CEL - POPLA appeal

Umkomaas

You need to put everything you wish POPLA to consider into your appeal.

Surely you don't think that an outfit funded by the PPCs is on your side? Do you?

meater

What I'm trying to get at, is it essential to write a follow up or?

If so just a follow up regarding the gpeol and how they can't include day-to-day costs of running a buisness? Any help with wording would be much appreciated!

4consumerrights

I would go one further and challenge virtually the whole statement: - have ordered the statements around to suit.


This ticket was issued correctly as:

- We have authorisation from the Landowner (our client) to manage the car park and enforce PCN's (Even though they have not included a copy of the contract, but have provided a signed witness statement from landowner.)

"Due to the Data Protection Act we are unable to provide a copy of our contract with our client however, please find attached a signed Witness Statement authorising us to issue and enforce PCN's"

A signed witness statement does not provide sufficient evidence that there is a contract in place which affords CEL the requisite locus to pursue parking charges through the courts in their own name as a creditor. This is a requirement of not only their code of practice but as a basic principle in contract law. It is a fallacy that they now state they cannot show a contract due to the DPA when in fact contracts have been shown (usually redacted before)

- There are many clear and visible signs advising drivers of the parking terms, the onus is on the driver to ensure they adhere to the stated parking terms.

"The Appellant states that at the time they entered the car park they were unable to see the signs in the car park, however the headlights of the vehicle would have provided sufficient illumination to make the signs readable."

Contraction in terms here:
The signs cannot possible be clear or visible then if they are not correctly illuminated and conforming to the BPA code of practice appendix B. This would necessitate adequately illuminated entrance signage to alert the driver that the site was managed - ridiculous to state the headlights from vehicles provide sufficient illumination especially as typical signs if present are usually high up. There can be no contract made in this instance if entry signage is not sufficiently prominent. The onus is on the operator to ensure that any site has adequate and sufficient signs which includes those to be illuminated where necessary.

- The PCN issued is fully compliant with the provisions of POFA; as the Registered Keeper has not named the driver within 28 of the PCN being issued they are liable for the PCN.


"Further the Appellant states we are not compliant in regards to paragraph 9 (2) (h) of schedule 4 of the Protections of Freedoms Act 2012 to identify the creditor. We absolutely refute this claim as it is very clear from the PCN that the creditor is Civil Enforcement Ltd to whom payment/notification may be made to."

This would be the first NtK seen from CEL which is fully compliant with POFA 2012 in that case as there is usually more than just a creditors name missing. They are also misquoting here as a driver can be named at any stage prior to court papers being issued (not wise if they do not invoke keeper liability in the first instance though)

- The amount sought is a contractual term that is calculated upon a pre estimate of loss.

The charge sought is a contractual term (which is calculated from a pre estimate of loss) which is within the recommended British Parking Association guidelines and is compliant with paragraph 19.5 of the BPA code. Furthermore we have been given authorisation by the BPA to charge at this level.

CEL seem to be getting confused with that contradictory and ambiguous statement. The BPA make it quite clear that operators should state the nature of their charges whether a contractual fee or for breach of contract. it would appear they are attempting to combine the two. How can the amount be sought against a CONTRACTUAL TERM ... it is either a contractual agreement or damages are sought for breach of contract term determined as a gpeol for liquidated and ascertained damages.

And again very misleading misinterpretation of the BPA COP - which clearly states that :

"19.5:If the parking charge that the driver is being asked to
pay is for a breach of contract or act of trespass, this
charge must be based on the genuine pre-estimate of
loss that you suffer. We would not expect this amount
to be more than £100. If the charge is more than this,
operators must be able to justify the amount in advance.
19.6 If your parking charge is based upon a contractually
agreed sum, that charge cannot be punitive or
unreasonable. If it is more than the recommended
amount in 19.5 and is not justified in advance, it could
lead to an investigation by The Office of Fair Trading.
"


Any breach of contract must be clearly demonstrated to reflect a genuine pre estimate of loss. It is not an authorisation to charge £100 and indeed this has been proven time and time again at POPLA that this sum is not justifiable.

The office of fair trading also clearly state that a parking charge is not recoverable simply because it is stated to be a parking charge. It cannot be used to create a loss where no loss exists.

We further submit that the charge does not cause a significant imbalance in the parties' rights and obligations arising under the contract to the detriment of the motorist.

The registered keeper totally refutes this as notwithstanding if keeper liability can be established under the NtK sent the following applies:

The detriment is apparent where there is a clear aim to penalise a driver where no justification can be made for the parking charge. Furthermore there is no evidence of authority to pursue parking charges as no contract proving sufficient locus standi has been provided.

The driver did not make any contract on the date of the parking event due to signs failing to meet requisite standards and be sufficiently illuminated.

The basis of the charge is flawed as CEL have not demonstrated the basis of their charges whether a contractual charge which would incur VAT and rely on CPUTR nor is it clear if damages are sought for breach see below

Also, concluding that the sum claimed must be a genuine pre-estimate of loss; please be assured the charge is based upon a genuine pre estimate of loss calculated by some of the following factors not limited to but including:

- Fee payable to DVLA
- Administrative Expenses, arising after violation
- Stationary, postage etc, arising from a violation occurring
- Preparation and sending PCN's
- Commercial justification
- Loss from another vechicle parking
- Loss of Revenue of attached business/businesses
- Legal and/or Professional Advice
- Wages/ Salaries of staff involved, arising due to the violation

There is no actual breakdown here to demonstrate a genuine pre estimate of loss which can be calculable as flowing from this one parking event - there is only one PCN involved not more. Many of those are either tax deductible running expenses or would have incurred, such as the stationery and staff costs. Legal or professional advice cannot be attributed to a singular breach of contract as the legal basis for operating a business should be clarified prior to commencement of operation. They are impersonating authority by claiming violations. Dispute any loss for attached businesses or other vehicle as by using the facilities and being a customer no loss incurred to the detriment of the landowner or CEL. Had the driver remained on the site for one minute over the paid parking time or say 6 hours - the parking charge would remain the same, which not only demonstrates this charge to be unfair and a clear deterrent, but further refutes the allegation of any loss incurred to businesses or another loss due to another vehicle being deprived of a space. Commercial justification is refuted on the grounds that this involves companies of equal standing when entering into a contract. CEL's sole income is derived from the issuance of parking charges - this relies upon motorists allegedly breaching terms and is clearly designed as a revenue and profit making scheme penalising motorists.

Guys_Dad

Due to Data Protection Act? Total rubbish. As act applies to individuals' personal data, how could it apply here?

HO87

meater wrote: »

What I'm trying to get at, is it essential to write a follow up or?

Absolutely. Whilst POPLA has only a quasi-judicial role the assessors are legally trained and will apply legal principles when reviewing the evidence provided by the parties. There is an old legal maxim "That which is not denied is accepted". If there are statements which are slanted or even blatantly untrue then they should be denied.

meater

Another victory for you guys to chalk up, many thanks for the assistance!

Not a gpeol wins again!

4consumerrights

Well done Meater -

was going to ask you post the full decision on POPLA results page but see you already have !