Help with POPLA appeal - CEL

charliegirl78

Hi
I received a parking charge notice from CEL for exceeding the maximum 2 hours free parking. I used the information on this site to appeal to CEL but unsurprisingly they rejected it!

I've read through the information on the forum and put together a POPLA appeal letter using the various templates on here - thanks everyone for all the great information and templates provided on the forum. Before submitting I just wanted to check with the experts on here if it looks ok! Thanks


I am the registered keeper of the above vehicle and I am appealing against the above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.

1 The charge is not a genuine pre-estimate of loss
2. No standing to pursue charges in the courts nor to make contracts withdrivers
3. No Keeper liability - the NTK is not compliant with the requirements of POFA2012
4. Signage incapable of being readwhen entering car park - no contract with driver
5. ANPR accuracy
6. Unreasonable & Unfair Charge - a penalty that cannot be recovered


1. The charge is not a genuine pre-estimate of loss
The demand for a payment of £90 ispunitive, unreasonable, exceeds an appropriate amount, and has no relationshipto any loss that could have been suffered by the Landowner. I put CivilEnforcement to strict proof of the alleged loss including a detailed breakdownof how the amount of the “charge” was calculated. The Parking Charge Noticeletter refers to breach of ‘parking terms and conditions’ so the charge must bea genuine pre-estimate of loss - and I contend this charge certainly is notbased on any such calculation. There is no loss flowing from this parkingevent: at the time of the claimed loss the car park was at 20% capacity andthere can be no loss of potential income in a free car park.

This Operator cannot demonstrate any initial quantifiable loss. The parkingcharge must be an estimate of likely losses flowing from the alleged breach inorder to be potentially enforceable. Where there is an initial loss directlycaused by the presence of a vehicle in breach of the conditions (e.g. loss ofrevenue from failure to pay a tariff) this loss will be obvious. An initialloss is fundamental to a parking charge and, without it, costs incurred byissuing the parking charge notice cannot be said to have been caused by thedriver's alleged breach. Heads of cost such as normal operational costs andtax-deductible back office functions, debt collection, etc. cannot possiblyflow as a direct consequence of this parking event.

The Operator would have been in the same position had the parking charge noticenot been issued, and would have had many of the same business overheads even ifno PCNs were issued. Therefore, the sum they are seeking is not representativeof any genuine loss incurred by either the landowner or the operator, flowingfrom this alleged parking event.


2. No standing to pursue charges in the courts nor to make contracts withdrivers
CEL have no standing as they are an agent, not the landowner. They also have noBPA-compliant landowner contract containing wording specifically assigning themany rights to form contracts with drivers in their own name, nor to pursuethese charges in their own name in the Courts.

I put Civil Enforcement to strict proof of the above in the form of theirunredacted contract. Even if a basic site agreement is produced and mentionsPCNs, the lack of ownership or assignment of title or interest in the landreduces any contract to one that exists simply on an agency basis between CELand their client, containing nothing that could impact on a third partycustomer. Also the contract must be with the landowner - not a managing agentnor retailer nor any facility on site which is not the landholder - and thecontract must comply with paragraph 7 of the BPA CoP. Such a contract must showthat this contravention can result in this charge at this car park and that CELcan form contracts with drivers in their own right and have the assignment ofrights to enforce the matter in court in their name. A witness statement orsite agreement will not suffice as evidence as these are generally pre-signedphotocopies wholly unrelated to the contract detail and signed off by a personwho may never have seen the contract at all. I insist that the whole contractis required to be produced, in order to ensure whether it is with the actuallandowner, whether money changes hands which must be factored into the sumcharged, and to see all terms and conditions, restrictions, charges, graceperiod 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 theseomissions:
''9(2)The notice must—
(b)inform the keeper that the driver is required to pay parking charges inrespect of the specified period of parking and that the parking charges havenot been paid in full;
(c)describe the parking charges due from the driver as at the end of thatperiod, the circumstances in which the requirement to pay them arose (includingthe means by which the requirement was brought to the attention of drivers) andthe other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid, as at atime which is—
(i)specified in the notice; and
(ii)no later than the end of the day before the day on which the notice iseither sent by post or, as the case may be, handed to or left at a currentaddress for service for the keeper (see sub-paragraph (4));
(e)state that the creditor does not know both the name of the driver and acurrent 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 ofthe name of the driver and a current address for service for the driver and topass the notice on to the driver;
(f)warn the keeper that if, after the period of 28 days beginning with the dayafter that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) hasnot been paid in full, and
(ii)the creditor does not know both the name of the driver and a current addressfor service for the driver, the creditor will (if all the applicable conditionsunder this Schedule are met) have the right to recover from the keeper so muchof that amount as remains unpaid;
(h)identify the creditor and specify how and to whom payment or notification tothe creditor may be made.''

Where paragraph 9 requires certain wording, it is omitted - except a smallamended sentence on the payment slip (which has been found in Council PATASappeals, not to count as the 'PCN' because it is a separate section, designedto be removed).

POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeperis fundamental to establishing liability for a parking charge. ''Where a Noticeis to be relied upon to establish liability ... it must, as with any statutoryprovision, comply with the Act.'' As the Notice was not compliant with the Actdue to the many omissions of statutory wording, it was not properly given andso there is no keeper liability.

4. Signage incapable of being read when entering car park - no contract withdriver
The sign at the entrance to the carpark is positioned on a wall on the passenger side of a standard right-handdrive vehicle. This makes the sign difficult for a driver to see from insidethe car. In addition, the sign at the entrance is unlit and not highlighted inany way and was not seen by the driver when entering the car park.

The BPA CoP at Appendix B sets outstrict requirements for entrance signage, including “The sign should be placedso that it is readable by drivers without their needing to look away from theroad ahead”.

Further to this, the terms and conditions are in particularly small fontcompared with the offer of two hours customer parking for free. Signs withinthe car park are restricted to the outer boundaries and as a result, anyoneparking in the middle of the car park would not see the signs between parkingand entering the store.

5. ANPR accuracy
Civil Enforcement Ltd are obliged to make sure the APNR equipment is in workingorder, as described in paragraph 21.3 of the British Parking Association’sApproved Operator Scheme Code of Practice, version 3 of June 2013. I requireCEL to present records as to the dates and times of when the cameras werechecked, calibrated and generally maintained to ensure the accuracy of thedates and times of any ANPR images. This is important because the entirety ofthe charge is founded on two images purporting to show my vehicle entering andexiting at specific times – it is vital that CEL produce evidence in responseto these points.

6. Unreasonable & Unfair Contract Terms - a penalty that cannot berecovered
The terms that the Operator in this case are alleging gave rise to a contractwere not reasonable, not individually negotiated and caused a significantimbalance to my potential detriment. There is no contract between the Operatorand motorist but even if POPLA believes there was likely to be a contract thenit is unfair and not recoverable.

It is unreasonable and an unfair contract term to enforce charges when signs atthe entrance are not obvious. It is unreasonable and an unfair contract term toattempt to profit by charging a disproportionate sum where no loss has beencaused by a car in a free car park where the bays are not full.

This charge is an unreasonable indemnity clause under section 4(1) of theUnfair Contract Terms Act 1977, which says:
‘A person cannot by reference to any contract term be made to indemnifyanother person (whether a party to the contract or not) in respect of liabilitythat may be incurred by the other for negligence or breach of contract, exceptin 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 shallbe regarded as unfair if, contrary to the requirement of good faith, it causesa significant imbalance in the parties' rights and obligations arising underthe 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 financialburdens
''18.1.3 These objections are less likely to arise if a term is specific andtransparent as to what must be paid and in what circumstances. However... aterm may be clear as to what the consumer has to pay, but yet be unfair if itamounts to a 'disguised penalty', that is, a term calculated to make consumerspay excessively for doing something that would normally be a breach ofcontract.''

It has recently been found by a Senior Judge in the appeal court that CEL'ssigns are not clear and transparent and their charges represent a penalty whichis not recoverable. This was in 21/02/2014 (original case at Watford court):3YK50188 (AP476) CIVIL ENFORCEMENT v McCafferty on Appeal at Luton CountyCourt. I contend that this charge is also not a recoverable sum.

I put CEL to strict proof regarding all of the abovecontentions and if they do not address any point, then it is deemed accepted.

Yours faithfully

Coupon-mad

Perfect - nice research to put that together without having to post a 'heeeellllppp!!' thread! You can submit that online and you will win.