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PCN Civil Enforcement

jacko2000
Posts: 5 Forumite
Hi,
I received a pcn from civil enforcement on 13/11/14 for parking at the sportspace gym (i know you've seen a lot of issues on this so apologies in advance!) Basically i used the AstroTurf on the other side of the road to the gym car park. I can provide receipts and info from the person who paid for the astroturf inside the gym. As you know you have to register your number plate inside the gym otherwise they will send you a ticket through the post, as this was the first time and the manager did not tell me i did not know and obviously did not go inside to register my number plate. I was parked for a period of 1 hour 20 mins and it states a maximum 3 hours free parking for authorized users only.
The charge is £100 but if paid with 14 - £60.
I have called the gym and they stated that i have to appeal firstly and then if rejected i need to email them.
I have read the newbie thread and i have the pcn appeal template ready to go but I just wanted to double check this is the correct thing to do.
Many thanks!!
I received a pcn from civil enforcement on 13/11/14 for parking at the sportspace gym (i know you've seen a lot of issues on this so apologies in advance!) Basically i used the AstroTurf on the other side of the road to the gym car park. I can provide receipts and info from the person who paid for the astroturf inside the gym. As you know you have to register your number plate inside the gym otherwise they will send you a ticket through the post, as this was the first time and the manager did not tell me i did not know and obviously did not go inside to register my number plate. I was parked for a period of 1 hour 20 mins and it states a maximum 3 hours free parking for authorized users only.
The charge is £100 but if paid with 14 - £60.
I have called the gym and they stated that i have to appeal firstly and then if rejected i need to email them.
I have read the newbie thread and i have the pcn appeal template ready to go but I just wanted to double check this is the correct thing to do.
Many thanks!!
0
Comments
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Yes it is - do update us when you are at POPLA stage. remember that CEL don't use POFA-compliant NTK letters so they cannot establish keeper liability (hence why not to imply who the driver was!).
A keeper who hasn't said who was driving, and who points out the 'no keeper liability' issues CEL have at POPLA stage - CANNOT LOSE AT POPLA, IMHO. It's not just a word or two missed out on the document, it's wholly not a POFA Notice, not one that can create any keeper liability.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Hi Coupon Mad
I had a response form Civil Enforcement today, they have rejected my appeal and have given me a popla appeal code.
Please can you advise the next steps, many thanks!!0 -
Newbies thread post #3!PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
I have had a good look through everything, I have found this appeal template for civil enforcement at Popla stage.
Is this ok to go with?
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. No grace period given despite signage and BPA CoP
6. ANPR clock/synchronisation/reliability/data handling/ICO rules on ANPR signs
7. 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 and how it was caused by this alleged 3 minute parking event.
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 another agent - and must comply with paragraph 7 of the BPA CoP and 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. 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, to see all terms and to show the grace period which the signage suggests should have been up to 10 minutes.
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 (see point 4). There is no payment due for a car parked from 7pm for less than 2 hours and the signs also allow a 10 minutes grace period before charges arise. No fee was due so the NTK misstates the alleged contravention and fails to meet the strict requirements of POFA2012..
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, unlit 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 7pm, the car park was shrouded in darkness, as is shown from CEL's own evidence photo, 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 terms & conditions are in particularly small font compared with the offer to park from 7pm for 2 hours for free. And the sign provides for 10 minutes grace by which any payment has to be made - and yet no grace period was allowed to this driver (see point 5 below). 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. No grace period given despite signage and BPA CoP
The BPA code of practice states that: “You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.”
With two hours free parking from 7pm offered, and with car caught on camera at the entrance apparently just 3 minutes earlier, there has clearly been no ‘grace period’ given to the driver in this instance. I contest that the driver would have needed longer than 3 minutes to drive further into the car park, find a space, park, exit the vehicle, lock the car, locate the sign (in the dark), try to read the sign and then decide to stay in the car park. The sign itself indicates a 10 minute grace period before customers must have paid any amount due, so the Operator is aware that enforcement cannot start immediately - and yet in this instance they have applied an immediate PCN with zero grace period.
6. ANPR clock/synchronisation/reliability/data handling/ICO rules on ANPR signs
Because this Operator is actually trying to allege a 3 minute 'early arrival' contravention (I think!) I call into question the ANPR system accuracy. The time shown for first arrival at the entrance is just before 7pm and the whole contravention seems to hinge upon the accuracy of this clock. This would require an ANPR system with almost perfect manufacturer-stated accuracy which I contend is not the case.
So I require CEL to present records which prove:
- the Manufacturers' stated % reliability of the exact ANPR system used here.
- the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which 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. CEL must show their ANPR system has a zero failure rate and zero buffering delay. I suggest that in the case of my vehicle arriving at this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped accurately.
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 '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.
7. 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 enforce charges immediately (before the car is even parked) in a car park with a 10 minute grace period advertised in the largest font on the sign. It is unreasonable and an unfair contract term, to enforce a charge where the signs are unlit and the actual t&cs, including the risk of a 'PCN' and the amount payable for breach, is unreadable. It is unreasonable and an unfair contract term, to enforce a charge alleging a car arrived at the entrance 3 minutes before 7pm, when any ANPR system will have a manufacturer's advised % failure rate stated within the user manual and there is no proof that the ANPR remote clock was correct.
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
many thanks mate!
0 -
No Keeper Liability - have you checked your NtK against all the points you've listed in your appeal, and do they all apply to your NtK?
Signage - did your parking event occur during the hours of darkness, because this paragraph applies to that period of time?
Your opening posts describes 3 hours of free parking, yet your appeal is based on 2 hours.
Are the signs at your gym in keeping with how they are described in your appeal here?
Grace Period doesn't apply - it would be appropriate if you'd marginally overstayed the maximum time, or in some CEL cases you hadn't purchased your P&D ticket within the 10 minutes stipulated on the pay machine.
I don't think you've been through this 'copy and dump' appeal sufficiently in matching it up against the specific circumstances of your parking incident. You need to understand what you've 'written'.
Regulars will guide you through this, but are unable to examine the hundreds of draft appeals (generally 'copied and dumped') we get, line by line, word by word, to ensure the OP hasn't shot him/herself in the foot.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
Hi Both, i do apologise. I have now read over the example and i have adapted it to suit my specific case.
I have removed some sentences due to my ticket not coming from me overstaying a time, I received my ticket as i did not register my number plate at reception.
I have adapted the rest to suit my specifc pcn. Let me know if I need to change anything please.
Thank you Guys!!!
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. ANPR clock/synchronisation/reliability/data handling/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 (£60 if paid within 14 days) 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 stand 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 (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 in the dark - no contract with driver
The sign at the entrance to the car park is multi-coloured, non-reflective, unlit 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 7:50pm, the car park was shrouded in darkness, 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 terms & conditions are in particularly small font. 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.
6. ANPR clock/synchronisation/reliability/data handling/ICO rules on ANPR signs
Because this Operator is alleging an unregistered vehicle number plate I call into question the ANPR system accuracy.
So I require CEL to present records which prove:
- the Manufacturers' stated % reliability of the exact ANPR system used here.
- the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which 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. CEL must show their ANPR system has a zero failure rate and zero buffering delay. I suggest that in the case of my vehicle arriving at this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped accurately.
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 '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.
7. 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 enforce charges shortly after the car is parked. It is unreasonable and an unfair contract term, to enforce a charge where the signs are unlit and the actual t&cs, including the risk of a 'PCN' and the amount payable for breach, is unreadable. It is unreasonable and an unfair contract term, to enforce a charge alleging a car that is unauthorised when any ANPR system will have a manufacturer's advised % failure rate stated within the user manual and there is no proof that the ANPR was correct.
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 faithfully0 -
That will do!PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Hi Coupon Mad!
Thank you for reviewing, I will go ahead and send it off tonight.
Thanks for everything!0
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