Author Topic: CPM parking on double yellow in private land (carried over from pepipoo)  (Read 314 times)

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BertieW

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Hi all,

carrying over post from pepipoo: http://forums.pepipoo.com/index.php?showtopic=149253&st=20

Need advice on two points as the well seems to have dried up over there:

  • How can I determine if CPM has complied with Pofa and hold the keeper liable? they assert:
    Quote
    Please be advised that the parking charge notice was issued as a breach of contract occurred. The vehicle was parked in a manner whereby the driver became liable for a Parking Charge Notice and therefore The Protection of Freedom Act 2012 is irrelevant and does not apply.
    http://forums.pepipoo.com/index.php?s=&showtopic=149253&view=findpost&p=1785856
  • as the prev. RK, I have sold the car and have expatriated (for at-least a couple of years)* In the members' experience, would it be reasonable to expect a PPC (CPM) to give up because of this, or would they still pursue (based on response to q1, i.e. RK liability)?
    *Update to HMRC on the changed tax status is pending but will be done shortly, but inevitably some form of assets will remain in the UK.

Thanks

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DWMB2

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carrying over post from pepipoo: http://forums.pepipoo.com/index.php?showtopic=149253&st=20
It would be wise to re-post the salient details and images from your PePiPoo thread here - this site was set up because there's a credible risk that PePiPoo will go offline permanently in a few months' time.

  • How can I determine if CPM has complied with Pofa and hold the keeper liable? they assert:
    Quote
    Please be advised that the parking charge notice was issued as a breach of contract occurred. The vehicle was parked in a manner whereby the driver became liable for a Parking Charge Notice and therefore The Protection of Freedom Act 2012 is irrelevant and does not apply.
    http://forums.pepipoo.com/index.php?s=&showtopic=149253&view=findpost&p=1785856
Their statement is nonsense - PoFA is only 'irrelevant' if they know who the driver is - if they're seeking to hold the registered keeper liable they need to comply with it. Looking at their notice, I'd argue it doesn't comply - for starters, they've not provided the warning required by 9(2)(f):

(f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is givenó
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

Their notice doesn't mention the part in (ii), it just says if the amount remains unpaid they will have the right to recover from the driver. That being said, it's not a particularly strong defence point on its own - although they arguably shouldn't, we've seen cases where judges have either failed to understand the requirements of PoFA, or accept 'broad compliance', and overlook what they see as technical/minor errors like that (although I'd argue it's not necessarily minor, keeper vs driver can be an important distinction).

as the prev. RK, I have sold the car and have expatriated (for at-least a couple of years)* In the members' experience, would it be reasonable to expect a PPC (CPM) to give up because of this, or would they still pursue (based on response to q1, i.e. RK liability)?
*Update to HMRC on the changed tax status is pending but will be done shortly, but inevitably some form of assets will remain in the UK.
UK Car Park Management can be a litigious bunch, so you should work on the assumption they will continue to pursue you. Do you have a UK address at which you can be contacted, or are you now permanently abroad? If the address to which the notices were sent is no longer one at which you can be contacted, you should provide them with your updated address for service. If that is a foreign address, then as well as emailing their Data Protection Officer (DPO), it could be wise to send them a letter by post from said address (perhaps alongside a redacted bill/other document verifying the new address). There's obviously a small cost to doing this, but helps overcome any scepticism CPM might hold about the accuracy of the information.

I haven't trawled the PePiPoo thread in great detail yet, but I note from the dates that quite some time has elapsed between the issue of the original notice and now - I presume you chose not to bother with an appeal to the IAS (I wouldn't blame you)? If so, there aren't any further appeal stages, it's a case of waiting to see if they decide to go to court.


guest179

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Need advice on two points as the well seems to have dried up over there:


In all honesty you do not need advice on these points at present.

As per DWMB2, all that remains procedurally if they wish to pursue the matter is to take you to court to do which they need a serviceable address.

Let's not dance around this point: you are abroad for an extended period but are keeping a foot on the ground here. Presumably you have not cut yourself off from everyone, both formal and informal, therefore there will be an address at which you can be contacted. IMO you should always ensure they can contact you.

BertieW

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Thank you both, noted and understood the points mentioned; exactly the type of information I was looking for, so much appreciated.

Yes, I didn't appeal via IAS, but that was purely due to being confused about (due to my naivety) the suggestion provided on pepipoo; nevertheless, due to being preoccupied with packing up and moving, i missed the 21day deadline to appeal. It is a relief to know that the IAS appeal isn't a mandatory step in this process (and now with that hindsight, the comment on pepipoo from the rookie makes sense to me).


Yes, I do have a UK forwarding address and I will inform CPM of that. I will also post the details here from pepipoo in a few days per DWMB2's suggestion.

Thanks

DWMB2

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It is a relief to know that the IAS appeal isn't a mandatory step in this process (and now with that hindsight, the comment on pepipoo from the rookie makes sense to me).
The success rate at the IAS is so low that they're described by many as a kangaroo court - if one has the time, and a particularly strong case, then appealing to them provides another roll of the dice before court, but given the slim chance of success then not doing so doesn't matter too much.

BertieW

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Re: CPM parking on double yellow in private land (carried over from pepipoo)
« Reply #5 on: September 04, 2023, 11:14:33 am »
Hi all,
Post 1 of 2:

By way of an update, I have received two letters now from "Debt Recovery Plus", both addressed to my old address, but received at the current forwarding address through the postal redirection service. I am ignoring both as per advice given in similar posts over in Pepipoo.

I did notify CPM of my change of address via email to both their generic info@uk-cpm.com email and also to the DPO at dpo@uk-cpm.com; because I don't have any other email / contact address for them due to the case being "passed to their legal team". The response received from the generic info email is somewhat confusing and I am not sure how much of a legal scrutiny they can stand in court if it goes that far - however, that's one to worry when it [hopefully not] gets to that stage. Images linked below (thanks DWMB2 for your message - i took screenshots rather than attach the pdf):

1. Email to CPM for address change:
https://ibb.co/bFSXNHm

2. Email response from CPM:
https://ibb.co/2YzwFgn
« Last Edit: September 04, 2023, 11:23:32 am by BertieW »

DWMB2

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Re: CPM parking on double yellow in private land (carried over from pepipoo)
« Reply #6 on: September 04, 2023, 11:37:56 am »
What a bizarre response - they can't access the DVLA's data again so that is irrelevant. They also don't need to use the electoral register as you have provided them with your new permanent address.

BertieW

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Hi all,

I have now received a Letter Before Claim from Gladstones dated 08/03/24.

Despite my informing CPM last year about a new UK forwarding address (and receiving the bizarre response as previously posted), all these letters are being posted to the old address and I only get to know about the ones that come through the royal mail redirection (which is also about to expire).

Anyways, given the LBC mentions a 30day deadline if I intend to contest - do I need to do anything? I am still overseas so it will all have to be online if that is possible? Hence, also the delay in my recieving notification of the letter.

LBC images:

https://ibb.co/CBmnj42
https://ibb.co/0ZP0YdY
https://ibb.co/H4fTRdh
https://ibb.co/mcT0Jsk


Thanks.

b789

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If they're sending the post to your old address, that is because you didn't actually tell them to erase your old address. You now need to email the DPO at both CPM and Gladstone's with the following:


To the DPO,

This is a data rectification notice. I require you to rectify your records with my current address for service of documents.

My current address is:

XXX Current address XXX

Once you have updated your records I require you to erase my old address. If you have disclosed my personal data to others, you must contact each recipient and inform them of the rectification. I also require you to inform me about these recipients.

You must comply with a request for data rectification without undue delay and at the latest within one month of receipt of this request.

Failure to follow or comply with this data rectification request will render you and your agents liable under the UK GDPR (Article (5)(1)(d)).



With regards to the LoC, you should respond robustly with something along these lines:

Dear Sirs,

Your Letter Before Claim contains insufficient detail of the claim and fails to provide copies of evidence your client places reliance upon and thus is in complete contravention of the Pre-Action Protocol for Debt Claims.

I am the registered keeper of the vehicle. I am not obliged to identify the driver and I decline to do so. As there is no legal presumption that the keeper of a vehicle was its driver on any particular occasion, your client cannot pursue me as driver as per VCS v Edward H0KF6C9C [2023].

As you and your client are well aware, there can be no keeper liability as defined in Schedule 4 to the Protection of Freedoms Act 2012 as they have already stated that they are not relying on the Act. So your client cannot pursue me as keeper.

As your client cannot pursue me as driver or keeper, it would be an abuse of the courtís process for your client to issue a claim against me and I will defend any such claim vigorously and seek costs in relation to your clientís unreasonable and vexatious conduct under Part 27.14(2)(g)

As your letter lacks specificity and breaches the requirements of the Pre-Action Protocol for Debt Claims (paragraphs 3.1(a)-(d), 5.1 and 5.2) as well as the Practice Direction - Pre-Action Conduct (paragraphs 6(a) and 6(c)), you must treat this letter as a formal request for all of the documents/information that the protocol now requires your client to provide. Your client must not issue proceedings without complying with that protocol.

As solicitors you must surely be familiar with the requirements of both the Practice Direction and the Pre-Action Protocol for debt claims and your client, as a serial litigator of debt claims, should likewise be aware of them. As you (and your client) must know, the Practice Direction and Protocol bind all potential litigants, whatever the size or type of the claim. Its express purpose is to assist parties in understanding the claim and their respective positions in relation to it, to enable parties to take stock of their positions and to negotiate a settlement, or at least narrow the issues, without incurring the costs of court proceedings or using up valuable court time. It is embarrassing that a firm of Solicitors are sending a consumer a vague and un-evidenced 'Letter Before Claim' in complete ignorance of the pre-existing Practice Direction and the Pre-Action Protocol.

I confirm that, once I am in receipt of a Letter Before Claim that complies with the requirements of para 3.1 (a) of the Pre-Action Protocol, I shall then seek advice and submit a formal response within 30 days, as required by the Protocol. Thus, I require your client to comply with its obligations by sending me the following information/documents:

1. An explanation of the cause of action
2. whether they are pursuing me as driver or keeper
3. whether they are relying on the provisions of Schedule 4 of POFA 2012
4. what the details of the claim are; for how long it is claimed the vehicle was parked, how the monies being claimed arose and have been calculated
5. Is the claim for a contractual breach? If so, what is the date of the agreement? The names of the parties to it and provide to me a copy of that contract.
6. If the claim is for a contractual breach, photographs showing the vehicle was parked in contravention of said contract.
7. Is the claim for trespass? If so, provide details.
8. Provide me a copy of the contract with the landowner under which they assert authority to bring the claim, as required by the IPC Code of Practice v8 Appendix 1.
9. a plan showing where any signs were displayed
10. Photographs of the signs displayed (size of sign, size of font, height at which displayed) at the time of any alleged contravention.
11. Provide details of the original charge, and detail any interest and administrative or other charges added
12. Am I to understand that the additional £70 represents what is dressed up as a 'Debt Recovery' fee, and if so, is this nett or inclusive of VAT? If the latter, would you kindly explain why I am being asked to pay the operatorís VAT?
13. With regard to the principal alleged PCN sum: Is this damages, or will it be pleaded as consideration for parking?

I am clearly entitled to this information under paragraphs 6(a) and 6(c) of the Practice Direction. I also need it in order to comply with my own obligations under paragraph 6(b).

If your client does not provide me with this information then I put you on notice that I will be relying on the cases of Webb Resolutions Ltd v Waller Needham & Green [2012] EWHC 3529 (Ch), Daejan Investments Limited v The Park West Club Limited (Part 20) Buxton Associates [2003] EWHC 2872, Charles Church Developments Ltd v Stent Foundations Limited & Peter Dann Limited [2007] EWHC 855 in asking the court to impose sanctions on your client and to order a stay of the proceedings, pursuant to paragraphs 13, 15(b) and (c) and 16 of the Practice Direction, as referred to in paragraph 7.2 of the Protocol.

Until your client has complied with its obligations and provided this information, I am unable to respond properly to the alleged claim and to consider my position in relation to it, and it is entirely premature (and a waste of costs and court time) for your client to issue proceedings. Should your client do so, then I will seek an immediate stay pursuant to paragraph 15(b) of the Practice Direction and an order that this information is provided.

Yours faithfully
« Last Edit: March 31, 2024, 11:26:23 pm by b789 »

DWMB2

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I am still overseas so it will all have to be online if that is possible?
If/when they issue a claim, your acknowledgement of service can be done online via the Money Claim Online (MCOL) system. Your defence and witness statements can be submitted via email. The Claim Form itself and any subsequent documents will be sent by post however, so as b789 notes, correcting your address is vital, as is ensuring that you have a process in place for continuing to receive and respond to post.

Regarding the hearing itself, anecdotally most people we see going to court on the forums opt for an in-person hearing in the court. However, when it gets to the 'Directions Questionnaire' stage, you can indicate that you are happy for the case to be determined without a hearing (aka on the papers). The obvious advantage of this is that you don't need to attend, the potential downside is that you won't be there to answer any questions/clarify anything, and the judge will be making a decision solely on the basis of written submissions.

BertieW

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If they're sending the post to your old address, that is because you didn't actually tell them to erase your old address. You now need to email the DPO at both CPM and Gladstone's


Hi,

Thanks for the information both.

I did actually include the CPM DPO when I notified them initially of my move abroad and included the UK forwarding address in that email. At that time, I wasn't aware who they would solicit for their claim so I couldn't have notified Gladstones about it.

Granted that I didn't headline the email with the suggested:This is a data rectification notice ; or included the instructions to erase my old address, but I thought it was pretty clear in the message that the old address would not be in use anymore and all correspondence should be to the new address.

I did not receive any acknowledgement reply from the DPO inbox (automated or otherwise).


Email here dated 15/08/23, showing the DPO inbox in email recipients:

https://ibb.co/7vJMd2m


Does the above change anything regarding liability under GDPR? They clearly didn't comply as my old address was passed on to Gladstones. Should I still notify the DPO at Gladstones or the course of action should be different now?

b789

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Every time you change address for the next 6 years, you will need to instruct them to erase your old address. The word ďeraseĒ is highlighted for a reason.

However, you should still send a new data rectification notice to both CPM and their solicitors. As they didnít follow your original instructions, you should initiate a complaint with CPM and ask why they didnít follow your instructions and why they have passed on erroneous data to Gladstone. Depending on their response, you should also lodge a complaint with the ICO.

BertieW

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Thanks - done on both counts: 1) emailed and complained to CPM and Gladstones regarding data

2) responded to the PAP on Gladstones website using the dispute reasons kindly provided.

Will keep you posted.

b789

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This is just a response to the LBC and asking them to submit an LBC that fully complies with the PAP. They may decide not to comply and just issue a claim anyway.

If they do ignore the request for a fully compliant LBC then you will be able to add those breaches of PAP to your defence as a preliminary matter. For now we wait and see what they come back with.

The question about whether the added £70 DRA fee is important as I doubt they will fully answer the question. If so, you can then lodge a report of suspected VAT fraud to HMRC.

You could state that the report is about VAT concerns involving the conduct of the legal and Debt Recovery firms operating as parasites clinging limpet-like to the 'rogue' private parking industry.

A report specifically concerning Gladstoneís Solicitors will be about their failure to confirm whether consumers are being unlawfully hit with the VAT element of their added 'fees'.

It is not about parking charges (these cannot exceed £100).  It is all about the added £70 admin/DRA costs that the DLUHC called 'extorting money from motorists'.

These third party debt collectors include BW Legal,  DCB Ltd, DCB Legal, Gladstones Solicitors, Empira, TNC, CIS, Trace Debt Recovery, ZZPS, Debt Recovery Plus, QDR solicitors, CST Law, Elms Legal and others who are listed as members of the BPA and/or IPC Approved Operator or approved debt firms.

Because the concern is that they steadfastly refuse to answer questions about the VAT on their DRA fee, it is now widely suspected that some or all of the private parking industry specialist Debt Recovery firms (including legal firms) may be operating as follows.

Either:

(a) not paying HMRC the VAT element on the £60 or £70 per PCN 'admin fees' that they charge for 'debt recovery'. This amounts to £multi-millions p.a. due to parking cases now exceeding 12m DVLA look-ups per year.  Within weeks, £70 per PCN is added and aggressively demanded. 90% of those cases that result in court claims include multiple £70 'fees' that the parking operator clients have never paid and appear to be unjust enrichment of the DRAs;

or

(b) including VAT within the fixed £70 'fee' which they describe as "our costs". This has the object or effect of making the consumer pay the VAT, which HMRC has already stated is unlawful in cases of enforcement or debt recovery fees.

The service supplied by a debt collection agency is a single composite supply, the core of which is debt collection, which is specifically excluded from the finance exemption, and is thus taxable:

https://www.gov.uk/hmrc-internal-manuals/vat-finance-manual/vatfin3255

You should complain and given Gladstoneís Solicitors every chance to clarify what they are doing in terms of VAT on what they call "our costs" but they will likely  swerve the questions.

This is long overdue HMRC investigation.
« Last Edit: April 01, 2024, 12:07:00 pm by b789 »
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DWMB2

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Quote
This is long overdue HMRC investigation.
But potentially not one BertieW wants to spearhead, at least until he's dealt with the claim at hand. I wonder whether any 'extracurricular' complaints to HMRC et. al. might be best saved until after the claim has been dealt with.