Parking Charge Notice - Unsure if IPC or BPA

Qwert.

Does this seem ok?

I challenge this 'Parking Charge Notice' as keeper of the car, on the following grounds:
a) The rejection letter is misleading as it states that the car park is operated in accordance with British Parking Associations (“BPA”) Code of Practice; however, G24 Limited (“they”, “G24”) were not, and still not, BPA members on the date material to this case and therefore cannot operate under a Code of Practice which they are not fully signed up members.
b) G24 have failed to prove that the signage is in accordance with the Independent Parking Commissions Code of Practice. It is however clear that they are in breach of the Code of Practice on the car park in question due to severely damaged signs which cannot be clearly read by the driver of the vehicle. Furthermore the signage also contradicts other signage within the car park in question. Photographs of the signage can be found attached to this appeal.
c) G24 have failed to provide me, the registered keeper, with their genuine pre-estimate of loss calculation (“GPEOL”) or state when this was calculated as to which would justify the parking charge for where there is a breach of terms. As they have failed to provide me with this information, I assume that GPEOL has not been considered and therefore I am not liable for the damages or loss of earnings.
d) The sign which was nearest to the car, according to the driver, was severely weather worn and unreadable, therefore no contract was formed due to the terms not being clear. Additionally, the sign appears to be from the landowner and not G24, therefore they cannot enforce a charge based on signage and terms which are not theirs.
e) The signs which can be read are outdated BPA signs, of which G24 are not members, which creates no contract to pay £50 for the driver staying longer than three hours in the car park. The ‘3 Hours Free Parking’ quoted on the signage is merely a statement of fact and can be seen as a heading to attract customers to the site, not a contractual term or obligation. The contractual terms appear to be based on the five pictograms, none of which were breached.
f) As the signage is inadequate to form a contract to charge £50 for the driver staying longer than three hours, it is therefore the fault of person drafting the sign, not the fault of the driver.

Coupon-mad

As long as you attach pics of the signs as well before hitting submit (the IAS expect you to provide all evidence), I would just amend it to (my changes in red) and you may have to put a brief synopsis/bullet points in the IAS word-count restricted box then - BEFORE clicking submit! - attach this full appeal as part of your evidence along with the photos):




I challenge this 'Parking Charge Notice' as keeper of the car, on the following grounds:

1 Misleading Action under the CPUTRs
a) The rejection letter is misleading as it states that the car park is operated in accordance with British Parking Associations (“BPA”) Code of Practice; however, G24 Limited (“they”, “G24”) were not, and still not, BPA members on the date material to this case and therefore cannot operate under a Code of Practice which they are not fully signed up members.

b) G24 have failed to prove that the signage is in accordance with the Independent Parking Commissions Code of Practice. It is however clear that they are in breach of both Codes of Practice on the car park in question due to severely damaged signs which cannot be clearly read by the driver of the vehicle. Furthermore the signage also contradicts other signage within the car park in question. Photographs of the signage can be found attached to this appeal.

It is prohibited and an unfair commercial practice in the CPUTRs to state that a trader adheres to a Code of Practice (BPA or IPC) but in fact does not:
''Prohibition of unfair commercial practices 3. (1) Unfair commercial practices are prohibited.
(2) Paragraphs (3) and (4) set out the circumstances when a commercial practice is unfair.
(3) A commercial practice is unfair if—
(a)it contravenes the requirements of professional diligence; and
(b)it materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to the product.
(4) A commercial practice is unfair if—
(a)it is a misleading action under the provisions of regulation 5;
Misleading actions
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; and
(b)it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.
(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...
(4) The matters referred to in paragraph (2)(a) are — ... (f) any statement or symbol relating to direct or indirect sponsorship or approval of the trader or the product; ''

Consumer Protection from Unfair Trading Regulations 2008

http://www.legislation.gov.uk/ukdsi/2008/9780110811574/contents

It is no defence under the CPUTRs for G24 to say the information was not deliberately 'false'. I am saying as a fact, as an average consumer, that the reference to compliance with the BPA/IPC (and the presence of ATA symbols on some signs) did mislead me and was 'likely' to cause me to take a transactional decision I would not otherwise have done (i.e. I might have believed they were compliant with their Trade Body - or previous Trade Body - and might have paid them).

Further, leaving signs up which are so weatherworn as to be unreadable (see attached picture) contravenes the CPUTRs requirement for professional diligence, especially with an 'implied consent' charge where the signs are the only way the trader alleges a contract may have existed (a contract which is denied).

2. G24 have failed to provide me, the registered keeper, with their genuine pre-estimate of loss calculation (“GPEOL”) or state when this was calculated as to which might attempt to justify the parking charge for where there is a breach of terms. As they have failed to provide me with this information, I must infer that GPEOL has not been considered and therefore I am not liable for any alleged loss.

It is not for me to prove there was no GPEOL - it is trite law that the burden of proof for this falls upon a claimant (unlike the burden of proving a charge is a penalty which is the other way around). My appeal point here is that I am putting G24 to strict proof of their GPEOL, bearing in mind this is a free car park so there was no unpaid tariff, no initial loss. And that burden remains theirs alone.

In the unlikely event of the Assessor for the IAS disagreeing about this burden of evidence falling upon the Operator, I quote from Murphy on Evidence:

http://books.google.co.uk/books?id=hc6cAQAAQBAJ&pg=PA80&lpg=PA80&dq=&f=false#v=onepage&q&f=false

''4.5.2.1. Contract
The claimant bears the burden of contract, the due performance of conditions precedent, breach of contract by the defendant and consequent loss to the claimant.''

3. The sign which was nearest to the car, according to the driver, was severely weather worn and unreadable, therefore no contract was formed due to the terms not being clear. Additionally, the sign appears to be from the landowner and not G24, therefore they cannot enforce a charge based on signage and terms which are not theirs.

4. The signs which can be read are outdated BPA signs, of which G24 are not members. Further, this sign:

https://www.dropbox.com/s/z31zt93vzwmrecu/2014-11-22%2010.43.25.jpg?dl=0

creates no contract to pay £50 for the driver staying longer than three hours in the car park. The ‘3 Hours Free Parking’ quoted on the signage is merely a statement of fact [STRIKE] and can be seen [/STRIKE]as a heading to attract customers to the site, not a contractual term or obligation. The contractual terms are clearly those in the five pictograms, none of which were breached.

5. As the signage is inadequate to form a contract to charge £50 for the driver staying longer than three hours, it is therefore the fault of person drafting the sign, not the fault of the driver. Perhaps G24 could explain to the IAS why their sign has no terms set out regarding what happens if a driver stays for longer than 3 hours - do they have to pay £1, do they have to pay £1000? It is anyone's guess. The sign does not say what happens after the free parking time and does not state staying longer is even a 'contravention'. It merely says 'if you breach any of the above terms and conditions' but there is no term/condition relating to any maximum stay, or any obligation not to stay longer than 3 hours. It cannot be assumed or inferred - just because of the advertised fact that the first 3 hours are free. No such chargeable term about 'not staying longer' or perhaps, 'agreeing to pay a charge for staying longer', exists on the sign at all.

In any event, the doctrine of 'contra proferentem' applies and the interpretation which most favours the consumer must prevail which is, that the only contraventions are those shown in the pictograms.

The Operator has failed in their burden to prove there was any contract, or any breach of contract, or any loss.

Qwert.

My appeal has been declined. This is the response I had.

Appeal Outcome: Dismissed

The Adjudicators comments are as follows:

"The Appellant raises a number of challenges, which I will respond to in turn.

1a This appeal is not concerned with the failures or otherwise of the internal appeal. The Operator is a member of the IPC.

1b In this appeal the Operator does not have to prove anything, the onus is on the Appellant. A breach of the code of practice does not automatically mean that the charge is invalid. The requirements of the code are best practice. Falling short of best practice does not mean the Appellant had insufficient notice. I can read the content of the sign the Appellant claims is unreadable and the significant terms are no different from the other signs at the site.

2 Genuine pre-estimate of loss. Again it is not for the Operator to prove but for the Appellant. Where the claim is for breach the test to decide whether the charge is valid is to consider whether the charge is proportionate, has a tendency to deter, and is commercially justifiable. The inte ntion was clearly to deter drivers from parking beyond a period of time. When one considers the likely cost of managing checking and enforcing the site, in the absence of any evidence to the contrary I find the charge proportionate, and as the Operator’s only income commercially justifiable.

3 The Appellant has provided no evidence this sign was nearest their car.

4 This is not relevant. The Operator contends they are bringing the charge not for overstaying but on the basis the Appellant was not a customer. This is clearly a term and the other terms on the contractual sign make it clear that by breaching this term the Appellant is liable to pay the charge.

5 This is therefore irrelevant since I consider a contract has been formed.

Finally I do not find the contract ambiguous and therefore the doctrine of ‘contra proferentem’ does not apply.

"

As your appeal has been dismissed, the Independent Adjudicator has found, upon the evidence provided, that the parking charge was lawfully incurred.

As this appeal has not been resolved in your favour, the IAS is unable to intervene further in this matter.

The Operator must now allow you 14 days to make payment before they commence any action to enforce the charge.

Should you continue to contest the charge then you should consider obtaining independent legal advice.

bod1467

What complete and utter rubbish!

Independent Appeals Service? Aye right! About as independent as a Zimbabwe government minister!

For example: 2 Genuine pre-estimate of loss. Again it is not for the Operator to prove but for the Appellant

Eh? In who's universe is the appellant responsible for disproving GPEoL?

fisherjim

I am no expert but I have never read such eyewash!
Surely a charge that is an intention to deter is a penalty?

Umkomaas

Further proof that the odds at appeal are stacked entirely against the motorist.

Kangaroo court? More like a bush tucker trial - makes you retch!

Parking-Prankster

http://parking-prankster.blogspot.co.uk/2014/12/independent-parking-committee-kangaroo.html


I hae blogged about this farcical appeal, and how the IPC are prepared to use assessors who
1) Lie (the sign clearly cannot be read)
2) Have no knowledge of law (the different between a contractual charge and breach of contract is basic law and surely even taught in Sheffield)
3) Do not check the facts of the case (claiming the breach is for not being a customer, when the NtK says it is for an overstay)
4) Have no concept of basic maths (thinking it is possible to run a company at a profit only from monies received from losses they make)
5) Does not require proof of anything from the parking company
("Genuine pre-estimate of loss. Again it is not for the Operator to prove") but requires proof of everything from the motorist. ("The Appellant has provided no evidence this sign was nearest their car")


The sooner this 'independent appeals' system is kicked into touch, the better.


The sooner this particular assessor is named, shamed and given the old heave-ho the better.

Coupon-mad

These bits shocked me the most:

In this appeal the Operator does not have to prove anything, the onus is on the Appellant.

!!!!!!? Needs a complaint to the DVLA for allowing this joke of an 'IAS' to continue...because...it's not an IAS.

I even pointed out the case law (which is what the IPC wants) to show the idiot Assessor why the burden falls upon the claimant to show the charge is a GPEOL.

The Operator contends they are bringing the charge not for overstaying but on the basis the Appellant was not a customer.

Yet you have a sign which doesn't say what the 'contract' terms are for overstaying, and the charge is not for 'not being a customer'!

Qwert - you do know not to pay and that the arguments we have made here would likely win in a small claim (just not at kangaroo court)?

Needs a serious complain to the DVLA, not about the decision per se, but about the issues exposed by the Prankster. This cannot be allowed for an IAS.

hoohoo

Coupon-mad wrote: »

These bits shocked me the most:
!!!!!!? Needs a complaint to the DVLA for allowing this joke of an 'IAS' to continue...because...it's not an IAS.

I even pointed out the case law (which is what the IPC wants) to show the idiot Assessor why the burden falls upon the claimant to show the charge is a GPEOL.

It was interesting that in the ParkingEye v Beavis case, Jonathan Kirk QC, ParkingEye's counsel, agreed that as this was a consumer case, the burden of proof fell on ParkingEye to prove the charge was a GPEOL. He then went away over lunch and came back with some new evidence (accounts) which HHJ Moloney allowed. Ironically this proved the charge was not a GPEOL, so Moloney had to fall back onto 'commercial justification for his judgment.

Castle

And even if you could prove it's not GPEOL, then the IAS will simply deem it to be commercially justified, so GPEOL is not necessary.