Urgent advice needed! CPM rejected my appeal!

MarcScot51

6) Failure to comply with the Consumer Contracts (Information, Cancellation and Additional Payments) Regulations 2013

http://www.legislation.gov.uk/uksi/2013/3134/pdfs/uksi_20133134_en.pdfThese Regulations apply to all UK consumer contracts and this parking event occurred since the regulations took effect. 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; this was not even individually negotiated when Permits were sent out and foisted upon us).
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, as the driver had a Permit, was not 'parking without permission' nor was the vehicle 'unauthorised', so this is a breach of the Regulations).
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 express agreement was made to pay anything as we are authorised permit holders so did not contravene by 'parking without permission').

Information breaches of these Regulations:
UKCPM 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 distance communication which allows limited space or time to display the information—
(a) the information listed in paragraphs (a), (b), (f), (g), (h), (l) and (s) of Schedule 2 must be 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.
(5) If the trader has not complied with paragraph (1) in respect of paragraph (g), (h) or (m) of Schedule 2, the consumer is not to bear the charges or costs referred to in those paragraphs.
(6) Any information that the trader gives the consumer as required by this regulation is to be treated as included as a term of the contract.
(7) A change to any of that information, made before entering into the contract or later, is not effective unless expressly agreed between the consumer and the trader.

Confirmation of distance contracts (16)
(1) In the case of a distance contract the trader must give the consumer confirmation of the contract on a durable medium.
(2) The confirmation must include all the information referred to in Schedule 2 unless the trader has already provided that information to the consumer on a durable medium prior to the conclusion of the distance contract.
(3) If the contract is for the supply of digital content not on a tangible medium and the consumer has given the consent and acknowledgment referred to in regulation 37(1)(a) and (b), the confirmation must include confirmation of the consent and acknowledgement.
(4) The confirmation must be provided within a reasonable time after the conclusion of the contract, but in any event—
(a) not later than the time of delivery of any goods supplied under the contract, and
(b) before performance begins of any service supplied under the contract.
(5) For the purposes of paragraph (4), the confirmation is treated as provided as soon as the trader has sent it or done what is necessary to make it available to the consumer.

Burden of proof in relation to off-premises and distance contracts (17)
(1) In case of dispute about the trader’s compliance with any provision of regulations 10 to 16, it is for the trader to show that the provision was complied with.

Cancellation period extended for breach of information requirement (31)
(1) This regulation applies if the trader does not provide the consumer with the information on the right to cancel required by paragraph (l) of Schedule 2, in accordance with Part 2.
(2) If the trader provides the consumer with that information in the period of 12 months beginning with the first day of the 14 days mentioned in regulation 30(2) to (6), but otherwise in accordance with Part 2, the cancellation period ends at the end of 14 days after the consumer receives the information.
(3) Otherwise the cancellation period ends at the end of 12 months after the day on which it would have ended.

We have received no information given about the right to withdraw (there is no exemption from this even for distance contracts with limited space or time). The burden falls upon UKCPM, under paragraph 17 of the Act I have quoted above, to prove this to the contrary. Consequently, should POPLA decide in favour of UKCPM then I hereby notify UKCPM that I give Notice of Cancellation of this flawed 'contract' as is my right under the Regulations; a right extended to me for 12 months, due to the lack of information compliance.

Conclusion

Based on the foregoing, I respectfully request POPLA to uphold my appeal against the PCN issued by CPM. I understand that I should receive the evidence pack from POPLA or CPM at least 7 days before the Appeal is heard, and that I will be given the opportunity to comment on the evidence provided by CPM prior to the hearing.

Yours faithfully,

MarcScot51

Would it be better to submit my appeal both online and by recorded delivery (due to the length of my appeal)?

Coupon-mad

I wouldn't waste a Recorded Delivery cost - the fact you have sent it online to POPLA is enough. As it's so long we recommend you actually just put a brief synopsis of the headings in the POPLA appeal word-count box and then 'see attached full appeal PDF attached as my evidence'. Then you click on 'attach evidence' after you submit the POPLA appeal and it lets you attach PDFs for up to 28 days, but don't hang about, do it all in one day.

Tick 3 out of 4 appeal reasons boxes and away it goes to POPLA.

MarcScot51

Appeal submitted. Fingers crossed!

On the last point "Consequently, should POPLA decide in favour of UKCPM then I hereby notify UKCPM that I give Notice of Cancellation of this flawed 'contract' as is my right under the Regulations; a right extended to me for 12 months, due to the lack of information compliance."

Do I have to write to CPM also to notify them of my notice of cancellation or the fact that I mentioned it in my appeal letter to POPLA is sufficient?

Coupon-mad

That's a good question - your choice I suppose! We think you will win at POPLA anyway, and if not you could send a Notice to Cancellation then. Or for fun you could send a copy to them now and see what they reply with (no-one has tried it yet, this is a new idea I had after reading the Regs in question!). I would like to see what a PPC says in response!

gertysingh

CM - doubt the PPC will respond and merely say they did not receive the correspondence.

It is only if MS is interested in pursuing them further should the PPC decide to pursue via the courts. MS if you do decide to write to the PPC make sure you get a free certificate of posting. The PPC will have to prove they did not receive your correspondence if it came to court. Also by not responding to your post they will be in breach of the BPA code of conduct.

MS - It should be noted that Popla will send the PPC your full Popla appeal. The PPC will have to send Popla a "defence"/evidence pack of how you committed a so called "breach of contract" You will have a further chance to reply to this.

Anyway great job on getting yr Popla appeal in. Hope you've learned lots

MarcScot51

I received an acknowledgment from POPLA today:

We have received your appeal.
This will now be sent to UK Car Park Management Limited.The operator will send their evidence to us and to you before the scheduled date of hearing.
Your appeal will be considered on or soon after 24 November 2014 . You will be notified of the decision as soon as it is available, in the manner you selected.


Regarding Notice of Cancellation, is this a sufficent notice to CPM or should I just save my breath and ink and wait for POPLA outcome instead?

Notice of Cancellation of Contract

I hereby give notice of withdrawal from this alleged contract which was never properly offered or explained by you. The charge is not acknowledged, is not due and no 'service' from you was ever expressly requested by me. I never gave 'prior express consent' or any consent at all for the alleged contract and it is not for me to reimburse you for foisting an unexpected and non-negotiated contract upon me. This 'contract' is hereby cancelled and any obligations now end.
Yours sincerely,

Coupon-mad

Regarding Notice of Cancellation, is this a sufficent notice to CPM or should I just save my breath and ink and wait for POPLA outcome instead?

It's your choice really. I think I would send it now!

MarcScot51

I submitted my appeal on 18/10/2014.

This is their ackowledgement on 20/10/2014


We have received your appeal.
This will now be sent to UK Car Park Management Limited.The operator will send their evidence to us and to you before the scheduled date of hearing.
Your appeal will be considered on or soon after 24 November 2014 . You will be notified of the decision as soon as it is available, in the manner you selected.
Please note that in common with other tribunals, all electronic submissions and attachments received at POPLA will be destroyed after one year from the date of the last action in the matter and all hard copy received will be securely disposed of after six months from that same last action date.



It is now the 25th November and I have not heard anything. Are they going to email or send a letter to me?

I am really anxious now as I thought I would know the outcome by 24th Nov

Umkomaas

There's always a few days +/-; if you've not heard in say another week drop POPLA an email asking why no result.

Have you checked your Spam/Junk file, in case your email function has shunted it in there?