Civil Enforcement Ltd - can they pursue RK?

Frannybobs

Thanks both for your feedback. I will do a re-draft tonight and post it back up - your help is much appreciated

Frannybobs

I'm realising I'm not so good at this legal business and getting the most pertinent wording.

I have amended Para 1 as suggested, added Para 2 regarding ANPR Accuracy, and removed the BPA CoP quote as suggested (I did think only one would be necessary, thanks for the advice as to which would work better)

I have only slightly tweaked Para 5 to say it hadn't served a compliant NTK. I didn't expand because I couldn't find any other CEL letters which had been approved on here which pulled them on keeper liability for anything other than failure to identify the Creditor, and didn't want to speak generally about something I'm not confident on when that point seems well worded and concrete?

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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 No contract with driver – signage
2 ANPR Accuracy
3 Charge not a genuine pre-estimate of loss
4 No authority to levy charges
5 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 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.
In addition, in a recent ruling at Luton Crown Court 2014 (Civil Enforcement Ltd v McCafferty) the judge ruled that the £150 quoted on the sign was not a genuine offer to park at that price, but its main purpose was to deter. It was, therefore, a penalty dressed up as a contractual term, and not recoverable.
2 ANPR System
I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting the overstay.
I also challenge The Operator to show that DPA registration (data collecting CCTV) is also compliant with legal and BPA requirements and demand that they demonstrate adherence.

3 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 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 as these would be incurred by the Operator with or without a parking breach by the driver.

I therefore respectfully request that my 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.
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.

5 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.

The validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. Where a Notice is to be relied upon to establish liability under Paragraph 9 it must, as with any statutory provision, comply with the Act. As the Notice was not compliant with the Act, it was not properly issued 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

What is it with posters looking at any CEL almost totally non-POFA compliant 'Notice to Keeper' letters and only spotting the omission of the creditor?! I typed a reply just like this earlier tonight. CEL NTK letters are wholly NOT POFA2012 compliant and it's obvious when you look for the wording in paragraph 9 of Schedule 4 (the law is linked in the NEWBIES thread and para 9 is in simple bullet points, the creditor is the least of the omissions!). CEL don't bother with POFA so in any POPLA appeal you seize on that as it's a slam-dunk win for a keeper! Don't just say 'there's no creditor'.

Examples in the NEWBIES thread post #3 'How to win at POPLA' include a couple I am sure, which talk about a NTK 'not being properly given' and pointing out all the wording omissions.

Apart from that a good draft though, don't get me wrong, it's just frustrating when the NTK is so obviously not a POFA2012 one (and it really is a case of 'spot the difference' to find the missing words, no-one has to be an expert). It is your main point after no GPEOL!

Frannybobs

I can't tell you how many threads I've looked through and I genuinely haven't found any CEL ones which mention general non-POFA compliance, only specifically stating the creditor. Honestly. I'm not lazy, I have done lots of research, so much that I can't remember where I saw things. I've looked through the Decisions thread, the Newbies, first for the initial appeal to CEL and then the one to POPLA.

I've gone through POFA Schedule 4 Para 9 again. In 2, it looks like only (h) specifically isn't done - I know you say it's on the payment slip but doesn't count - but I can't see that that's been upheld before.

Perhaps Section 7 of Para 9 isn't fulfilled - (7)When the notice is given it must be accompanied by any evidence prescribed under paragraph 10. As they sent no evidence, except to say on the PCN in small writing that they have photographic evidence. Is that sufficient to pull them on?

But that's all?

If you can see any different, please can you give me some specific help and wording?

Thanks.

IamNotAllowedToUseMyName

Frannybobs wrote: »

I can't tell you how many threads I've looked through and I genuinely haven't found any CEL ones which mention general non-POFA compliance, only specifically stating the creditor. Honestly. I'm not lazy, I have done lots of research, so much that I can't remember where I saw things. I've looked through the Decisions thread, the Newbies, first for the initial appeal to CEL and then the one to POPLA.

I've gone through POFA Schedule 4 Para 9 again. In 2, it looks like only (h) specifically isn't done - I know you say it's on the payment slip but doesn't count - but I can't see that that's been upheld before.

Perhaps Section 7 of Para 9 isn't fulfilled - (7)When the notice is given it must be accompanied by any evidence prescribed under paragraph 10. As they sent no evidence, except to say on the PCN in small writing that they have photographic evidence. Is that sufficient to pull them on?

But that's all?

If you can see any different, please can you give me some specific help and wording?

Thanks.

Who is the ticket asking for money from? What does it say about naming the driver? What does it say about what you must do to discharge your liabilities? You are looking too closely!

Frannybobs

IanMSpencer wrote: »

Who is the ticket asking for money from? What does it say about naming the driver? What does it say about what you must do to discharge your liabilities? You are looking too closely!

It says "It is the driver's responsibility to pay this PCN. If you were not the driver you may pay this PCN or provide us with the name and current address for service of the driver and pass this PCN on to the driver. In England and Wales if after 28 days from the Issue Date this PCN has not been paid and you have not provided us with the name and current address of the driver, we may have the right to recover from the Registered Keeper all unpaid amounts due."

Seems to cover both points off - even if they are lying and they don't have the rights to recover from the RK!

I am probably misinterpreting what the POFA is asking for and what CEL are printing on the PCN, but to my untrained eye I genuinely can't see any other misses apart from the lack of evidence (they just say they have photographic evidence but didn't include it)

bod1467

Perhaps I'm misunderstanding, but doesn't POFA state that certain wording must be included exactly as it is written in POFA 2012?

IamNotAllowedToUseMyName

Frannybobs wrote: »

It says "It is the driver's responsibility to pay this PCN. If you were not the driver you may pay this PCN or provide us with the name and current address for service of the driver and pass this PCN on to the driver. In England and Wales if after 28 days from the Issue Date this PCN has not been paid and you have not provided us with the name and current address of the driver, we may have the right to recover from the Registered Keeper all unpaid amounts due."

Seems to cover both points off - even if they are lying and they don't have the rights to recover from the RK!

I am probably misinterpreting what the POFA is asking for and what CEL are printing on the PCN, but to my untrained eye I genuinely can't see any other misses apart from the lack of evidence (they just say they have photographic evidence but didn't include it)

This was covered way back, but the payment slip is not the Notice To Keeper, which is actually a legal document, an invoice. Also, consumer protection legislation understands small print and you are not allowed to shuffle off critical bits of information (like, we are trying to con you into paying for something you are not liable for) into the small print.

My guess is that you don't have confidence that the payment slip is not part of the document, but even if you don't, take the advice of putting the claim that it is not compliant in: it does not harm your case - they don't go "Ha you were wrong on that point therefore everything else you wrote is nonsense" it is more like a scattergun approach where you include each and every possible point, both to increase your chances and also to force the ticketer to put the effort in to deal with the point.

Frannybobs

Your guess is right, Ian OK - so I don't need to be specific but just to say that their paperwork is not compliant with POFA in general and then keep the bit in about the creditor? I could put that the legal wording seems to be hidden in small print on the payment slip and not on the actual PCN "invoice" itself?

How about...

"5 Failure to comply with the Protection of Freedoms Act 2012

The PCN supplied by the Operator does not comply with many points of the Protection of Freedoms Act 2012 Schedule 4. Many points are missing, the few bits which are included are squashed into the very small print of the payment slip and not on the main body of the PCN "invoice" itself.

One specific point is that they fail 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.

The validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. Where a Notice is to be relied upon to establish liability under Paragraph 9 it must, as with any statutory provision, comply with the Act. Their assertion on the small print that they "may have the right to recover from the Registered Keeper all unpaid amounts due" is untrue as they have issued paperwork which does not comply with the Act on many points, it was not properly issued 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."

Frannybobs

Still scouring for NTK non-POFA compliance letter templates, found this that Coupon-Mad wrote for someone this week for someone from CEL with the exact same format PCN as I had, and will use that paragraph....many many thanks.

https://forums.moneysavingexpert.com/discussion/4895330

Now - what's the best way to submit the appeal - by post or online? Do you get a confirmation of receipt if you do it online? When we appealed to CEL we sent it recorded...

Thanks all for your help - there's a lot of new information to take in very quickly - it's a steep learning curve, and your directions and advice really helped. I will of course advise when we get a decision.