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  • FIRST POST
    • sbhullar
    • By sbhullar 19th May 17, 6:58 PM
    • 2Posts
    • 0Thanks
    sbhullar
    Civil Enforcement Ticket -Hospital Ticket
    • #1
    • 19th May 17, 6:58 PM
    Civil Enforcement Ticket -Hospital Ticket 19th May 17 at 6:58 PM
    Hello,

    I received a ticket on 6/5/2017 for 'parking in a disable bay without displaying a valid blue badge'. I appealed to CEL via their email on 9/5/2017 using the response at the bottom, however they have rejected my appeal via email suggesting I drove and supplied a Popla code but have bot issued an NTK yet. I am in wondering what the next best step is?
    1) Respond via POPLA with the same wording?
    2) Add other points to invalidate their claim?
    3) Wait a certain time period?

    My initial email:

    Dear Sirs,

    In reference to:

    PCN number: ×××××

    PCN date: 06/05/2017

    Vehicle Reg: ×××××




    I, as registered keeper, wish to invoke your appeals process.


    1) The Charge is not a genuine pre-estimate of loss

    The notice states the charge is ‘in accordance with the Parking Terms and Conditions clearly stated on the signage in the car park' so Civil Enforcement Ltd must prove the charge to be a genuine pre-estimate of loss.

    This car park is Pay and Display. The most Parking Eye could claim is the amount required for that period of parking that my car was at the car park. In ParkingEye v Smith at Manchester County Court in 2011, claim number 1XJ81016, the original claim of £240 was deemed an unrecoverable penalty, unrelated to damages incurred and the only sum that could be recovered was deemed to be £15 (the amount of the pay and display fee for more than one visit). The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. As the PCN sum is massively inflated over and above the amount of the parking fee, I require Civil Enforcement Ltd to submit a breakdown of how this sum was calculated prior to the parking event, as being capable of directly flowing from a minor alleged breach.
    There is no loss flowing from this parking event because the car park was no-where near full.
    Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. Civil Enforcement Ltd would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.
    Given that Civil Enforcement Ltd charge the same lump sum for a disabled space as they would for a non-disabled space, and the same fixed charge applies to any alleged contravention (whether serious/damaging or trifling), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss caused by this incident in this car park.
    Civil Enforcement Ltd cannot reasonably claim a broad percentage of their entire business running costs as they operate various different arrangements, some where they pay a landowner a huge amount akin to a ‘fishing licence’ to catch motorists and some arrangements where they have pay and display, and others which are free car parks.
    The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. Civil Enforcement Ltd cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some subsequently penned ‘commercial justification’ statement they may have devised afterwards (since this would not be a pre-estimate):
    The British Parking Association Code of Practice uses the word ‘MUST’:
    “19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.”

    2) Lack of signage – no contract with driver

    The signs were not visible from a distance and the words are unreadable. I put Civil Enforcement Ltd to strict proof otherwise; as well as a site map they must show photos of the signs as the driver would seen them on entering the car park. A Notice is not imported into the contract unless brought home so prominently that the party ‘must’ have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.

    The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ”Signs should be readable and understandable at all times, including during the hours of darkness…when parking enforcement activity takes place at those times. This can be achieved…by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit…should be made of a retro-reflective material similar to that used on public roads”.

    3) Lack of standing/authority from landowner

    Civil Enforcement Ltd has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

    BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Civil Enforcement Ltd to strict proof of the contract terms with the actual landowner (not a lessee or agent). Civil Enforcement have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Civil Enforcement Ltd are entitled to pursue these charges in their own right.

    I require Civil Enforcement Ltd to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for Civil Enforcement Ltd merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner – not merely an ‘agreement’ with a non-landholder managing agent – otherwise there is no authority.

    4) Unreasonable/Unfair Terms

    The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
    ’18.1.3 Objections are less likely…if a term is specific and transparent as to what must be paid and in what circumstances.

    An unlit sign of terms placed too high to read, is far from ‘transparent’.

    Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) “Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.” Furthermore, Regulation 5(1) states that: “A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer”.

    The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: “A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”


    Conclusion

    I contend it is wholly unreasonable to rely on unlit signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put Civil Enforcement ltd to strict proof to justify that their charge, under the circumstances described.

    I therefore respectfully request that my appeal is upheld and the charge is dismissed. Please confirm in writing whether you accept my appeal and withdraw your demand. If you reject my appeal, in addition to the above please provide the following particulars:

    1) The basis of your charge (i.e. contract breach, trespass or contractual fee).

    If you are alleging breach of contract, I require a breakdown of the liquidated damages you claim were suffered, and by whom, and how each particular loss arose.
    If you are alleging trespass please enclose evidence of the alleged perpetrator and proof of the liquidated damages alleged and the calculation of this sum.
    If you alleging a “contractual fee” I request a VAT invoice from you and ask you to explain the daily rate for parking and service provided for that fee.

    2) Please also advise the amount of money you would have recieved from the driver of my vehicle should the alleged contract have been met to your satisfaction.

    3) Please advise the name and address of the landowner.

    4) Please provide a POPLA code that allows me to appeal to POPLA.

    If Civil Enforcement Ltd rejects my appeal: please do not contact me again with more demands as I deny owing Civil Enforcement Ltd any money and deny that any driver of my vehicle has entered into a contract with you. Any legal action you initiate against me will be defended.

    Yours sincerely,
Page 1
    • sbhullar
    • By sbhullar 19th May 17, 7:14 PM
    • 2 Posts
    • 0 Thanks
    sbhullar
    • #2
    • 19th May 17, 7:14 PM
    • #2
    • 19th May 17, 7:14 PM
    From reading around the subject they have 57 days to send a NTK but the latest I can respond to POPLA is before then? I now know I responded too soon but do I still have a case to not pay?
    • Myriddin
    • By Myriddin 19th May 17, 8:04 PM
    • 199 Posts
    • 384 Thanks
    Myriddin
    • #3
    • 19th May 17, 8:04 PM
    • #3
    • 19th May 17, 8:04 PM
    If you have a POPLA code then use it to easily win against CEL. But not with that appeal as it's a very old and out of date one.

    Start by reading the Newbie section second from the top of the forum threads. All the info you need to construct a good POPLA appeal is in there. Post your draft appeal for critique.
    'People are stupid; they can only rarely tell the difference between a lie and the truth, and yet they are confident they can, and so are all the easier to fool.' Wizard's first rule © Terry Goodkind.
    • Coupon-mad
    • By Coupon-mad 19th May 17, 8:05 PM
    • 51,501 Posts
    • 65,098 Thanks
    Coupon-mad
    • #4
    • 19th May 17, 8:05 PM
    • #4
    • 19th May 17, 8:05 PM
    Can you delete that draft please? We would not want newbies reading such an old one and thinking it is current.

    Read the NEWBIES thread post #3.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

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