Civil Enforcement LTD - How to POPLA ?

adrianfisherpayne

Hi all


I received a PCN from Civil Enforcement ltd.
Free parking for 60 mins, I overstayed by 25mins.
It was a small supermarket car park, on revisiting the car park there is a sign behind the shopping trolley plastic cover bay thing & another beside the loading bay
The charge is £90 reduced to £45 if paid within their timescale.


I sent off the first letter in the sticky's to challenge them directly.
They of course have rejected this.


I understand I now need to appeal to POPLA ?




This was there response to the first stage.




We refer to your recent letter. We have considered the matters raised, but regret to advise that we are unable to cancel this enforcement notice. In response to the specific issues raised in your letter we would respond as follows-


The car park has experienced severe problems with unauthorized parking, resulting in vehicles being parked for long periods of time and occupying valuable space. There are many clear and visible signs displayed on the site, advising drivers of the regulations in force. The signage displayed in the car park is audited by the British Parking Association and is fully compliant with their guidelines.


This ticket was issued for exceeding the free stay allowance in the car park. It is the responsibility of the driver to ensure they adhere to the parking terms. The terms and conditions for parking are clearly stated on the signage erected throughout the car park in question.


The legal basis for the ticket we have issued to you is 'contract law'. By parking in the car park where our signs clearly display the terms and conditions of parking, you consented, by your actions (ie parking your car on the site) to be bound by such terms and the payment is now due.


We refute your assertion that the Enforcement Notice issued is not compliant with the Protection of Freedoms Act 2012.


The charge that has been levied is clearly stated on the signage around the site. furthermore, it falls within the British Parking Associations recommended guidelines for car park enforcement.


We reject your proposal to charge Civil Enforcement LTD for any costs occurred while appealing the Enforcement notice.


We are a car park management company and we manage the above car park on behalf of our client.
Due to the data protection act we are unable to provide and details regarding our clients or of our contracts with them.


There was also a separate letter about if it remained unpaid after 28 days then they now have the power to track the driver responsible.
This letter also gave me a verification code for my appeal to POPLA.




I really hope someone can help me with this matter as I am a little unsure how to word the appeal to POPLA


Thank you very much.

Fruitcake

Go back to the NEWBIES thread, post 3 and click on the words, How To Win At POPLA.


Have a look at the examples given, edit it to suit your case, and post it back on this thread for the experts to look at. If there is a CEL example all the better but it can be any one of the many winning options available.


Spend your time reading up and pick the one that you think is best.

adrianfisherpayne

OK


So I have read a few of the successful appeals to POPLA and it seems that the below in bold is the most common reason given.
Therefore is it worth considering to just include only that in my appeal??




the parking charge does not reflect a genuine pre-estimate of loss

Guys_Dad

adrianfisherpayne wrote: »

OK


So I have read a few of the successful appeals to POPLA and it seems that the below in bold is the most common reason given.
Therefore is it worth considering to just include only that in my appeal??




the parking charge does not reflect a genuine pre-estimate of loss

NO. You must also demand that the PPC produces the contract with the landowner. Sometimes contracts have restrictions about just what a PPC may or may not do and the BPA Code of Practice says that operators must have proper authority. It is your right to check that.

Also say that you need to be sure of the remit of authority to make charges in that contract and a witness statement will not do.

If you like, you can go one further and say that, if the PPC client is not the landowner, then you want to see that the client has the authority of the landowner to levy charges as the lease may not permit this, depending on the category of business rates that apply to that land.

So you ask them to confirm that the client is the landowner and not just holding a lease and that if they are not the landowner, then the PPC needs to prove that the leaseholder does, if fact have the permission of the landowner to make charges to motorists.

Piut them to as much hassle as you can.

hoohoo

As you already know the signage is pants also put that:

The signage is not adequate to bring the terms of parking to the attention of the driver.

Take your own photos and use them as evidence if they submit false photos.

Also, they tend not to produce their contract, which is an instant lose, so also demand that. The BPA has now cracked down on their habit of signing witness statements on behalf of the landowner.

fil_cad

Who do these !!!!!! think they are, what there begging letter realy says is our bank account must be filled up to the hilt as bogus BPA regulations specify. :money:

Coupon-mad

There's already a CEL example in how to win at POPLA so why not adapt that? Why would you only use 'loss' and throw away the slam dunk winning point about 'no keeper liability due to the NTK being pants' point, for example. You would kick yourself if you then lost at POPLA somehow, over 'loss' and hadn't bothered with 'no keeper liability' and the other tried & tested points. Why are you trying to re-write a winning appeal, no need, except to just change the signage bit so it talks about the signs at this car park (specifically) without saying who was driving. So don't write 'I didn't see any signs' when changing the words a bit in the signage point.

adrianfisherpayne

Ok guys, how does the following draft sound????
bearing in mind the car park is
free for 1 hour, no pay and display option.
is the overstay of 27 mins worth bringing up???
I have tweaked the weather to dusk as it was lunchtime on a grim overcast day.


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. Signage incapable of being read - 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 £90 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 (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 - no contract with driver
The two signs in the car park are multi-coloured, non-reflective, unlit and positioned out of clear sight.
On returning to the car park in question it was noted that; The first sign is positioned on the far wall of the car park beside a lorry loading bay which could have been hidden behind a lorry delivering at the time of the PCN. The second sign was discovered to be out of clear view as it was directly behind the all weather shopping trolley storage bay.
The signage is not adequate to bring the terms of parking to the attention of the driver.
The signs were not seen by the driver and would have been invisible in dusk weather.
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...''



5. ANPR clock/synchronisation/reliability/data handling/ICO rules on ANPR signs
Because this Operator is actually trying to allege a mere 27 minute overstay I call into question the ANPR system accuracy. 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.

6. 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 both an unreasonable and unfair contract term, to attempt to enforce a charge of £90 for an aledged mere 27 minute overstay in a car park with no pay and display, allowing one hours free parking.
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.


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

Coupon-mad

I would not use the word 'dusk' about a lunchtime PCN. I would put it was bad weather and overcast and the signs are not illuminated nor prominent...they are too high to read...etc.

And whilst I have NOT proof read the entire thing (that's your job and it needs doing!!) I would remove this as it's clearly not right at all for a lunchtime free car park!

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.

adrianfisherpayne

Coupon-mad wrote: »

I would not use the word 'dusk' about a lunchtime PCN. I would put it was bad weather and overcast and the signs are not illuminated nor prominent...they are too high to read...etc.

And whilst I have NOT proof read the entire thing (that's your job and it needs doing!!) I would remove this as it's clearly not right at all for a lunchtime free car park!

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.

Ok thank you regards the weather comment, I will tweak that!


Although I don't follow your second point. sorry

Coupon-mad

The bits in bold = 7pm? '2 hours free' 'charges arise after 10 mins grace period'? NONE ARE APPLICABLE TO YOUR CAR PARK! READ THE TEMPLATE CAREFULLY!