Civil Enforcement Ltd - can they pursue RK?

ampersand

Quelle surprise!:p

Coupon-mad

Frannybobs wrote: »

yes they did include a photo of that sign with that wording - interesting - why would that destroy their case?

Because if a charge is designed to 'deter' then it's a made-up sum that can only be an unrecoverable penalty - can't be related to a real loss caused by a parking event.

Frannybobs

Thanks so much for all your help and advice on here. Got the decision through today - we won!! And it was on GPEOL - and the "to deter abuse" wording - as you all said. Glad we stuck with it and fought them, and will encourage others around me to do the same if they get unfair parking charges. Here's the letter, I'll put it in the Decisions thread too...

:money: :j :beer: :T

---

04 April 2014
Reference Xxxxxxxx
always quote in any communication with POPLA
Xxxxxxx (Appellant)
-v-
Civil Enforcement Limited also t/as Starpark & Creative Car Park &
Parksolve & Versatile Parking (Operator)

The Operator issued parking charge notice number Xxxxxxx arising
out of the presence at Xxxxxx car park, on 28 January 2014,
of a vehicle with registration mark XXXXXXX.

The Appellant appealed against liability for the parking charge.
The Assessor has considered the evidence of both parties and has
determined that the appeal be allowed
The Assessor’s reasons are as set out.
The Operator should now cancel the parking charge notice forthwith.

Reasons for the Assessor’s Determination

It is the Operator’s case that the parking charge notice was issued for exceeding the maximum parking allowance permitted. The Operator submits that a parking charge is now due in accordance with the clearly displayed terms of parking.

It is the Appellant’s case that the parking charge is not a genuine preestimate of loss and so is unenforceable.

The Operator submits that the charge is not a sum sought as damages; rather it is a ‘Contractual Obligation’. Accordingly the Operator submits that it need not reflect the loss caused by the breach. Then the Operator goes on to submit a calculation of genuine pre-estimate of loss for if the charge if found
to be for damages.

I am not minded to accept this submission. The charge must either be one for damages as submitted by the Appellant, or consideration - the price paid for parking - as submitted by the Operator. In order for the charge to be consideration, the parking charge must be paid in return for something, here permission to park beyond the maximum permitted stay. In other words, the sign must permit the motorist to park beyond the maximum stay, provided he
or she pay the charge. In this case, the wording of the sign states,
“To deter abuse there is a charge for breaching the conditions of £100”.

Clearly, permission to park ‘in breach’ is not granted, and so the parking charge cannot be a contractual price. Instead, it is clear that the charge is in fact a sum sought as damages, and therefore must be a genuine preestimate of the loss which may be caused by the parking breach.

I find it seems clear that the signs in this car park do not give permission to park in return for the parking charge, and so it cannot be consideration.

The Operator has submitted in the alternative that the sum does, in any case, represent a genuine pre-estimate of its costs. The Operator has produced a list of costs; however, these appear to be general operational costs, and not shown to be losses consequential to the Appellant’s breach.

Consequently, I have no evidence before me to refute the Appellant’s submission that the parking charge is unenforceable, as it is not a genuine pre-estimate of loss.

Accordingly, I must allow the appeal.

I need not decide on other issues.

Marina Kapour
Assessor

Stroma

That's a very good decision and clearly shows that the assessor knows what she's doing. CEL trying to have it both ways is clearly a joke! It's either one or the other, this was dismissed out of hand by the assessor.

4consumerrights

Good news indeed !

The_Deep

CEL Have got themselves into a proper muddle with their signage, see no 966

https://forums.moneysavingexpert.com/discussion/comment/65162689#Comment_65162689l

Coupon-mad

I like this wording by Marina Kapour:

''The charge must either be one for damages as submitted by the Appellant, or consideration - the price paid for parking - as submitted by the Operator. In order for the charge to be consideration, the parking charge must be paid in return for something, here permission to park beyond the maximum permitted stay. In other words, the sign must permit the motorist to park beyond the maximum stay, provided he or she pay the charge. In this case, the wording of the sign states, “To deter abuse there is a charge for breaching the conditions of £100”.

Clearly, permission to park ‘in breach’ is not granted, and so the parking charge cannot be a contractual price. Instead, it is clear that the charge is in fact a sum sought as damages, and therefore must be a genuine preestimate of the loss which may be caused by the parking breach.

I find it seems clear that the signs in this car park do not give permission to park in return for the parking charge, and so it cannot be consideration.''

We'll have to use her words in POPLA appeals against PPCs which pretend to be operating a contractual fee regime when they are not. It would work against UKCPM and UKCPS and N*pier when they use similar signage, and against many of the PPCs who have hopped to the IPC - and yet don't actually understand what a contractual fee means. In fact it would be amusing to quote a POPLA assessor by name in an IPC/IAS appeal in future!

watmb01

Sorry to butt in can I ask at #57 it state "point 3 will win" is this referring to #43 point 3 (GPEOL) just want to clarify before I submit my POPLA appeal.

Coupon-mad

If you look at the 'POPLA decisions' thread you will find that GPEOL is the most common winning point, yes, by far.