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Civil Enforcement Response to Template Letter.

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Afternoon all!

Having received a Parking Charge Notice from CE Ltd I replied using, in full, the excellent template provided by Coupon-mad. Great help, thanks. The letter I received in return is as follows (forgive me for regurgitating it in it's entirety if you've seen this many times before, but I'm new to this so etc etc...):-

Response from Representations Team
We refer to you recent correspondence. Although you state that you were not the driver, as Registered Keeper you have the necessary information about the identity and contact details to enable us to recover the amount due from that driver. We therefore request that you provide us with the name and address of the driver of the vehicle on the date and at the time when the vehicle was parked in the above-named car park, within the next seven days. Alternatively, you can of course make a payment directly to us and recover the amount due from the driver.

The legal basis for the ticket we have issued to you is 'Contract Law'. By parking in the car park where our signs clearly display the terms and conditions of parking, you consented, by your actions (ie parking your car on the site), to be bound by such terms and the payment is now due. We reject your assertion that this is harassment. We are contacting you to collect a payment that is valid and outstanding.

The charge that has been levied is clearly stated on the signage around the site. Furthermore, it falls within the British Parking Association's recommended guidelines for car park enforcement. We are a car park management company and we manage the above car park on behalf of our client. Due to the Data Protection Act we are unable to provide any details regarding our clients or our contracts with them.

As mentioned above, there are many clear and visible signs displayed on the site advising drivers of the regulations in force and we maintain a continuous log confirming that the signage remains in place. Our signage is audited by the British Parking Association and is fully compliant with their guidelines. We reject your proposal to charge us for any costs incurred appealing the PCN.

In view of your correspondence (which we have not treated as an appeal because we are simply giving guidance on how to provide the driver’s details and therefore no POPLA code is required), we have extended the time allowance for you to pay at the original reduced charge by a further fourteen days, even if you have received a reminder demanding payment at the higher rate. In the event that you do not provide these details and payment is not received, we will have no option but to issue proceedings to recover the amounts due to us. We will add our additional costs, interests and fees to the claim.

Yours faithfully,
Representation Team

So there you have it...several points from the template letter not addressed or answered and no POPLA code (with a 28 day cut off point to be considered?). What form should my reply take ....if any!?!

Thanks in advance :T for any help, input, guidance and unified effort.

Comments

  • Hot_Bring
    Hot_Bring Posts: 1,596 Forumite
    I would respond briefly and forcefully along the lines of :

    Dear CE Ltd

    RE - parking charge ref xxxx, against registration xxxx.

    Your reply to the registered keepers appeal has been received. It seems necessary to point out that the original correspondence from the RK was clearly marked as an appeal. As well you know, the RK has every right to appeal under both POFA 2012 and the BPA CoP. There is no requirement for the RK to name the driver.

    You have now broken the BPA CoP for which you will be reported. This also means you have broken your contract with DVLA for which you will be reported.

    If you do not either cancel the charge or provide a POPLA code by return this failure will also be reported to the BPA and DVLA. Should any court action be undertaken then your actions and misinformation will be highlighted to the court.

    Any further correspondence from you that isn't either a cancellation or a POPLA code will not be responded to.

    Yours,

    Print Name ( don't sign ).

    Oh - report them to the BPA and DVLA.
    "The darkest places in hell are reserved for those who maintain their neutrality in times of moral crisis." - Dante Alighieri
  • Teknofobe
    Teknofobe Posts: 10 Forumite
    Morning Hot Bring
    Many thanks for the draft letter. POPLA next up!

    Teknofobe
  • Teknofobe
    Teknofobe Posts: 10 Forumite
    Any help or guidance appreciated.

    CE Ltd have sent me a 'Response to Representation' letter containing, amongst the rejections to my reply shown above (Hot Bring's template), a POPLA verification code.
    Since 'Details and Contravention do not matter' (Coupon Mad's directive) what should my next step in the process be? Still reading threads and trying to get the exact wording correct.

    Would it help to show the CE letter in full?

    T
  • Coupon-mad
    Coupon-mad Posts: 151,781 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    No need to show the letter, just draft a POPLA appeal as per the link in post #3 of the NEWBIES thread.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top or bottom of any page where it says:
    Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • Teknofobe
    Teknofobe Posts: 10 Forumite
    Hello there


    Having used the format suggested and deleted some of the specifics from that particular appeal I would like to know if (when and how) my particular circumstances might be needed and included.
    I don't. necessarily, want to display all details here as it might be a bit of a giveaway as the site is monitored (is a PM possible?).
    Also para 4 and a lot of para 6 does not appear to apply, in my case.



    I would like some help and feedback not wanting to be a POPLA loser! Also I read CE are putting some 19(?) pages and I would prefer to be accurate and succinct.



    My head aches from reading so much stuff I don't always understand...going to have a lie down....Thanks in advance :T


    As the registered keeper, I would like to appeal this notice on the following grounds:

    1 The Charge not a genuine pre-estimate of loss
    2. No standing to pursue charges in the courts nor to make contracts with drivers

    3. No Keeper liability - the NTK is not compliant with the requirements of POFA2012
    /B][/FONT][I][FONT=Arial]4. Signage incapable of being read in the dark - no contract with driver[/FONT][/I][FONT=Arial][B ??
    5. No grace period given despite signage and BPA CoP
    6. ANPR clock/synchronisation/reliability/data handling/ICO rules on ANPR signs
    7. Unreasonable & Unfair Charge - a penalty that cannot be recovered


    1. The Charge not a genuine pre-estimate of loss
    The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could have been suffered by the Landowner. I put Civil Enforcement to strict proof of the alleged loss including a detailed breakdown of how the amount of the “charge” was calculated and how it was caused by this alleged parking event.


    2. No standing to pursue charges in the courts nor to make contracts with drivers
    CEL have no standing as they are an agent, not the landowner. They also have no BPA-compliant landowner contract containing wording specifically assigning them any rights to form contracts with drivers in their own name, nor to pursue these charges in their own name in the Courts.


    I put Civil Enforcement to strict proof of the above in the form of their unredacted contract. Even if a basic site agreement is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between CEL and their client, containing nothing that could impact on a third party customer. Also the contract must be with the landowner - not another agent - and must comply with paragraph 7 of the BPA CoP and show that this contravention can result in this charge at this car park and that CEL can form contracts with drivers in their own right. The whole contract is required to be produced, in order to ensure whether it is with the actual landowner, whether money changes hands which must be factored into the sum charged and to see all terms.

    3. No Keeper liability - the NTK is not compliant with the requirements of POFA2012
    The Notice to Keeper is not compliant with POFA 2012, Schedule 4 due to these omissions:
    ''9(2)The notice must—

    (b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
    (c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
    (d)specify the total amount of those parking charges that are unpaid, as at a time which is
    (i)specified in the notice; and
    (ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
    (e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
    (i)to pay the unpaid parking charges; or
    (ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
    (f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
    (i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
    (ii)the creditor does not know both the name of the driver and a current address for service for the driver,
    the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
    (h)identify the creditor and specify how and to whom payment or notification to the creditor may be made.''

    Where paragraph 9 requires certain wording, it is omitted - except a small amended sentence on the payment slip (which has been found in Council PATAS appeals, not to count as the 'PCN' because it is a separate section, designed to be removed). Also, as keeper I cannot be expected to guess the 'circumstances in which the requirement to pay...arose' because the charge is stated to be based on 'maximum parking allowance exceeded'. This so-called outstanding 'payment' is not quantified and the signs do not support that contention (see point 4). The NTK fails to meet the strict requirements of POFA2012..

    POPLA Assessor Matthew Shaw has stated that 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 ... it must, as with any statutory provision, comply with the Act.'' As the Notice was not compliant with the Act due to the many omissions of statutory wording, it was not properly given and so there is no keeper liability.


    [4. Signage incapable of being read in the dark - no contract with driver
    The sign at the entrance to the car park is multi-coloured, non-reflective, unlit and positioned high up on a pole. The sign was not seen by the driver and would have been invisible in the dark, regardless of which side of the road the entrance of the car park is approached from. At 7pm, the car park was shrouded in darkness, as is shown from CEL's own evidence photo, and the sign was far too high to even be picked out by car headlights.

    The BPA CoP at Appendix B sets out strict requirements for entrance signage, including “The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead” and “There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision. Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material...''

    In addition, the terms & conditions are in particularly small font compared with the offer to park from 7pm for 2 hours for free. And the sign provides for 10 minutes grace by which any payment has to be made - and yet no grace period was allowed to this driver (see point 5 below). The sign's wording is misleading and where there is an unclear or ambiguous contract term, the doctrine of contra proferentem - giving the benefit of any doubt in favour of the party upon whom the contract was foisted - applies. It is up to the company to ensure their terms are clear and unambiguous, otherwise any ambiguity must be interpreted in the favour of the consumer.
    ] Not applicable in my case?

    5. No grace period given despite signage and BPA CoP

    The BPA code of practice states that: “You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.”

    6. ANPR clock/synchronisation/reliability/data handling/ICO rules on ANPR signs

    I require CEL to present records which prove:
    - the Manufacturers' stated % reliability of the exact ANPR system used here.
    - 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.

    BPA CoP paragraph 21 'Automatic number plate recognition' (ANPR):
    ''You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.''

    CEL fail to operate the system in a
    'reasonable, consistent and transparent manner'. There is no signage to 'inform that this technology is in use and what the Operator will use the data captured by ANPR cameras for'. I contend that as well as being unreliable, this is a non-compliant ANPR system being merely a secret high-up spy camera - far from 'transparent'. This camera farms the data from moving vehicles at the entrance & exit and is not there for 'managing, enforcing nor controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any actual proof of a 'parking event' at all.

    7. Unreasonable & Unfair Contract Terms - a penalty that cannot be recovered
    The terms that the Operator in this case are alleging gave rise to a contract were not reasonable, not individually negotiated and caused a significant imbalance to my potential detriment. There is no contract between the Operator & motorist but even if POPLA believes there was likely to be a contract then it is unfair and not recoverable.

    This charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says:
    ‘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.’

    In the Unfair Terms in Consumer Contracts Regulations 1999:-
    ''5.—(1) 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 Office of Fair Trading, Unfair Contract Terms Guidance:
    Group 18(a):
    Allowing the supplier to impose unfair financial burdens
    ''18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However... a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.''

    It has recently been found by a Senior Judge in the appeal court that CEL's signs are not clear and transparent and their charges represent a penalty which is not recoverable. This was in 21/02/2014 (original case at Watford court): 3YK50188 (AP476) CIVIL ENFORCEMENT v McCafferty on Appeal at Luton County Court. I contend that this charge is also not a recoverable sum.

    I put CEL to strict proof regarding
    all of the above contentions and if they do not address any point, then it is deemed accepted.

    Yours faithfully
  • Teknofobe
    Teknofobe Posts: 10 Forumite
    Afternoon all

    Any further help, info or guidance would be appreciated.

    Thanks.

    T
  • ColliesCarer
    ColliesCarer Posts: 1,593 Forumite
    edited 19 April 2014 at 5:05PM
    POPLA do not accept appeals on the circumstances (known as Mitigation)
    Without knowing what it is you want include it's hard to advise you whether that would be relevant or not.

    Leave the point in about signage but make it relevant to the signage on the site in question and take out anything specific to the signs for that OP.
    Even if you think their signs are compliant and this point may not apply leave it in - it creates more work for them and often they make mistakes in the evidence they supply to rebut your challenge ;)

    Change the heading to something like "Inadequate/Non-compliant signage - no contract formed with driver".

    If ANPR cameras weren't used to issue the PCN then simply leave that section out - but are you sure ANPR doesn't apply. Often if a postal PCN is received without an initial windscreen ticket then ANPR cameras have been used.

    Just seen your question re: pm - happy to respond if there's something you want advice on that you don't want to post
  • Coupon-mad
    Coupon-mad Posts: 151,781 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    edited 20 April 2014 at 11:56PM
    Don't miss your POPLA code deadline, it's only valid 28 days and was presumably generated end of March/early days in April!

    I would just send the above to POPLA if it was an ANPR camera (postal) PCN because those paragraphs are relevant. But I would be tempted to add details of the CEL v Kerry McCafferty court appeal judgment*, into your no GPEOL paragraph #1 and say 'my case is the same'.


    *it's one of the many court cases won, linked in post #5 of the NEWBIES thread. Quote what the QC Senior Judge said about their charges not being a GPEOL nor a genuine contractual fee to park and say your case is the same (read the links about the case first but don't miss your POPLA deadline!).

    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
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top or bottom of any page where it says:
    Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
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