CE Ltd PCN Advice Please

m1kjm

Can anyone give me some advice please?

My OH attended an interview with the NHS at a Holiday Inn near our local airport in January. They’ve been restructuring at the hospital where he works and they’ve all had the stress of re-applying for their jobs.

On arrival at the hotel he reported to reception and informed the receptionist that he had parked in the car park and asked if that was ok and she replied that it was but she neglected to tell him that he had to key the registration number into a machine. He was so worried and focussed on the forthcoming interview that he did not query the parking arrangements further and he did not feel the need to do so after receiving the receptionist’s reassurance.

Then he got a PCN from CE Ltd in February, I contacted the hotel and spoke to a woman who said that she would arrange to have the PCN reversed for me. I trusted her completely as she sounded very confident, and I didn’t keep the original PCN as I heard nothing further and I thought the matter was at an end.

We then received another letter from CE Ltd in March so I telephoned the hotel again on receipt and explained that the reversal that the employee had said she was going to arrange had not been successful. I was told that the Hotel’s instructions have changed, they are no longer allowed to do this, that I should contact CE Ltd direct to arrange for the PCN to be reversed, that they look on such requests favourably and that they are not looking to catch people out.

So I wrote to CE Ltd to explain that he had genuinely been at the hotel for an interview and I also wrote to the hotel to ask that they arrange for the PCN to be waived given their employees’ incorrect advice on two occasions and my OH was genuinely at the hotel.

We’ve not had a reply from the hotel yet but CE Ltd has sent us another letter today telling us to pay up or appeal.

I’m going to write again to the hotel today to ask that they arrange for the PCN to be cancelled as we’ve now been incorrectly advised by their staff three times.

Does anyone have any advice on the grounds I should use to win this appeal?

My OH got the job he wanted btw so that’s some consolation.

bod1467

Please read the NEWBIES sticky thread. Everything is explained in there. This flowchart also helps explain the process.

m1kjm

Do you think these grounds of appeal that I've copied from Coupon-mad's template will do the trick please?


It's difficult because I haven't seen the signs for myself and I daren't go to look in case the camera snaps the car again, and I no longer have the original PCN.


I've not included that the hotel has mislead us three times now nor that the hotel said on the day we were ok to park there as I don't have any proof.


Your feedback would be gratefully received.




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
4. Data handling/ICO rules on ANPR signs
5. Unreasonable & Unfair Charge - a penalty that cannot be recovered
6. I was a genuine user of the car park (evidence enclosed).

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.

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 'payment not made in accordance with terms displayed on signage'. 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. Data handling/ICO rules on ANPR signs

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.

5. 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.

6. I was a genuine user of the car park
Evidence is enclosed to prove my genuine use of the car park for a job interview with the NHS at the hotel.

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

da_rule

For your 3rd point, are all of the omitted points listed actually missing from your notice?

I would also be dubious about the genuine user part, I think this needs to be reworded slightly so that it doesn't make the registered keeper sound like the driver.

m1kjm

da_rule wrote: »

For your 3rd point, are all of the omitted points listed actually missing from your notice?

I would also be dubious about the genuine user part, I think this needs to be reworded slightly so that it doesn't make the registered keeper sound like the driver.

I don't have the notice any more, so I assumed that CE's PCNs aren't worded properly from the information on this site. This is why I'm finding it so difficult because I'm working blind as it were.


I've already admitted that my OH was the driver because the wretched hotel told me to write to CE and explain the situation because 'they look favourably on these requests and aren't looking to catch people out'. Huh!

m1kjm

I don't suppose anyone has the Holiday Inn CEO's details do they? I can find that they're part of the Intercontinental Group but they don't make it easy to find the CEO's email.

ColliesCarer

This might be useful if you can't find an email address
His responsibilities include Holiday Inns in UK

Stephen McCall – Chief Operating Officer UK&I and Head of Europe Operations Performance & Support
IHG plc headquarters
Broadwater Park
Denham, Buckinghamshire UB9 5HR

United Kingdom

Phone: 44 18 9551 2000

ColliesCarer

CEO of IHG contact details for you

Mr Richard Solomons CEO
Email richard.solomons@ihg.com
Tel: 01895 512323

Corporate organisations often use the same format for email addresses so you might find that Stephen McCall is
stephen.mccall@ihg.com