Problems That PPC's Face

[pin1onu]

Originally Posted by Lamma. Reposted with formatting with his permission.

 

The Enterprise Act 2002 (Supply of Services) Order 2003 from The Enterprise Act 2002 (Supply of Services) Order 2003

 

Permitting or making arrangements to permit the use of land 2. –

 

1)For the purposes of Parts 3, 4 and 8 of the Enterprise Act 2002, the supply of services; includes:

a)permitting or making arrangements to permit a person to put or keep on land a caravan (within the meaning of Part I of the Caravan Sites and Control of Development Act 1960[2]) other than arrangements by virtue of which the person may occupy the caravan as his only or main residence;

b)permitting or making arrangements to permit a person to park a motor vehicle (within the meaning of the Road Traffic Act 1988[3]) on a place other than a highway, or in Scotland on a place other than a road (within the meaning of the Roads (Scotland) Act 1984[4]);

From Enterprise Act 2002 (c. 40)

 

Domestic infringements

 

1)In this Part a domestic infringement is an act or omission which—

a)is done or made by a person in the course of a business,

b)falls within subsection (2), and

c) harms the collective interests of consumers in the United Kingdom.

2) An act or omission falls within this subsection if it is of a description specified by the Secretary of State by order and consists of any of the following—

a) a contravention of an enactment which imposes a duty, prohibition or restriction enforceable by criminal proceedings;

b) an act done or omission made in breach of contract;

c) an act done or omission made in breach of a non-contractual duty owed to a person by virtue of an enactment or rule of law and enforceable by civil proceedings;

d)an act or omission in respect of which an enactment provides for a remedy or sanction enforceable by civil proceedings;

e)an act done or omission made by a person supplying or seeking to supply goods or services as a result of which an agreement or security relating to the supply is void or unenforceable to any extent;

f)an act or omission by which a person supplying or seeking to supply goods or services purports or attempts to exercise a right or remedy relating to the supply in circumstances where the exercise of the right or remedy is restricted or excluded under or by virtue of an enactment;

g) an act or omission by which a person supplying or seeking to supply goods or services purports or attempts to avoid (to any extent) liability relating to the supply in circumstances where such avoidance is restricted or prevented under an enactment.

from Enforcement Orders - BERR

 

Enforcement Orders Under Part 8 of the Enterprise Act, the Office of Fair Trading (OFT), Trading Standards Authorities, sectoral regulators and other designated enforcement bodies, can apply to the courts to stop traders infringing a wide range of consumer protection legislation where those infringements harm the collective interests of consumer;.

 

Part 8 of the Enterprise Act replaced Part III of the Fair Trading Act 1973 and the Stop Now Orders (EC Directive) Regulations 2001. It also extended the scope of the Stop Now Order enforcement regime to include a wider range of domestic consumer protection legislation. These orders are known as Enforcement Orders, breach of an Order is a contempt of court and could incur a fine or imprisonment. Enforcers can also use Enforcement Orders to clamp down on traders who fail to carry out a service with reasonable care and skill. The Office of Fair Trading is responsible for co-ordinating enforcement action under the Regulations. Further information on the role and responsibilities of the OFT is available on the OFT web site.

 

Who can use Part 8 powers?

 

Under Part 8 of the Act three types of enforcers are identified:

 

i.General Enforcers.

1. In addition to the OFT, the Trading Standards Service in Great Britain and Department of Enterprise, Trade and Investment (DETI) in Northern Ireland are specified in Part 8 as having the power to act as general enforcers.

ii. Designated Enforcers.

1.A designated enforcer is any public or private body in the UK which the Secretary of State designates in a Statutory Instrument, having identified the person or body has the protection of the collective interests of consumers as one of its purposes. The Secretary of State has designated the following bodies as Part 8 enforcers by a Statutory Instrument: • The Civil Aviation Authority • The Director General of Electricity Supply for NI • The Director General of Gas for Northern Ireland • Ofcom • The Water Services Regulation Authority • The Gas and Electricity Markets Authority • The Information Commissioner • The Office of Rail Regulation • The Financial Services Authority • Consumers' Association (Which?)

2.A public body will only be granted designated enforcement powers if it is independent. By granting a public body designated enforcement powers, it is deemed that the body is conclusively identified as a public body for the purposes of Part 8.

3.A private organisation may be designated as an enforcer only if it fulfils the criteria specified by the Secretary of State in a Statutory Instrument.

iii. Community Enforcers. Community enforcers are entities from other EEA states that are listed in the Official Journal of the European Communities. These enforcers may apply for injunctions in other member states.

 

For free PPC car parks

 

If a trader offers to supply goods or services completely free of any charge or other obligation, there is no contract at all from Trading Standards Central - Business Guidance Leaflet and from Trading Standards Central - Business Guidance Leaflet curiously enough The Misrepresentation Act 1967.

 

A misrepresentation is a false statement of fact made by a party or his/her agent, which is intended to and does induce another party to enter into a contract. Dependent upon whether the misrepresentation was made fraudulently, negligently or innocently, the party who has relied on the misrepresentation will be entitled to a remedy which may include rescission, refund and/or compensation (see Trading Standards Central - Business Guidance Leaflet

 

On 1st January 2007, new legislation - The Companies (Registrar, Languages and Trading Disclosures) Regulations 2006 ( S.I. 2006 No.3429) - came into force, which amended the Companies Act 1985 and, amongst other things, applied new rules to business stationery. A company must now state its name in legible lettering on the following business stationery, whether in hard copy, electronic or other form:

1.All the company's business letters or order forms;

2.All its notices and other official publications;

3.All bills of exchange, promissory notes, endorsements, cheques and orders for money or goods purporting to be signed by, or on behalf of, the company.

4. All its bills of parcels, invoices, receipts and letters of credit.

5. All its websites.

You will need to show, in legible lettering, on all business letters, order forms and any of the company's websites : your place of registration; your registered number; your registered office address; and, if it is being wound up, that fact.

Unfair Contract Terms Act 1977 (from JohnAntell website)

 

11. The reasonableness test …..

(5) It is for those claiming that a contract term or notice satisfies the requirement of reasonableness to show that it does;

The Unfair Terms in Consumer Contracts Regulations 1999

 

(And this is the one also sinks them - nearly all PPC tickets have no contract basis and for those rare ones that do it turns put the charges are unfair and deemed penalties - hence unenforceable.) These Regulations, which only apply to consumer contracts, say that a consumer is not bound by a standard term in a contract with a trader if that term is unfair. Examples of unfair terms would include the following:

1.Penalty clauses which allow the trader to claim more than their actual losses when a consumer breaches the contract.

2.Terms which are unclear or unintelligible.

3. Terms which exclude liability for breach of contract.

4.Terms which deny the consumer their statutory rights if they do not comply with formalities as to the time or manner of making the claim (e.g. making a complaint in writing by recorded delivery).

5.Giving the trader the right of final decision in a dispute

 

Malicious Communications Act 1988.

Protection from Harassment Act 1997, Chapter 40, 1. - (1), (a), (b).

 

Protection from Harassment Act 1997

1. - (1) A person must not pursue a course of conduct-

(a) which amounts to harassment of another, and

(b) which he knows or ought to know amounts to harassment of the other.

(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.

 

2. - (1) A person who pursues a course of conduct in breach of section 1 is guilty of an offence.

 

(2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.

(3) In section 24(2) of the Police and Criminal Evidence Act 1984 (arrestable offences), after paragraph (m) there is inserted-

 

 

"(n) an offence under section 2 of the Protection from Harassment Act 1997 (harassment).".

 

 

Fraud Act 2006 (section 2) a) b)

Fraud by false representation

 

1)A person is in breach of this section if he-

a) dishonestly makes a false representation, and

b) intends, by making the representation-

i) to make a gain for himself or another, or

ii)to cause loss to another or to expose another to a risk of loss.

2) A representation is false if-

a) it is untrue or misleading,

and A little-known piece of law:

 

Companies Act 1985, s. 458:

 

If any business of a company is carried on with intent to defraud creditors of the company or creditors of any other person, or for any fraudulent purpose, every person who was knowingly a party to the carrying on of the business in that manner is liable to imprisonment or a fine, or both.

 

This applies whether or not the company has been, or is in the course of being, wound up. So, if they know they won't be able to pay their debts but carry on trading they face up to seven years in prison

 

And also Under the provisions of section 4(2) of the Business Names Act 1985

I require you to provide me with the following information:

If you are trading as a partnership, the names of each partner;

If you are trading as an individual, your name;

If you are trading as a company, the full name of that company, as registered at Companies House;

If you are trading as a limited liability partnership, the names of each member and the corporate name of the partnership. In relation to each name (whether person, company or partnership), an address in Great Britiain at which service of documents will be effective. Please note that failure or refusal to provide the required informtion is an offence for which you can be fined

The above leads to ( from Trading Standards Central - Business Guidance Leaflet

 

Business Names

 

The current position with the law that governs the use of business names allows the Secretary of State control over the name you choose for your business and regulates disclosure of business ownership - in other words, what and how you must tell others about the ownership of the business. It must be noted that, whilst the Business Names Act of 1985 still currently applies to the above and the following, Schedule 16 of the Companies Act of 2006 contains provision to repeal the Business Names Act.

 

It is expected that the Business Names Act will eventually be repealed in its entirety when Schedule 16 comes into force. This is currently expected to be October 2008, at which time (or earlier, if needed) further guidance will be provided. The law currently applies to: a company which trades under a name that is not its corporate name; a partnership which does not trade under the names of all the partners; an individual who trades under a name other than that person's surname, with or without his or her first names or initials. If you trade under your own name, e.g. John Smith trading as J Smith, you are not covered by the provisions of the Act, but if you add any words other than your initials or forenames, e.g. John Smith trading as Smith's Autos, you are covered.

 

If the Act applies to you (see above), you must comply with all the disclosure requirements. You will need to disclose (as appropriate): the corporate name; the name of each partner, or the individual's name, and in relation to each person named, an address in Great Britain at which documents can be served. You must display the information in a prominent position so that it can be read easily, in all the places where you carry out your business and where you deal with customers or suppliers.

 

When The Business Names Act of 1985 is repealed, and when Sections 1200 and 1206 of the Companies Act 2006 come into force, the requirements will apply only to individuals and partnerships. Again further guidance will be provided at that time.

 

On 1st January 2007, new legislation - The Companies (Registrar, Languages and Trading Disclosures) Regulations 2006 ( S.I. 2006 No.3429) - came into force, which amended the Companies Act 1985 and, amongst other things, applied new rules to business stationery. A company must now state its name in legible lettering on the following business stationery, whether in hard copy, electronic or other form:

• All the company's business letters or order forms.
  
  
• All its notices and other official publications. All bills of exchange, promissory notes, endorsements, cheques and orders for money or goods purporting to be signed by, or on behalf of, the company.
  
  
• All its bills of parcels, invoices, receipts and letters of credit.
  
  
• All its websites.
  
  

You will need to show, in legible lettering, on all business letters, order forms and any of the company's websites :

• your place of registration;
  
  
• your registered number;
  
  
• your registered office address;
  
  
• and, if it is being wound up, that fact.
  
  

·Whenever an email is used where its paper equivalent would be caught by the stationery requirements, the email would also be subject to the same requirements.

 

 

• The same requirements are also applicable to Limited Liability Partnerships.
  

Please note If the business has more than twenty partners, you need not put all the partners' names on your business documents. However, you must give the address of the principal place of business, and state that a full list of the partners' names and addresses can be inspected there. Please note that companies are required to display additional information on their business documentation.

 

Further details can be obtained by contacting Companies House either by telephone (0870 33 33 636) or by visiting the Companies House website.

Also applicable to any business that trades through advertisements, or online, are the provisions of the Consumer Protection (Distance Selling) Regulations 2000 (as amended).

 

These Regulations require a supplier to provide a prospective buyer with details about themselves. Before a consumer concludes an online transaction, or responds to an advert, etc, the supplier must provide details of the postal address of their business, so that a consumer may address complaints in a durable written format.

 

The Electronic Commerce (EC Directive) Regulations 2002 also require a business providing an information society service (which can be the marketing or selling of services to consumers and other businesses, online, by interactive T.V. or by phone texting) to provide the following information:

 

• ·The full name of the business.
  
• · The geographical address at which the business is established.
  
• ·Contact details, including an email address.
  
• ·Details of any publicly accessible trade or similar register on which the business is registered.
  

• This must include the name of the register,
  
  
• any registration number or other means of identification used in the register
  
  
• If the business is subjected to any authorisation scheme, details of the relevant supervisory authority.
  
  
• If the business is a member of a regulated profession, details of the professional body, any professional titles held, details of any other European Member States in which the titles may have been granted, and a reference to the professional rules to which the member is subjected and details of how they can be accessed.
  
  
• If the business is VAT registered, the VAT number.
  
  

This leaflet is not an authoritative interpretation of the law and is intended only for guidance. For further information, please contact your local Trading Standards Service. Last reviewed/updated: April 2007 Copyright 2008 itsa Ltd on behalf of the Trading Standards Institute This leaflet is relevant for the following nations only: England Scotland Wales Northern Ireland Also (now) The Consumer Protection from Unfair Trading Regulations 2008 see section 7

 

The Consumer Protection from Unfair Trading Regulations 2008 No.

Edited October 18, 2008 by pin1onu

[WebFerret]

Very good, pin1onu - thanks for putting in the time and effort to format this correctly (and to Lamma for posting originally)

 

Perhaps this should be made a 'sticky' so it can be referenced easily?

[lamma]

thank you pin1onu.

[RichardM]

Am I reading this correctly.

 

In order for it to be considered that a contract has been entered into between a trader and a driver, a fee has to have been charged for the use of the facility. No fee = no contract = no possibility of a breach of contract.

[WebFerret]

Am I reading this correctly.

 

In order for it to be considered that a contract has been entered into between a trader and a driver, a fee has to have been charged for the use of the facility. No fee = no contract = no possibility of a breach of contract.

 

 

That's how it reads to me too!

[WebFerret]

How is the contract made?

 

When a trader displays or advertises goods or services (for example, by displaying goods on a shelf in a shop alongside a price ticket), he/she is giving consumers what is referred to as an 'invitation to treat'. The consumer can then make an offer to buy the goods or services, and at this point the trader is under no obligation to accept the offer. A contract is made if and when the trader accepts the offer.

 

Sometimes, the process works the other way round, i.e. the trader makes an offer to the consumer, and a contract is made when the consumer accepts the offer.

 

Under the contract, the consumer will agree to pay the trader a sum of money, and/or to do something else in return for the goods or services the trader supplies. This commitment is known as the 'consideration' in the

contract. If there is no consideration, i.e. if a trader offers to supply goods or services completely free of any charge or other obligation, there is no contract at all.

 

I assume that the words 'or other obligation' covers the fact that one could be deemed to have agreed to only park for the time limit stipulated in a free to park car parking facility?

 

But this does use the word 'or' as opposed to 'and' - so is the criteria to enable a contract to exist or not, either 'free parking' or 'other obligations' and not both?

 

Interesting!

[Zamzara]

I found a Canadian case which is relevant to both ticketing and towing by PPCs. This is from Westlaw and hopefully fair use. It doesn;t seem to be available on any free sites.

 

Controlled Parking Systems v Sedgewick

 

District Court (Saskatchewan)

01 January 1980

Case Analysis

 

Where Reported

 

[1980] 4 W.W.R. 425

 

Case Digest

 

Subject: Contracts

Keywords: Canada; Consulting engineers; Formation of contract; Quantum meruit

Summary: Offer and acceptance; acceptance by conduct; failure to purchase parking ticket

Abstract: D operated an unstaffed parking lot. A sign on the lot stated that customers were to purchase tickets and place them on their windshields and, in the absence of such tickets, vehicles would be towed and their owners charged an impounding fee. P parked on the lot without purchasing a ticket. P.'s vehicle was impounded and released to plaintiff only after the payment of an impounding fee. After P successfully sued D to recover the impounding fee, D appealed.

 

Held, the appeal should be dismissed. Although D had made a contractual offer of a parking space, P had not accepted. Acceptance had to be by purchase of a ticket and not merely by entering D's lot. D's remedies, therefore, were not in contract but in nuisance and were limited merely to removing P's vehicle from the lot.

[mightymouse_69]

I assume that the words 'or other obligation' covers the fact that one could be deemed to have agreed to only park for the time limit stipulated in a free to park car parking facility?

 

But this does use the word 'or' as opposed to 'and' - so is the criteria to enable a contract to exist or not, either 'free parking' or 'other obligations' and not both?

 

Interesting!

 

Consideration:

"...in the sense of the law, may consist either in some right, interest, profit or benefit accruing to one party, or some forebearance, detriment, loss of some responsibility given, suffered or undertaken by the other."

Thats just one definition. Could be argued that so long as one party permits the other to park (a right acrueing in one party) there would be consideration.

 

Interesting stuff though.

[The Eye Doctor]

Hi Letshelp,

 

I was wondering if you could offer some advise in my situation.

 

I have 2 marked parking spaces and the property management company has provided us with 2 parking permits. This area is managed my OPC (a private parking enforcement company) and sometimes i have guests and family that comes to visit and they park in my bay. Last week my guests were ticketed, even though the parking bay is my allocated space.

 

Can I recommend my family and friends to ignore the tickets in case they get one? Its kind-of upsetting since the bay is mine however i often forget about the permits.

 

Please advise...

 

Thanks

[The Eye Doctor]

Hi,

 

I was wondering if you could offer some advise in my situation.

 

I have 2 marked parking spaces and the property management company has provided us with 2 parking permits. This area is managed my OPC (a private parking enforcement company) and sometimes i have guests and family that comes to visit and they park in my bay. Last week my guests were ticketed, even though the parking bay is my allocated space.

 

Can I recommend my family and friends to ignore the tickets in case they get one? Its kind-of upsetting since the bay is mine however i often forget about the permits.

 

Please advise...

 

Thanks

[DBC]

Of course you can ignore. Don't forget that the landowner can only claim for the actual material loss they have suffered. In you case this amounts to nothing. If you are still doubtful, the BPA's new code of practice now confirms the fact about only being able to claim for actual loss suffered.