Civil Enforcement LTD - How to POPLA ?

adrianfisherpayne

Coupon-mad wrote: »

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!

Ah I see.
More research and understanding required I think :eek:

adrianfisherpayne

In a nutshell what is the NTK all about.
It's gone over my head after reading about it a few times?!

adrianfisherpayne

Coupon-mad wrote: »

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.

Hi


If I was to delete this part you quoted of my appeal would the rest of the NTK part then make sense???

Coupon-mad

Yes, and you will win!

adrianfisherpayne

As the car park is at the rear of a high street co-op convenience store.
Would it be worth mentioning that the AVERAGE basket spend is likely to be in the region of £5-£10, within the Genuine pre estimated loss section??
Working in retail I know this would be about right.
Or would this only serve to help them against me?

Umkomaas

That would be a loss to the retailer, not the PPC!

adrianfisherpayne

Perhaps someone could also proof read this before I submit it to POPLA
???


Thank you


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 with a telling offer of £45 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.[FONT="&amp] [/FONT]The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable.

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.
The Office of Fair Trading has stated to the BPA Ltd that ‘a parking charge is not automatically recoverable simply because it is stated to be a parking charge.’
This charge cannot be 'commercially justified' so this operator would be wasting their time to adduce the flawed and non persuasive 'ParkingEye v Beavis' small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway, due to be heard in February 2015). POPLA Assessor Chris Adamson has stated in June 2014 that:
''In each case that I have seen from the higher courts,...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.''

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.''

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 signs in the car park are multi-coloured, non-reflective, unlit and positioned out of clear sight.
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 bad weather.
Any photos supplied by Civil Enforcement to POPLA will no doubt show the signs in broad daylight or with the misleading aid of a close up camera & flash.
The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit...should be made of a retro-reflective material similar to that used on public roads''.
On entering the car park there is not a sign directly in front of you, on returning to said car park they were discovered to be set on the far walls without adequate direct lighting.
In addition to this the text on each of the signs was set in two different colours and sizes against two different colour backgrounds (red & yellow), again failing guidelines !
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 clear signage directly in front of a car entering the car park at all 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 option, allowing one hours free parking.
It is unreasonable and an unfair contract term, to enforce a charge where the each of the signs are unlit, multicoloured, 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

The_Deep

Read the comment at the end of the blog

http://parking-prankster.blogspot.co.uk/search?updated-min=2014-01-01T00:00:00-08:00&updated-max=2015-01-01T00:00:00-08:00&max-results=50

The_Deep

They have chickened again

http://forums.pepipoo.com/index.php?showtopic=92019s

Coupon-mad

DP, the comment on the blog doesn't show with that view, so here it is:


From the CEL at Whitby Co-op Car Park Protest Page
- https://www.facebook.com/CelAtCoOpCarParkWhitby

"A TV company has been in touch, wants to contact people who have an ongoing issue with CEL, either Currently in Court action or fielding Debt Collection mail. This is a chance to try to get even - they need exposing.
So if that's you, get in touch with Latisha:-
"I work for a TV production company called Century Films. We made the BBC Documentary series- Parking Mad. We're now making a parking series for ITV and I'd love to get in touch with you about our programme. If you were able to email me with your contact details so that I can contact you - I'd really appreciate it: latisha.ma@centuryfilmsltd.com . I hope to hear from you, Latisha"