UK CPM ticket - with sign picture

Dublte

Hello,

On Saturday afternoon there was a Parking Charge Notice, stuck to my windscreen, from UK CPM.

In all honesty the carpark was so poorly lit you couldn't notice the sign, a friend has a flat in the building and the vehicle was parked in the space with her number. On inspection of the sign (and other vehicles) after the ticket there is a permit issued for each bay. You can see from the photo how poorly lit the carpark was and that was taken during the day (the vehicle was parked up in the dark).

As per all the other posts the fine is for £100, reduced to £60 if paid within 14 days. I read through the Wiki and have included a picture of the sign in my post - is the standard format of the first letter okay to send to their appeals process? Should I wait for the NRK to arrive?

imgur.com/m1deJic

- sorry it won't currently let me post with a link!!

Pretty shocked that they believe that value is representative of the cost - the carpark was nearly empty when I went in it that day, I've asked my friend to take a further photo of the lighting around the sign this evening and to check how many empty spaces there are again!

Thanks in advance for any advice!!

Edna_Basher

Unless your car is a lease / company car, then the best thing would be to wait for the Notice to Keeper to arrive and then appeal in your capacity as Keeper.

Here's the full link to the picture of the sign http://i.imgur.com/m1deJic.jpg

It's to the Keeper's advantage that the sign does not state that UK Car Park Management Ltd may obtain the Keeper's details from the DVLA, nor does it give any hint that the Keeper could be held liable for the charge.

Coupon-mad

is the standard format of the first letter okay to send to their appeals process? Should I wait for the NTK to arrive?

Yes and yes!

Dublte

Thanks for the replies, I will hold tight until I get something through the post then!

Dublte

So, the NTK arrived today. Looks fairly standard and talks about declaring who was driving.

Next steps? Send the standard letter out to them?

On a slight aside, are they allowed to charge for using a debit card?

Many thanks in advance for the help.

Fruitcake

Dublte wrote: »

So, the NTK arrived today. Looks fairly standard and talks about declaring who was driving.

Next steps? Send the standard letter out to them?

On a slight aside, are they allowed to charge for using a debit card?

Many thanks in advance for the help.

Yes. If you post the appeal send it first class from a Post Office and get a free certificate of posting. Do not send it recorded delivery.
This first appeal will be rejected but you then use the PoPLA code that the PPC must send to appeal and win. Remember not to say who was driving so no, "I did this," but use words like "the driver did this ..."

I don't know if anyone can charge for using a debit card but since you won't be paying anything it won't affect you.

Dublte

Perfect. Thank you, I really appreciate the advice.

Hopefully, once I win, my appeal letter will be useful for someone else they are trying to steal from! More than happy to pay my due but £100 for 30 mins parking in that area is robbery...

Fruitcake

Dublte wrote: »

Perfect. Thank you, I really appreciate the advice.

Hopefully, once I win, my appeal letter will be useful for someone else they are trying to steal from! More than happy to pay my due but £100 for 30 mins parking in that area is robbery...

The whole process will take a few months from start to finish, but there is a thread where you can post PoPLA decisions. Yours will be a winning appeal provided you follow the advice in the NEWBIES thread.

Post your draft appeal on this thread when you have picked and fine tuned the one you want to use for the experts to look at. Include all the appeal points even if you don't think they are relevant because it means the PPC has to do the legwork to refute each point and is more likely to make a mistake in your favour as a result.

Dublte

So the unsuccessful PCN appeal letter arrived in the post today - less than 48 hours after I posted the original appeal! There is a Popla code included in the header of the letter and a paragraph about what it means on page four.

A few sentences on there that I am assuming are largely scaremongering... (and are probably referenced somewhere that I've missed on the Newbies thread).

"The appeal letter you have sent is taken directly from parking forums and is outdated and inaccurate. Recent case law by HHJ Moloney QC confirms this. Both cases held in the small claims court, Cambridge were awarded to the parking enforcement operator. The above case will be referred to as part of our evidence should the PCN remain unpaid and court action is taken. We therefore reserve the right to continue to cover the unpaid parking charge, the subject of the above PCN."

The rest of the letter is three pages of poorly worded, grammatically incorrect blurb that's rather generic and does not reference some of the specific points raised within my appeal - namely improper lighting and ambiguous wording on the signs.

I've found an example letter that looks like a good basis for what I'll use as a response to Popla. This weekend's job is to get that in draft and on here for scrutiny!

Many thanks for all the help and support - I'd have probably wimped out at this letter if I hadn't had all the positive support and seen the other posts!!

Coupon-mad

Put the above phrase you copied out, into Google. Seen it before!

Dublte

First attempt at a draft letter - largely based on a very similar case in the example POPLA letters. I think the main grounds for appeal are the genuine pre estimate of loss and ambiguous wording on the sign - contractual fee/punitive charge.

Any pointers/rewordings/additional content much appreciated! Once I've made all the changes I'll handover to my resident grammar expert to make sure I've not made any typing errors or mistakes. Though for the quotes from the UK CPM letters I have maintained any grammatical errors for comprehensiveness.

Again, thanks in advance for any replies!

Dear POPLA assessor,

Re ********* PCN and POPLA number *********

As registered keeper, I have received a Parking Charge Notice and subsequent Formal Demand letter from UK CPM requiring payment of a charge for an alleged parking contravention. Please take this correspondence as a formal challenge of the PCN and on the following grounds:
1) No genuine pre-estimate of loss.
2) Contract with the landowner.
3) Inadequate signage.

1) a) The Charge is not a contractual fee – it is a disguised breach
The signage on display in the car park where the alleged offence occurred states that the charge in question is a contractually agreed fee, which initially appears to be an attempt by UK CPM to avoid the necessity of justifying a pre-estimate of loss. However, on the parking charge notice (the choice of heading by UK CPM, not an invoice for an agreed fee) and the rejection letter to my initial appeal state that the charge is for “drivers who break the terms and conditions” and “breaching” the terms and conditions of parking. Additionally, the wording on the sign states that unauthorised parking “may result in your vehicle being issued with a parking charge notice”.
The charge must be either for a fee paid for parking or for damages, it cannot be for both. In order for the charge to given consideration, it would have to mean that permission to park without a permit was given providing a fee was paid – however, the correspondence from UK CPM refers to a “breach”, parking in breach cannot be granted. I therefore believe that the amount sought is for parking in breach and that the amount represents liquidated damages, which is compensation agreed in advance.

I would like to highlight another appeal against UK CPM under similar circumstances where POPLA assessor Marina Kapour made the following clarification:-
"The charge must either be for damages as submitted by the Appellant, or for consideration - the price paid for the parking as submitted by the Operator. In order for the charge to be consideration, the parking charge must be paid in return for something, here permission to park beyond the permitted stay. In other words, the sign must permit the motorist to park beyond the maximum stay provided he or she pay the charge. Clearly, permission to park 'in breach' is not granted, and so the parking charge cannot be a contractual price. Instead, it is clear that the charge is in fact a sum sought as damages, and therefore must be a genuine pre-estimate of the loss which may be caused by the parking breach. I find it seems clear that the signs in this car park do not give permission to park in return for the parking charge and so it cannot be consideration".

Second to this I would also like to highlight POPLA appeal reference 9663053967 where an initially refused appeal against the same Operator who again, made the same attempt to describe the charge as a contractually agreed fee on their signage was allowed by the Lead Adjudicator. It was found that the charge was a penalty and as such was not a genuine pre-estimate of loss. I believe that the same applies in this case, and POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee but is a disguised breach and must be shown to be a genuine pre-estimate of loss to be enforceable.

b) The Charge is Not a Genuine Pre Estimate of Loss

The charge of £100 is being sought for an alleged breach of the parking terms namely “parking without displaying a valid permit” consequently I contend, and the BPA code of practice states, that a charge for breach must be based on the genuine pre estimate of loss. The Office of Fair Trading has stated to the BPA that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.

On the day in question there was no damage nor obstruction caused (nor is any being alleged), from the photographs sent via UK CPM as evidence the car park is empty and I therefore contend there was no loss caused to either the Operator, or the landowner, by any alleged breach.

In the case of Dunlop Pneumatic Tyre co v New Garage Motor co (1915), Lord Dunedin stated 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" and "there is an assumption that it is penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage". Assessing the UK CPM sign in this instance the charge is the same lump sum whether the vehicle is parked for 10 minutes or for 24 hours and the same amount is charged for any alleged contravention, it is therefore clear that it is intended to be punitive and there is no consideration to the calculation of a genuine pre-estimate of loss.
In the case of Parking Eye v Smith in Manchester County Court December 2011, the Judge ruled that the only amount the Operator could claim is the amount that the Driver should have paid into the machine. In this case, the equivalent parking cost in the surrounding area was £5.50 for 4+ hours at the time of the ticket and remained at the time of writing this appeal.

I therefore require the Operator to submit a full breakdown of their genuine pre estimate of loss to show how this loss was calculated in this particular parking area and for this particular alleged breach. UK CPM did choose to list costs in the initial appeal rejection although I dispute the validity of these due to the inclusion of “24 hours customer availability customer services and telephone expenses”, “Supervisory staff and vehicles, training, uniforms etc. ad-hoc mobile patrols, erection and maintenance of the site signage’ parking payment and enforcement equipment to include hand held devices, cameras etc.”, “POPLA Appeals Fee” and “Public insurance Liability”. Operational business costs cannot possibly flow as a direct result of any breach as the operator would be in the same position whether or not any breaches occur.

I would also refer them to the Unfair Terms in Consumer Contract Regulations, where it states that parking charges for breach on private land must not exceed the cost to the Landowner during the time the Motorist is parked there and remind them that the amount in this case is nothing. UK CPM will state that the loss was incurred as a result of the appeals process, after the PCN was issued, however for it to represent a genuine pre-estimate of loss; they must first show that they incurred an initial loss !!! a direct result of the alleged breach.

This initial loss is fundamental and without it, costs incurred subsequently cannot be reasonably claimed to have been caused by the breach and as I have stated earlier - there was no initial loss.

Christopher Adamson stated in a POPLA appeal against VCS Ltd that

"the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonable moved away from a strict interpretation of what constitutes a genuine pre estimate of loss, recognising that in complex commercial situations an accurate pre estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive. In this case it is clear that the dominant purpose of the charge is to deter parking for longer than the time paid for. Accordingly, I am not satisfied that the charge can be commercially justified".

In another recently upheld POPLA appeal, Marina Kapour did not accept a submission by the operator that the inclusion of costs which were made up of general business costs was commercially justified. She said:

"the whole business model of an operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre estimate of loss in order to be enforceable against the appellant".

The same applies in my case, and POPLA 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 be 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.

2) Contract with Landowner

The Operator does not own the land in question and have provided no evidence that they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary nor agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I require that they provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).

In order to comply with the BPA code of practice, this contract must specifically grant the Operator the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons;

a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract nor 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 any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practice to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.

b) In POPLA case 1771073004, it was ruled that a witness statement was 'not valid evidence'. If the Operator provides a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.

Even if a basic contract is produced that mentions parking charge notices, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.

I would remind the Operator of their obligation to provide the Appellant with a copy of any evidence provided to POPLA as requested sent with sufficient time for consideration and rebuttal.

3) Inadequate signage
Further to the above dispute the signage in the car park is grossly inadequate. In order to park where the vehicle was at the time of the alleged break it is possible to miss all signs. The first sign when entering the car park is on the left hand side of the vehicle, ascending a ramp to a basement level and is position approximately 1.8 m up the wall and above a standard road car roofline on the opposite side of the pathway. There are no other signs between entering the car park, parking the vehicle in that position and leaving to enter the building’s stairwell and lift. On further inspection there is another sign on the opposite side of the wall the vehicle is parked against in the pictures provided as evidence by UK CPM. As is clear from this photographic evidence there is no lighting in this area of the car park and therefore no person could be reasonably expected to be able to see, let alone read, the signage.

The BPA code of practice February 2014 clearly states that "Specific parking terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand".

I assert that being unable to read the detail on the sign on entry without stopping your vehicle and as it is easily missed/obscured and having the only other sign in the vicinity to the vehicle which may not be visible at the time of parking due to inadequate lighting, breaches this code. One sign is not easy to read without impeding the flow of traffic behind you and the other is inconspicuous. The photograph supplied at the rejection letter stage is not one that is located at the relevant end of the development nor is it one that would have been visible on the route taken.

I therefore require that the Operator submit evidence of the "clear and prominent signage throughout the development" referred to in their rejection letter in the form of site maps and photographs clearly indicating the location and height of said signage at the time of the alleged breach. I believe that the photographs sent through by UK CPM clearly show that the lighting was inadequate and demonstrate that, since no clear picture of my vehicle is available, that it was obvious to the parking attendant that signs were not visible.

I have taken photographs since the alleged breach for the purpose of rebuttal should the need arise and would once again remind the Operator of the requirement to submit copies of any evidence to the Appellant allowing sufficient time for consideration and rebuttal.

If CPM are unable to rebut my challenge then I submit that my assertion that the contravention did not take place is upheld.