POPLA help please

CIMad

Is it worth me posting my final version here before submitting? Any reason it should not be made public prior to posting on the POPLA site?

Coupon-mad

No reason why not!

Dee140157

And when it wins it may become another template to direct people to if it is good!

CIMad

A few changes made to fit my case.

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 dark - no contract with driver
5. 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. The Notice to Keeper letter refers to 'breach of contract' so the charge must be a genuine pre-estimate of loss - and I contend this charge certainly is not based on any such calculation.

This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses following from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this alleged parking event by a driver who was fully authorised to be parked at that site.

The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no PCNs were issued. Therefore, the sum they are seeking is not representative of any genuine loss incurred by either the landowner or the operator.

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 a managing agent nor retailer nor any facility on site which is not the landholder - and the contract must comply with paragraph 7 of the BPA CoP. Such a contract must 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 and have the assignment of rights to enforce the matter in court in their name. A witness statement or site agreement will not suffice as evidence as these are generally pre-signed photocopies wholly unrelated to the contract detail and signed off by a person who may never have seen the contract at all. I insist that 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 and conditions, restrictions, charges, grace period and the locus standi of this operator.

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 clearly stated on the signage'. This so-called outstanding 'payment' is not quantified and the signs do not support that contention (see point 4).
The NTK states “Maximum 3 hours free parking for authorised users only” and also states that the vehicle was parked between 18:20:03 and 19:22:18. Therefore I am unaware what alleged parking conditions have been breached. I have appealed to CEL but they have failed to clarify what terms have not been “complied with.”

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 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 18:20, light was beginning to fade, 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 most important instructions are provided in FULL CAPITAL LETTERS, which are recognised as being more difficult to read than a mix of upper and lower case. (UK Traffic Sign legislation (TSGRD) is based around using a standard typeface which is a mix of lower and upper case so that motorists are able to read signs more easily.)
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.

5. ANPR 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 monitoring this private property' since the cameras are not concerned with any aspect of the actual parking spaces, nor any actual proof of a 'parking event' at all.

6. 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 charge someone for allegedly parking, without proof that they have actually done so. Civil Enforcement Ltd are making an assumption that because the car entered and exited the car park, that it was parked. If the car had not been parked (but simply driven around the car park looking for a space, then no contravention of any “Parking Terms” can have taken place. Civil Enforcement have yet to prove that the vehicle was parked, they are just making an assumption.

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

Umkomaas

A couple of points:

5. ANPR data handling/ICO rules on ANPR signs

While you quote the 'ICO rules' in your header, there's no reference at all in your appeal paragraph. Leave that bit out of header, or develop it further within the paragraph.

For presentation purposes make sure you format your headers and paragraphs consistently by:

1. Leaving a line space between header and paragraph;
2. Emboldening your paragraph headers so it allows the adjudicator ease of spotting key paragraphs.

HTH

CIMad

Thanks,

Regarding the spacing and emboldening (nice word I've not heard of before!) - it is all ok in my Word doc but got lost when I pasted onto the forum.

The ICO rules bit was from another template. I've looked back at the original and can't see that I've deleted anything relating to it. I thought that it related to the first subparagraph regarding BPA rules on ANPR signage and whether they were being fair and transparent?

Umkomaas

Copying and pasting from Word often does throw up some formatting problems on the forum - but not, as far as I'm aware, when doing so on the POPLA online facility.

'Embolden(ing)' - definition

Cause (a piece of text) to appear in a bold typeface

In the context of the ICO, this is what the BPA CoP says:

It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.

Whether the POPLA adjudicator will be that well versed with the CoP (it's never overtly influenced any previous adjudications) is debatable, and probably makes it as an appeal point somewhat moot. Leave as it stands as I don't think it will be either here or there in the grand scheme of things.

I just thought you were making some really strong point re ICO involvement.

CIMad

Hearing on the 12th. Received some evidence from the parking company yesterday (which they are submitting to POPLA) but I believe they are submitting photos of signage that was not in place of the alleged offence- making it seem more obvious what course of action was necessary. Do I have any method of pointing this out to POPLA?

Redx

yes, you send it to them with your reference code as additional points and rebuttals

4cr posted the info on doing this yesterday in another thread on here

https://forums.moneysavingexpert.com/discussion/4905414

the answers are always here, when people look for them

CIMad

Have drafted a rebuttal. I havent been able to cut and paste CEL's evidence in here, but can try and paste anything you think would be relevant. Lots of standard generic stuff and also quote about 6 similar appeals which have been refused.

What do you think?


Dear POPLA,

I write concerning the response and evidence provided by Civil Enforcement Ltd to this case.
My concerns are as follows:
1) Photographic Evidence inaccurate and misleading. The photos provided in xxxpic&signs.pdf show large banner signs which were not in situ on the date the alleged parking event took place. I refer to the yellow and purple signs which make it reasonably clear that registering a car at the touch screen is necessary. I also note that these signs are branded by Sportspace themselves and not the parking company. If Sportspace felt the need to provide these banners, it would strongly suggest that they are trying to help their customers and that the blue and white signs on lampposts are not sufficient to advise what course of action to take.
I put Civil Enforcement Ltd to strict proof that these signs were not in place on the date of the alleged parking event.
2) Civil Enforcement state that it is an undisputed fact that the signs clearly state in large bold font the terms and conditions of parking.
3) Civil Enforcement have not been able to prove that the driver parked within the car park, merely that the car entered and exited. They admit in their response that the ANPR cameras are not designed to monitor movement within the car park.
4) Civil Enforcement have again focussed very heavily (5th sentence, first page) on the amount of time the car was in the car park, which is less than the 3 hour limit. It is only in their submission here that they have stated that the driver did not register the vehicle on the touchscreen. You will see from my appeal submission that I requested to hear what the charge was for, yet was told it was for “not complying with the terms and conditions of the contract”. This is the first time I have been made aware of what the driver has supposedly not done, to result in a charge being issued. The notice to keeper does not make clear what offence has been commited, nor did their response to my direct appeal.
5) Costs incurred by Civil Enforcement. Although the Operator has summarised costs that may be incurred, there is no calculation and a number of the items referred to amount to general operating costs and would not appear to be substantially linked to the cost incurred as a result of the breach. In the absence of an explanation as to how the amount of the charge was reached, I am not satisfied that the Operator has provided sufficient evidence to show that the charge represents a genuine pre estimate of the loss incurred. I still maintain that the £100 charge is not a genuine pre-estimate of loss to the operator.
6) Civil Enforcement claims that because the conditions of paragraph 6 have been complied with, then paragraph 7 of schedule 4 becomes irrelevant, however they claim this is given under paragraph 6 (1) b, which in turn refers to a Notice to Keeper given under paragraph 9. The Notice to Keeper does not comply with 9, (2), c as it does not make clear the circumstances under which the charge becomes payable. May I also point out that the invitation to pass on the charge to the driver is attached to a tear off slip.