HX Car Park Management Ltd at Tesco Petrol Station, Willow Brook Centre, Bradley Stoke

deficit

Coupon-mad said:

But you were not a permit holder so neither of the terms apply to you.  The entire sign only addresses Permit Holders.

troublemaker22 said:

deficit said:

 I haven't brought up the signage because there is no signage included in any of their photos.  Do you think I can save this point for a later stage rather than bringing it up now, or do I need to bring it up now?

It's not a good idea to limit your challenge to things they have kindly shown you. If you can conduct a site visit or use google street view to gather your own evidence, feel free to deploy it. So if you discover the signage and it helps your case, use it at the first available opportunity and as often as you need to.  It won't wear out or go stale.   

Something like this maybe:

Furthermore, there is no liability that can be transferred to the keeper under POFA if the driver is not themselves liable.  A site visit was conducted to determine whether there was adequate signage in place.  A copy of the relevant sign is attached.  It forbids all parking except by permit holders. Courts have repeatedly held that where signage forbids parking (whether at all or without a permit) while the landowner might have a claim for unliquidated damages for trespass against the driver, the car park operator has no contractual claim against the driver for the sum specified on the signage. See PCM-UK v Bull et al (2016) and UK Parking Control v Masterson (2016). In both cases it was held that forbidding signage cannot provide the basis for a contractual claim by the parking operator for the amount specified on the sign; any financial liability of the driver being limited to a claim by the landowner, not the parking operator, for damages for any loss actually suffered by the landowner as a result of the trespass.

If you want to provide copies of the transcripts of these cases, you can download them here https://we.tl/t-I036lKsUFv 

You will need to supply the pdf copies with your IAS appeal if you go down that route

Fruitcake said:

If that is your real PCN number, you should delete it, or report your post and ask for it to be deleted. An unscrupulous person could do a lot of damage with that information.

If there was no offer of parking to non permit holders, then the signs are forbidding. If there was no offer to park, then there can have been consideration, and therefore no agreement to form a contact with the operator, and therefore no contract can have been breached.

Thanks a lot for all of this.  I have incorporated it all and have also deleted the reference number, which was a mistake on my part last time around, i forgot to re-redact the text before posting it after the last round of comments were incorporated.

Here's what I currently have and I'll give it a couple more hours to see if any other helpful comments arise.

I, as the keeper of the vehicle, dispute your "charge".  You have admitted that you do not know the identity of the driver of this vehicle.  I deny any liability or contractual agreement with any party identified in your letter, headed "Parking Charge Notice" (PCN), reference xxxxx, which appears to me to be nothing more than a series of unfounded threats embodied in a speculative invoice.  I also deny that there is any requirement placed on me, legally or otherwise, to identify the driver of this vehicle and I therefore decline to do so.

The vehicle in the images supplied with this letter appears to be stopped at a Tesco petrol station forecourt, which a vehicle may reasonably be assumed to be welcome to enter and stop, with no evidence of any signage whatsoever relating to any purported terms, conditions or an offer of any sort of contract.  There therefore appears to be absolutely no basis for any "charge".  A site visit was conducted to determine whether there was in fact adequate signage in place.  A copy of the relevant sign is attached; it addresses permit holders only.  A basic binding contract in UK law must comprise some key elements, including: offer, acceptance and consideration.  The sign makes no offer of parking, it is forbidding, therefore there can have also have been no consideration and no acceptance of terms.  The signage at the site therefore fails to create any form of contract with the operator and therefore no possibility of a breach.

I assume that HX Car Park Management Ltd (HX) intend to rely on Protection Of Freedoms Act 2012 Schedule 4 (POFA) as grounds to pursue the keeper for this alleged debt and that the PCN is intended to be relied upon by HX as a Notice To Keeper (NTK).  POFA paragraph 9 (2) (f) states that "the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid".  As I have set out in this appeal, the applicable conditions have not been met, therefore HX have no right to recover any alleged debt from the keeper.

Your notice fails to comply with POFA and it is now too late for you to deliver a POFA-compliant NTK because  the "relevant period" as defined in POFA paragraph 9(5) has expired.  Specifically (and without limitation):

1. The NTK does not specify the period of parking to which the notice relates, it simply states "the period of parking preceding the incident time".  A period has both a start and an end time.  This NTK therefore does not satisfy POFA paragraph 9(2)(a).

2. The NTK does not contain the mandatory warning required by POFA paragraph 9(2)(f) stating that your right to recover from the keeper is conditional upon all the applicable conditions under POFA being met.

3. Even if the alleged debt were genuinely due, which it is not, HX have no right to add costs of debt recovery or legal claims.  POFA paragraph 4 (5) states that the maximum sum that may be recovered from the keeper is the charge stated on the NTK, in this case £100.

Furthermore, no liability may be transferred to the keeper under POFA if the driver is not themselves liable.  A site visit was conducted to determine whether there was adequate signage in place.  A copy of the relevant sign is attached.  It forbids all parking except by permit holders. Courts have repeatedly held that where signage forbids parking (whether at all or without a permit), whilst the landowner might have a claim for unliquidated damages for trespass against the driver, the car park operator has no contractual claim against the driver for the sum specified on the signage. See PCM-UK v Bull et al (2016) and UK Parking Control v Masterson (2016). In both cases it was held that forbidding signage cannot provide the basis for a contractual claim by the parking operator for the amount specified on the sign; any financial liability of the driver being limited to a claim by the landowner, not the parking operator, for damages for any loss actually suffered by the landowner as a result of the trespass.

In the alternative, if HX do not intend to rely on POFA, then HX have no legal grounds to pursue the driver or the keeper of the vehicle for the alleged debt at all.

Given the legal contraventions above, it is reasonable to say that either HX do not comply with IPC CoP v8 paragraphs 25.1 or 27.1.  They are either unaware of their legal obligations or don't care about them; either way, they fail to implement the relevant legislation and guidance when operating their business.  

The tone of the correspondence received from HX to date has been arrogant, threatening and, due to the false claims made therein, tantamount to harassment, contravening IPC CoP v8 paragraph 27.1.

Whilst I appreciate the need for parking control on private land, I do not appreciate the apparent predatory business tactics of HX whereby it is insisted that people going about their lawful daily business have entered into some kind of non-existent contract.  Nor do I appreciate harassing and distressing letters, making unwarranted veiled threats towards my credit rating.

Given the above points, I wish to receive no further correspondence from HX or their agents with respect to charge notice xxxxx with the exception of a response to this appeal confirming that the PCN shall be cancelled with no further action.

deficit

HX rejected the appeal, massive shocker.  Ive included their text below.  The question is do I bother appealing to IAS, who I understand are pretty much guaranteed to reject it anyway as they're well-known for being a kangaroo court?  Or just wait for a court claim?

Thank you for your appeal received on 03/01/2024 regarding the above detailed Parking Charge Notice. We have reviewed the case and considered the comments that you have made. This appeal has been considered in conjunction with the evidence we have gathered. Our records show that your parking charge notice was correctly issued as your vehicle was parked in a way which breaches the terms and conditions of parking on that site.

We have rejected your appeal for the reasons below. We have now extended the discounted payment period by 14 Days from the date of this letter.

The Parking Charge Notice was issued as you did not have a valid permit on display within the front windscreen.
There is clear signage around the site which indicates the terms of parking. All our signs and sites go through a strict IPC audit process before we are authorised to issue PCNs. With this in mind, I am fully satisfied to say there was sufficient signage in and around the site.

By entering and remaining on the land, the driver has agreed to abide by all the contractual terms and conditions that apply there. A breach of any of such terms and conditions results in the driver being liable for a £100 PCN, as per the signage. It is the responsibility of the driver to ensure they have read and understood the terms and conditions on site when choosing to park there.

Our Appeals process is now concluded, you may now pick one of the following options:
1. Pay the parking charge notice at the prevailing price of £60 to reach us by 21/01/2024 or £100 to reach us by 05/02/2024.  Payments can be made by phone – 03330 066 316, online at www.hx-pcn.com or by sending a cheque or postal order to the following address: Payments Department, Suite 205, 6 Queen Street, Huddersfield, HD1 2SQ.
2. If you believe this decision is incorrect, the Independent Appeals Service (www.theIAS.org) provides an alternative dispute resolution scheme for disputes of this type. As you have complied with our internal appeals procedure you may use this, and we will engage with the IAS standard appeals service providing you lodge an appeal to them within 21 days of this rejection.  For further information please visit www.theias.org.

If you decide to use the Independent Appeals Service, the offer of a discount for early payment will be withdrawn as we incur additional costs for defending the PCN, therefore the full charge of £100.00 will apply if your appeal is rejected. Please note that the independent adjudicator is unable to cancel a charge on grounds of mitigation and the decision will be based on facts and evidence only.

If you choose to do nothing, we will seek to recover the monies owed to us via our debt recovery procedures and may proceed with court action against you.
Yours sincerely,
Appeals Management Team
HX Car Park Management Ltd

Coupon-mad

I wouldn't bother with the farce of IAS but @troublemaker22 likes to play the IAS game.

Up to you.  Do not pay, regardless.

deficit

Hi, I have this written out for my IAS appeal, it's very similar to the failed appeal to the parking operator.  Any comments gratefully recieved, I'll be submitting it around 25th Jan.  I will submit the court case PDFs along with it as previously advised, many thanks for those.

I, as the keeper of the vehicle, dispute this "charge" from HX Car Park Management Ltd (HX).  They have admitted that they do not know the identity of the driver of this vehicle.  I deny any liability or contractual agreement with any party identified in their letter, headed "Parking Charge Notice" (PCN), reference HXxxxxx, which appears to me to be nothing more than a series of unfounded threats embodied in a speculative invoice.  I also deny that there is any requirement placed on me, legally or otherwise, to identify the driver of this vehicle and I therefore decline to do so.

The vehicle in the images supplied with this letter appears to be stopped at a Tesco petrol station forecourt, which a vehicle may reasonably be assumed to be welcome to enter and stop, with no evidence of any signage whatsoever relating to any purported terms, conditions or an offer of any sort of contract.  There therefore appears to be absolutely no basis for any "charge".

A site visit was conducted to determine whether there was in fact adequate signage in place.  A copy of the relevant sign is attached; it addresses permit holders only.  A basic binding contract in UK law must comprise some key elements, including: offer, acceptance and consideration.  The sign makes no offer of parking to the non-permit-holder, it is forbidding, therefore there can have also have been no consideration and no acceptance of terms.  The signage at the site therefore fails to create any form of contract with the operator and therefore no possibility of a breach.

I assume that HX intend to rely on Protection Of Freedoms Act 2012 Schedule 4 (POFA) as grounds to pursue the keeper for this alleged debt and that the PCN is intended to be relied upon by HX as a Notice To Keeper (NTK).  POFA paragraph 9 (2) (f) states that "the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid".  As I have set out in this appeal, the applicable conditions have not been met, therefore HX have no right to recover any alleged debt from the keeper.

Their notice fails to comply with POFA and it is now too late for them to deliver a POFA-compliant NTK because  the "relevant period" as defined in POFA paragraph 9(5) has expired.  Specifically (and without limitation):

1. The NTK does not specify the period of parking to which the notice relates, it simply states "the period of parking preceding the incident time".  A period has both a start and an end time.  This NTK therefore does not satisfy POFA paragraph 9(2)(a).

2. The NTK does not contain the mandatory warning required by POFA paragraph 9(2)(f) stating that their right to recover from the keeper is conditional upon all the applicable conditions under POFA being met.

3. Even if the alleged debt were genuinely due, which it is not, HX have no right to add costs of debt recovery or legal claims.  POFA paragraph 4 (5) states that the maximum sum that may be recovered from the keeper is the charge stated on the NTK, in this case £100.

Furthermore, no liability may be transferred to the keeper under POFA if the driver is not themselves liable.  A site visit was conducted to determine whether there was adequate signage in place.  A copy of the relevant sign is attached.  It forbids all parking except by permit holders. Courts have repeatedly held that where signage forbids parking (whether at all or without a permit), whilst the landowner might have a claim for unliquidated damages for trespass against the driver, the car park operator has no contractual claim against the driver for the sum specified on the signage. See PCM-UK v Bull et al (2016) and UK Parking Control v Masterson (2016). In both cases it was held that forbidding signage cannot provide the basis for a contractual claim by the parking operator for the amount specified on the sign; any financial liability of the driver being limited to a claim by the landowner, not the parking operator, for damages for any loss actually suffered by the landowner as a result of the trespass.

In the alternative, if HX do not intend to rely on POFA, then HX have no legal grounds to pursue the driver or the keeper of the vehicle for the alleged debt at all.

Given the legal contraventions above, it is reasonable to say that either HX do not comply with IPC CoP v8 paragraphs 25.1 or 27.1.  They are either unaware of their legal obligations or don't care about them; either way, they fail to implement the relevant legislation and guidance when operating their business.  

The tone of the correspondence received from HX to date has been arrogant, threatening and, due to the false claims made therein, tantamount to harassment, contravening IPC CoP v8 paragraph 27.1.

Whilst I appreciate the need for parking control on private land, I do not appreciate the apparent predatory business tactics of HX whereby it is insisted that people going about their lawful daily business have entered into some kind of non-existent contract.  Nor do I appreciate harassing and distressing letters, making unwarranted veiled threats towards my credit rating.

Given the above points, I expect IAS to inform HX that this PCN is to be cancelled with no further action.

Coupon-mad

Remove the whole intro paragraph.

What are you attaching as evidence? Photos with the time & date embedded?

deficit

Coupon-mad said:

Remove the whole intro paragraph.

What are you attaching as evidence? Photos with the time & date embedded?

yep, plus the judgements from PCM vs Bull and UKPC vs Masterson

Coupon-mad

I wouldn't.  Neither were on Appeal. They mean nothing and are not persuasive.

Jopson v Homeguard was. A persuasive appeal case about residential vehicular rights.

And use VCS v Ian Edward to support this:

In the alternative, if HX do not intend to rely on POFA, then HX have no legal grounds to pursue the driver or the keeper of the vehicle for the alleged debt at all.

deficit

Coupon-mad said:

I wouldn't.  Neither were on Appeal. They mean nothing and are not persuasive.

Jopson v Homeguard was. A persuasive appeal case about residential vehicular rights.

And use VCS v Ian Edward to support this:

In the alternative, if HX do not intend to rely on POFA, then HX have no legal grounds to pursue the driver or the keeper of the vehicle for the alleged debt at all.

Thanks for this.  I'm struggling to see how Jopson relates to my case.  Do you have a particular argument or paragraph from the judgement in mind?

https://www.parkingcowboys.co.uk/wp-content/uploads/2016/12/JOPSON-V-HOMEGUARD-2906J-Approved.pdf

Coupon-mad

deficit said:

Hi, I've had a PCN come through from the above company.

Hmmm maybe use PCM v Bull after all.*

Jopson would apply if the driver was merely unloading or dealing with a minor vicissitude.  Must admit when I first replied I assumed from the cases you planned to use that this was a residential car park but I see from your OP that it's not!

What sort of Centre is this and what was the driver doing, and are you admitting to driving?

* BUT I REPEAT: I WOULD NOT TRY IAS. 

IMHO it is inadvisable.  You'll lose.  The IAS will say the signs are clear.

Obviously don't pay though.

deficit

Coupon-mad said:

deficit said:

Hi, I've had a PCN come through from the above company.

Hmmm maybe use PCM v Bull after all.*

Jopson would apply if the driver was merely unloading or dealing with a minor vicissitude.  Must admit when I first replied I assumed from the cases you planned to use that this was a residential car park but I see from your OP that it's not!

What sort of Centre is this and what was the driver doing, and are you admitting to driving?

* BUT I REPEAT: I WOULD NOT TRY IAS. 

IMHO it is inadvisable.  You'll lose.  The IAS will say the signs are clear.

Obviously don't pay though.

Shopping centre.  Driver was nipping into a shop for 10 mins and no I'm not admitting anything.