Uncle Henry's PCN

Grandad123

Hi. quick resume story so far. Got rejection from CPM with POPLA code. Sent off appeal to POPLA. On advice POPLA appeal unsuitable, factual but not 'evidential' so sought advice on forum. Contacted POPLA they say hearing is 28th, evidence expected 19th. Am waiting until around 19th for evidence to see if there are any good rebuttal points.


My bottle may go as the 19th approaches but plan to send of more formal appeal as additional points.


My apologies to CC as my mention of intellect was mentioned as a compliment but, when I read it later it sounded facetious. The power of the written word!


Her indoors is threatening me with far worse punishment, and rather more painful, than CPM can dish out, as her dining table has been taken over with printouts and folders.


While this is all happening uncle Henry is off on his hols in Eastbourne, no doubt sitting on the seafront, eating fish and chips with his hanky on his head. Meanwhile I am descending in to some sort of Parking syndrome.

ColliesCarer

No need to apologize - I'm no Einstein but thank you for the compliment and yes I do love dogs, though Jakey (in my pic) makes me wonder why at times

Re: your question about the £100/day - and whether that wording means it should be pro-rata - IMO that argument probably doesn't have any legs and is irrelevant anyway in your circumstances because the charge was issued for failing to display a BB (not for say an overstay).

So I would say you are better focusing on the fact that it is not a GPEOL - am assuming parking is otherwise free - and so any charge of whatever sum would not be justified because there was no loss.

However their use of the word "fee" raises questions
There are basically two charging models PPC's use for levying a Parking Charge
1) Damages for breaching the terms and conditions
or 2) Contractual fees (i.e. tariffs)
If the PPC are trying to claim the charge is a contractual fee this needs to be challenged slightly differently.

Can you post up a pic of the sign and I'll take a look at it for you?
You need to post it on a hosting site such as photo bucket and then post the link up here (you should now be ok to post links but if not just change the http:// part to say hxxp://)

Coupon-mad

Agree with CC - you need to be careful to check what their evidence says about this possibly being argued to be a 'contractual charge'. If they argue that well then your case 'could' be lost if POPLA agree all the signs say it was an agreed fee. So your rebuttal will need to be worded carefully with stuff about the UTCCRs and the fact that a charge like this is clearly not a core price term, as the predominant aim is deterrence and because the driver would never have agreed to that sum if the contract had been negotiated face to face (I think that's mentioned in the EU Directive that led to the UTCCRS).

We can discuss it when the evidence arrives. You'll need to show us their paperwork.

Grandad123

http://i483.photobucket.com/albums/rr199/Kitman721/Photo%201_zpsozulwr0m.jpg


Don't know what happened there its all new to me. Any way something somewhere seems to have arrived.


I will have a look to see what I have posted. Back in a min

Grandad123

It looks like perhaps I should have selected IMG in photobucket.


The trouble is I am at the age when I learn something new every day but I forget two. Anyway I expect you can see the sign.


On the surgery front I had made a bit of a ricket. The website bits we looked at were for the one next door to the actual one Henry and I visited although the car parking is the same.


In my attempt to try and stop this situation happening to others I visited the site today.


Left note at 'our' surgery but manager busy. But have received email he wants a chat so good news.


Popped in to next door and pleasantly surprised as manager gave me a bit of his time. Upshot was he was new but was fairly sure the Landlord? had a contract with CPM. Pointed out discrepancy with website etc.


No action with regard to the possibility of cancelling PCN's but at least he is a bit more aware of the situation, so who knows.

Grandad123

Hi Coupon-mad. Not expecting their evidence until 21st or so.


Will post up evidence if it arrives.


Don't know what CPM are up to as they sent me another copy of the refusal of my first appeal. I guess that gives me another 14 days at the reduced rate. God bless them.


As for now I can only wait so have been painting the fence and have been watching a Kestrel decimate my 'spadger' population.
He swoops quicker than a warden with a ticket in his hand.

ColliesCarer

ColliesCarer wrote: »

.......There are basically two charging models PPC's use for levying a Parking Charge
1) Damages for breaching the terms and conditions
or 2) Contractual fees (i.e. tariffs)
If the PPC are trying to claim the charge is a contractual fee this needs to be challenged slightly differently.

Their sign does have wording that indicates they may be trying to claim the charge is a contractually agreed fee (aka consideration) but for it to be a fee, that would mean permission to park in a disabled bay without displaying a Blue Badge was given providing a fee was paid. Clearly that's a nonsense - permission to park in breach of the conditions of a contract obviously can't be a term within the contract.

Also no means to pay the supposed 'fee' was provided on site.

Contractual fees are also revenue which attracts Vat and therefore a VAT invoice should be provided (ideally straight away but certainly on request). Wonder if HMRC are aware of this revenue earning operation?

A car park operating a revenue generating business must also be separately rated as such with the local authorities. You might like to find out from the local council if this has been done (many publish the figures on-line which businesses pay rates and what the RV is but if not you could request it ).

Also you might like to ask the practice manager when you meet them whether they are aware of this.

Anyway it's actually a sum sought as damages for breach of contract and must therefore be shown to be a genuine pre estimate of loss but by stating that this is a contractually agreed fee on their signage CPM are attempting to avoid having to justify a pre estimate of loss.

The forum can help you with wording to challenge this once their evidence arrives but in the mean time have a look at this thread and the POPLA submitted - although the circumstances are different to yours the issues regarding the validity of the £100 charge are similar; this OP received a PCN for failing to display a permit in a residents car park

https://forums.moneysavingexpert.com/discussion/comment/68623265#Comment_68623265

Also would be useful if you could also post a link to a pic of a redacted copy of the PCN (both sides) and their rejection letter - make sure you blank out any personal info, reference numbers, location etc

Grandad123

Hi CC. You have really tested the IT department this time.


Have had to dust off my old XP attached to the scanner.


Hopefully these are the links to the documents.




http://i483.photobucket.com/albums/rr199/Kitman721/cpm10502_zpslqbpzuxy.jpg






http://i483.photobucket.com/albums/rr199/Kitman721/CPM104_zpswv47ijui.jpg






http://i483.photobucket.com/albums/rr199/Kitman721/cpm10501_zpsluofhq6i.jpg


Wont know until evidence arrives but it doesn't look like a breach of contract, just a breach of conditions. I've got some good appealing points in re. the conditions.


I looked at the thread you pointed to and johnfizzy certainly went to town.


I was a bit disappointed by Mike172's comments that CPM might roll over and there might not be an adjudication after all our hard work.


Good news, had a letter back from my MP.


She says she has "forwarded my letters to the Minister of State at the Department for Transport". She also says she has asked the Minister what the Government are doing about the PPC,s


Watch this space in a couple of weeks you can all put your feet up.


Ps. had a naughty with photobucket and my firewall stopped a phoney upgrade to flash player.

ColliesCarer

Grandad123 wrote: »

Wont know until evidence arrives but it doesn't look like a breach of contract, just a breach of conditions. I've got some good appealing points in re. the conditions.

I looked at the thread you pointed to and johnfizzy certainly went to town.

I was a bit disappointed by Mike172's comments that CPM might roll over and there might not be an adjudication after all our hard work.

Top marks to the IT department

A breach of conditions and a breach of contract are the same thing.

A Parking Charge MUST either be sought as damages for a breach of contract OR consideration (i.e. A fee for parking). It CANNOT be both.

Which of the above it is MUST be made clear to a driver at the time of parking (via the terms and conditions displayed on the signage - which define the contract they allege the driver implicitly enters into by parking).

Your PCN states the charge was issued for "contravention of the site parking restrictions" and the rejection letter states "breach of the terms and conditions of parking". Both of these imply the sum is sought as damages for breach of contract.

However the sign has contradictory statements:
- "Unauthorised parking may result in your vehicle being issued with a parking charge notice" - which would imply damages for breach
And
- ".......you are contractually agreeing to pay a parking charge fee" which implies consideration.

And as stated earlier - the charge cannot be both damages and consideration.

So take another look at johnfizzy's POPLA (I think Mike172's was originally used as a base) - almost all of point 1 applies to your case - edited for your circumstances obviously.

Grandad123

Still waiting for evidence from PPC looks like its down to the wire.


Took Uncle Henry to docs yesterday and ran in to warden.


Had a little chat about Blue Badges etc. and he said if I took Henry's out of the windscreen he would gladly give me another ticket. He then drove off shouting something or other.