UK CPM PCN received

DS90 · 19 November 2016 at 11:41PM

Hi,

Driver received a PCN from UK Car Park Management (IPC firm) last week for ‘not displaying a valid permit’. This is the second time receiving one of these (won the previous thanks to the wonderful advice on this forum) so I'm largely comfortable with the process. I have gone through the Newbies thread again and read around the key current issues (such as appealing to IAS or not), so I’m fairly clear on what to do next. I’m hoping somebody could clarify a couple of things, though.

The PCN states that appeals must be made within 21 days, rather than the usual 28, so is the template letter in the Newbies thread actually an appeal or is it a kind of pre-emptive defence against the unfair nature of the IPC’s process? Because the template doesn’t explicitly state that this an appeal. I appreciate it says to use the letter verbatim, but if it is acting as an appeal, is it worth including extra defences? I know it will be immediately rejected, but my thinking is that I want to deter them from ever pursuing this in court, which I know is unlikely but I’d rather reduce the risk. I ask because the driver had express permission from the owner of the space to use it. It is a small residential building with allocated parking, so presumably the space’s owner has a legal prerogative that overrides the PPC’s ‘contract’? I found this issue in another thread and wonder if the same applies in my case (can't provide the url as a newbie, but the thread title is 'CPM Parking Charge Notice - no parking outside of a designated area'). The template also, though it contends that no keeper liability has been established, doesn't explicitly state that this is on behalf of the keeper. Is this relevant in improving the chances that they forget the NTK?

Also, like the example above, the driver is not the registered keeper, but is it okay to proceed with contact with the PPC acting as the keeper, as per the advice from Fruitcake in that thread? And should the driver use their name and address or the registered keeper’s?

Lastly, the PPC in question is no longer a listed member of the BPA, but they continue to display the BPA’s logo on both the PCN and their website. Can I get them into trouble with the BPA/DVLA for this? They also have the IPC logo on the PCN, but it has the wrong name: it says ‘Independent Parking Committee’ as opposed to ‘International Parking Community’, which is the acronym used on the IPC’s website. They are listed as members on the website, though. Any action that can be taken on that?

Apologies if I've got the wrong end of the stick regarding the template letter. Many thanks for any advice.

pappa_golf · 19 November 2016 at 11:56PM

bpa is made up of 2 sections , corporate members and members of the ATA , signs for each are different , round logo for ATA strip logo for corporate

so they are not telling lies , just not explaining thing properly ,, forget this aspect

Coupon-mad · 20 November 2016 at 12:11AM

Yes by all means go to town with your own version of a challenge hitting them with all sorts, including the Jopson case (definitely) telling them they have no cause of action and to 'bring it on' if they believe they have a case and not to incur any further costs as the keeper will not be liable for them, let alone the alleged 'parking charge'. Do this BEFORE day 21, soon as you like.

You sound like someone who can stray from the template and still not say who was driving. I don't use my own templates either, not at first appeal stage; I tailor them for friends to try to see PPCs off. Go get them!

Use ONLY the registered keeper's name and address.

Lastly, the PPC in question is no longer a listed member of the BPA, but they continue to display the BPA’s logo on both the PCN and their website. Can I get them into trouble with the BPA/DVLA for this? They also have the IPC logo on the PCN, but it has the wrong name: it says ‘Independent Parking Committee’ as opposed to ‘International Parking Community’, which is the acronym used on the IPC’s website. They are listed as members on the website, though. Any action that can be taken on that?

Yup, you can send a complaint to the IPC but they make it VERY difficult to do that, offering no email address and if you want to 'make a complaint' you have to complain to the operator first then complain to the IPC, giving your inside leg measurement and the shirt off your back!

Not sure I would recommend it. I'd stick with a major attack appeal using the Jopson case:

http://forums.moneysavingexpert.com/showthread.php?t=5553131

HTH

DS90 · 29 November 2016 at 6:35PM

Thank you both for your helpful and speedy replies. I'll forget about the logos, doesn't seem worth the hassle.

I've drafted an appeal to send to the PPC that doesn't use the IPC template in the Newbies thread. It's very long so I understand if nobody has time to read it for any suggestions! But I'll post it here anyway, just in case somebody can offer any advice/observes any mistakes. The intention is to throw enough at them so as to deter them from any further action. If this doesn't seem like a good idea I can revert to just following the template model.

Dear Sir/Madam,

Please accept this letter as my formal challenge to this ‘PCN’ as keeper of the abovementioned vehicle. I fully deny liability for this charge based on the following:

1. The driver was given express permission to use the parking bay in question by its current occupier, the tenant. An unfettered right to park in this bay is bestowed upon the tenant by their lease agreement, without the requirement to display a permit.

a. The tenant’s contract cannot be unilaterally altered by one party – the operator – without their permission. This is a well-established legal principle. Therefore, the lease agreement constitutes primacy of contract over any signs that may have been erected by the operator.

2. There is a large body of case law that evidences the primacy of the tenant’s lease agreement over an operator’s signs:

a. Saeed v Plustrade Ltd (2001): the resident’s ‘easement to park’ was established at the Court of Appeal.
b. Jopson v Homeguard (2016): Miss Jopson successfully appealed her liability for a parking charge issued by Homeguard Services, arguing on the basis that the charge was incompatible with the terms of the lease which gives residents (and their visitors, delivery drivers, etc.) easements and specific rights that supersede any signs erected by a parking management operator.

i. It was also established in this case that the ruling of ParkingEye v Beavis (2015) does not apply to residential parking, and therefore the doctrine prohibiting an operator from imposing a penalty is still relevant.

1.

Therefore, the charge in question is likely to be such a penalty unless there is found to be commercial justification (which, in a residential car park, is impossible) or it is found to be a genuine pre-estimate of loss (which is similarly implausible in a residential car park where the right to park is bestowed upon residents).
2. The Supreme Court found that £85 was not a genuine pre-estimate of loss in the Beavis case as there was no direct loss to the parking company. Therefore, commercial justification for charging residents and their visitors to park in their own spaces is untenable and unconscionable.
3. There can be no legitimate interest in issuing charges to residents or their permitted visitors, and so the Beavis ‘test’ is not satisfied. Any such charge should be deemed a penalty.

c.

Pace Recovery and Storage v Mr N. (2016): it was found that the parking company could not override the tenant’s right to park by requiring a permit to do so.

i.

District Judge Coonan concluded that Mr N.’s tenancy agreement granted the right to park without the requirement to display a permit: ‘What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that.’
ii. Mr N. also won a previous case, wherein the Judge ruled that his tenancy agreement gave him an unfettered right to use his allocated parking space and that the terms could not be varied by PPC signage. This demonstrated Mr N.’s right to park with no requirement to display a permit.

d.

Link Parking v Ms P. (2016): it was also found that the PPC could not override the tenant’s right to park by requiring a permit.

i.

As land occupier, Ms P. was granted the power to manage the space, which does not include the need to display a permit.
ii. Justice Louise Metcalf, presiding, ruled that the land occupier could not be penalised for parking in her own space.

3. If primacy of contract is disputed, then the signage on site needs to be plentiful and easily visible, or no contract can be entered into knowingly by the driver. In Link Parking v MR L (2016) it was found that the lack of entrance signage at a residential site and poor visibility of other signs was cause for dismissal.
a.

Furthermore, a PPC cannot simply refer to a clause in a lease agreement that allows the lease to be varied; they must prove that the lease was so varied and in collaboration with the lessor. The operator is not a party to the lease and cannot arbitrarily vary it.

4. Paper permits are an outdated an inefficient way of managing a residential car park. They do not take into account the needs of residents, who may have to swap cars at short notice, or who may bestow permission on another to use their space.
a.

Responsible parking companies will either use a modern, electronic system that does not require paper permits, or will cancel charges accidentally issued to residents or their guests. Why should any reputable parking management company refuse to cancel a parking charge wrongly issued to a resident or their visitor?

i.

Therefore, I contend that the purported parking restrictions are not in place to deter trespassers but to extort money from residents and their legitimate visitors.

5. No keeper liability has been established in line with the stipulations of Schedule 4 of the POFA 2012.
a.

The NTD is also non-compliant with the stipulations of paragraph 7(2)(a), which outlines that ‘the notice must specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.’ The ‘PCN’ in question fails to adhere to this.

6. It is my understanding that you do not own the car park and you have provided no information about your policy with the landowner to issue such a charge on their behalf. No proof of your authority to operate on this land has been evidenced. You are required to supply this under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. Clear information about the process for complaints, including a geographical address of the landowner, has been omitted.
a.

Should this charge be proven invalid, you will have breached data protection laws by acquiring my personal information from the DVLA. If this is the case, I am within my right to complain to the DVLA that you are issuing tickets on land without the right to do so.

i.

In light of this, I would draw your attention to the cases of Vidal-Hall v Google Inc., which provides authority that the misuse of personal data is a tort, and Halliday v Creation Consumer Finance Ltd, which outlines that a reasonable sum for compensation in such an instance would be £750.

7. The charge of £100 in addition to £1.50 for card payment exceeds the appropriate amount specified by law. The ‘PCN’ issued to the driver clearly states that card payments are subject to a £1.50 processing fee; such arbitrary extra charges are prohibited under the POFA 2012, the Consumer Contracts (Information, Cancellation & Additional Payments) Regulations 2013, and the Consumer Rights (Payment Surcharges) Regulations 2012.
a.

Schedule 4, paragraph 4(5) of the POFA 2012 states that ‘the maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified).’
b. Regulation 40(1) of the CC(ICAP) 2013 states that ‘under a contract between a trader and a consumer, no payment is payable in addition to the remuneration agreed for the trader’s main obligation unless, before the consumer became bound by the contract, the trader obtained the consumer’s express consent.’ The driver did not give express consent and certainly not before they were bound by the inferred contract.
c. Section 4 of The Consumer Rights (Payment Surcharges) Regulations 2012 prohibits excessive charges: ‘A trader must not charge consumers, in respect of the use of a given means of payment, fees that exceed the cost borne by the trader for the use of that means.’

i.

Such interchange fees vary significantly based upon card brand, region, the type and size of the accepting merchant, and the type of transaction. Therefore, £1.50 is not a true cost for accepting a payment by credit or debit card. The cost will differ based upon the amount paid (£60 or £100 should attract different card payment charges), as well as for debit cards versus credit cards.

d.

In addition, the 0845 number provided breaches Regulation 41(1) of the CC(ICAP) 2013, which states: ‘Where a trader operates a telephone line for the purpose of consumers contacting the trader by telephone in relation to contracts entered into with the trader, a consumer contacting the trader must not be bound to pay more than the basic rate.’ Such a breach can be reported to Trading Standards.

i.

Moreover, the omission of call costs breaches Ofcom regulations that took effect on 1st July 2015, which can be reported to the ASA.

As the driver has not been identified – and will not be – I contend that you have failed to establish keeper liability. For the avoidance of any doubt, I do not consent to my data being shared or processed by you or your agents. Therefore, to continue to process my data now that you have exhausted your only DVLA-allowed purpose (i.e., to invite me to name the driver, which I decline outright) would be wholly unreasonable and contrary to the principles of Data Protection. To share, sell, store or process my data at all beyond this point, now that you are aware that you have no further excuse nor reasonable cause, will be data misuse and I will report you to the Information Commissioner.

Therefore, do not send debt collector letters and do not add any costs that would amount to a thinly-veiled attempt at ‘double recovery’, which is specifically prohibited by the POFA 2012, Schedule 4. I shall not respond to debt collectors and to involve a third party would be a failure to mitigate your costs. Such action would also constitute deliberate and knowing misuse of my data, as outlined above.

Coupon-mad · 30 November 2016 at 11:04PM

Yes, you can certainly strike back with that. Does no harm and shows yourself not to be a victim.

DS90 · 30 June 2017 at 2:11PM

Hello again,

So the LBC from Gladstones (real Gladstones, the fake DRP acting as Gladstones has been and gone) has arrived this week. The format appears to be identical to the many others on similar threads, even the consistently arbitrary amount of £160 (the previous 'Gladstones' letter only requested £149, funny that...!). I'm assuming that the arrival of this particular letter means that a court claim is fairly inevitable?

A very quick recap: PCN issued last November while driver visiting friend in residential flats; permit holders only; driver parked in friend's space with permission; all 3 occupants of flat happy to provide witness statements demonstrating this explicit permission; their lease agreement makes no mention of a permit requirement to park; so keeper sent a fairly robust appeal citing various residential 'own space' cases, etc. Naturally this was rejected and the usual postal drivel followed.

So I've done the usual reading on the Newbies thread, read most of the links for Parking Prankster and the various other similar threads. My impression so far is that the response to the LBC at this stage should mostly be restricted to a defensive legally-oriented response - as per the examples of Gan and LoadsofChildren123 - rather than a reiteration of my particular circumstances and defence?

Or, should I beef up their templates with my own specific arguments? In particular the permission to park there, therefore not trespassing, poor signage, primacy of contract, etc.?

Also, I feel that I have a potential ace up the sleeve should they push this further... When I sent my initial appeal within the prescribed timeframe, I received a prompt response from CPM stating the following:

Dear Sir/Madam,

PCN xxx

I am writing to inform you that we are unable to accept your appeal. Appeals should be made by the driver of the vehicle which received the PCN.

If they wish to appeal, please ensure the information below is submitted within the appeal;
Full name of the driver of the vehicle at the time of the
contravention (Initials will not suffice)
Serviceable address for the driver
PCN number
Vehicle Registration
Grounds of appeal

Usual rubbish about payment in 28 days and potential litigation, etc. etc...

Surely this breaches some serious regulations for the parking appeals process? They received the perfectly legitimate appeal from the keeper of the vehicle, but they did not provide the IAS as a follow up to rejecting the appeal. This must be a violation of the legally prescribed appeals process?

Anyway, just wanted to check whether I should stick to a fairly simple template at this stage or to reiterate my defences to them?

Many thanks as ever.

Coupon-mad · 2 July 2017 at 12:55AM

Yes that was norty of them and can be mentioned in defence - a PPC cannot insist that the name of the driver is supplied in any appeal. The DVLA reminded PPCs of this more than once.

Re the LBCCC, if Gladstones have not responded to your last humdinger, why not just reattach a copy of it with a covering letter reminding G's of the overriding objective and their duty to the court, to try to resolve issues and supply all information prior to what is supposed to be a 'last resort' of filing a claim.

Give them, say, 14 days to provide evidence to show that their client can rode roughshod over residents' rights.

DS90 · 2 July 2017 at 8:54PM

Fantastic, I will do just that. Thank you!

DS90 · 14 July 2017 at 1:37PM

Hi again. Claim form arrived in the post today. I've got about twenty tabs open trying to go through the relevant information and examples. I've got the Dropbox open about filling out the MCOL, so assuming that is still the correct and first thing to do I'll do that today; I do not enter any defence at this point, is that correct?

The one thing that concerns me is that throughout all of this my mother, who is the registered keeper of the vehicle, has been addressed as the defendant (the whole family is insured on the car, so no acknowledgement as to who the actual driver was!). Because I've dealt with one of these before, and because I'm 27 and doing a Ph.D., and so make evidence-based arguments as a living, while she is a part-time, 62-year-old pre-school teacher, I have been doing all of the responses. I've seen on another thread where Coupon-mad has said that a big 'no no' is the driver thinking they can defend the claim in the keeper's name. That makes sense, of course, but can I, in this instance, act in any way as my mother's legal representation? (Again, no acknowledgement as to who the driver was!). I honestly cannot see her defending this in front of the judge, whereas it doesn't bother me at all; plus, I'm the one who has done all of the reading on the subject.

Secondly, as I might as well get ahead of the game, I'm putting below a copy of my response to the LBCCC, which I would imagine will act as the general template of my defence, amended and improved to include all of the general defences that are recommended on here. Gladstones responded to my letter only in reference to accusations of DPA 1998 breaches, trying to indemnify themselves of any guilt in this matter. I have sent them back another letter disagreeing with this, which I have also copied in down the bottom. It's obviously too late as they've already filed the claim, but figure I might as well include it!

Sorry it's a very long letter, so anyone who has the time to read through it all and offer any advice, I'm enormously grateful.

Created a Dropbox link instead to save space: https://www.dropbox.com/s/pyvq4qscj4i70qc/Letter%20to%20Gladstones%20Data%20Protection%20Act.docx?dl=0

https://www.dropbox.com/s/u0mixq14apv1zmn/Parking%20LBC%20response.docx?dl=0

Coupon-mad · 14 July 2017 at 1:47PM

I've got the Dropbox open about filling out the MCOL, so assuming that is still the correct and first thing to do I'll do that today; I do not enter any defence at this point, is that correct?

Yes, in Mum's name though.

can I, in this instance, act in any way as my mother's legal representation?

Yes, as her Lay Rep, but she MUST attend too. See other cases where posters have won like that.

Umkomaas · 14 July 2017 at 1:51PM

I do not enter any defence at this point, is that correct?

Correct. The defence is developed after your AOS. It is to be submitted by the deadline, usually 33 days after the 'Date of Issue' shown on the claim form (provided your AOS was sent within the first 14 days).

but can I, in this instance, act in any way as my mother's legal representation? (Again, no acknowledgement as to who the driver was!). I honestly cannot see her defending this in front of the judge, whereas it doesn't bother me at all; plus, I'm the one who has done all of the reading on the subject.

You can do all the work on this up to and including the day before any court appearance without seeking permission/authorisation from anyone provided it is done in your mother's name and with her signing the documents (those which require a signature) - use a squiggle for a signature, not her 'real' one.

On the day of any court case you would represent her as her Lay Representative, she would have to be present, but you would be able to do most of the taliking for her. You would need to notify the judge before you start of your intention to act as a LR. Some judges can be crotchety about this, so you need to carry chapter and verse to show them of your right to perform the function. During the hearing the judge might address questions directly to your mother which she would likely need to answer.

The other 'representative' role in court would be a Mckenzie Friend, but this would only be in the capacity of assisting your mother by passing relevant documents to her as she defends herself; you would not ordinarily be allowed to speak on her behalf, but sometimes small claims court judges allow some input.

Do some Google searches on LR and MF to understand your rights and the official differences between each.

UK CPM PCN received

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