Please can I have some advice on a POPLA appeal against Civil Enforcement Ltd

apsie

Firstly, thank you so much for the useful newbie threads, which I have read, and have used to get me this far. I am now at the stage of submitting a POPLA appeal as CEL have rejected my letter.
I think I have a fairly similar situation to the one listed here: https://forums.moneysavingexpert.com/discussion/4895330
and I intend to use the template letter in the thread, but I have a couple of queries regarding submitting evidence.
I parked in the same car park listed in the above post, but on entrance I did not see any signs stating that payment must be made within 10 minutes. I sat in my car and ate a sandwich then went to pay. At this point I saw on the sign next to the machine that I needed to pay within 10 minutes, I believe I had been parked for 12 minutes at this point. I paid for one hour anyway, did the shopping I needed to do and left the car park making sure to keep my ticket as I suspected I would get a charge. In total my car was in the car park for around 40 minutes.
My question is if I am going to refer to the grace period in my appeal do i need to submit a copy of my ticket to back this up? Or photos of the signs? Or would the ticket be enough to prove that it was me driving and therefore invalidate my no registered keeper claim?
Would I be better just to submit Coupon Mad's template from the previous successful appeal as is?
Many thanks in advance

ezerscrooge

Best thing to do with this lot is to appeal as the Registered Keeper and copy the succesful past appeals. Appealing as RK gives you that additional appeal point - that being being non-compliance with POFA (did they identify the creditor? etc.).

Use the template as it is, other than adding you personal details as the Registered Keeper.

PPCs and POPLA don't tend to give a monkeys about 'grace period' or the fact that the driver bought a ticket. This is PPC la la land where they think they have a legitimate right to demand money for minor infractions of 'their' rules.

Do post your (redacted) draft on here for comment though.

Umkomaas

Be very careful in using the example POPLA appeal - it's now 10 months old. Use it as your base, but you need to check every paragraph that it still applies in your particular case. For example there's a section on 'Unlit signage', but I suspect if you were eating a sandwich it was probably a daytime visit of yours.

Your points about grace period isn't likely to help as the grace period seems to have been 10 minutes and you admit to not buying your ticket until 12 minutes after entry. Forget any mitigation stuff - doesn't work.

The_Deep

I calculate that you overpaid for 8 minutes, therefore they have suffered no loss. Are you disabled Under the Equality Act but do not have a blue badge?

apsie

Thanks, yes I was going to amend the sections about signage at night. There was no sign on entrance that stated I needed to pay within 10 minutes, I only saw it when I got to the pay machine on foot.

As far as I can see this is the most recent popla appeal letter against CEL on the site. Would there be anywhere else that might have a more recent template if 10 months old is too old? Or is most of this one still relevant apart from me modifying it to suit my circumstances ( I.e. Not at night)

Umkomaas

Have a look over on Pepipoo but most of the CEL stuff dealt with both here and there of late has been in relation to CEL issuing 'dodgy' court papers. We've done precious little in regard to POPLA.

So, as long as you carefully go through the one from February, it should be fine. Possibly, as a bit of added 'insurance', you could have a look at a ParkingEye POPLA appeal for a P&D car park and see if there's anything to add.

Flash your draft up here before submitting to POPLA.

The_Deep

Another court fail

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

apsie

Thanks for your help so far. This is my amended appeal letter, please could someone take a look and advise if this is okay to send in?


RE: POPLA verification code XXXXXXXXXX dated XXXXXXX
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 not clear on entrance to the car park, signage within carpark to high to be seen from vehicle - 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 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). The vehicle was parked for a total of 34 minutes and a fee for one hour was paid by the driver of the vehicle, 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. Unsuitable signage - no contract with driver
The sign at the entrance to the car park is multi-coloured and positioned high up on a pole. The sign was not seen by the driver

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..

The signage within the car park is set on high posts around 8 feet from the ground, and are incapable of being viewed from within a car being driven or while parked in the car park. The requirement to pay within 10 minutes of entrance is only listed on these signs and not on the entrance signage. This requirement is also not listed on the signage on the payment machines.


5. ANPR clock/synchronisation/reliability/data handling/ICO rules on ANPR signs
Because this Operator is actually trying to allege a 10 minute grace period contravention I call into question the ANPR system accuracy. The time shown for first arrival at the entrance was 13.11.19 and the time shown on the ticket issued by the payment machine was 13.22 (no seconds listed) so this whole contravention seems to hinge upon the accuracy and synchronisation of these clocks. This would require an ANPR system with almost perfect manufacturer-stated accuracy, coupled with a similar level of accuracy and synchronisation with the payment machine clocks, 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.
- the dates and times of when the payment machine clocks at this car park were checked, adjusted, calibrated, and generally maintained to ensure the accuracy of the dates and times of any payment tickets issued.

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 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 located above head height and not visible while seated within a car, 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 ticket was purchased less than 1 minute after the grace period expired, 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, or that the ticket machine clock was synchronised with the ANPR clocks.

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

Looks great!

apsie

Well it is from your original template, thank you so much, I will get it submitted.

apsie

Update - Thanks to you all I have just been informed that my appeal has been allowed. I have updated the successful appeals thread. All the best!