CPP Parking Ticket - Standard Appeal Failed

[Modes98]

Hi all,

 

I received a ticket from Carparkingpartnership. I normally send them the standard letter at which point they scrap the fine.

However this time they have rejected my appeal.

 

Any help and guidance would be gratefully received

[fkofilee]

Have you been using GOODF or FOTLM based letters?

In leymans terms, the 3 letter process?

[Modes98]

Have you been using GOODF or FOTLM based letters?

In leymans terms, the 3 letter process?

 

Apologies I meant to attach my appeal letter.

 

Not sure which category it falls under

 

I challenge this 'PCN' as keeper of the car, on these main grounds:

a). The sum does not represent a genuine pre-estimate of loss, nor is it a core price term. It is a disguised penalty and not commercially justified.

b). As keeper I believe that the signs were not seen, the wording is ambiguous and the predominant purpose of your business model is intended to be a deterrent.

c). There is no evidence that you have any proprietary interest in the land.

d). Your 'Notice' fails to comply with the POFA 2012 and breaches various consumer contract/unfair terms Regulations.

e). There was no consideration nor acceptance flowing from both parties and any contract with myself, or the driver, is denied.

f). This is not a 'parking ticket' - it is an unsolicited invoice with as much merit as the publicly-derided £100 taken unlawfully from customers by a dingy Blackpool Hotel.

Your clients should be thoroughly ashamed of the shoddy way you treat consumers visiting their premises. The landowner will be made fully aware of this matter and your response, which I will forward to their CEO when I complain in writing and via social media, as appropriate.

Parking firms like yours fail to demonstrate even a basic understanding of customer service. The reputation of your business model appears to be more akin to a protection racket than 'parking management'. Your ATA may offer sound-bites about driving up standards or fight for motorists' rights but in reality they are not a regulator; they merely exist to represent the interests of paying members, in order to gain access to DVLA data. The public have no faith in the private parking industry and, as far as I have seen, your firm has not shown itself to be any different than the ex-clampers with whom you share a membership.

The purpose of this communication is:

1. Formal challenge

There will be no admissions as to who was driving and no assumptions can be drawn. As such, you must either rely on the POFA 2012 or cancel the charge. I suggest you uphold this challenge now or alternatively, send a rejection letter - subject to accepting my claim for costs as clearly stated below, since you have no case.

2. ''Drop hands'' offer

The extravagant 'parking charge' is baseless but I realise that you may have incurred nominal postage costs. Equally, I have incurred costs to date, for researching the law and responding to your junk mail dressed up to impersonate a parking ticket. It is clear that my costs and yours, at this point, do not exceed £15. Therefore, this is a formal “drop hands” offer. I remind you of the duty to mitigate any loss, so withdraw the spurious charge within 35 days without further expense and I will not pursue you for my costs. If you persist then I will charge in full for my time at £18 per hour plus my out-of-pocket expenses and damages for harassment.

3. Notice of cancellation of contract

I hereby give notice of withdrawal from this alleged 'contract' which was never properly offered by you and certainly was not expressly agreed. This 'contract' is hereby cancelled and any obligations now end. If you offer - and if I decide to use - IAS or POPLA, then the contract ends immediately on the date of their decision (whatever the outcome) so my notice of cancellation still applies. The Consumer Contracts (Information, Cancellation & Additional Payments) Regulations apply now to every consumer contract, save for a few exemptions, which parking contracts are not. It is the will of Parliament following the EU Consumer Rights Directive, that express consent is obtained for consumer contracts now - not implied consent - and that information is provided in a durable medium in advance.

You have failed to meet these requirements. The foisting of unexpected contracts like this on consumers, by stealth, is a thing of the past.

By replying to the challenge you are acknowledging receipt and acceptance of points 2 and 3 above. If you decide to persist with this unwarranted threat, I will be put to unnecessary expense and hours of time in appealing or defending this matter. As such, you will be liable for my costs and a pre-estimate of my loss - and in contrast with yours, mine is genuine - is that this sum will be likely to exceed £100.

I have kept proof of submission of this challenge. I look forward to your considered reply within 35 days.

[themagician]

how can they scrap the fine ? when the fine doesn't exist.

[renegadeimp]

You really need to change that letter and remove all the FOTL nonsense from it.

[Modes98]

how can they scrap the fine ? when the fine doesn't exist.

Well they make it disappear.....

 

You really need to change that letter and remove all the FOTL nonsense from it.

Advice appreciated

[ericsbrother]

Like them, you have sufferd no loss so you cant claim for costs that dont exist. They have rejected your appeal so they should have given you details of how to appeal to POPLA or the IAS. If they havent then they have 35 days to furnish these details or keeper liability disappears anyway.

If you require help with that appeal then we will need to know all of the details about the event and what has happened since, with times and dates please.

[Modes98]

Yep they have sent me popla appeal details.

 

July 10th at 8:47. Parked in a hospital pay and display but I didn't have a ticket.

I appealed using the above letter which was rejected and received the letter photographed.

 

So I'm looking at putting together a popla appeal. Just unsure of the content as none of the appeals previously have been unsuccessful.

[ericsbrother]

did they give you a POPLA code? we need all of the details with the date you received the demand, any other letters/demands etc. Also sight of the signage would be helpful

[Modes98]

There's a verification code which I presume is the one?

 

The first communication was a CPP letter about 2 weeks ago, I appealed on their online portal and they replied with the above.

I'm popping up tomorrow so I will take photos of the car park, from memory there is no sign at the entrance to the specific car park (multiple ones on the site). They've recently added multiple small signs along the perimeter fence.

[ericsbrother]

What we need to know is the date of the event, whether you got a windscreen ticket or ANPR capture, the date of the first letter received, when you sent your appeal to CPP and when they responded. There are important timescales to their actions and if they are too soon or too late sending out things then they cannot rely upon the PoFA to chase you and court would be impossible for them as they havent used the right procedures.

[Modes98]

Date of event: 10th July 2015

Windscreen Ticket - Details checked and all correct

Date of Letter: 12th August 2015

Appeal was the same day as the letter came through

Rejection of appeal: 18th August

 

Today I went back and looked at the signage and entrance. The barrier doesn't work and the side is open into a different car park.

Machines aren't exactly consistent and can't see any link to CPP or BPA on any signs. The terms and conditions to park are different on the two pay machines as well.

[ATTACH=CONFIG]59022[/ATTACH]

[ATTACH=CONFIG]59023[/ATTACH]

[ATTACH=CONFIG]59024[/ATTACH]

[ATTACH=CONFIG]59025[/ATTACH]

[ericsbrother]

brilliant, there is nothing to indicate what the terms of the contract are

[Modes98]

brilliant, there is nothing to indicate what the terms of the contract are

 

I've borrowed the first 3 points from a POPLA appeal I found online and added in breaches in relation to BPA CoP. Let me know what you think.

1. The charges are penalties and not a contractual charge, breach of contract or trespass. They are not a genuine pre estimate of loss either.

 

2. In order to form a contract the signs need to be clear so that they must be seen by an average person. They were not. There was no breach of contract.

 

3. Car Parking Partnership (CPP) do not hold sufficient interest in the land to offer a motorist a contract to park. They have no locus standi.

 

4. PPS have failed to adhere to the BPA code of practice.

 

5. Citation of Parking Eye v Barry Beavis

 

1. The charges are penalties.

 

The charges are represented as a Trespass. Whilst it is disputed that a contract was entered into (see point 2) according to the BPA code "If the parking charge that the driver is being asked to pay is for a act of trespass, this charge must be proportionate and commercially justifiable. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance"

 

£50 is clearly not proportionate to a stay in a car park in which the vehicle was entitled to be in but could not park in an appropriate bay. Neither is it commercially justified because it would make no sense. You either trespass or you don't. If you allow trespass when it suits you it's not trespass. As this is clearly a trespass scenario, although not described as such, the charges in law need to be a genuine pre estimate of loss.

 

I require CPP to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. CPP cannot lawfully include their operational day to day running costs (e.g. provision of signs, ANPR and parking enforcement) in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement ' would still remain the same.

 

According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.''

 

In Parking Eye v Beavis it was found that the charges were penalties although specific to that car park they were commercially Justifiable which clearly can't be in the case or trespass.

 

2. Unclear and non-compliant signage, forming no contract with drivers.

 

I require signage evidence in the form of a site map and dated photos of the signs at the time of the parking event. I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. As such, the signs were not so prominent that they 'must' have been seen by the driver - who would never have agreed to pay £50 in a car park - and therefore I contend the elements of a contract were conspicuous by their absence. If it is dark it is not good enough for signs just to be present, they must be able to be seen.

 

3. Contract with landowner - no locus standi

CPP do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that CPP has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow CPP to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

 

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

 

So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between CPP and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013

 

In that case the Judge found that, as the Operator did not own any title in the car park: 'The decision to determine whether it is damages for breach...or a penalty...is really not for these Claimants but...for the owners. We have a rather bizarre situation where the Claimants make no money apparently from those who comply with the terms...and make their profit from those who are in breach of their contract. Well that cannot be right, that is nonsense. So I am satisfied that...the Claimants are the wrong Claimants. They have not satisfied this court that they have suffered any loss...if anything, they make a profit from the breach.'

 

I challenge this Operator to rebut my assertion that their business model is the same 'nonsense', and is unenforceable. CPP cannot build their whole business model around profiting from those they consider to be in breach of a sign, on land where they have no locus standi, and then try to paint that profit as a perpetual loss.

 

I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC (EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges.

 

It was stated that, "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be."

 

The ruling of the Court stated, "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services."

 

In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated losses, as set out above.

 

4. Failure to adhere to the BPA code of practice

 

The signs do not meet the minimum requirements in part 18. They were not clear and intelligible as required.

- 18.2 states that terms and conditions for parking must be displayed, these are not.

- 18.2 Entrance signs must also state that the car park is managed, they do not.

- There is no sign providing detailed terms and conditions as per point 18.3.

- Under 18.4 if CPP intends to use the provisions of the Keeper liability (Schedule 4 of POFA 2012), as stated in their correspondence, they are required to give ‘adequate notice’ of “the sum payable for unauthorised parking”. This provision is not met within signage.

Likewise “adequately bringing charges to the attention of drivers”, the pay and display machines are inconsistent, offering two separate pay schemes.

- 18.5 states that “chance to read terms and conditions before entering a contract” should be given. This cannot be the case as the terms and conditions are not displayed within this car park.

-18.8 states signs should include the BPA AOS logo to prove legitimacy, none of the signs or pay machines contain a logo.

- 19.3 “charges must be shown clearly and fully to the driver on the signs which contain your terms and conditions”, as none of the signs contain terms and conditions they do not contain charges.

 

These breaches of the code of practice show the lack of:

- an established contract

- terms and conditions

- Breach of keeper liability enforcement (Schedule 4 of POFA)

- Logo and clarity

 

5. Citation of Parking Eye v Barry Beavis

This case is currently pending Supreme Court action, citation as evidence against enforceability of the charge is invalid until the case is resolved.

[f16]

I'm with post#13. ..............

 

Appeal is looking good too ..... But the "Legal Crew" will be all over that in the morning !!!!!!!!!!!

 

Going on the photos. There is no sign at the entrance. ......... So no "contract" entered into.

Good Luck.

[ericsbrother]

The photographic evidence of a lack of contract should do for this but I wouldnt leave out the other parts, just emphasise that no contract could possibly be formed do to a complete lack of signage indicating an offer of a contract. It isnt even an invitation to treat, there are no terms whatsoever that can be considered and accepted or rejected.

[Modes98]

Many thanks all.

I've also managed to get a picture of the plastic envelope which breaches the BPA code of practice, so I've added that on.

 

POPLA look like they are changing over so I've registered my intent to appeal but can't move any further forward

[ericsbrother]

BTW citing Beavis v PE and claiming it is law is contempt of court so they wont actually be using that as an argument anywhere else.

[Modes98]

Hi all,

 

Just had an update from POPLA and their new online portal.

They say that the operator has submitted evidence, however you login to the portal only to find that they will be sending evidence independently.

 

I have 7 days to comment upon their evidence, which seems a bit pointless as they haven't provided any for me to pass comment on.

 

Should I draft up something along the lines of lack of evidence further validates my case and the inability to comment upon any other evidence provided hinders my ability to successfully appeal?