PCN received from UK CPM in private car park

Redx

do both and let the BPA aos compliance team sort it out

Coupon-mad

GMAD wrote: »

EDIT the letter also says my appeal letter was taken directly from a parking forum and is outdated and inaccurate. This is standard procedure no doubt, or are the 'rules' changing?

Nothing has changed - they are just desperate and say that to confuse you. Don't believe a word of it!

GMAD

Made my complaint last week and it is being investigated by Steve and his team.

Have also been looking at how best to prepare my POPLA appeal. Here is my latest draft which I need to submit ASAP. Would appreciate you guys taking a look and also guiding me on the questions/comments (highlighted in red).

Thanks in advance!

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Usual heading ...

1. No Genuine Pre Estimate Cost

a) The Charge is for damages disguised as a contractual sum

The nature of this charge is discernible based on the following –

(i) The Operator has repeatedly stated on the Penalty Charge Notice (PCN), Formal Demand Letter and Appeal Rejection letter that the PCN has been issued due to a ‘breach of the Terms and Conditions of parking’ which is ‘not displaying a valid permit’. This clearly evidences the claim is for a breach of contract and not a contractually agreed amount.

(ii) If the charge sought were for an agreed contractual sum, the Operator would have issued an invoice and not a penalty charge notice.

(iii) 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 on any transaction for an amount over £50. Conversely damages are not liable for VAT. The Operator has not alluded to nor provided any VAT information in the PCN, Formal Demand Letter or Appeal Rejection letter nor have they provided a parking VAT invoice.

(iv) The Operator provides no provision to pay the sum of £100 at the location, therefore it is not a genuine offer to pay that amount and therefore not recoverable

(v) The terms stipulated on the signage state ‘Terms of parking without permission...£100 per day.’ An alleged contractual sum cannot be demanded where permission by the owner of the designated bay (which is protected by security coded gates) has been granted, irrespective of whether this permission has been granted verbally or in writing. Therefore no contractual sum can be sought by a third party.

(vi) In a recent ruling at 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 that price, but its main purpose was to deter. It was, therefore, a penalty dressed up as a contractual term, and not recoverable. In light of the above I strongly contend the sum sought is that of damages and not a contractual sum.

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

The charge of £100, being sought for an alleged breach of the parking terms namely ‘parking without displaying a valid UK CPM permit’, is disproportionately high. Consequently I contend and the BPA code of practise states, 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.

Christopher Adamson stated in a POPLA appeal against VCS Ltd stated:
‘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... that a charge for damages must be compensatory in nature rather than punitive’

As the charge in this case is the same lump sum charged for any alleged ‘breach’ (e.g. irrespective of whether the vehicle is parked for 10 minutes or 24 hours or had received permission from the individual entitled to authorise parking in this designated parking bay etc) it is clear the charge is a punitive measure and no consideration has been given to calculating a genuine pre estimate of loss in this case.

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, as stated earlier, no monetary loss occurred to either the Operator or to the Landowner. I would also refer them to the Unfair Terms in Consumer Contract Regulations, which states parking charges for breach on private land must not exceed the cost to the Landowner during the time the Motorist is parked there. I remind them that the amount in this case is nothing. QUESTION: I’m not aware of any pay machines so should I include this paragraph?

The Operator has stated in their Appeal Rejection letter, the costs they deem to be a genuine pre-estimate of loss incurred at the time of issuing the Penalty Charge Notice in this case. This includes:

• Postage and printing
• 24 hours 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 adjudicator 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, 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
• Public insurance liability
• Data protection costs
QUESTION: I’ve not seen any parking payment equipment, which I assume to mean pay machines? Should I make this an issue?

This submission is to be relied on. A substantial proportion of the costs stated by the Operator are business costs and not obviously a loss arising. As stated in POPLA key case by adjudicator Henry Michael Greenslade in SBV v KMJ (POPLA Nov 2013):

‘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 overheads of the operator.’

In relation to staffing costs etc Judge Charles Harris QC in A Retailer v Ms B stated:

"[14] 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. [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do... [16] So the claim in respect of staff time cannot, in my judgment, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home... [17] It follows that the claims must be dismissed’’

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 operator has stated loss was incurred as a result of the appeals process after the parking charge notice was issued but in order for this to represent a genuine pre estimate of loss, they must first show that they incurred an initial loss as a direct result of the alleged breach.

Additionally Henry Michael Greenslade in SBV v KMJ (POPLA Nov 2013) states:

‘On the face of it, fees incurred by an operator in an appeal to POPLA might be a recoverable loss but the whole ethos of the appeals system is that there is no charge to the motorist’. I therefore contend there is to be no charge to the Motorist for this and cannot be included as a loss. It is also not a reasonable cost to be incurred at the time the PCN was issued.

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

Consequently the Operator has produced a list of costs where a substantial proportion of costs are general operational costs, and not losses consequential to the alleged breach. The operator would be in the same position whether or not any alleged breach had occurred.

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 is not commercially justified or proved to be a genuine pre estimate of loss. I respectfully request my appeal is upheld and the charge dismissed.

2. Contract with Landowner

The Operator does not own the land in question and has provided no evidence they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary nor agency rights and hold no title nor 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 practise, 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 Practise 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.

Should a basic contract be produced mentioning 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

The BPA code of practice October 2014 clearly states "Specific parking terms signage tells drivers what [the] terms and conditions are, including parking charges. [The Operator] 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 visible on entry and parking, breaches this code. QUESTION: the first sign is up high, way above normal car driving height, and not easy to read if in a car. Is this enough for me to argue against? There are a couple of signs in the car park.

I have photographic evidence 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. QUESTION: I can return to the site and take a photo if necessary.

4. Non compliant Formal Demand Letter - no keeper liability established under POFA 2012

The ‘Formal Demand Letter’ (as described by the Operator) 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 the Operator has-
• Failed to repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f). [Para 8(2)(c)]
• 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 [Para 8 (2)(d)]
• Failed to inform me as keeper of any discount offered for prompt payment [Para 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 [Para 8 (8)(b)]
• Failed to identify the creditor [Para 8(2) (h)] QUESTION: Even after researching the whole POFA thing I think this is the only statement I can quote with confidence.

The requirements of Schedule 4 of POFA2012 and the mandatory detail and wording to ensure a NTK is compliant are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out the mandatory NTK wording will result in no 'keeper liability'.

As such the Operator has not provided a valid Notice to Keeper within the 28 day period as specified by Schedule 4 of POFA 2012

5. Failure to inform of POPLA appeal process (BPA Code of Practice)

BPA Guidelines s.22.12 states ’If you [the Operator] reject an appeal you must tell the motorist how to make an appeal to POPLA’. QUESTION: CPM’s letter tells me I have the right to appeal and provides the POPLA URL – do they need to tell me anything more about the process?

6. Providing a backdated POPLA code in an attempt to invalidate my appeal

In their rejection letter, UK CPM Limited provided a POPLA code XXXXXXXXXX backdated to 7th Jan 2014. Running this code through the POPLA code checker resulted in the following response:

“… You have missed the deadline to appeal … blah blah … Your deadline passed 351 days ago … Grounds for complaint … The code was generated 365 days before the date of your appeal rejection letter … Please consider making a complaint.”

Please find evidence (photo of letter and photo of envelope date stamp) and screenshot of POPLA code checker response as attached.

As you can see, the issue date of the alleged breach is 12th Nov 2014, thus proving the above.

In consideration of the above I contend the parking charge sought is a sum by way of damages and the damages sought on this particular occasion do not substantially amount to a genuine pre-estimate of loss or fall within commercial justification.

Kind regards

Umkomaas

You mention in opening paragraphs 'Penalty' charge notice - does your documentation use the word 'Penalty'? If not, don't use it in your appeal.

I don't proof read POPLA appeals any more - brain mush after hundreds upon hundreds of OP requests - sorry. So have skimmed it.

Your questions in red. Only use points of appeal if the situation existed. So if there were no pay machines, why make a point about pay machines?

No need for photos unless there's sometning absolutely fundamental to your appeal. The PPC will need to provide photos if you raise an appeal point about signage (for example).

The PPC has done enough to tell you about POPLA in their rejection letter - they are not required to give anything other than informing you that the second stage appeals service is available to you, accompanied by a verification code for your use.

In terms of the verification code being 12 months out of date, please read here:

http://parking-prankster.blogspot.co.uk/2015/01/ukcpm-issue-invalid-popla-codes.html

MothballsWallet

Coupon-mad wrote: »

Nothing has changed - they are just desperate and say that to confuse you. Don't believe a word of it!

After all, the PPC's upper management still need to make those payments on their Mercs / Beemers / Audis / Lexuses (Lexii?) / Maseratis, so they can't to lose money :rotfl:

Mike172

UKCPM are easy to deal with. Dont over think it too much. Ill bet you 50p UKCPM wont even bother defending themselves when you appeal to POPLA. Just copy and paste an appeal from somewhere else if youre not sure. If you lease your car, remove POFA keeper liability bit.

Careful of the POPLA code make sure 7th digit is a 5 and not a 4.

Just change it. If you submit with a 4 they will decline your appeal saying you missed the deadline. If you change the digit they will accept it and give you an appeal date.

Redx

check this winner out too, for pointers etc

https://forums.moneysavingexpert.com/discussion/5070813

GMAD

@Umkomaas: you're right about the "penalty" - it should be "parking" so I'll change that.

Re CPM covering themselves re POPLA appeal, I just read the following in another thread:

"I feel you must draw POPLA's attention to the sharp practice (banned by Mr Greenslade clearly in the POPLA Annual Report and in Newsletters) of hiding a POPLA code as a 'ref' at the top of a letter and just mentioning POPLA in passing in some blurb about paying at the end of a letter, with no explanation nor clear pointing out of the verification code. As such, when you prevail you ask that POPLA raise this one with the BPA as this cannot be allowed to continue. A less well researched appellant would not know what POPLA was, nor what the hidden code up the top even meant."

This is how CPM present it to me - ref tucked away on the top of the letter and no mention of how the appeal process works. I think bartmatt included this in his appeal and won (this morning).

GMAD

@Mike172: Yes, that's exactly what CPM did with mine. Thankfully the BPA set me straight and said they're investigating as CPM have been warned about this practice before.

GMAD

@Redx: That's a handy thread to refer to, thanks.