UK CPM ticket - with sign picture

Coupon-mad

Here's a newer version by Spear, with more appeal points including the reason you waited for that 'Formal Demand' (the fact it isn't compliant = no keeper liability):

https://forums.moneysavingexpert.com/discussion/comment/67224523#Comment_67224523

HTH

Dublte

Coupon-mad wrote: »

Here's a newer version by Spear, with more appeal points including the reason you waited for that 'Formal Demand' (the fact it isn't complaint = no keeper liability):

Perfect - thank you. I've added some of Spear's points in there and elaborated on a few. I don't think anything (aside from semantics) is novel and not already included in letters around MSE. I did try to read around some of the cases so a few points are subtly different but Spear's letter was for exactly the same company and the same alleged contravention as the one in this case so pretty much perfect!

Some bits added in about the lighting and exact details of the signs.

Hopefully the final draft below:-

Dear POPLA assessor,

Re ********* parking charge notice ********
POPLA ref **********

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.
4. The alleged contravention did not occur.
5. Non-compliant Formal Demand letter.
6. Failure to inform of POPLA appeal process.

1 No genuine pre-estimate of loss.

1.1 The charge is disguised as a contractual sum but appears to be for damages.

1.1.1 The signage on display in the car park where the alleged occurred states that the charge is a contractually agreed fee, which appears to be an attempt by UK CPM to avoid the necessity of justifying a pre-estimate of loss. On the Parking Charge Notice (named as such by UK CPM), Formal Demand letter and appeal rejection it was clearly stated that the charge is for “drivers who break the terms and conditions” and of being in “breach” of which is “not displaying a permit”. This unequivocally shows the claim to be for breach of contract and not a contractually agreed amount. The amount in the corresponding charge must therefore represent liquidated damages.

1.1.2 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".

This strengthens point 1.1.1 in this appeal that the charge is a sum sought for damages and as such requires a genuine pre-estimate of the loss, which I address in paragraph 1.2.

1.1.3 If the charge sought was for an agreed contractual sum, UK CPM would have issued an invoice and not a PCN. By virtue of HMRC, a contractual sum is liable for VAT. It is a legal requirement to state the percentage and the amount of VAT due for any transaction over £50. Conversely, damages are not liable for VAT. UK CPM have not alluded to nor provided any VAT information in the PCN, Formal Demand letter of Appeal Rejection, nor have they provided a parking VAT invoice.

1.1.4 UK CPM provides no provision to pay the sum of £100 at the location, therefore it is not a genuine offer to pay that amount and as such not recoverable. Highlighting POPLA appeal 9663053967, where the Operator made the same attempt to describe the charge as a contractually agreed fee, it was found that the charge was a penalty. I believe these two points confirm that the charge is for damages and only disguised as a contractual sum, purposely misleading patrons of the car park.

1.1.5 The signage in the car park states “Terms of parking without permission… £100 per day”. For the alleged breach of these permission was sought from the property owner, for which the correctly allocated space was being used. A contractual sum cannot be demanded where permission of the owner has been granted, irrespective of whether this was granted verbally or in writing. Therefore no contractual sum can be sought by a third party

1.1.6 During Luton Crown Court 2014 (Civil Enforcement LTD v McCafferty). CEL v McCafferty, the judge ruled the sum quoted on the sign was not a genuine offer to park at the price but it intended to deter. It was, therefore, a penalty disguised as a contractual term and not recoverable.

1.1.7 In light of points 1.1.1 through to 1.1.6 I strongly contend the sum sought is that of damages and therefore not a contractual sum. 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.

1.2 The Charge is not a genuine pre-estimate of loss.

1.2.1 The charge of £100 is being sought for an alleged breach of the parking terms namely “parking without displaying a valid permit” and is disproportionately high. As a result 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.

1.2.2 This case refers to a private parking area for residents that have allocated spaces. The vehicle was parked in an allocated bay with full authorisation. Therefore there is no loss to any party involved. There was no damage or obstruction caused (nor is any being alleged) and from the photographs sent from UK CPM as evidence the car park is nearly empty. I reason that there was no loss caused to either the Operator or the landowner by any alleged breach.

1.2.3 The June 2014, in a POPLA appeal against VCS Ltd, Christopher Adamson stated

“the aim of damages is to be compensatory, beginning with the idea that the aim is to put parties in the position they would have been in and the contract been performed….that a charge for damages must be compensatory in nature rather than punitive”.

Assessing the UK CPM signage the same sum is charged for any alleged “breach”, whether the vehicle is parked for 10 minutes or 24 hours and the same amount is charged for any kind of “contravention”. I therefore believe that it is clear this charge is intended to be punitive and there is no consideration to the calculation of a genuine pre-estimate of lost.

1.2.4 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. Since the parking space where the alleged breach occurred was allocated parking and permission to park had been agreed then no monetary loss occurred to either UK CPM or the landowner. The Unfair Terms in Consumer Contract Regulations state that parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there, which in this instance is nothing.

1.2.5 In light of paragraphs 1.2.1 to 1.2.4 I request that UK CPM submit a full breakdown of their genuine pre-estimate of loss to show how this was calculated with respect to this specific car park and the alleged breach. In the appeal rejection, UK CPM did choose to list costs as follows:

“The genuine pre-estimation of loss set out below refers to cost that we estimate, at the time of issuing the PCN, would be incurred in this case include:

• Postage and printing
• 24hours availability customer service and telephone expenses
• Staff wages and salaries including Employers national insurance (PCN recording and issuing) for this case and fuel expenses.
  Cost of appeal adjudication staff for this case.
• Management (quality control / evidence gathering / appeals) for this case
• Legal accounting and IT advice for this case
• DVLA Fees / Processing Costs
• 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.

Genuine Pre-Estimate of Loss – Beyond £100
Other on-going costs:

• POPLA Appeals Fee
• Public insurance Liability
• Data Protection Costs” [sic]

I contend that this calculation fails as a genuine pre-estimate of loss, since it is a ‘post-estimate’ after the event, of figures designed to match the charge. In both POPLA case SBV v JMK (November 2013) and then repeated in the 2014 POPLA annual report prepared by the Lead Adjudicator, Henry Michael Greenslade, it was stated:

“a genuine pre-estimate of loss is just what it says. The sum should represent a loss, not a profit. It is not the business overheats of the operator”.

Many of the points in UK CPM’s calculation of the loss are 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. UK CPM will state that the loss was incurred as a result of the appeals process, after the PCN was issued, however they must show that they incurred an initial loss as a direct result of the 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.

1.2.6 In relation to staffing costs, highlighted by UK CPM in their genuine pre-estimate of loss, I refer to Judge Charles Harris QC in A Retailer v Ms B [2012] who stated:

“The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business… nor was there any loss of revenue generation… the amounts spent by the claimant would have been identical had the defendants stayed at home”.

The claim was rejected on the principle set out in Aerospace Publishing Limited v Thames Water Utilities Limited [2007] that the claimant had failed to demonstrate that its security staff had been diverted from ordinary duties.

1.2.7 In a 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".

As per point 1.2.5 the initial loss is fundamental and without it, costs incurred subsequently cannot be reasonably claimed to have been caused by the alleged breach.

1.3 Based upon the points raised in 1.1 and 1.2, I believe there are grounds for the charge to be dismissed. 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

2.1 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).

2.2 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;

2.2.1 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.

2.2.2 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.

2.3 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. Based upon points 2.1 to 2.2, I respectfully request that my appeal be upheld and the charge dismissed.

2.4 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

3.1 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.

3.2 On further inspection of the car park (post receiving a Notice to Keeper) 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.

3.3 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.

3.4 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.

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

4 The alleged contravention did not occur.

4.1 The vehicle was parked in the designated bay with full permission and authority from the designated owner of the parking bay, at the time of the alleged breach. This verbal contract is relied on and supersedes any terms and conditions on the signage.

5 Non-compliant Formal Demand letter.

5.1 The ‘Formal Demand letter’, as described by UK CPM, does not constitute a Notice to Keeper under Schedule 4 of the Protection Of Freedoms Act 2012 (POFA) and as such no keeper liability has been established, in particular UK CPM has:

• Failed to repeat the information in the notice as required by paragraph 7(2)(b), (c) and (f).
• Failed to specify whether the parking charges, specified in the notice to driver, as required by paragraph 7(2)(c) has been paid in part and specify the amount that remains unpaid in the notice to keeper.
• Failed to inform me, as keeper, of any discount offered for prompt payment as per paragraph 8(2)(g).
• Failed to inform me, as keeper, of any arrangements for the resolution of disputes or complaints that are available under independent adjudication or arbitration as per paragraph 8(8)(b).
• Failed to identify the creditor from paragraph 8(2)(h).
  The requirements of schedule 4 of POFA and the mandatory detail and wording to ensure a notice to keeper is compliant are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out the mandatory wording will result in ‘no keeper liability’. As such, UK CPM, have not provided a valid notice to keeper within the 28 day period as specified by POFA.

6 Failure to inform of POPLA appeal process

6.1 By virtue of s.22 BOA guidelines, set in October 2014, the Operator is required to inform of the arrangements for an independent appeal and at what stage this becomes available. The Formal Demand letter omits this information.

Should UK CPM decide to rebut my challenge, I respectfully request that they provide strict proof to the contrary of this assertion, to which I am entitled to reply. In consideration of the above points, 1 through to 6, I contend the parking charge sought is a sum by the way of damages and those sought in this instance do not substantially amount to a genuine pre-estimate of loss or fall within commercial justification.

Yours faithfully,

Dublte

Coupon-mad

Looks great! Does the formal demand completely omit info about POPLA?

Dublte

I don't have it to hand at the moment (I'll double check tomorrow evening) but I am fairly certain the Formal Demand does not reference POPLA. It does explain that there's an independent appeals process but makes no reference to which one or how to research it.

The appeal rejection does mention POPLA in the last paragraph of a four page letter - but hides the code (which it doesn't mentioned) in the header of the first page of the letter. Had I not already read all about what to look out for on here I'd have probably missed it completely.

Many thanks.

hoohoo

Dublte wrote: »

"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 rejection letter you sent was a template reply passed around parking companies for the purpose of misinforming motorists. It is deliberately misleading and inaccurate, but cannot be said to be outdated because it was never in date in the first place. The case law quoted referring to HHJ Moloney QC is presumably ParkingEye v Beavis and Wardley. This is a small claims case which goes against large volumes of previous existing higher case law, including Talal El Makdessi v. Cavendish [2013], and in any case is being appealed. The appeal is scheduled for late Feb 2015. The case has since been overturned in several other small claims cases on the grounds that UTCCR 1999 applies, and (specifically for paid car parks) commercial justification does not apply. Should court action ensue, I will refer to your letter and attempts to misinform and mislead. Please note that HHJ Moloney specifically stated in his judgment that other judges should be wary of blanketly applying his judgment but should instead examine the facts of the case. As that case referred to a car park where ParkingEye paid £1000 a week to be able to issue parking charges, it will not be widely applicable to other cases.

Umkomaas

Excellent riposte hoohoo.

Dublte

Great answer hoohoo - helped curb some of my (from everyone's posts, completely unnecessary) anxiousness.

POPLA appeal sent. Email confirmation received. Will post back when I hear anything.

Many thanks for all those who've helped with the letter and making me do it rather than just paying! Really appreciate it.