PCN company car

Kayleighb1

Don't know why you seem !!!!ed off.

I've listened all along, and understood all along, I'm not 'finally' understanding. Hence why as soon as you said it I removed reference to BPA and s Clark etc. see the last draft of my letter. And the only recent reference to popla was from researching in this forum and being told I could mention it saying that they DONT use it. As soon as I was told not to, I took it out.

I would appreciate knowing if the latest draft of my initial letter is ok, I'll post it now.

Kayleighb1

Date


Dear Sirs

Re: PCN No. ....................

I have been passed this 'PCN' to reply to from xxxlease, as I am the usual keeper of the car, though not always the driver. Please find permission attached for me to deal with this.

My postal address for future correspondence is: xxxx

My email address for future correspondence is: xxxxco.uk

I challenge this 'PCN' as keeper of the car, on these main grounds:

a). The sum does not represent a genuine pre-estimate of loss, nor is it a core price term. It is a disguised penalty and not commercially justified.
b). As keeper I believe that the signs were not seen, the wording is ambiguous and the predominant purpose of your business model is intended to be a deterrent.
c). There is no evidence that you have any proprietary interest in the land. I require the contract with the landowner is produced, as Excel are not the landowners and I contend you have no legal standing to pursue this charge.
d). Your 'Notice' fails to comply with the POFA 2012 and breaches various consumer contract/unfair terms Regulations.
e). There was no consideration nor acceptance flowing from both parties and any contract with myself or the driver is denied.
f). This is not a parking ticket, it is an unsolicited invoice.
g). It doesn’t comply with Terms in Consumer Contracts Regulations 1999

There will be no admissions as to who was driving and no assumptions can be drawn. As such, you must cancel the charge. I suggest you uphold this challenge now or alternatively, send a rejection letter. I am aware that your trade association also offers a further challenge to the IAS, however I have serious concerns over the true independence and effectiveness of the IAS and should they rule against my challenge, which I WILL make, I reserve my rights to reject their findings.

I also reserve the right to see the evidence of the other party before a decision is made.

I have kept proof of submission of this challenge. I look forward to your considered reply within 35 days.

Yours faithfully,

Xx
{the keeper's name}

Redx

I would have kept this in too

1. Formal challenge
There will be no admissions as to who was driving and no assumptions can be drawn. As such, you must cancel the charge. I suggest you uphold this challenge now or alternatively, send a rejection letter - subject to accepting my claim for costs as clearly stated below, since you have no case.

2. ''Drop hands'' offer
The extravagant 'parking charge' is baseless but I realise that you may have incurred nominal postage costs. Equally, I have incurred costs to date, for researching the law and responding to your junk mail dressed up to impersonate a parking ticket. It is clear that my costs and yours, at this point, do not exceed £15. Therefore, this is a formal “drop hands” offer. I remind you of the duty to mitigate any loss, so withdraw the spurious charge within 35 days without further expense and I will not pursue you for my costs. If you persist then I will charge in full for my time at £18 per hour plus my out-of-pocket expenses and damages for harassment.

3. Notice of cancellation of contract
I hereby give notice of withdrawal from this alleged 'contract' which was never properly offered by you and certainly was not expressly agreed. This 'contract' is hereby cancelled and any obligations now end. If you offer - and if I decide to use - the IAS , then the contract ends immediately on the date of their decision (whatever the outcome) so my notice of cancellation still applies. The Consumer Contracts (Information, Cancellation & Additional Payments) Regulations apply now to every consumer contract, save for a few exemptions, which parking contracts are not. It is the will of Parliament following the EU Consumer Rights Directive, that express consent is obtained for consumer contracts now - not implied consent - and that information is provided in a durable medium in advance.

You have failed to meet these requirements. The foisting of unexpected contracts like this on consumers, by stealth, is a thing of the past.

By replying to the challenge you are acknowledging receipt and acceptance of points 2 and 3 above. If you decide to persist with this unwarranted threat, I will be put to unnecessary expense and hours of time in appealing or defending this matter. As such, you will be liable for my costs and a pre-estimate of my loss - and in contrast with yours, mine is genuine - is that this sum will be likely to exceed £100.

I have kept proof of submission of this challenge. I look forward to your considered reply within 35 days.

Yours faithfully,

you have removed some of the above, but the bit you substituted is good for some of the challenge, so I would add back what is missing , mainly the middle part

Kayleighb1

Sent with all suggestions. Thanks for the advice, I'll be back when they reject it

Kayleighb1

Would appreciate advice please

Just went back to peel centre and the current signage says they are a member of bpa.

Can I use this on appeal?

Kayleighb1

Other than this

"If the signage says BPA (with no mention of IPC) then you have another appeal point - the signage cannot legally enforce a contract as it does not convey correct information, thus breaches the CPUTR and UTCCR. (Google the acronyms). But it does not mean you can demand POPLA."

Redx

they only changed from BPA to IPC in january so maybe they have a time period allowed to swap over the signage

you can certainly include these errors in your appeal, but nobody can tell you if the kangaroo court of the IAS would accept it or now, except the smug g*t who deals with the appeals there

my point ?

hit them with everything you can think of, at worst they can only say NO

but its still a paper trail in case it went to court and a judge may think differently

Kayleighb1

Thank you red

Kayleighb1

Ok Ive had the rejection letter, can I please have some help with my appeal to ias? Will post my first draft

Kayleighb1

I appeal this 'PCN' as keeper of the above car.
I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.

a). The sum does not represent a genuine pre-estimate of loss, nor is it a core price term. It is a disguised penalty and not commercially justified.
b). As keeper I believe that the signs were not seen, the wording is ambiguous and the predominant purpose of your business model is intended to be a deterrent.
c). There is no evidence that you have any proprietary interest in the land. I require the contract with the landowner is produced, as Excel are not the landowners and I contend you have no legal standing to pursue this charge.
d). There was no consideration nor acceptance flowing from both parties and any contract with myself or the driver is denied. The signage still indicates that BPA are the appeals process rather than IPC, and therefore cannot legally enforce a contract as it does not convey correct information.
f). This is not a parking ticket, it is an unsolicited invoice.
g). It doesn’t comply with Terms in Consumer Contracts Regulations 1999
h). PCM is misleading as to to the reasoning for the PCN.

a). The parking charges at the Peel centre are £1.30 for 0-3 hours. Your unsolicited invoice alleging that the car in question stayed for 33 minutes indicates that parking charges would have been limited to £1.30. In addition, there is a 15 minute window in which to buy a ticket, therefore the alleged offence is only for 18 minutes. Therefore your 'parking charge' of £100 does not represent a genuine pre-estimate of loss and is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. The amount claimed is excessive and is being enforced as a penalty for allegedly parking. I wish to see a breakdown of the cost calculations relating to this charge; given all of the costs must represent a loss resulting from the alleged breach at the time. Note:- the charges demanded by the operator as "genuine loss" are those allegedly incurred at the point of issuing the charge, and can not include speculative future costs relating to internal appeal procedures.

The keeper would be happy to make a retrospective payment of £1.30 to make good any losses on genuine parking charges incurred.

b).

c). As Excel are not the owners of this land and as such they cannot form a contract with the driver, I wish Excel to provide me with a full un-redacted copy of their contract with the landowner which allows them to form such a contract. A witness statement as to the existence of such a contract is not sufficient. I believe there is no contract with the landowner that gives Excel the legal standing to levy these charges nor pursue them in the courts in their own name as creditor. This was shown to be the case by District Judge McIlwaine in VCS v Ibbotson, Case No 1SE09849 16.5.2012 (transcript in the public domain). Further evidence that a third party agent cannot pursue such a charge anyway: as was found in ParkingEye v Sharma: Case No. 3QT62646 in the Brentford County Court 23/10/2013. District Judge Jenkins dismissed the case on the grounds that the parking contract was a commercial matter between Parking Eye and the landowner, and didn’t create any contractual relationship with motorists who used the car park. I submit that this applies in this case as well.

d). I submit that since the signage (see attached) is still incorrectly advising that EXCEL parking are members of the BPA, that they are in breach of The Consumer Protection from Unfair Trading Regulations 2008 (5)(2)(a) - containing false information and is therefore untruthful - and The Unfair Terms in Consumer Contracts Regulations 1999 (see point g), and therefore no contract can be legally enforced.

e).

f).

g). In the Unfair Terms in Consumer Contracts Regulations 1999:-

''5.(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.
(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.''

Also the OFT ‘Unfair Contract Terms Guidance’:
Group 18(a): Allowing the supplier to impose unfair financial burdens
‘'18.1.3 ...transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.’’

A driver / keeper cannot enter into a contract to pay for something that is expressly prohibited or unauthorised because that would make it a disguised penalty, according to the Office of Fair Trading. The signage and PCM appeal rejection letter are ambiguous but both give away the fact that it is not a contractual fee but a charge for 'unauthorised parking'. A genuine contractual fee would have a payment mechanism related to the true cost of the supply of a parking space, not charge the same punitive amount whether the car stayed for 1 minute or 24 hours.

This charge represents an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says: ‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’

h). PCM is misleading as to to the reasoning for the PCN. The reason of this invoice as stated in PCN (see attached file) for "allegedly breaching the terms and conditions" which is under POFA 2012. But the PCM appeal rejection letter said "we are not seeking to rely on POFA 2012", and that the driver has "freely entered into an agreement to abide by the conditions of parking in return for permission to park...or the motorist would face liability for a parking charge". This breaches the Unfair Terms in Consumer Contracts Regulations 1999 as above. Again, the signage on site shows PCM complies with BPA COP not with IPC COP which mislead me and wastes my time during complaint and appeal process. The sign is clearly not creating a contractual agreement so there is no genuine fee to park 'not in accordance' (i.e. in breach) of the terms.


I also reserve the right to see the evidence of the other party before a decision is made.

I have kept proof of submission of this challenge. I look forward to your considered reply within 35 days.




Still researching but will be back!