CPM Parking in work carpark space forgetting to display permit

CBrown90 · 1 April 2017 at 5:28PM

Hi All,

I think I might have messed this one up. I parked in my work car park and forgot to display my permit and found a parking charge notice on my car at the end of the day.

Company: CPM
Contravention 1: Not displaying a valid ticket
Date 11/1/2017

I wrote them a letter asking them if they could over look this as it was clearly a mistake and the space was paid for, sending a picture of the permit. I can post this letter if advised. I don't say directly I was driving, but say "I park in this car park most days". This letter was ignored by them.

I then formally appealed under mitigating circumstances. saying I had a permit, and the fine was excessive (£100). Again I can post this letter, but I've read I shouldn't post anything identifying me. This was a template I found online and I did say "[FONT=Arial, sans-serif]There are mitigating circumstances to explain why I parked where I did so I am requesting that the fine be waived for this reason."

[/FONT]They rejected the appeal. Showing a lot of pictures of my car and signs saying the rules. They do not mention the excessive fine, but after more reading I think this is just for councils?

Should I pay the £100 fine or carry on trying to appeal?

Thanks for any help in advance.

Coupon-mad · 1 April 2017 at 11:18PM

Should I pay the £100 fine or carry on trying to appeal?

Neither. There is no step to take right now. Relax.

Ignore them now and come back if you get a solicitor's letter before claim or a claim form. We help people defend and win in almost every case and you were NEVER going to win an IAS appeal, waste of time. You also had no chance talking about the charge being excessive as that's not a winning point but nothing wins at IAS.

No you haven't messed up.

Have you read the NEWBIES thread post #2 about court claims because you might need it. Not as scary as it sounds.

CBrown90 · 2 April 2017 at 9:00PM

Thanks for the reply.

I hadn't read that post in too much detail. Just given it a better read. So my plan of action is to:

Wait for them to send me a solicitor's letter
Reply to judge saying why this parking fine is unreasonable (check here with reply?)
Get claims court - Post everything here and wait for help, take a day off work. Worst case scenario is I pay the £100?

Coupon-mad · 2 April 2017 at 10:02PM

Worst case scenario is paying the £100 plus the other side's court fees of £50.

Fruitcake · 3 April 2017 at 8:55AM

It is not a fine.

The template you used is dreadful and many of us here have complained about it, but MSE towers just ignores everything. This is supposed to be a money saving site yet the powers that be produce a template telling people to give away the driver's identity. That's the opposite of money saving.

What happened when you complained to your boss? Do you have a union rep who can put pressure on your company?

CBrown90 · 9 April 2017 at 6:10PM

We've had a few people in the company have the same problem. I think they're talking with the car park company to stop it happening in the future. One of the office managers took it to the company lawyers who said "pay it" though.

I'm not a member of any union.

safarmuk · 11 April 2017 at 5:39PM

One of the office managers took it to the company lawyers who said "pay it" though.

Wow. They are earning there money right there ...

The advice above is correct, sit tight for now and wait for the LBC and then defend it properly (they have up to 6 years to make a claim)
In the meantime - given you might move jobs in the next 6 years - get your defence evidence together. Perhaps a copy of the agreement that shows your company have paid for the spaces and an email from your manager (or HR) saying/confirming that you are authorised to park there (it should include dates e.g. as-of dd/mm/yyyy) as you are working for the company. Keep a copy of your employment contract as well.
All this will be useful if (a big if) it goes to court.

CBrown90 · 9 October 2017 at 11:35PM

Hi Everyone,

I have recently received my Claim Form through the post. Unfortunately I missed the LBC because I stupidly thought it was another debt collector letter.

The Solicitors are 'Gladstones Solicitors'

The claim is for Amount claimed £168.32 + court fee £25 + Legal representative's costs £50

They say they make 168.32 through an interest of 0.04 a day.

I will try to get a copy of my employer agreement for the spaces and an email from my HR manager saying I am authorized to park in those spaces.

Should I post the whole letters on here? which are the important bits?

Currently reading through the posts here:
http://forums.moneysavingexpert.com/showthread.php?t=4816822

Haven't been able to find a case too similar to mine. The company I work for give me a permit, and I did not display it this day. The company I work for pay for the car parking spaces.

Thanks for the help in advance.

Loadsofchildren123 · 10 October 2017 at 2:21PM

http://forums.moneysavingexpert.com/showthread.php?t=5638268
Read this thread.
There are contractual arguments. I have a draft defence, but I never had to submit it. The facts may be slightly different to yours.
My driver (wasn't me) wrote LBCs to her employer and the PPC and the PCNs were magically cancelled.

Loadsofchildren123 · 10 October 2017 at 2:38PM

Draft defence:

1. The Defendant admits that she was the driver of a xxxxx, registration number xxxx on the relevant date.

2. The Defendant denies that she is liable for the entirety of the Claim for the reasons set out below.

3. No contract was entered into between the Claimant and the Defendant.

4. The Defendant did enter into a contract for parking, but it was with her employer and not the Claimant, as follows:
4.1On xxxx the Claimant entered into an agreement with her employer xxxxx (“x”) by which x granted her the right to park in its staff car park in return for a payment of [£ ] per calendar month (“the Agreement”);
4.2 The terms of the Agreement were set out in a written document which the Defendant signed on the same date (“the Contract”)
4.3 The Contract recorded and contained all of the terms of the Agreement. Inter alia, it contained “conditions of parking” which referred to a “car-parking card” which would be given to the Defendant. No terms other than those set out in the Contract formed part of the Agreement between the Defendant and x.

5. The Defendant believes that at the relevant time the Claimant may have been a party to a contract with x by which the Claimant agreed to provide car parking spaces for x’s staff and to manage the use of those spaces in order to prevent unauthorized parking and by which x agreed to pay the Claimant. However, the Defendant does not know whether it was the Claimant or another company which was a party to that contract, nor does she know the terms of that contract and the rights granted to the Claimant by it. The Defendant puts the Claimant to full proof of the contract and its terms.

6. The Defendant did not enter into any contract with the Claimant in relation to the exercise of her rights to park under the Agreement and the Contract, or in relation to any other matter, and the Claimant therefore has no cause of action against the Defendant.

7. The Defendant cannot have entered into any contract with the Claimant, because the Claimant cannot have made any offer of parking to her – she already had the right to park by virtue of the Agreement and Contract with x. To the extent that any offer was made by the Claimant, the Defendant did not accept it. Furthermore, no consideration flowed between the Claimant and Defendant (the Defendant already having the parking rights, for which she had agreed to, and did, pay x.

8. The Defendant admits that she was given a piece of paper containing the Claimant’s “terms and conditions” for the use of x’s staff car park, along with a permit (the “car-parking card” referred to in the Contract) and a permit disc holder. This was given to her by a member of x's Facilities Department after she had entered into the Agreement with x and signed the Contract. When she was given the Claimant’s terms and conditions, the Defendant had already acquired the right to park in the staff car park, subject only to the terms set out in the Contract. Therefore, the terms and conditions cannot have formed part of that Agreement/Contract. Neither can the Defendant have entered into any further contract with the Claimant because there was no offer made, no acceptance of any offer and no consideration flowed between the Claimant and the Defendant. The terms and conditions did not therefore bind the Defendant.

9. The Claimant’s terms and conditions required the permit to be displayed in a highly prescribed manner on the windscreen of the car using a “permit disc holder” which was stated as provided with the terms and conditions. The Defendant was provided with this disc holder by x at the same time as the terms and conditions (in other words, after the Agreement had been entered into and the Contract signed). It is admitted that the Defendant used the permit disc holder, but she did so purely because it was a convenient method of displaying her permit and keeping it safe, and not because of any obligation to do so.

10. It is admitted that the car park contained a sign or signs which the Defendant recalls stated that it was to be used only by permit-holders/authorized users and a warning that unauthorized users would be charged £100. It is denied that such signage made any offer to the Defendant, because its wording forbade parking for those not displaying a permit, rather than offering it, and those who had permits were already authorized by x to park there. In the alternative, the signage did not make an offer which was capable of acceptance because it was cluttered, in small lettering (particularly the reference to the £100 charge) and the terms of any offer were unclear. The Claimant’s intention was not to make a genuine offer, the main purpose of the wording was to deter unauthorized parking by attempting to impose a penalty upon those who did not have a permit.

11. To the extent that the signage made an offer, the Defendant did not accept it because she was already entitled to park in the car park, and she took the warning in the signage to apply only to unauthorized users – it was clear to her that the sign was intended as a deterrent. The Defendant also recalls that such signage was, however, not in the name of the Claimant, but another company (xxxx) and puts the Claimant to full proof of the signage.

12. It is denied that the Defendant was obliged by the Agreement or the Contract, nor by any contract with the Claimant, to display the permit in the manner prescribed in the Claimant’s terms and conditions, or its signage, or at all. Nor was the Defendant obliged to pay a charge for failing to display the permit (either to x or to the Claimant or any other entity). At no time did the Defendant accept the Claimant’s terms and conditions or any offer made by the signage and, as stated above, she used the permit disc holder to display the permit only for her own convenience.

13. To the extent that any offer was made by the Claimant, the Defendant did not accept it by parking, and no consideration flowed, because she was already entitled to park in the staff car park.

14. The Defendant was required by x to provide her car registration number when she signed the Contract, and therefore had a reasonable belief that if there was any issue over the authenticity of her permit, or the manner in which it was displayed, the Claimant would be able to establish that her car belonged to a permit-holder authorized by x to use the staff car park.

15. In the alternative, should it be determined that the Defendant did enter into a contract with the Claimant, the terms of which were set out in the Claimant’s terms and conditions, the Defendant denies that she breached its terms because she displayed the permit at all times and used reasonable endeavours to do so in the manner required by the Claimant’s terms and conditions (namely by using the permit disc holder). It was the Claimant which made it impossible for the Defendant to fully comply with those obligations because the permit disc holder it had supplied was not fit for purpose, therefore frustrating any contract (or this element of it). It must have been an implied term of any such contract that the permit disc holder, which the Defendant was required to use to display her permit, was fit for purpose and that the Defendant could rely on it to remain stuck to the windscreen when she was away from the vehicle. Alternatively, the court has the power to impute such a term to the contract in order to give it efficacy. The Claimant breached this implied term by providing a permit disc holder which came away from the windscreen, with no prior warning, when the car was parked and the Defendant was not in it. On the date in question, the Defendant left her vehicle parked with the permit disc holder affixed to the left hand side of the windscreen (with the permit in it). However, at some time after she had left the vehicle, the permit disc holder fell off the windscreen and landed on the dashboard, where it remained until she returned to the car at the end of the working day. Throughout the period of parking, the permit was, however, clearly visible through the windscreen because it could be seen in the permit disc holder lying face up on the dashboard. It would have been visible to the attendant who issued the parking charge notice.

16. In the alternative, should it be determined that the Defendant entered into a contract with the Claimant and that she did breach its terms, the Claimant’s terms and conditions failed to define what the amount of any “parking charge” would be, and this term must therefore be void for uncertainty. It is accepted that a “parking charge” of £100 was identified on the signage in the car park. However, the signage cannot have formed part of any contract which may have been created between the Claimant and the Defendant by the terms and conditions. The terms of the contract have to be clear at the time the contract is made. Terms cannot be added later, other than by way of a collateral or new contract – both contracts require an offer, acceptance and consideration. If a contract was formed, then it was formed when the terms and conditions and the permit were given to the Defendant, and not later when she started to use the car park and read the signs.

17. Should it be determined that the Claimant’s signage was capable of making an offer, such offer was not accepted by the Defendant, and there can have been no consideration, because she had already been granted parking rights in the staff car park by x (for which she was paying £x per calendar month) and the Claimant was already obliged to provide car parking spaces pursuant to its contract with x.

18. Alternatively, should it be determined that the Defendant did enter into a contract with the Defendant, the terms of which were set out in the Claimant’s signage (as opposed to its terms and conditions), the Defendant denies that she breached its terms because she displayed the permit at all times in the front windscreen of her car, as required by the signage. Furthermore, as an onerous contractual term, special attention should have been drawn to the requirement to pay £100, but it was not and, again, it is therefore void (Thornton v Shoe LaneParking Ltd [1970] EWCA Civ 2).

19. The Defendant believes that the Claimant has already been remunerated for providing and managing the spaces in the x staff car park, and that the £100 charge (to which unspecified charges of £x have been inexplicably added) is an unrecoverable penalty which is unenforceable and is an unfair term contrary to the Consumer Rights Act 2015. The Claim is distinguished from the facts in the case of ParkingEye Ltd v Beavis. In that case, it was agreed that there was a contract between the driver and the Claimant, formed by prominent signage at the entrance to a car park which made a clear offer. The case turned on a unique set of facts regarding the location and interest of the landowner. Strict compliance with the Claimant’s Code of Practice was paramount. The site was a retail park and there was a free parking licence offered. There was a “legitimate interest” in the contract/parking charges being enforced so that visitors did not overstay the two hour free period in the retail park so as to ensure a turnover of visitors to the retail units, and a complex contractual arrangement by which the Claimant was not paid by the landowner and therefore had to make an income out of the management of the car parking. All of this together disengaged the “penalty rule”. None of those facts apply in this case - the charges claimed are quite clearly a penalty and are not recoverable. In addition, the Claimant’s compliance with its binding ATA AOS Code of Practice was deemed to be paramount in the Beavis case, whereas in this case the Claimant has breached its Code of Practice in several important respects. Compliance with the Code of Practice is a mandatory term and a condition of membership.

20. The Defendant puts the Claimant to full proof of all aspects of its claim, including:
20.1 Its contractual right, granted by the landowner or lawful occupier of the land, to manage the car park where the Defendant was parked on the relevant date, to issue charges to vehicles and to pursue court proceedings in respect of such charges;
20.2 The creation of a contract with the Defendant by either the terms and conditions or by the Claimant’s signage or by any other means;
20.3 The manner in which the Defendant has breached such contract;
20.4The loss suffered by the Claimant as a result of any breach(es);
20.5 The signage displayed in the car park (the Defendant believes that the signage did not identify the Claimant, but another company known as xxxxx – certainly this company is identified on the signage displayed in the adjoining Admiral car park), including the size of any signage, its location and height and any entrance signage;
20.6 Her alleged failure to display her permit – the Defendant requires all photographs taken by the Claimant’s operative (some of which she believes were taken from such an angle as to deliberately obscure the Permit on the dashboard of the vehicle);
20.7 The unfit for purpose permit disc holder – the Defendant wishes to know how many of its charges have been defended or appealed by other drivers who were authorized users of the car park but whose permit disc holder had likewise fallen from the car windscreen;
20.8 The Defendant also challenges the addition of [£x] in “contractual costs” and the interest of [£xxx]. The Claimant is put to full proof of the contractual term entitling it to add charges of [£x] to the sum claimed. In respect of the interest claimed, the court should not exercise its discretion to award interest where the Claimant has delayed by four years in bringing these proceedings.

COUNTERCLAIM

Data Protection Act breach
21. For the reasons set out above, the parking charge which is the subject of these proceedings is invalid. The Claimant therefore had no right to request the keeper’s details from the DVLA and to use, process and retain them, and has breached the Defendant’s rights under the Data Protection Act by doing so. Vidal-Hall v Google Inc [2014] EWHC 13 (QB) is authority that misuse of personal data is a tort. Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199 is authority that a reasonable sum of compensation would be £750.

22. The Defendant has suffered anxiety and distress by the multitude of letters sent to her by the Claimant and its agents.

23. The Defendant claims £750 in damages and her costs of the counterclaim.

DATED THIS TH DAY OF 2017

Statement of Truth

I believe that the facts stated in this Defence are true.

Signed …………………………………….

Xxxxxx

Loadsofchildren123 · 10 October 2017 at 2:45PM

Some of the facts of that other case may not fit yours. Eg the timeline of what she signed with her employer and when, what her parking contract with the employer said, the fact that she paid the employer for it, what documents and information she was given and when, the requirement (imposed after the event) to use a rubbish windscreen display pocket which used to fall off and wasn't fit for purpose, the issue over 2 sister companies (VCS and Excel) where one displayed signage and the other gave out the permit and tried to sue - etc. I think you said that you just forgot to display, so the stuff about the unfit display thing doesn't apply to you at all - but you may still be able to argue that contractually you were not obliged to display a permit at all.

You need to go through it all carefully and take out or change what doesn't apply to you. Also the fact that they delayed 4 years so I said they were not entitled to interest (which is in the court's discretion) - that isn't the case with you I think?

Draft LBCs are in the Admiral thread I linked to.

The counterclaim, if you wish to make it, requires work. I have shoved it in for you, but for example you need to quote the correct section numbers from the DPA. You have to pay a fee for a counterclaim (look up the fee on the form EX50 which you can find on google). Current thinking is that the better way to counterclaim might be for harassment under S.1 of the Protection from Harassment Act 1997 - if you are to plead a counterclaim, I'd plead both in the alternative. You must show that you suffered anxiety/distress/upset etc.

If you counterclaim you need to head your document "Defence and Counterclaim"

Para 20: I missed out "caused" after the word distress.

CPM Parking in work carpark space forgetting to display permit

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