London Parking Solutions - PCN through post

[SicknTired]

Re: London Parking Solutions - PCN through post

The rejection letter has come through, and is attached. I've also attached the initial letter (With the Red colouring in it). I've asked my boss to send a photo showing all of the legal bits underneath. He cropped it before sending.

They've not answered any questions, or provided any further evidence proving that I'm in the wrong. Furthermore, they haven't provided a POPLA number. No ticket was placed on my windscreen. The first I knew about it was when the letter came through the post.

What should I do from here? I'm clueless with these things, but I know that I'm paying anything until conclusive evidence is produced.

[mystery1]

Re: London Parking Solutions - PCN through post

The rejection letter has come through, and is attached. I've also attached the initial letter (With the Red colouring in it). I've asked my boss to send a photo showing all of the legal bits underneath. He cropped it before sending.

They've not answered any questions, or provided any further evidence proving that I'm in the wrong. Furthermore, they haven't provided a POPLA number. No ticket was placed on my windscreen. The first I knew about it was when the letter came through the post.

What should I do from here? I'm clueless with these things, but I know that I'm paying anything until conclusive evidence is produced.

I'll sort out an appeal Wednesday. You have 21 days.

M1

[mystery1]

Re: London Parking Solutions - PCN through post

Any chance you can scan the whole letter (the one with the red bit on it) and also write out what the sign says please ?

M1

[SicknTired]

Re: London Parking Solutions - PCN through post

Hey, sorry for the delay. I've got the letter being emailed over now. I'll write out what the sign says and post everything up within the hour.

[SicknTired]

Re: London Parking Solutions - PCN through post

Please see attached the full version of the original letter. Unfortunately, the photo of the parking sign is too bad quality to decipher, this was the quality of the image which LPS supplied with the PCN.

I didn't get any ticket on the windscreen, just the attached letter through the post.

[SicknTired]

Re: London Parking Solutions - PCN through post

As a side note, would a job sheet help in this case? I can provide proof that I was there to deliver the car.

[mystery1]

Re: London Parking Solutions - PCN through post

The sign should kill them. It seems to say there is a contractual parking element but they also say when rejecting your appeal that there is no parking at any time. You cannot contract not to do something. It's as simple as that.

I'll get to it tomorrow as it needs to go in asap but as it's IAS it need to go in in one lot with evidence unlike popla where the operator has prove their case. With IAS it's up to you to prove the charge is incorrect and they are not ashamed to be bias as fook.

M1

[mystery1]

Re: London Parking Solutions - PCN through post

I wish to appeal on the following grounds.

1. The vehicle and driver were stopped, but not parked, outwith the gates and the only sign was inside the gates. See EXHIBITS which are pictures of the area where the sign supplied by London Parking Solutions in photograph form was located, the sign itself and where the vehicle was located.

Inadequate and Lack of IPC Compliant Signage (see EXHIBITS)


The signage located at the site was not seen, formed no contract with the driver, switched between ‘contractual fee’ and ‘unauthorised parking’ and does not meet the IPC Code of Practice (CoP) guideline requirements. Firstly terms are only imported into a contract if they are clear and prominent that the party ‘must’ have known about it and agreed. The signage present at the location of the alleged contravention does not identify LPS as a creditor for any charges that arise out of the contract or damages following a breach of the contract (see EXHIBIT). Therefore, this cannot form a contract between the driver and landowner or LPS.


Consequently, should a contract be found to exist between the landowner and the driver, LPS having been identified as a creditor are unable to pursue this claim as stated on page 10 [Part B: 1(2.1)] and page 27 [Other Signs: (1)] of the IPC CoP. To date, no authority has been provided that establishes that LPS are authorised to pursue this claim on behalf of the landowner, which also does not comply POFA, 2012.

Within the IPC CoP Schedule 1 – Signage it clearly states on page 25 signage should “Signs must, where practicable, be placed at the entrance to a site. Otherwise the signage within the site must be such that it is obvious to the motorist”and on page 27 [Other Signs (4)] “Be clearly legible and placed in such a position (or positions) such that a driver of a vehicle must be able to see them clearly upon entering the site or parking a vehicle within the site”. A lack of signage on a site is a breach of the IPC CoP requirements stated. (see attached photo)


Furthermore, due to the high positioning along with the overall minute size of text used, the signage is barely legible making it difficult to read and understand. On page 26 of IPC CoP it clearly states that “The signs must be readable from far anough away so that drivers can read all the of the Group A and Group B text without needing to look more than 10 degrees away from the road ahead” and on page 27 “The signs must be at a suitable height – is suggest that no part of the sign which contains relevant text should be over 6’’, or under 12’’, from the ground level. Such text must be of a size which is easily legible having regard to the location and in any event should not be less than 5mm in height” (see attached Signage copies).


I contend that the signs and any core parking terms LPS are relying upon being too small for any driver to see, read and understand whilst driving or stationary, as the text containing the information is not easily legible as it is WRITTEN ALL IN CAPITAL LETTERS, which for anyone dyslexic can cause major problems. The British Dyslexia Association and Gov. UK state that “Use a plain, evenly space sans seif font such as Arial and Comic Sans. Alternatives include Verdana, Tahoma, Century Gothic, Trebuchet. AVOID TEXT IN BLOCK CAPITALS: this is much harder to read”.


In addition the terms are misleading with wording that dresses up the charge as a ‘contractual’ fee, which it is not, (see point a). The fact that the sign states “Retrospective evidence of authority to park will not be accepted”, confirming that the sign is setting out that one group of drivers are ‘authorised’ to park and the other group are not. Therefore, there is no consideration/acceptance flowing from LPS to the second group of drivers to form a contract. If a firm wanted to make an ‘offer to park’ by way of consideration to the second group they should word their signs along the lines of parking is allowed/authorised for everyone (without a permit or out of a bay) at a daily tariff rate of £100. One cannot contract to be allowed to do something the sign states as not ‘allowed/unauthorised’.


Similarly, the IPC CoP as on page 27 [Other Signs (5)] states that signs must “Have clear and unambiguous wording and be designed such as to leave the driver under no doubt that he is entering into a contract with the creditor or committing trespass as the case may be” (see attached Signage copies). The sign fails this requirement as there was no agreement to pay. This is a non-negotiated and unexpected third party ‘charge’ imposed upon legitimate motorists who are not ‘customers’ of LPS and not expecting to read a contract when they park in an unmarked parking bay. It would seen/accepted by the driver. That it is not the case, the absence of signage and yellow lines to alert a driver to read a sign on a lamp post clearly invite a driver to believe they can park there without restriction (see EXHIBIT).


The signage is ambiguous and contradictory. In the Notice to Keeper (EXHIBIT) the sum is stated as a contravention for ‘breaching’ the terms and conditions’s yet the sign misleadingly alleges a ‘contractual’ sum (see EXHIBIT). If so, there should be a payment mechanism and a VAT invoice. There is none. This is not a transparent contract and is disguised penalty. Terms must be clear otherwise under the doctrine of contra proferentem the interpretation that favours the consumer applies.


I request the IPC to check the LPS’s evidence and signage map/photos on this point and compare the signs to the IPC Code of Practice requirements. I contend the signs in place on this land do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]. All of the points mentioned clearly justify how LPS have failed to fulfil the IPC CoP requirements with regard to signage. Indeed the signage contained Brittish Parking Assosciation logos and not that of the IPC.



a) The Charge is Not a Contractual Fee – it is a disguised breach


LPS has attempted to avoid the necessity of having to justify a pre-estimate of loss by stating that this is a contractually agreed fee on their signage. However, on both the NTK and the rejection letter to my appeal LPS states respectively that the charge is for ‘breaching’ the terms and conditions of parking (see EXHIBITS).


Additionally, the wording on their sign also states that “unauthorised parking may result in your vehicle being issued with a parking charge notice”. The charge must be either for damages or a fee paid for parking (consideration) it cannot be for both and in order for it to be considered, it would have to mean that permission to park was given providing a fee was paid. Clearly permission to “park in breach” cannot be granted and I therefore submit that it is clear that the amount sought is for parking in breach and that the amount represents liquidated damages which is compensation agreed in advance.

2. The driver did not get a ticket on the vehicle and never left the vehicle so would know if there was anything placed on the windscreen. As such section 6 of the protection of freedoms act was not fulfilled and LPS can't chase me as the registred keeper as per their notice (exhibit ) nor can it be deemed acceptable under section 9 which requires delivery within 14 days.

Due to being non-compliant with the IPC CoP and Schedule 4 of the POFA 2012, LPS are not able to establish keeper liability of the vehicle for the alleged parking charge. Therefore, any action against the keeper should be withdrawn.


3) No Contractual Agreement with the Driver


The sign at the location where the car was parked does not create a valid contract between the driver of the vehicle and the landowner whereby the driver agrees to pay £100 consideration for the privilege to park the car (see attached Signage copies). The signage quite clearly states that there is ‘No Unauthorized Parking’ and “Parking is permitted for:" a maximum time specified and then a number of unreadable, illegible symbols (see EXHIBITS). This statement indicates that there is no valid contract for the driver to enter into, since by definition they are not allowed to park having exceeded the time limit. If a driver parks on the site and exceeds the time limit, the driver is not permitted to park and by doing so is acting in breach of the contract for parking.


Therefore, any charges that arise from the wording should be treated as a penalty. To attempt to levy a charge of £100 in those circumstances is nothing more than an attempt to ‘fine’ the driver for parking on private land.The signage (EXHIBIT) goes on to state that “By parking or remaining on the site otherwise than in accordance with the above you, the driver, are agreeing to follow the contractual terms”. Moreover, this involves agreeing to pay £100 consideration.


However, the wording does not suggest that a contract is being entered into by the driver, instead it is worded clearly as a threat that if a driver parks in that location and exceeds the time limit then they will be subject to a penalty charge of £100. The wording is clearly intended as a deterrent and therefore any charges that flow from that wording should be treated as penalty irrespective of the attempt in the signage to disguise this as ‘consideration’ for the right to park. This interpretation of the signage is supporting the disproportionate and punitive size of the ‘charge’. To charge £100 in those circumstances is clearly not a reasonable charge for the privilege to park.


In order for the £100 parking charge to be a genuine offer to provide a parking service, then it should be made explicit in a prominent position at the top of the signage (IPC CoP: Schedule 5 – Parking Charges). Equal weight should be given to that offer of a parking service as is given in the notice about parking being permitted for a maximum time specified. As this is not the case the only interpretation of the signage is that the landowner is trying to deter people from parking on that land with an enforceable threat of a punitive charge.


The driver parking in breach of contract, only allows the landowner to claim for a genuine pre-estimate of loss. Therefore, LPS must prove the charge to be a genuine pre-estimate of loss. However, there is no loss from the contravention due to the location being close to empty . LPS cannot demonstrate any initial quantifiable loss.


The parking charge must be an estimate of likely loss from the alleged contravention in order to be enforceable. If there is an initial loss directly caused by a vehicle parked within the unmarked bay in breach of the conditions this loss will be obvious. The initial loss is a fundamental aspect of a parking charge, without it costs incurred from issuing the charge cannot be proven to have been caused by the drivers alleged breach. LPS’s operational costs, tax deductible office functions, debt collection and other operations cannot flow as a direct consequence of this parking contravention. LPS would have been in the same position had the parking charge notice not been issued, along with the same business overheads even if no vehicles breached terms and conditions.


4) Contract with Landowner


LPS does not own the land and are assumed to be merely agents for the owner or legal occupier. In their NTK (EXHIBIT) and in the rejection letter (EXHIBIT), LPS has not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment for the title of the land in question. Within the IPC CoP Part B, paragraph 2.1 states the requirement of such an agreement.


I request that the IPC check whether LPS have provided a full copy of the actual contemporaneous, signed and dated contract with the landowner/occupier (not just a signed slip of paper saying it exists or someone has witnessed it) and check that it specifically enables this operator to pursue parking charges in their own name as creditor and through the court system.‘Witness statements’ instead of relevant contract show no proof that the alleged signatory has ever seen the contract or that they are employed by the landowner. Such a statement would not show whether any payment has been made to the operator which would obviously affect ‘loss’ calculations.


Furthermore, it would not serve to provide proof that the contract includes the necessary authority required by the IPC CoP to allow the operator to pursue charges in their own name as creditor and to enter into contracts with drivers. I say that any contract is not compliant with the requirements set out in the IPC Code of Practice.


I do not believe that the operator has the necessary legal capacity to enter into a contract with a driver of the vehicle parked in the lay-by or indeed the legal standing to allege a breach of contract. I refer the adjudicator to the recent appeal court decision in the case of the 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 they are damages they will not be”. The ruling of the Court was that “I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not considered moving from the landowner in return for the supply of parking services”.


In other words, they are not, as the operators assert’s, a contractual term. If they were a contractual term, 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 asset as set out above.


More so, the signage present at the location relied upon to create a contract between the landowner and the driver does not identify LPS as the creditor for any charges that arise out of the contract or damages following a breach of contract. (EXHIBIT) Therefore, LPS is unable to pursue this claim since they have not been identified as a creditor (IPC CoP, Part B, paragraph 1).


5) The Charge is Not a Genuine Pre-Estimate of Loss


The charge of £100 is being sought for an alleged breach of parking terms, namely “NO parking at any time” (EXHIBIT) consequently I contend, and the IPC Code of Practice states, that a charge for breach must be based on the genuine pre-estimate of loss. The requirement to demonstrate that the charge was based on a genuine pre-estimate applies to this alleged contravention as a driver cannot contract to park in such a way that the sign does not ‘permit’.


Therefore, the charge is not a core price term and is clearly a matter of breach or trespass since the Operator states in their rejection letter (see EXHIBIT) that there is 'no parking at any time'. This is borne out by the large heading, the only offer on the sign 'parking is permitted for' and the only allowed parties are those parking with a valid permit. That sentence communicates clearly that any other parking behaviour is not 'permitted' at all - there is no equivalent sentence permitting them to park. Drivers without a permit, being subject to a disproportionate 'charge' must therefore be concluded to be either trespassing or in breach. They are certainly not invited and allowed to park and there is no tariff nor payment mechanism provided for those exceeding the time limit, so there is no 'consideration' appearing on LPS's sign. This charge is not a core term for a 'service' and is not a contractual charge at all; it is a disguised penalty.


This contention is supported by the OFT’s view in a document available on the OFT website as oft842.pdf, link here which clearly states early on, “1.19 In our view the basic principles set out here also apply to other analogous default charges in consumer contracts’’:


Link https://www.gov.uk/government/upload...445/oft842.pdf


"Attempts to restructure accounts in order to present events of default spuriously as additional services for which a charge may be made should be viewed as disguised penalties and equally open to challenge where grounds of unfairness exist. (For example, a charge for 'agreeing to' or 'allowing' a customer to exceed his credit limit is no different from a charge for the customer's 'default' in exceeding his credit limit.) The UTCCRs are concerned with the intention and effects of terms, not just their mechanism”.


My suggestion that this charge is a disguised penalty is further supported by the OFT's extensive guidance on the Unfair Terms in Consumer Contracts Regulations 1999. This is also available on the OFT website as oft311.pdf, link here.


Link https://www.gov.uk/government/upload...426/oft311.pdf


The guidance includes the following advice:


“The Regulations apply a test of fairness to all standard terms (terms that have not been individually negotiated) in contracts used by businesses with consumers, subject to certain exceptions. The main exemption is for terms that set the price or describe the main subject matter of the contract (usually known as 'core terms') provided they are in plain and intelligible language. The Regulations thus apply to what is commonly called 'the small print' of standard form consumer contracts”.


“The Regulations are concerned with the intention and effects of terms, not just their mechanism. If a term has the effect of an unfair penalty, it will be regarded as such, and not as a 'core term'. Therefore a penalty cannot be made fair by transforming it into a provision requiring payment of a fee for exercising a contractual option”.


“The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term, or which purports to define what the consumer is buying, will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term”.


Therefore, according to the OFT, parking - indeed any - contracts specifying high charges for events which would normally be a breach of contract, described spuriously as if they are “core” prices for services delivered would still fall foul of the Regulations and would not be exempt from the test of fairness.


In the event of any ambiguity as to whether a term refers to a contractual charge or to liquidated damages for breach, then the doctrine of contra proferentem applies in favour of the consumer and thus, this charge has no genuine possibility of being viewed as a core term, falls foul of unfair terms regulations and is a penalty clause applied in terrorem.


Moreover, there can be no commercial justification for such a charge in a situation where the predominant purpose is to deter (as here in this car park with permit only) and the parties are not of equal bargaining power. Any reference to the ParkingEye v Beavis and Wardley case is unsupported by any case law and in any case, the Beavis judgment is now set for the Court of Appeal (EXHIBIT)on the question of a penalty being justified. This LPS case is not comparable anyway because LPS are not the principal (unlike ParkingEye in that case where the Judge found they were because they were paying £1000 per week to penalise people at that site).


The IPC must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and can be neither commercially justified or proved to be a genuine pre-estimate of loss and I respectfully request that my appeal be upheld and the charge dismissed.






LPS’s failure to use consistent language to that of the IPC/IAS, long with inconsistent language within their own literature is at best a reflection of negligent and sloppy practice, and at worst, it could be seen as a deliberate attempt to frustrate the appeal process with the IAS. LPS cannot have a contract with the driver when they have to satisfy specific conditions, which in this case they did not from the points and evidence raised above. I respectfully ask the IPC assessor to consider my points and photographic evidence and order that this charge be cancelled.





.................................................. ........................


Read it through and see what makes sense etc (as i copied pasted stole bits here and there)

Label each exhibit 1,2,3,4 etc and each time you see EXHIBIT put in the correct number.

Add an addendum to the foot of the appeal

Exhibit 1 - Notice to keeper
Exhibit 2 - picture of sign

etc etc



Everything must be sent at the same time !!! http://media.wix.com/ugd/bd9e08_fea4...0991fe5ff2.pdf

M1

[SicknTired]

Re: London Parking Solutions - PCN through post

Many thanks for your help and reply, I'll get the ball rolling my end and see how things end up

[mystery1]

Re: London Parking Solutions - PCN through post

Remember it's 21 days maximum and if you take 22 days they'll not listen. Also as it's IAS and not popla they will be looking to dismiss your appeal for whatever reason they can. They are anything but independent but do accept an appeal or 2.

M1

[SicknTired]

Re: London Parking Solutions - PCN through post

Just a quick update on this, I appealed with a modified version of the above letter, and they haven't contacted me since. Thanks ever so much for your help, much appreciated!

[ericsbrother]

Re: London Parking Solutions - PCN through post

they may do yet but dont take it too seriously, the IAS are an absolute disgrace and cant read or speak english so they may well reject your appeal.If they do LPS still dont have a leg to stand on, as you now realise.

[mh8124]

Re: London Parking Solutions - PCN through post

Sorry to re-open this thread but I wondered how you got on with your appeal? I have found myself in a similar situation with this company, where we were delivering a vehicle on a recovery truck to a motor repairer on a private trading estate, and they have done the same to us, sent us an invoice through the post which I appealed directly to them which they refused, I then appealed VIA that IAS to which London Parking Solutions have rejected so I selected to send to Arbitration but then found this page?