Help with a PCN from Civil Enforcement Ltd (Non registered keeper).

4consumerrights

@Helloworld - so now you have the tool to quash this once and for all with a winning POPLA appeal for your circumstances - I won't highlight from rejection letter

NO GPEOL
NO INITIAL LOSS TO LANDOWNER OR CEL
NO LOCUS
INADEQUATE SIGNAGE TO FORM CONTRACT WITH DRIVER ON DAY

are the winning points for your appeal...

be prepared to rebut the evidence pack they will send- we do on a daily basis

Coupon-mad

hello_world wrote: »

Ok, I've had a reply from them.
They've not given me anything I asked for in the form letter, but they have given a popla reference.

Yes...so you know from the Newbies thread what to do now, and there's a CEL POPLA appeal example there already written. Just needs adapting such as the detail about the signs, that sort of thing, to match your case but without saying who was driving.

hello_world_5

How important is it that I refer to the signage? I don't know what it says and I'm now several hundred miles away so I can't get a photo of it for reference.

Dee140157

We always recommend putting a signage point in. If you look through the different examples linked to , several of them just have generic signage paragraphs referring to the BPA code of practice etc. Chose one that is less specific but does mention the fact that they are non-compliant. The reason for this is that the signs are always non compliant! Often full of difficult to read germs and conditions and random statements!

Coupon-mad

hello_world wrote: »

How important is it that I refer to the signage? I don't know what it says and I'm now several hundred miles away so I can't get a photo of it for reference.

Same as loads of people - lots of keepers don't live nearby. Why are you looking to remove whole winning appeal points from the CEL POPLA appeal examples - don't! Anything you say to POPLA is not for you to prove - it's for CEL to disprove.

hello_world_5

Do you think that this will be sufficient? (I'm not sure what '4consumerrights' means by 'no locus', and I wasn't able to find a paragraph that I was truly happy with about the inadequate signage - I don't know what the terms of parking were because the driver was not aware of any signage outlining any terms and conditions).

Thanks.

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. Unclear, inadequate and non-compliant signage
5. 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 flowing 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 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, flowing from this alleged parking event and the operator should make the terms of proving the car is 'exempt', much clearer to the onsite staff and to drivers in order to mitigate their alleged losses and to avoid genuine customers being wrongly ticketed.

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 displayed on signage'. This so-called outstanding 'payment' is not quantified and the signs do not support that contention.

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. Unclear, inadequate and non-compliant signage

Due to their high position, overall small size and the barely legible size of the small print, the signs in this car park are very hard to read, understand and no notices at all are positioned near the entrance to the shop.

I request that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs on this land, in terms of wording, position and clarity, do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2])


5. 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.

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

Hot_Bring

As we seem to have a moron stopping proper threads being displayed ..... bounce.

hello_world_5

Hi Hot Bring, what do you mean?

Umkomaas

hello_world wrote: »

Hi Hot Bring, what do you mean?

Oh, he doesn't mean you hello world. There was a spam attack early this morning with the forums flooded by the same spam message repeated in endless new threads, which meant real threads were being rapidly pushed down the forum to older pages, disappearing from sight.

Hot Bring was merely bumping each genuine thread by posting his short message in each, elevating them back up the board and once again in sight.

The tekkies are trying to resolve some of the chaos caused, and you will see some posts with gobbledygook !!!!!! !!!!! words and characters everywhere (my signature below has been affected, as an example). Hopefully all posts will be back up and once again readable shortly.

HTH

Coupon-mad

That POPLA appeal is fine BTW!