Popla draft appeal

staceoglasgow

Hey from all the reading a research I've drafted an appeal after my soft appeal to Civil Enforcement Ltd was rejected. (Sorry/thank you if it's your letters i've ripped off but I wasn't sure where to start!)


Any feedback would be great looking to send it off tomorrow.

The Registered keeper of this vehicle was sent an invoice from Civil Enforcement Ltd (‘CE Ltd’) requiring payment of a charge of £60 - later £100 for the alleged parking contravention.
As the registered keeper I would like to appeal this notice on the following grounds:
1, Signage
2, Lack of contract
3, Charge not a genuine pre-estimate of loss
4, No authority to levy charges
5, No Creditor identified on the Notice to Keeper

1 Signage
The car park was dark upon entry therefore if any was signage present it was not made visible for anyone wishing to use the car park out of daylight hours he car park and parking notices are completely unlit, and the signs placed at such a height that they are not illuminated by the cars headlights. As a consequence, at no time did the driver observe the signs.
The BPA Code of Practice states in Appendix B under Contrast and Illumination heading “If the sign itself is not illuminated, it should be made of retroreflective material meeting BS EN 12899-1:2007 class RA2 or higher (BS EN 12899-6:2012 class P3 or higher)”. I have visited the car park and the signs are not illuminated nor made of suitably reflective material. As a POPLA assessor has said previously in an adjudication “Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.
The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding. The idea that any driver would accept these terms knowingly is perverse and beyond credibility. I summit that since the signs were not seen as stated above then no contract was entered into and therefore no breach of contract occurred.
BPA Code of Practice states:
“18.1 A driver who uses your private car park with your permission does so under a licence or contract with you. …In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.
A8.3 Specific parking terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving.”
I require Civil Enforcement Ltd to provide proof of date of erection of all signage and proof of compliance of that signage with the BPA Code of Practice and BSI Standards.
I therefore respectfully request that this appeal is upheld and the charge dismissed.


2,Lack of contract

The absence of well lit signage with CE Ltd’s terms and conditions consequently permitted no contract whatever to be entered into between CE Ltd and myself.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

3, The amount demanded is not a Genuine Pre-estimate of Loss

The charge is a penalty and not a genuine pre-estimate of loss. The £100 charge asked for far exceeds the cost to the landowner who would have received £0.60 from any vehicles parked as there. At the time of the incident any facilities were closed and there were no other vehicles in the car park, therefore the landowner did not suffer any loss as a result of the car being present in the car park nor did it in any way affect the successful operation of the business which was closed. For this charge to be justified a full breakdown of the costs Civil Enforcement Ltd has suffered as a result of the car being parked at the car park is required and should add up to £100. Normal expenditure the company incurs to carry on their business (e.g. provision of parking, parking enforcement or signage erection) should not be included in the breakdown, as these operational costs would have been suffered irrespective of the car being parked at that car park.Furthermore, it exceeds the BPA’s own Code of Practice.

The BPA Code of Practice states:
“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. 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.
19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. If it is more than the recommended amount in 19.5 and is not justified in advance, it could lead to an investigation by the Office of Fair Trading.”
I contend that CE Ltd did not justify in advance the amount of £100 given the lack of visible signage.

I therefore respectfully request that this appeal is upheld and the charge dismissed.

4 No authority to levy charges
A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner’s behalf and enforce for breach of contract.
The operator must produce evidence to demonstrate that it is the landowner, or a contract or other evidence that it has the authority of the landowner to issue charge notices at this location. A signed witness statement will not be acceptable in this instance as I refer to POPLA case reference 1771073004 the assessor ruled that a witness statement was not valid. This witness statement, based on the template provided by the POPLA Lead Adjudicator, concerned evidence which could have been produced but was not. This is exactly analogous to the current case if the operator produces a witness statement regarding contract documents between the operator and the landowner; the alleged contract is a document which the operator could produce (if it exists) but chooses not to. I request therefore that POPLA is consistent in its processes and also rules any witness statement produced by the operator invalid.
I believe there is no contract with the landowner/occupier that entitles the operator to levy these charges and to pursue these charges in their own name as creditor in the Courts and therefore has no authority to issue charge notices.
I put the operator to strict proof to POPLA that they have the necessary legal authorisation at this location and I demand that the operator produce to POPLA the contemporaneous and unredacted contract between the landowner and the operator.
I therefore respectfully request that my appeal is upheld and the charge dismissed.


6, No Creditor identified on the Notice to Keeper
Failing to include specific identification as to who ‘the Creditor’ may be is misleading and not compliant in regard to paragraph 9(2)(h) of Schedule 4 of the Protection of Freedoms Act 2012. Whilst the Notice has indicated that the operator requires a payment to CE Ltd, there is no specific identification of the Creditor who may, in law, be CE Ltd or some other party. The Protection of Freedoms Act requires a Notice to Keeper to have words to the effect that ‘The Creditor is…’ and the Notice does not.
I therefore respectfully request that this appeal is upheld and the charge dismissed.

Kind regards,

4consumerrights

@Staceoglasgow - you don't happen to live in Scotland do you by your username - AS THERE IS NO KEEPER LIABILITY IN SCOTLAND.

I HOPE YOU DIDN'T ADMIT TO BEING THE DRIVER WHEN YOU CONTACTED CEL - DID YOU????

READ THE STICKY NEWBIE THREAD!