Warwick fine for parking in a private car park

Dee140157

Just go with the one you found . Compare each rebuttal with what they have sent. If it's in their evidence epack then use it. If it's not in their evidence pack miss out. I suspect you will keep just about all of it.

Then email it to POPLA with your POPLA code and call it evidence rebuttal .

andreauk2009

Jut posting photographic evidence, which I missed out
https://www.dropbox.com/s/xmtmfruo4j36dia/641%20Sign%20%26%20car%20park%20photos.pdf?dl=0

Reading about BPA sign that apparently should be on every sign, but this is not the case of CEL. Does need to be mentioned?

andreauk2009

OK, I've put together the following, and your final word is highly appreciated. I have still several doubts, but I'm ultimately too tired to dig again.

In particular, CEL make a reference to the UTCCR at page 3, which I'm not sure it clashes with the point below.

---

Urgent - additional evidence for POPLA appeal due to be decided soon - verification code xxxxxxxxxx'

I have just received a copy of the evidence submitted by Civil Enforcement Ltd. and have noted the following:

• NTK
Looking again at the Notice to Keeper this states 'Payment not made in accordance with terms on signage', again, a penalty, and not a contractual fee.

• Site signage
As part of the response from CEL they have provided photographs of the signs at the site, but have not provided a date when these pictures were taken. These can be new signs erected subsequently to the alleged offence.

Nevertheless, it is clear how the entrance sign has very recently been replaced (Note the grime behind the T&C sign - CEL picture 2), meaning a different sign was in place before. This can only be the “green Private Car Park sign” shown (CEL picture 6), that effectively corresponds to the one shown in photographic evidence I submitted in my previous correspondence. This can only support a sign alteration post the allegation.

The photographs provided by CEL do not provide a scale, thus making impossible to determine if the text size is sufficiently large to meet the BPACPC requirements, which mention as follow: “the sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead. (Appendix ”.

• ANPR
The response from CEL fails to provide records detailing when the ANPR systems at the site were calibrated and instead provides an “assurance” (page 4) from them that it has been. This is clearly insufficient to determine the time that the car entered and exited the car park is accurate, therefore, it is suggested that there is no legal basis for a claim from CEL.
Furthermore, there is an obvious misalignment between the issuing ticket machine and CEL system, as the fee were corresponded at 16:18 and not at 16:19 as stated in the “METRIC” extract (page 8). This makes questionable the rounding methodology in place as well as the effective entrance timestamp recorded by the ANPR (driver mentioned the entrance was around 12:10).

• Flawed contract with landowner/Authority to issue PCN's
Despite this has been requested several time, to date there is no evidence of a valid contract or legal capacity for CEL to issue parking tickets.

• Contractual breach resulting in liquidated damages

CEL states that there was not contractual obligation to make immediate payment, and the action was not for damages for breach such an obligation (page 4, bottom). However, CEL referred to their T&Cs and the fact the PCN has been raised because of a payment not made within the first 10 minutes, which implies an immediate payment obligation.
Page 2 says 'if you park in breach…' By suggesting there is not any obligation for an immediate payment, they are effectively encouraging drivers to breach their T&Cs, and the £100 suddenly becomes a penalty and not a contractual fee to be allowed to do so.

As per their admission - CEL is not seeking liquidated damages; however the alleged contract does not make clear whether the £100 is a contractual term or liquidated damages and/or a penalty clause due to the lack of clear contract.
This is further demonstrated by the fact that in CEL’s response they acknowledge that it could be considered a genuine pre-estimate of loss, hence their defence of the amount.


On the basis that the charged amount is a genuine pre-estimate of loss, the £100 far exceeds the cost to the landowner who would have received £6.00 from any vehicles parked up to six hours. However, as the car vacated the space 7 minutes before the paid allowance, it is fair assume CEL has not suffered a loss.

That said, despite the repeated requests, CEL has once again not justified the suffered loss but provided instead a list of possible costs I do not feel they can ever reach £100:

- Fee payable to DVLA – max £4
- Administrative Expenses, arising after the violation – Max £
- Stationary, postage etc, arising after the violation – max £
- Commercial justification – Irrelevant no monetary
- Loss from another vehicle parking (if applicable) – Irrelevant, as any new vehicle parked during the first 10 minutes would not be charged and my vehicle overstayed 4 minutes over the paid period which are free in any case;
- Loss of revenue to attached business/businesses – Irrelevant as at the time of the incident driver confirmed the car park not to be full;
- Legal and/or professional advice – CEL have provided no evidence that they have taken any legal or professional advice relating to this PCN thus this cost is considered irrelevant;
- Wages/salaries of staff involved, arising due to the violation – one employee for half hour to issue fine, max £15.

The only conclusion that one can reach is that the £100 is a penalty clause purported to be a contractual term and thus the appeal should be upheld.
In light of this and the fact that the contract was not individually negotiated then this amount should also meet the requirements of the Unfair Contract Terms Act 1997 and Unfair Terms in Consumer Contracts Regulations 1999. CEL have failed to explain why the charge is not punitive; instead, explaining that they believe it is a contractual terms but this is disputed.

Coupon-mad

That's good. I would just add to the relevant headings:

• NTK
Looking again at the Notice to Keeper this states 'Payment not made in accordance with terms on signage', again, a penalty, and not a contractual fee. And the statutory wording required by paragraph 9 of Schedule 4 of the POFA 2012 has been almost entirely omitted from this Notice. There is a brief mention on the separate tear off payment receipt of some vague wording from the Schedule but this is a section of the Notice which is designed to be removed and cannot form part of the NTK document itself. Apart from that, I see nothing to establish keeper liability under paragraph 9 so the 'second condition' in the Schedule has not been met and I am not liable in law.


• Site signage
The wording on the sign is unreadable where, in the lower half, the small print is in dingy grey-white against blue. Presumably it is intended to set out the risk of a parking charge and how much that might be and the circumstances under which such a charge might arise. Even scrutinising the photo evidence and trying hard to read the words, they are mostly illegible, so I contend a driver in a car has no chance of having agreed to unreadable terms.

Also the colours blue and yellow are specifically mentioned in the BPA Code of Practice as the sort of bright colour contrasts to avoid. Use of capital letters and mixing large and small font are also deemed unclear as far as signage is concerned. CEL have mixed all of this into their signs despite the fact they appear to be new and should match the requirements of the BPA CoP as well as include the BPA roundel, which is omitted.


• Contractual breach resulting in liquidated damages
CEL states that there was ''no contractual obligation'' to make immediate payment, and the action was not for damages for breach such an obligation (page 4, bottom). However, CEL referred to their T&Cs and the fact the PCN has been raised because of a payment not made within the first 10 minutes, which implies an immediate payment obligation. And the blue and yellow sign expressly creates just such an obligation in one of the sentences which is the clearest to read 'PAYMENT MUST BE MADE WITHIN 10 MINUTES OF ARRIVAL'. The word 'must' creates an obligation and a failure to fulfil that obligation can only be a matter of breach, not consideration.



{I am not saying remove what you've put, just add more!}

andreauk2009

Final version of my CEL rebuttal letter if anyone want to read (or suggest amending). I will be sending this at lunch time.

Thanks for your support.

************************

NTK
Looking again at the Notice to Keeper this states 'Payment not made in accordance with terms on signage', again, a penalty, and not a contractual fee.
The statutory wording required by paragraph 9 of Schedule 4 of the POFA 2012 has been almost entirely omitted from this Notice. There is a brief mention on the separate tear off payment receipt of some vague wording from the Schedule but this is a section of the Notice. As this is meant to be removed, it cannot be considered part of the NTK document.
Apart from that, I see nothing to establish keeper liability under paragraph 9 so the 'second condition' in the Schedule has not been met and I am not liable in law.

Site signage
As part of the response from CEL they have provided photographs of the signs at the site, but have not provided a date when these pictures were taken. These can be new signs erected subsequently to the alleged offence.

Nevertheless, it is clear how the entrance sign has very recently been replaced (Note the grime behind the T&C sign (picture 2), meaning a different sign was in place before. This can only be the “green Private Car Park sign” (CEL picture 6), which corresponds to the one shown in my photographic evidence submitted with my previous correspondence. This can only support a sign alteration post the allegation.

CEL photographs do not provide a scale, thus making impossible to determine if the text size is sufficiently large to meet the BPACPC requirements, which read as follow: “the sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead. (Appendix ”.

The wording on the sign is unreadable where, in the lower half, the small print is in dingy grey-white against blue. Presumably, it is intended to set out the risk of a parking charge and how much that might be and the circumstances under which such a charge might arise. Even scrutinising the photo evidence and trying hard to read the words, they are mostly illegible, so I contend a driver in a car has no chance of having agreed to unreadable terms.

Also the colours blue and yellow are specifically mentioned in the BPA Code of Practice as the sort of bright colour contrasts to avoid. Use of capital letters and mixing large and small font are also deemed unclear as far as signage is concerned. CEL have mixed all of this into their signs despite the fact they appear to be new and should match the requirements of the BPA CoP as well as include the BPA roundel, which is omitted.

ANPR
The response from CEL fails to provide records detailing when the ANPR systems at the site were calibrated and instead provides an “assurance” (page 4) from them that it has been. This is clearly insufficient to determine the time that the car entered and exited the car park is accurate, therefore, it is suggested that there is no legal basis for a claim from CEL.
Furthermore, there is an obvious misalignment between the issuing ticket machine and CEL system, as the fee were corresponded at 16:18 and not at 16:19 as stated in the “METRIC” extract (page 8). This makes questionable the rounding methodology in place as well as the effective entrance timestamp recorded by the ANPR (driver mentioned the entrance was around 12:10).

Flawed contract with landowner/Authority to issue PCN's
Despite this has been requested several time, to date there is no evidence of a valid contract or legal capacity for CEL to issue parking tickets.

Contractual breach resulting in liquidated damages
CEL states that there was not contractual obligation to make immediate payment, and the action was not for damages for breach such an obligation (page 4, bottom). However, CEL referred to their T&Cs and the fact the NTK has been raised because of a payment not made within the first 10 minutes.
This implies such an obligation, which is reinforced by the clear sentence in their “Pay & Display” sign: 'PAYMENT MUST BE MADE WITHIN 10 MINUTES OF ARRIVAL'. The word 'must' creates an obligation and a failure to fulfil that obligation can only be a matter of breach, not consideration.

Page 2 says 'if you park in breach…' By suggesting there is not any obligation for an immediate payment, they are effectively encouraging drivers to breach their T&Cs, and the £100 suddenly becomes a penalty, and not a contractual fee as stated.

As per their admission - CEL is not seeking liquidated damages; however the alleged contract does not make clear whether the £100 is a contractual term or liquidated damages and/or a penalty clause due to the lack of clear contract.
This is further demonstrated by the fact that in CEL’s response they acknowledge that it could be considered a genuine pre-estimate of loss, hence their defence of the amount.

On the basis that the charged amount is a genuine pre-estimate of loss, the £100 far exceeds the cost to the landowner who would have received £6.00 from any vehicles parked up to six hours. However, as the car vacated the space 7 minutes before the paid allowance, it is fair assume CEL has not suffered a loss.

That said, despite the repeated requests, CEL has once again not justified the suffered loss; they provided instead a list of possible costs I do not feel they can ever reach £100:

• Fee payable to DVLA – max £4
• Administrative Expenses, arising after the violation – Max £15;
• Stationary, postage etc, arising after the violation – max £4;
• Commercial justification – Irrelevant no monetary value;
• Loss from another vehicle parking (if applicable) – Irrelevant, as any new vehicle parked during the first 10 minutes would not be charged and my vehicle overstayed 4 minutes over the paid period which are free in any case;
• Loss of revenue to attached business/businesses – Irrelevant as at the time of the incident driver confirmed the car park not to be full;
• Legal and/or professional advice – CEL have provided no evidence that they have taken any legal or professional advice relating to this PCN thus this cost is considered irrelevant;
• Wages/salaries of staff involved, arising due to the violation – one employee for half hour to issue fine, max £15.

The only conclusion that one can reach is that the £100 is a penalty clause purported to be a contractual term and thus the appeal should be upheld.
In light of this and the fact that the contract was not individually negotiated then this amount should also meet the requirements of the Unfair Contract Terms Act 1997 and Unfair Terms in Consumer Contracts Regulations 1999. CEL have failed to explain why the charge is not punitive; instead, explaining that they believe it is a contractual terms but this is disputed.

Coupon-mad

Yes that will do the trick; you will win next week I suspect!

andreauk2009

And finally the appeal decision has come. Allowed, which I expect to mean I am no longer required to pay.

Without copying everything, apparently the decision of POPLA sits in the lack from CEL to provide legal evidences they were entitled to issue the PCN.

The appellant made a number of representations, but it is only necessary to deal with the submission that the operator lacked authority to issue and enforce parking charge notices in respect of the land.

I wonder if all that long document was really necessary.

Dee140157

Of course it wasn't but that is the game we play. I am waiting for the day when the evidence pack is over 100 pages as they are getting longer and longer.

Well done though good news.

andreauk2009

Dee140157 wrote: »

Of course it wasn't but that is the game we play. I am waiting for the day when the evidence pack is over 100 pages as they are getting longer and longer.

Not sure I get the sense of this "game"

Who will be the winner in writing / reading / rebutting such long pre-written template?

I mean, surely since I have been leaving in UK I learnt things are normally kept close to simplicity, but here it seems kind of a pleasure doing the opposite ?