ANPR Ltd Charge Notice

Bessdog

Hi I am new on here and just wondered if I could have some advice or point me in the right direction where to find it

My son parked in a private firms car park late at night when the firm was shut as all on street free parking was full.

I sent them a letter on the 20 Sept which I took off your template and I got a letter back on the 23 Sept saying the fine still is in place and gave me a popla code

On the 2 Oct I completed an online form to popla to which I am still waiting a responce - any idea how long this takes

Then today I received correspondence from ANPR sending Evidence checklist, case summary,photos etc - no real letter - I havent read anything on here of that happening and I just wondered if that was normal - do they have to do that because I have appealed to popla and do they send the same to them?

Any advice and help would be very much appreciated - thank you

The_Slithy_Tove

That could be the POPLA evidence pack that ANPR have submitted. They're meant to send you a copy. I am surprised if ANPR Ltd have done, as they routinely ignore all normal protocols. If it is the evidence they submitted to POPLA, you need to (a) read it and have a good laugh at its amateurish presentation and out-and-out lies, then (b) send a rebuttal of it to POPLA.

bazster

Yes, entirely normal. Have you read it all? Should be hilarious.

Bessdog

Sorry what do you mean send a rebuttal of it to Popla?

The_Slithy_Tove

Bessdog wrote: »

Sorry what do you mean send a rebuttal of it to Popla?

rebut. verb. to argue that a statement or claim is not true.

Clear now?

Bessdog

Sorry I am not with you - is there another letter I need to do to POPLA?

bazster

Bessdog wrote: »

Sorry I am not with you - is there another letter I need to do to POPLA?

Yes, as in "send". Letter good, carrier pigeon bad.

Bessdog

Is there a template for that letter on here - could you point me in the right direction please

I feel so much out of my depth on this one - just not understanding it at all and get lost trying to find things out

Umkomaas

On the 2 Oct I completed an online form to popla to which I am still waiting a responce - any idea how long this takes

I think you need to let us see what you wrote in your POPLA appeal, as if it was based on mitigation, then rebutting the Evidence Checklist might have little impact.

Would you please post your POPLA appeal here, then we can advise how and in what order you might deal with this.

Bessdog

Appeal reasons:
As the registered keeper, I would like to appeal this notice on the following grounds:
1. The charge is 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 clearly
5. ANPR clock/synchronisation/reliability/data handling/ICO rules on ANPR signs 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 £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could have been suffered by the Landowner. The car park is an office car park which closes at 4.30pm and the ticket was issued at 21.45. There was no barrier on the entrance to the car park nor were the sign visible in the dark 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. Nor is the charge 'commercially justified'. If CEL cite 'ParkingEye v Beavis & Wardley' it's irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law.

In addition, POPLA Assessor Chris Adamson has stated in June 2014 upon seeing VCS' latest effort at a loss statement that: ''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”. This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

My case is the same and ANPR contracts are nothing like ParkingEye's contract in the Beavis case anyway, where Parking Eye paid £1000 per week for what was in effect a 'fishing licence' to catch victims and where the Operator made out they were the principal. In my case, CEL are merely agents at best, with a bare contractor's licence to put up signage and 'issue tickets' and they are known to be paid by their client so they have no standing nor loss to claim in their own right anyway. Of course money changing hands will affect any calculations of so-called 'loss' and is one of several reasons why I will require the landowner contract in full (unredacted) as per point #2. 2. No standing to pursue charges in the courts nor to make contracts with drivers ANPR 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 Ltd 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 ANPR 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 ANPR 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 perforated 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 ‘in accordance with parking terms and conditions stated on the signage'.

This so-called outstanding 'payment' is not quantified and the signs do not support that contention (see point 4). 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 clearly - no contract with driver The signs are high up on the walls, the writing is small and cannot clearly be read in the dark - they also dont state they are 24 hours and one presumes its no parking whilst the office is open - there was no chain on the entrance to the car park to stop people parking there after hours 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 for 1 hour for free. 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 clock/synchronisation/reliability/data handling/ICO rules on ANPR signs I require CEL to present records which prove: • the Manufacturers' stated % reliability of the exact ANPR system used here. • the dates and times when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer that stamps the photos, and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on images purporting to show my vehicle entering and exiting at specific times. I put Civil Enforcement Ltd to strict proof that their ANPR system is not fundamentally flawed because of known issues such as missing checks and maintenance of the timer/cameras and the possibility of two visits being recorded as one. The Operator’s proof must show checks relating to this case/this vehicle, not vague statements about any maintenance checks carried out at other times. The 'two visits recorded as one' problem is very common and is even mentioned on the BPA website as a known issue. The BPA says: ''As with all new technology, there are issues associated with its use: Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.'' Since I am merely the registered keeper, I have no evidence to discount the above possibilities 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.'' CEL fail to operate the system in a 'reasonable, consistent and transparent manner'. 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 and 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. 6. Unreasonable & Unfair Contract Terms - a penalty that cannot be recovered The terms that the Operator in this case is alleging gave rise to a contract were not reasonable, not individually negotiated, and caused a significant imbalance to the driver’s potential detriment. There is no contract between the Operator and 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 Civil Enforcement Ltd to strict proof regarding all of the above contentions and if they do not address any point, then it is deemed accepted. Yours faithfully

trisontana

Some paragraphs would be useful! My eyes are hurting.