CEL - POPLA appeal

meater

Hi all,

Firstly a big THANK YOU to all the regulars posters here, the infomation here is awesome and can't believe I thought I was going to have to pay!

In Feb 2014, I recieved this parking invoice from CEL, like most here was pretty shocked, as have parked here numerous times in the past 6-12 months without an issue. I had been completely unaware of the signs as I was a genuine customer at the premises and thought nothing more of it. Firstly tried to speak to the landowner, but they explained they have no control over the 'parking enforcement' and is out of their hands.

So I sent my soft appeal to CEL and they have been so kind to issue me a POPLA code, so looking to put it to good use

Been having a good read trying to think up the main points for my POPLA appeal. The main point I will be going on is 'Not a GPEOL' but looking for a few more solid points to go alongside that.

These are the points i'm looking to use so far :

1. 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, NTK is not compliant with the requirements of POFA2012
4.Signage incapable of being read in the dark - no contract with driver

If anyone can think of anything to add would be very grateful to hear from you. Any help would be appreciated, writing letters has never been my greatest strength.

Looking forward to a successful appeal and cannot wait to complain to DVLA about these disgusting cowboys.

Thanks

da_rule

Look at post 43 on this thread :https://forums.moneysavingexpert.com/discussion/4890460 for a template CEL POPLA appeal.

meater

Thank you, that looks great!

Going to make a draft shortly and will post back here, cheers!

meater

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

On xx February 2014 I was sent a parking 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
6. Signage incapable of being read in the dark - no contract with driver

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 it tells drivers they can 'pay £2 per hour or £5 per day' and imposes no t&cs on this offer. No parking charge is mentioned there and the offer to pay £2/£5 is in huge font. On another sign it is so high up it’s impossible to read the t&cs in small print and 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
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.

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.

6. Signage incapable of being read in the dark - no contract with driver
The sign at 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. At the alleged time of the incident, the car park was shrouded in darkness, as is shown from Civil Enforcement’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...''


It has recently been found by a Senior Judge in the appeal court that Civil Enforcement'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 Civil Enforcement to strict proof regarding all of the above contentions and if they do not address any point, then it is deemed accepted.

Yours faithfully

meater

Not sure why the fonts are different on here, but how's it looking for a 1st draft?

da_rule

Looks good, wait to see if anyone else has anything to add, but this looks like it's ready to go.

meater

Bump pls for someone else's view on the appeal

meater

I'm kinda excited to send this off, still have 13 days until the deadline, but would rather send sooner rather than later.

From what I've been reading it won't do any harm to send both via post + email.

Still not sure if something is missing, is it really this easy?

da_rule

I can't see any problems with it. If you're going to post it then make sure you get proof of postage (but don't send recorded/signed for).

ColliesCarer

Agree with da_rule - looks good to go

meater

Appeal has been sent both via email+post, have also recieved email confirmation from POPLA.

I'll be updating here again when I hear more. I would also like to complain further to DVLA etc if possible? If someone can help out would be much appreciated.

After reading a few threads here, it wouldn't surprise me if they didn't have the right permissions for the ANPR cameras or permission to 'enforce' on the land. May try digging around a little more and see what I can find.