Civil Enforcement Ltd - can they pursue RK?

4consumerrights

CEL have responded and have even stated that they do in fact comply with Protection of Freedom Act 2012 and seem quite adamant about the fact.

Note that their letter states they have the right "subject to the requirements of the Act having been complied with to recover from the Registered Keeper......."

That is not the same as being compliant and is very misleading as the NtK do not invoke keeper liability as the requirements have not been complied with under POFA.

With regards to other query regarding photographs - The letter was sent to registered keeper so respond as such requesting their photographic evidence that the driver on the day in question breached their terms and conditions - as there is no evidence to substantiate the claim that any contravention took place - request this information and also any signage for the site.;)

Coupon-mad

Have a look at the relevant paragraph in POFA2012 schedule 4 and you can see the wording about warning the keeper about potential liability is more than that tiddly little bit they've bunged on the payment slip. And if it was a real PCN (Council) then it has indeed been found in adjudications that the payment slip is not the PCN so doesn't count (in a PPC case this has never been tested but quite frankly it doesn't matter!).

You will beat this PCN anyway at POPLA, we win every time v CEL.

Frannybobs

You are all fantastic :money:

I am going there tonight anyway to use one of the shops on site, so will take a photo of the signage for completeness in case anyone can spot any legalities to pull them on. I'm going to draft a letter on Friday night based on all your advice and the stuff in the other posts for POPLA and post it on here, if that's ok, for tweaking and advice?

Thanks again - looking forward to beating these bullies and them having -£27 rather than the £100 they are trying to bully us out of.

Frannybobs

Got a photo of the sign as you go in the car park, and then one inside the car park, with a close up on the bottom small print. Anything here I could use against them? Do you need any more info? They were a decent size, dotted all around.

http://i1343.photobucket.com/albums/o783/Frannybobs/SAM_1403_zps59f04e4a.jpg

http://i1343.photobucket.com/albums/o783/Frannybobs/SAM_1398_zps2a4655e1.jpg

http://i1343.photobucket.com/albums/o783/Frannybobs/129bc86a-1c97-40e2-90d9-9e2174e36a69_zps63b7edc0.jpg

Thanks

Coupon-mad

First link didn't work for me but the other links show the sign to be an old one from CEL which is alleging the charge is for 'breach' and to 'deter'. That's GOOD.

So, they have to show a GPEOL (see the NEWBIES sticky)! And they won't be able to!

Frannybobs

Coupon-mad wrote: »

First link didn't work for me but the other links show the sign to be an old one from CEL which is alleging the charge is for 'breach' and to 'deter'. That's GOOD.

So, they have to show a GPEOL (see the NEWBIES sticky)! And they won't be able to!

Brilliant, thanks! More points of law to use against them in the letter...I've corrected the first link now, but it's only the sign at the entrance and has no T&Cs on it.

Looking forward to drafting this letter!!

Frannybobs

OK - I've had a go, but think I may have included too much as I kept looking at examples and liking the wording but then not sure if by doing so I've inadvertently put in conflicting points! I'm a bit verbose anyway, so happy to chop and trim as required!

Couple of questions:

1) Do I need to include any evidence, the pictures of the signs for example?
2) I don't believe I have anything to pull them up about on the signage itself as it was pretty clear and obvious (now we know it's there!!), but have mentioned the use of term "breach" in the section about GPEOL
3) Should I keep in the bit at the start of point 2 (At the time of the claimed loss, it was in the middle of the day, on a working day, when schools were in term time, the car park was only at 50% capacity and therefore no financial loss would have been suffered by the operator.), it doesn't identify the driver, does it?

OK here goes....

POPLA Code: xxxxxxxxx
Vehicle Reg: xxxxxxx
PPC: Civil Enforcement Ltd
PCN Ref: xxxxxxxxxx
Alleged Contravention Date & Time: 28 January 2014, xx:xx to xx:xx
Date of PCN: xx February 2014

On xx February 2014 I was sent an invoice from Civil Enforcement Ltd (‘CE Ltd’) requiring payment of a charge of £100 for the alleged parking contravention.
I would like to appeal this notice on the following grounds:
1 Lack of contract
2 Charge not a genuine pre-estimate of loss
3 No authority to levy charges
4 Failure to comply with the Protection of Freedoms Act 2012, No Creditor identified on the Notice to Keeper


1 Lack of contract
I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, 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 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 hand, 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 consideration moving from the landowner in return for the supply of parking services." In other words, 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, as set out above.

2 Charge not a genuine pre-estimate of loss
At the time of the claimed loss, it was in the middle of the day, on a working day, when schools were in term time, the car park was only at 50% capacity and therefore no financial loss would have been suffered by the operator.
The demand for £100 is punitive, unreasonable, exceeds an appropriate amount, has no relationship to the loss that would have been suffered by the Landowner, and is therefore an unenforceable penalty.

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.

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.”

The Department for Transport guidelines state, in Section 16 Frequently Asked Questions, that:

"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver." In this case, CEL has failed to provide any calculation to show how the £100 figure is arrived at, whether as an actual or pre-estimated loss. It is the Appellant's position that CEL has suffered no loss whatsoever in this case.

I require CE Ltd to provide a detailed breakdown of how the amount of the charge was calculated. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimates of loss.

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



3 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.
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.

4 Failure to comply with the Protection of Freedoms Act 2012, 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. The wording of Paragraph 9(2)(h) of Schedule 4 of the act does not indicate that the “creditor must be named, but “identified”. To “identify” a “Creditor” a parking company must do more than name that person. The driver is entitled to know the identity of the party with whom he has legally contracted

This view is supported by the Secretary of State for Transport. He has reserved to himself powers to make regulations to specify not only what must be said in a ‘Notice to Keeper’ but also what evidence should be provided.

He says “The purpose of this power is to leave flexibility to mandate the specific evidence which must accompany a notice to keeper if it becomes clear that creditors are attempting to recover parking charges without providing keepers with sufficient evidence to know whether the claim is valid”

So, in addition to CE Ltd's failure to specifically identify the “Creditor”, it has failed to provide any evidence that it, or a third party, is entitled to enforce an alleged breach of contractual terms and conditions.

Civil Enforcement Ltd have not met the keeper liability requirements and therefore keeper liability does not apply. The parking company can therefore only pursue the driver. As the keeper of the vehicle, I decline, as is my right, to provide the name of the driver(s) at the time. As the parking company have neither named the driver(s) nor provided any evidence as to who the driver(s) were I submit I am not liable to any charge.

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

Coupon-mad

1) Do I need to include any evidence, the pictures of the signs for example?
A - no need , leave it to the PPC to attach pics and rubbish.

2) I don't believe I have anything to pull them up about on the signage itself as it was pretty clear and obvious.
A - I do NOT agree - you are being hoodwinked by the fact they have signs up but look closer, what is offered?! To pay £2 ONLY if overstaying!! And the reason we ALWAYS say to include 'unclear signs' as an appeal point is purely to make the PPC trip up. Makes them have to produce a map and photos of all signs which they could get wrong (and costs them!). It doesn't detract from your case as you will win on 'no GPEOL'!

3) Should I keep in the bit at the start of point 2 (At the time of the claimed loss, it was in the middle of the day, on a working day, when schools were in term time, the car park was only at 50% capacity and therefore no financial loss would have been suffered by the operator.)
Yep.

I would remove the quote from the BPA CoP as it lends nothing to the appeal (the DFT quote is enough). And mere 'BPA CoP breaches don't a POPLA appeal win'!

I would remove the stuff about VCS v HMRC as it's not the 'bullet' people think it is, as such. In fact I would change that paragraph to be headed 'no contract with driver - signage' and you could start it as you did:

'I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract.'

And continue summat like:

'In addition I have checked the signs and the entrance sign tells drivers they can 'pay £2 for one additional hour' and imposes no t&cs on this offer. No parking charge is mentioned there and the offer to pay £2 is in huge font. On another sign you have to squint at the t&cs in small print ad still cannot read from a standing position anything about a 'parking charge'. So there was no agreed contract to pay anything except, arguably, £2.'

You also need a paragraph about flawed ANPR system.

And your point 4 needs MUCH more than just saying they haven't identified the creditor! IMHO pretty much all the statutory warning wording* for keepers about potential liability, from para 9, is omitted. You should state why that means as keeper, you have no liability in law as not NTK was 'properly given'. Some of the examples in the NEWBIES sticky for 'How to win at POPLA' have a paragraph that would suit (not just about creditor).




*here's an example of one with the 'right' wording:
http://tinypic.com/view.php?pic=ilegdc&s=8#.Uwdpr9Huupr

I don't see that stated clearly on your NTK.

Guys_Dad

Given the news today that CEL received a spanking in their appeal, and this is on a thread on page 1, is it not worth including a paragraph and appeal point quoting the case in question and the judge's comments about the charge perhaps be contractual but clearly a penalty.

Pointing out to POPLA that although the judgement was not binding, it was at least persuasive.

Coupon-mad

Absolutely - definitely throw that decision in CEL's faces!

http://forums.pepipoo.com/index.php?showtopic=88126&st=0

At: Luton County Court
Before: Mr Recorder Gibson QC
Date: 21/02/2014
Case No.: 3YK50188 (AP476) On Appeal from Watford County Court
Appellant: Civil Enforcement Limited – Repesented by Barrister Richard B Ritchie QC
Respondent: Kerry McCafferty