Am I too late ? PCN charge

Coupon-mad

Reading down the letter there is in fact a POPLA verification code...although I did not recognise the relevance in the first instance when I read it. I am obviously a bit more aware now having read your forum information, but I am assuming it is too late to progress now, with having already made a credit card payment ?

Just send a CEL based POPLA appeal NOW, whilst the code is still in date - just do it! Templates to adapt are found in the linked examples in 'How to win at POPLA' in post #3 of the NEWBIES thread. Draft it NOW - do NOT mention you've paid.

Redx wrote: »

check the popla code using the checker in the newbies section , although now its been paid I doubt you can now appeal to popla

I think they should try, particularly if they are trying to reverse the payment (don't mention it in the POPLA appeal).

Gawd this is an example of how to (potentially) grab defeat from the jaws of victory - an OP who had a POPLA code and yet just ignored that 'golden ticket'! Please don't assume it's too late - please get out of defeatist mode and live up to your username smiley1609!

smiley1609

The POPLA code checked that you have a link for gave this information once I entered the code and date...

Code summary
Issuing operator: 141
Date code generated: Mon May 12 2014
Code sequence number: 535

Deadline information
Your appeal deadline is Mon Jun 09 2014
You have 12 day(s) remaining for your appeal to reach POPLA


Thanks for your input guys...I am going to send the letter template anyway...I guess there is nothing to lose and everything to gain !!

smiley1609

For a bit of background of my communication with the company, I previously sent the following two letters, obviously to no avail...



Dear Sir / Madam

Re:Parking Enforcement Notice PCN No:xxxxxxx

I am writing in reference of the above parking enforcement notice that was sent to me dated 30/04/2014.


With regards to the alleged offence of parking without a ticket, there was a mistake with the data inputting on the parking machine at the rear of 1-14 the Parade in Frimley, Camberley.


I have enclosed a photocopy of the ticket that I obtained from the machine, and paid a fee of £0.80 for the duration of the stay.Unfortunately I made a typing mistake in the ticketing and entered the following information;


Reg Mark entered; xxxx SXJ.This can be observed from the ticket.
Actual Reg Mark of vehicle: xxxx SWK.This can be observed from the CCTV image.

There is an explanation for this error, as the two cars in my household are ;

Reg: xxxx SWK and xxxx SXJ.

Therefore the information that I entered on the machine was a mixture of the two vehicles.Unfortunately during the heavy rain at the time, this error was made in a bit of a rush without thought in order to try and avoid the rain.

I would trust that your CCTV will support this claim, and that this evidence would conclude that the issued fine will now be revoked and cancelled.

Please respond via email at ??????????????????? or ring xxxxxxxxxx to confirm that this is the case.Please contact me if you have any further questions in this case.










This first letter was met with the response letter with POPLA code and to state that they are unwilling to cancel the enforcement notice.


My next step was to write back a second time. NB: They stated my overstay as the reason in this letter, although I think their original reason for the PCN was the registration mark.

The second letter I sent to them a few days later;

Dear Sir / Madam

Re:Parking Enforcement Notice PCN No:xxxxxxxx

I am writing in reference of the above parking enforcement notice that was sent to me dated 30/04/2014. In addition to this original notice, also having received your response letter to me which is dated 12/05/2014, and notifying that you are unwilling to cancel this fine.

I am very disappointed to have received this response, as I have already supplied sufficient evidence to support that I had purchased a ticket from the machine but in fact made a minor mistake in the entering of my details. This is an honest and genuine human error and should be considered before proceeding with this parking fine claim.

I would like to state that I did in fact purchase a ticket as photocopied and sent to you as evidence with my first letter. I have enclosed a photocopy of this again! . To further support this, if you were to consult the CCTV images that were used to photograph my car, then you would in fact observe my movements to the payment machine and back, in very adverse conditions.

In your recent letter you have stated that I had ‘exceeded the parking time paid for’. I would like to point out to you, the fact that this particular car park has charges applicable until the time of 7pm, after which the car park is free charge. My ticket covered me up until 7:12pm, and therefore the full chargeable period.

I am an honest driver and ALWAYS pay for my car parking. What happen to be an honest and genuine ‘Human’ mistake, just illustrates that an automated system does not always tell the complete story. I fully expect this fine to be revoked, and I will pursue the appeal process if you persist in chasing this false claim and taking up my time in writing further correspondence

Any thoughts on my response letters ? By inadvertently admitting that I was driver, could this break my case ?

I very much appreciate the advice I have received today, and feel that perhaps there might be some chance and optimism of turning this around !!


Kind Regards
Smiley

Guys_Dad

Can you send a redacted copy of the two Registration documents to supplement your appeal?

I would add " I have shown you that you suffered no loss. Your charge can only be for genuine losses - you suffered none. I am prepared to argue the at an appeal, should you choose not to cancel the charge"

I would turn your 2nd letter into an unmistakable appeal and demand a POPLA code in the letter if they fail to cancel. Make sure you get your POPLA code and then appeal on GPEOL.

smiley1609

Guys_Dad wrote: »

Can you send a redacted copy of the two Registration documents to supplement your appeal?

I would add " I have shown you that you suffered no loss. Your charge can only be for genuine losses - you suffered none. I am prepared to argue the at an appeal, should you choose not to cancel the charge"

I would turn your 2nd letter into an unmistakable appeal and demand a POPLA code in the letter if they fail to cancel. Make sure you get your POPLA code and then appeal on GPEOL.

Thanks for the input GD. In fact these letters were already sent before I found the forum here, and I already have a POPLA code. The downside is that I did already also pay the lower rate yesterday by Credit card and before a friend pointed me here for advice...

having read what I have here, I am seeking advice whether I should still try and progress a claim and try to get my money back...effectively stealing my money back from the PCC and giving them a taste of their own !!


I think I have a fairly valid case, although getting money back could be more tricky. A lengthy chat with Credit card services last night means that a dispute can be raised, but I will need to have good justification for the bank to revoke the payment.


-smiley

smiley1609

I have now drafted a copy of the template letter for CEL and from the newbie section. Tailored for my case...

Any comments ? C-M or RedX ? or anyone else



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. Signage incapable of being read in the heavy rain conditions at twilight - no contract with driver
5. ANPR data handling/ICO rules on ANPR signs
6. 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 3 minute 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 underacted 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, to see all terms and to show the grace period which the signage suggests should have been up to 10 minutes.

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). There is no payment due for a car parked from 7pm for less than 2 hours and the signs also allow a 10 minutes grace period before charges arise. No fee was due so the NTK misstates the alleged contravention and 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 heavy rain and darkened conditions - 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 6:12pm, on a heavy rain and darkened evening, the car park was poorly visible, 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. The driver paid for the period of time up until and after the 7pm. 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.


6. ANPR data handling/ICO rules on ANPR signs
Because the Operator is actually trying to allege a contravention in the entry of registration information on keypad. A genuine error can be made in such an automated and ‘non-human’ system, and in this instance was made on the keypad during the entry process. Every intention was to enter correctly, within conditions of rain, poor lighting and poor visibility. This was during a heavy rain storm and in such conditions is hard to be able to accurately input registration details on an insufficiently sized keypad. A parking ticket stub illustrating the mistaken entry has been supplied as evidence to the operator. CCTV images would support the claim of intent to pay correctly for parking requirements.
I call into question the suitability for an ANPR system in such cases.

To prove feasibility of the ANPR system in general for use, 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.

It is unreasonable and an unfair contract term, to attempt to enforce charges in a car park with a small keypad registration entry system which is easily subject to errors in data entry. It is unreasonable and an unfair contract term, to enforce a charge where the signs are unlit and the actual t&cs, including the risk of a 'PCN' and the amount payable for breach, is unreadable. It is unreasonable and an unfair contract term, to enforce a charge alleging a car parking time limit was exceeded with misleading and unclear entry terms for the attended times.

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

Coupon-mad

Yep, looks good - I would get rid of this though:

3. No Keeper liability - the NTK is not compliant with the requirements of POFA2012

...because you've said who was driving so you should appeal as driver (it's not a big mistake - paying the thing was the big mistake!). The rest looks fine at first glance but I would look to expend the 'no loss' argument and cite CEL v McCafferty (appeal) as I just quoted here in a letter I wrote for someone:

https://forums.moneysavingexpert.com/discussion/4981747


HTH

smiley1609

Coupon-mad wrote: »

Yep, looks good - I would get rid of this though:

3. No Keeper liability - the NTK is not compliant with the requirements of POFA2012



...because you've said who was driving so you should appeal as driver (it's not a big mistake - paying the thing was the big mistake!). The rest looks fine at first glance but I would look to expend the 'no loss' argument and cite CEL v McCafferty (appeal) as I just quoted here in a letter I wrote for someone:

Thanks CM...


Are you suggesting that the complete section 3 needs removal, or just the 'No Keeper' part of the heading ? It is quite a long section which in legal does not entirely make sense to my untrained ears !


Thanks for your advice. As I paid yesterday I need to progress this asap and before the POPLA get notification of my payment. If they make a ruling beforehand then I may have grounds to ask for my money back, even if it is paid to CEL or the bank are not cooperative. From my 30 min talk with card services last night, I think if I attach all evidence for my claim before the CC payment is made then I may have a good chance of it being revoked.


Should I also send my original letters and all evidence to POPLA via email after entering the claim information...to support my comms with CEL ?


Thanks again


Smiley.

Coupon-mad

The whole of section 3 needs to go as it's not relevant to a driver appellant. I would just re-number the rest and send it electronically to POPLA tonight. You don't need to attach any evidence at all and I don't think the letters help (or hinder) because they were focussed on a point which doesn't win at POPLA.

Then you can get on with putting the payment into dispute.

smiley1609

Thanks C-M...


I have made modifications as suggested and just sent via POPLA website. Fingers crossed that I am able to still resolve this...


Kind Regards
-smiley