[X] My Assistant

[Omrud]

This relates to a "Fixed Penalty Notice" handed out in a private local car park.

My daughter is 21. She has just got her first car. She parked it in a car park which is slightly out of town and is surrounded by shops.

The sign at the entry states the opening hours (something like 08:00 - 20:00) but apparently nothing about it being only for short term stays (I haven't been to look yet). She parked there for four hours. The car park is never full (I have lived here for 16 years and I have never seen it full).

When she returned, there was a note on the windscreen. It is in a black and yellow sticky plastic cover which says "FIXED PENALTY NOTICE" on it. Inside is a folded paper - one of the sections is a title page which says "PENALTY. CMS UK LIMITED. THIS VEHICLE HAS BEEN PHOTOGRAPHED". She searched around and found a notice on a building which stated that free parking was for only 3 hours and that
there would be a penalty charge for longer staying, but she insists that it is not reasonable to expect a driver to see this from a car as she drives in; since she's only just got her first car she's not familiar with the rules in that car park.

Inside the notice there are several rather scary warnings about what will happen if she doesn't pay. It says she is "required to pay a parking charge of £50 with 14 days". It says she will have to pay £80 if they have to bother to get her details from the DVLA and then £130 if she doesn't pay after the next reminder, and then goes on about bailiffs.

They also state that they will only discuss "Appeals" if they are accompanied by full payment.

There is a paragraph which seems rather strange:
"Part 9 POLICE ONLY.
If this parking charge is presented before a Police Officer with reference to payment it is important the Officer does not discourage payment. When in receipt of correspondence on Police headed paper CMS UK will be happy to respond to the Police and answer any questions put forward or issue information requested by them."

Now clearly, I know that this is not a parking ticket but is in fact an invoice for a contract which she doesn't believe she entered into. But I don't know what to advise her. £50 is a lot of money for a student (I bought the car so that she could get to her summer job placement). She would happily have paid £5 or even £10 to park there for the day, but there is no payment meter, but she is sure that she's never seen a sign and on the few previous occasions she's parked there it's never been for more than 3 hours. And there seems to be no loss as the car park is never full.

Should she chuck it away, should she write enclosing a cheque for £5 as a reasonable fee for parking (this is Cheshire, not London), or should she write and tell them that she disputes the contract and will not pay? Or are there any factors which make this "penalty" illegal?

Advice welcomed. Of course, I could pay it for her, but that's not really the answer. However she is very worried about any higher charge being run up.

I have scanned the Notice and the bag it came in, which looks rather too much like a real parking ticket - is this legal?

http://s102.photobucket.com/albums/m103/om...dPenaltyNotice/

--
David

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[g_attrill]

This company has been discussed before, the "police only" section stands out. I can't find the thread right now but I'll have a look later.

The "Fixed Penalty Notice" holder is definately dodgy, they usually say "Parking Charge Notice" or similar. FPN is a specific legal term that must only be used for tickets involving criminal parking offences. It may well be an offence under The Administration of Justice Act 1970:

http://www.swarb.co.uk/acts/1970Administra...usticeAct.shtml

(1) A person commits an offence if, with the object of coercing another person to pay money claimed from the other as a debt due under a contract,
....
(d) utters a document falsely represented by him to have some official character or purporting to have some official character which he knows it has not.

As well as writing a full rebuttal on the usual things, this would be very valuable to add onto the end, although it is probably far more powerful than anything else you could put in the letter. Then report them to the police whether the ticket is cancelled or not.

Gareth

This post has been edited by g_attrill: Tue, 19 Sep 2006 - 13:03

[Teufel]

it is explicitlty a penalty for a breach of contract

there probably was parking for free under a bare licence
accepted by conduct (parking)

probably no term agreeing to pay a penalty

in any casre it is an unenforceable penalty
charge not linked to their loss

search various threads here for more details

[Omrud]

As well as writing a full rebuttal on the usual things, this would be very valuable to add onto the end, although it is probably far more powerful than anything else you could put in the letter. Then report them to the police whether the ticket is cancelled or not.

Gareth

Thanks, that's very helpful. Sorry to be pathetic, but I have no idea how to go about reporting to the police. I'm just a simple Chartered Engineer.

Do I need to go in person so that I can take a copy of the Notice, or will a phone call be enough? Ironically, the only car park near our main police station belongs to Railtrack and is very clearly marked "20 minutes only on rail business".

David

[Antos]

I would challenge them along the lines of


"DearSir,

By what authority do you seek to levy a fine?
Please state staute and section

Just because I am the registered keeper does not give you authority to
levy a charge.
If you disagree please state statute and section.

Please justify parking charge
Specify why the fine is higher than that may be
levied on a criminal offence.

Finally if you claim that the driver was trespassing please provide
full details of your title to property.

In conclusion the driver who parked was

A. not blocking anyone in.
B. The carpark still had numerous/several other places available for other users.
In any event they were a customer of one or more of the businesses for which parking is allowed, please explain. "

Whilst you cannot stop then bringing a civil action for trespass.
They will need to answer your points if they wish to puruse this.
As you are disputing their right to this charge, this should block
any further costs being added as you are making a genuine
attempt to address the 'concerns' of the aggrieved party.
Do the obvious and keep copies etc as in the unlikley event it
does go to court you will have a very solid case to argue.

[g_attrill]

Thanks, that's very helpful. Sorry to be pathetic, but I have no idea how to go about reporting to the police. I'm just a simple Chartered Engineer.

You would just need to walk in and say that a company is issuing notices puporting to be a Fixed Penalty Notice (of official nature) contrary to The Administration of Justice Act 1970. Print out the above page (underline part (d)) and take in all the paperwork. I am pretty sure that they will initially claim it is a "civil matter" but insist that although the alleged contravention is civil, the use of the phrase "Fixed Penalty Notice is what your complaint is about, because it suggests that the document enclosed is of official character relating to a criminal offence, when it is nothing of the sort.

The councils use "Penalty Charge Notice" which is a separate legal term, and the private companies tend use a different term such as "Parking Charge Notice" or "Parking Contravention Notice", I have seen legally restricted terms used before by smaller companies.

You might like to try writing to the company first, it seems from their website they might be confused about the use of such legal terms they really should know better though.

[Omrud]

You might like to try writing to the company first, it seems from their website they might be confused about the use of such legal terms they really should know better though.

I see they refer to "The owner of the offending vehicle" rather than the driver who may have entered into a contract. And their web site is currently off the air entirely as you noticed.

Thanks again

David

[DW190]

Fixed Penalty Notice


Fixed penalty notices will be issued to any offending vehicle contravening the individual site rules this is a non-confrontational alternative. A photograph will be taken of all vehicles issued with a fixed penalty notice this will be carried out by CMS UK LTD staff.

The owner of the offending vehicle will then have 14 days in which to clear the fine at a reduced rate, failure to pay with the 14 days will result in the vehicles owner driver details being obtained from the DVLA and a reminder letter will be issued advising the owner of the offending vehicle that full payment must be made within 7 days to avoid civil court action.

How do they propose to get the Owner/Driver details from the DVLA who only keep records of the Registered Keeper.

They are a load of:

[Boa]

My lot used 'Fixed Penalty Charge' (see the Old Trafford thread). Probably not a restricted phrase, but sailing close to the wind.

[Teufel]

calling it a fixed penatly charge describes exactly what it
is - sadly for them it is an unenforceable penalty charge for breach

dunlop v new motor

[Wayne Pendle]

I would challenge them along the lines of


"DearSir,

By what authority do you seek to levy a fine?
Please state staute and section

Just because I am the registered keeper does not give you authority to
levy a charge.
If you disagree please state statute and section.

Please justify parking charge
Specify why the fine is higher than that may be
levied on a criminal offence.

Finally if you claim that the driver was trespassing please provide
full details of your title to property.

In conclusion the driver who parked was

A. not blocking anyone in.
B. The carpark still had numerous/several other places available for other users.
In any event they were a customer of one or more of the businesses for which parking is allowed, please explain. "

If you think it'll help then give it a go. Personal, the least amount you write about the 'scene of crime' the less likely it is to imply that you were there or knew of the ticket. In a majority of cases, the only information these people have to go on, is what people tell them.

All the best

This post has been edited by Wayne Pendle: Wed, 20 Sep 2006 - 20:40

[Omrud]

I've added photos of the entrance to the car park:
http://s102.photobucket.com/albums/m103/om...dPenaltyNotice/

The CMS warning notice is, I am sure, new. I've been into this car park for more than a decade and I don't ever remember seeing these notices before.

It seems to me that it's not reasonable to ask a driver to read and digest the notice while entering the car park at about 10 mph and watching out for other traffic. The only sign my daughter remembered seeing was the one about closing times.

There are more of the same CMS notices dotted around the car park but it would be perfectly possible to park and walk out without passing one. In any case, they are well above head height.

It has occurred to me that if we reply before they get the details from DVLA, they will not know my daughter's details. I am planning to write about "the notice attached to X car on Y date" without stating whether I was the driver. Indeed, I could honestly say that I was not the driver, but I understand that it's worth reserving this information.

Since she's going back to university in a week, I would rather take control of any correspondence, and I'll take over any risk of having to pay.

I have also written to local Trading Standards and will report back if they reply to me.

David

This post has been edited by Omrud: Wed, 20 Sep 2006 - 10:42

[Wayne Pendle]

Well, they're committing a criminal offence by issuing what is proported to be a fixed penalty notice for a start.

[Teufel]

if you are the RK and not the driver then if the write to you
simply tell thme that and that you entered into no agreemnt
and have no liabilty

the signs confirm that it is for a breach of 'rules' (not terms)
confirming it is a penalty charge which is unenforcable
in contract law - by public policy contract cannot
be used to enforce punishment for breaking private rules

in any case the signs do not bring the terms (if they are terms)
to the notice of a driver and so are not included

special terms require special notice (thornton v shoe lane parking)

[Omrud]

if you are the RK and not the driver then if the write to you
simply tell thme that and that you entered into no agreemnt
and have no liabilty

Actually, I am not RK nor the owner nor the driver. My daughter is all of those things. I won't lie to them, but my plan is to write stating that they have no case as "the driver" was not made aware of the notices and also that their Notice may be illegal under the Administration of Justice Act 1970 (which they quote on the Notice). They could go on to get my daughter's details from the DVLA if they realise that I'm not the RK, but they may not think of that if they get a reply within the 14 days. I don't want her to have to deal with it.

I'm waiting for a reply from local Trading Standards, since it is a local car park. They might have some specific advice.

David

[Omrud]

An update - I wrote a letter to the company which had left the ticket. I remind you that it is my daughter who is the owner, RK and driver of this car, although I haven't yet explained this to the company.


Dear Sirs,
I write with reference to the “Fixed Penalty Notice” attached to vehicle XXX XXX in XXX Park, on <date>. This vehicle was parked as indicated.
In spite of its appearance as an official parking ticket, this “Fixed Penalty Notice” actually seems to be an invoice for breach of terms of a contract entered into by parking in this car park for more than three hours.
In fact, no contract exists. The notices which are posted at the entrances are so small that no person driving into the car park could reasonably be expected to read and understand them. Indeed, any driver who did read them fully while entering the car park could not be considered to be watching the roadway properly.
It is easy to drive into the car park, park near the entrance and walk out of the car park without passing any notices other than those at the entrance. I have photographed the placement of these notices.
Therefore, no contract exists and no “penalty” will be payed.
Should you seek to claim that this parking amounts to trespass, please note that the vehicle was neatly parked, not blocking any other vehicle, and that the car park was not full, so any actual loss must be minimal.
Although there is no contract in place and therefore no debt, I am concerned about your use of black and yellow packaging, the term “Fixed Penalty Notice” and the reference to the breaking of “Rules”, all of which may be illegal under the Administration of Justice Act 1970. This law prohibits the utterance of a document purporting to have some official character with the object of coercing a person to pay money claimed as a debt due under a contract . I urge you to review your documentation and packaging, and I would like to discuss this with the landowner.
Please supply me with details of your authority to act on behalf of the legal owner of this car park including their name and address so that I can communicate my concerns to them.

Yours faithfully,

They have replied, within a few days, with this:

Dear Mr XXX,
After reading your letter dated September 29th 2006 I feel that there are several issues I should address.
1. Our Fixed Penalty Notice is correctly worded and legal.
2. The choice of colour of the waterproof sleeve was and is a matter for this company, and was chosen due to its use internationally as a sign for caution/warning.
3. The signs within the car park meet the requirements of there purpose, as has been proved in the County Courts on previous occasions.
4. CMS (UK) Ltd are the sole agents authorised by the Landowner/Agent to enforce parking on this site and s such it is on there behalf that a fixed penalty notice was issued (CMS (UK) Ltd retain an up-to-date contract stipulating this and should this matter go before the County Court for enforcement it will be produced to the court in evidence).
5. CMS (UK) Ltd will not disclose any information about our clients prior to court action.
6. CMS (UK) Ltd would seek cost to be added should they be incurred.

As a demonstration of good will CMS (UK) Ltd will extend the discount payment - period to 14 days from the date of this letter, should you wish to finalise the matter.

I've scanned the letter which is at http://s102.photobucket.com/albums/m103/om...dPenaltyNotice/ along with the other photos and scans, for new readers.

What do you all think?

David

[Teufel]

its bluff

these people rely on fear and ignorance

since there actions are unjustified from the start what did you expect

dont make it easy for them

ddi you report to the police ?

they are attempting to pass off as official

[Teufel]

another thing is that they claim to be agent for the owner
(in letetrs and on signs) but act as though they are principal

if they are an agent then your contract (if one) is with
the landowner and they shoudl disclose

trading as agent for an undisclosed principal is a no-no

[fred2]

3. The signs within the car park meet the requirements of there purpose, as has been proved in the County Courts on previous occasions.

I've noticed that a lot of these private firms like to boast about their County Court victories. No doubt these are so rare that they feel the need to brag about them. I bet most are won by default as the defendant doesn't bother to turn up or makes a right bollock of it.

[Insider]

We had a spate locally where Excel (among others) were "taking over" land and ticketing.... They had no right to do so and it took ages to get them kicked off....