in advance (this was an unsolicited ‘service’ not expressly agreed at all, so this is a breach of the Regulations).
Regulation 39 introduces a new provision into the Consumer Protection from Unfair Trading Regulations 2008 which provides that a consumer is not required to pay for the unsolicited supply of products (as happened here – the NTK is an unsolicited invoice).
Regulation 40 provides that a consumer is not required to make payments in addition to those agreed for the trader’s main obligation, unless the consumer gave express consent before conclusion of the contract (no payments were expressly agreed at all).

Information breaches of these Regulations:
PCM have failed to serve in a durable medium, ANY information as defined in these Regulations for Distance Contracts (i.e. not face-to-face) as set out in Article 13:
Information to be provided before making a distance contract
''13.—(1) Before the consumer is bound by a distance contract, the trader — (a) must give or make available to the consumer the information listed in Sch. 2 in a clear and comprehensible manner, and in a way appropriate to the means of distance communication used, and
(b) if a right to cancel exists, must give or make available to the consumer a cancellation
form as set out in part B of Schedule 3.
(2) In so far as the information is provided on a durable medium, it must be legible.
(3) The information referred to in paragraphs (l), (m) and (n) of Schedule 2 may be provided by
means of the model instructions on cancellation set out in part A of Sch.3;
(4) Where a distance contract is concluded through a means of [FONT=arial,helvetica,sans-serif]distance communication which [/FONT][FONT=arial,helvetica,sans-serif]allows limited space or time to display the information—[/FONT]
[FONT=arial,helvetica,sans-serif](a) the information listed in paragraphs (a), (b), (f), (g), (h), (l) and (s) of Schedule 2 must be[/FONT]
[FONT=arial,helvetica,sans-serif]provided on that means of communication in accordance with paragraphs (1) and (2), but (b) the other information required by paragraph (1) may be provided in another appropriate way.[/FONT]
[FONT=arial,helvetica,sans-serif](5) If the trader has not complied with paragraph (1) in respect of paragraph (g), (h) or (m) of[/FONT]
[FONT=arial,helvetica,sans-serif]Schedule 2, the consumer is not to bear the charges or costs referred to in those paragraphs.[/FONT]
[FONT=arial,helvetica,sans-serif](6) Any information that the trader gives the consumer as required by this regulation is to be[/FONT]
[FONT=arial,helvetica,sans-serif]treated as included as a term of the contract.[/FONT]
[FONT=arial,helvetica,sans-serif](7) A change to any of that information, made before entering into the contract or later, is not[/FONT]
[FONT=arial,helvetica,sans-serif]effective unless expressly agreed between the consumer and the trader.''[/FONT]

Everything has been omitted, including no information given about the right to withdraw (there is no exemption from this even for distance contracts with limited space or time). Consequently, should IAS decide in favour of PCM I will send a Notice of Cancellation to PCM as is my right under the Regulations; a right extended to me for 12 months.


8) The charge of £100 plus £5 for card payment and/or £1 for telephone payment, exceeds the appropriate amount specified in law.
PCM's NTK informs me that any card payment costs an extra £5. If paying over the telephone, an extra £1 is charged.Arbitrary extra charges are banned under the POFA 2012, the Consumer Contracts(Information, Cancellation & Additional Payments) Regs 2013 and the Consumer Rights (Payment Surcharges) Regulations 2012.
- POFA 2012 states:
Right to claim unpaid parking charges from keeper of vehicle:4 (5) The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph...9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified).

PCM described no 'specified' charges which 'remained unpaid' as at 'a date no later than the end of the day before the day on which the notice was sent by post'. No amount was stated as being 'unpaid' by the driver. By PCM's own admission, no PCN was served (nor was any invoice served by any durable medium before the NTK), so the driver could not have paid nor be aware of any sum owing the day before the NTK was sent to me. It follows, therefore, that as the maximum sum recoverable under Schedule 4 para 9(2)(d) is not specified in the NTK, that sum must be zero.
- The CC(ICAP) 2013 Regs state:
Additional payments under a contract
40.—(1) Under a contract between a trader and a consumer, no payment is payable in addition to the remuneration agreed for the trader’s main obligation unless, before the consumer became bound by the contract, the trader obtained the consumer’s express consent.
There can be no 'express consent' to pay a single penny in remuneration or otherwise, flowing from a driver who merely arrived and got out of the car to try to locate signs or to speak to the parking operative. PCM have stated that the driver drove away - this is true - he drove away without reading any signs because the employee was taking photos rather than pointing to where the t&cs were displayed or how to obtain a permit.
41.—(1) Where a trader operates a telephone line for the purpose of consumers contacting the trader by telephone in relation to contracts entered into with the trader, a consumer contacting the trader must not be bound to pay more than the basic rate.

The NTK states that £1 is added for payments made over the telephone. This breaches the CC(ICAP) 2013 Regulations because the basic rate of a phone call is a few pence.

- The Consumer Rights (Payment Surcharges) Regs prohibit excessive charges:
http://www.legislation.gov.uk/uksi/2012/3110/made
4.A trader must not charge consumers, in respect of the use of a given means of payment, fees that exceed the cost borne by the trader for the use of that means.
£5 is not a true cost for accepting a payment by credit or debit card. The cost is much lower and differs based upon the amount paid (£60 or £100 should attract different card payment charges) and differs for debit cards compared to credit cards:
http://www.smarta.com/advice/accounting-and-tax/money-management/how-to-accept-debit-and-credit-card-payments/
[FONT=arial,helvetica,sans-serif]''Banks charge various fees depending on factors like the degree to which you may be subject to credit card fraud and the overall value of card transactions. Expect different charges for debit and credit cards.You will pay a monthly fee to rent the payment terminal.You will also pay a charge for each transaction - this will be anything from a few pence to 6% of each transaction.''[/FONT]

9) No Contractual Agreement between PCM and the driver and no loss.
PCM have not established their standing, as required in page 10 [Part B: 1(2.1)] and page 27 of the IPC CoP. No authority has been provided to establish that PCM are enabled to pursue this claim in their own right. They appear to be just a debt collector, an agent acting on behalf of another principal. They are not identified as the creditor and have not produced any evidence to show that the actual landowner (not just another agent) authorised them to pursue charges in the courts in their own name.Any fee charged or remedy for breach/trespass is a matter for the landowner to pursue.

Further, as the driver followed the terms (inadvertently as he had not even seen a sign!) and did not remain at the site, the elements of a contract to pay the £100 charge have not been established. He neither read the sign nor accepted any terms, nor parked.No consideration flowed between the parties.There was no contract; this is a penalty.
As PCM contend the driver stopped without permission, their charge must be based on a genuine pre-estimate of loss. However, there was no loss caused by this incident and no parking even occurred, let alone parking with/without a permit. This site is not signed as a no-stopping zone, there is no genuine ‘offer to park’ and PCM have not tried to demonstrate any initial loss suffered, so there is no justification for the £100 charge.

In the case of Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79, there is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach”.

The IAS Adjudicator will be aware that (despite ParkingEye v Beavis being set for the Court of Appeal following a decision by HHJ Moloney at Small Claims level) there is no case law to support a penalty being ‘commercially justified’ against a consumer. Motorists do not have equal bargaining power and offers for the use of parking bays are distance contracts with no negotiation of terms nor express agreement in advance.

In any case, the £100 charge is not a core price term and is clearly a matter of breach or trespass since PCM states in their rejection letter (see Rejection Letter, 2 pages) that (my bold) 'parking in this area is only permitted for vehicles wholly parked in a marked bay displaying a valid permit'. This is confirmed by the fact that the only offer on the sign says 'parking is permitted for' then expressly lists ONLY those displaying permits/parked in a marked bay. This communicates that any other parking behaviour is not 'permitted' at all - there is no equivalent sentence or list permitting others to park. Drivers without a permit are certainly not ‘invited’ and allowed to take up any ‘offer’ to park and there is no means of payment provided for non permit holders, so there is no 'consideration'.The fact that word appears on PCM's signage does not make it so.

In order for the £100 parking charge to be a genuine offer to provide a parking service, then it should be explicitly stated in a prominent position at the top of the signage (IPC CoP: Sch 5). Equal weight should be given to the supposed ‘offer’ of parking for non-permit-holders, as is given for permit holders. Clearly the true interpretation of the sign is that the predominant purpose of the charge is to deter ‘unauthorised’ people from parking without a permit. As such, this is not a contractual fee matter at all, but a matter of a disguised penalty for something that would normally be a breach of contract.This is a breach of UK Consumer Contract Law which leads to my last two points:

Coupon-mad

10) Breach of the Unfair Contract Terms Act, UTCCRs & CPUTRs – unfair terms.
From the ‘Unfair Contract Terms Guidance’:
Group 18(a): Allowing the supplier to impose unfair financial burdens
18.1.3 'Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. A term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.’’
This contention is supported in an OfT document (link below) which clearly states:
“1.19 In our view the basic principles set out here also apply to other analogous default charges in consumer contracts’’:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/284445/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'...) The UTCCRs are concerned with the intention and effects of terms, not just their mechanism”.

My contention 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:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/284426/oft311.pdf
“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...
“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”.

“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...or other objectionable term”.

Therefore, it is the clear intention of Government that consumer 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 - will fall foul of the Regulations and cannot be exempt from the ‘test of fairness’.
This £100 is unfair, extravagant, unwarranted and not a genuine pre-estimate of loss. It falls foul of the test of fairness, not least because the driver never parked and the contract was never concluded.To impose a charge before the driver had a chance to decide to remain or not, is also a breach of the IPC CoP regarding Grace Periods:
17.1 Drivers should be allowed a sufficient amount of time in order to park and read any signs in order that they may make an informed decision as to whether or not to remain on the site before any enforcement action is taken by you or your agents.

This did not happen, no Grace Period was allowed, yet PCM’s sign and the NTK states that they are a member of the IPC (and as such they have to abide by the CoP).

To provide false information (e.g. stating a PCN ‘was issued’ on 18th September and misleading me about being ‘required by law’ to pay or name the driver) and to state that a company is signed up to a Code of Practice and then not to act within those rules, are breaches of the CPUTRs 2008 - Misleading actions:

http://www.legislation.gov.uk/ukdsi/2008/9780110811574/regulation/5

''5. (1) A commercial practice is a misleading action if it satisfies the conditions in either paragraph (2) or paragraph (3).
(2) A commercial practice satisfies the conditions of this paragraph—
(a)if it contains false information and is therefore untruthful in relation to any of the matters in paragraph (4) or if it or its overall presentation in any way deceives or is likely to deceive the average consumer in relation to any of the matters in that paragraph, even if the information is factually correct;
(3) A commercial practice satisfies the conditions of this paragraph if—
(b)it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with, if—
(i)the trader indicates in a commercial practice that he is bound by that code of conduct, and
(ii)the commitment is firm and capable of being verified and is not aspirational, and it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise, taking account of its factual context and of all its features and circumstances. ''

This charge is unenforceable as it flows from unfair terms and business practices.

11) Breach of DVLA KADOE contract. No audit trail and no reasonable cause.
PCM are only authorised under their KADOE contract with the DVLA to request keeper’s data if one of these two situations has arisen:

• The issue of a PCN on a windscreen in the case of a manned car park.
• The planned issue of a PCN by post in the case of an ANPR camera car park.

This case was neither. In addition, is it clear the driver did not park or remain at the site and no Grace Period was allowed. As such, PCM had no ‘reasonable cause’ to obtain my data as registered keeper and no business reason whatsoever, to pursue a charge.

The procedure PCM followed lacks the required audit trail the DVLA insist upon from all AOS members.DVLA Inspectors enforce the rule: 'all vehicles should be ticketed where ANPR technology is not utilised'. This is a fact in the public domain via FOI:
https://www.whatdotheyknow.com/request/meetings_with_the_i
https://www.whatdotheyknow.com/request/226884/response/564615/attach/html/7/FOIR4117 Devere Parking Services Ltd.pdf.html
Driver and Vehicle Licensing Agency - November 2012
‘‘I have since my visit taken further instruction on this procedure. Please would you note that if an operator has the ability to take a photograph of the offending vehicle they should also place a ticket on the vehicle and allow the transgressor time to pay before data is requested from DVLA. I advise that all vehicles should be ticketed where ANPR technology is not utilised.
Summary of Issues:
{Operator} to cease making vehicle keeper enquiries to DVLA where ANPR technology has not been used, and vehicles have not been ticketed. (Lack of Audit Trail) ’’

This action by PCM also breaches the two distinct types of case set out in the IPC CoP. The Operator must follow one of two set procedures, either:
2. ‘Notice to Driver’ followed by 3. ‘Notice to Keeper’ (Non-ANPR cases)
Or
5. Notice to Keeper (ANPR cases)
This was not ANPR. An operative took manual photographs and the NTK says it was a ‘drive away’. So it is a non-ANPR case for which there MUST be a Notice to Driver:
2.1 The Notice to the Driver must;
(a) Be in writing.
(b) Either be affixed to the vehicle or given to a person who appears to the Operator to have control of that vehicle.

But PCM only posted a NTK. A clear breach and a procedure not covered by the CoP.


Conclusion
I respectfully ask the IPC Adjudicator to consider my 11 points of appeal and photographic evidence and order that this charge be cancelled.
Yours faithfully,

Name of registered keeper

aleem321

EnigmaPart1 wrote: »

I assume given the timings given you didn't actually get a reason for your appeal success, if that's the case then it means it never actually left Gladstones offices
If you did get the appeal reason, please post it up

Enigma, here is the reply I got from IAS. I never expected to get reply in super speed.


Dear Aleem


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:


Parking Charge Number: XXXXXXXX

Vehicle Registration: XXXXXXX

Date Issued: 25/09/2014


As the parking charge has been cancelled you do not need to take any further action and the case has been closed.

Yours sincerely
The Independent Appeals Service




Coupon Mad did a great job and this appeal can work for many others in similar situation as I was. Thanks to all for their comment to help me out.

EnigmaPart1

Yep that certainly hasn't left the offices of gladstones. The reasons its quick is become it hasn't been independently looked at

How did i guess this would be the case