Draft Appeal letter to POPLA - Comments Please

Route_66

I have read as much of the advice as I can on this board, which is VERY helpful and much appreciated thank you.
I have now drated my POPLA appeal letter and would value comments from those who are experienced at this. Below is the draft of my appeal letter, much of which is copy pasted from examples on this board. Many thanks.


POPLA appeal re Civil Enforcement Ltd (CEL) PCN number:xxxxxxxxx

(Name) appeals the above Parking Charge Notice for £100 on the following grounds:-


BACKGROUND

On xx/xx/xx the driver entered the xxxxxxxxxx Car Park at xxxxxxxxxxxxx to watch a family member take part in an Inter-School Sports competition being held in the Leisure Centre. This car park allows 3 hours from driving into the entrance to driving out, free to anyone.

The Leisure Centre has a system whereby you can park for MORE THAN 3 HOURS if you are a LEGITIMATE USER of the centre. On entering the centre building you are asked to input your car registration number into the keypad on the reception desk. 

As Civil Enforcement Ltd (CEL) state in their letter to me, their system has been put in place to eradicate ‘unauthorised parking’ where vehicles have been parked for long periods when owners have not been using the leisure centre (see Evidence 1+2).



GROUNDS FOR APPEAL


As a LEGITIMATE USER of the leisure centre, the driver was within their rights to park for as long as they were in the centre.
The driver did not register the car registration on entering the centre building because the event was due to finish at 4pm, within the 3 hours parking time. However the event did not finish until after 4.30pm, and so the driver did not drive out of the car park until 4.38pm. 





This car park has inadequate signage that's not compliant with the BPA Code of Practice.



The entrance signs and signs around the car park are ambiguous and do not explain the correct situation for parking at the car park. 

The car park allows three hours free parking to anyone, not just ‘customers’.
Leisure centre customers are allowed to park for as long as they are in the centre, even if this exceeds 3 hours. There is a terminal at reception to register their car details. Quite clearly, if you are a legitimate centre user you are not abusing the car park.

However the signs say: ‘Three Hours free Customer Parking. If you exceed the free parking allowance, you agree to pay £100.To deter abuse of this car park, these terms apply at all times.’ 



The terms and conditions of the alleged ‘contract’ were drafted in advance without any input from the driver and therefore ‘unfair’ and unenforceable.



The Unfair Terms in Consumer Contracts Regulations 1999 states:
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.
(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.




CEL have not provided a breakdown of their actual losses nor any justification for their £100 charge as a pre-estimate of loss. 



19.5 of the BPA CoP says “If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you [the operator] suffer.”

Since it is a free car park with the Operator receiving no other income than these 'charges' then CEL cannot possibly expect POPLA or me to believe that they are operating at a permanent loss at this site and neither can they lawfully include their operational day-to-day running costs in any 'loss' claimed. I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance. 



The £100 Parking Charge is Punitive.



The charge of £100 for parking as a legitimate user of the Leisure Centre is punitive and out of all proportion to the loss incurred by CEL (which I estimate to be £0). Neither the invoice nor the signage gives any justification for the amount of such a hypothetical charge as a reasonable estimate of loss for breach of contract.



CEL have adopted an unreasonable approach to enforcement, which is in conflict with the spirit of the AOS Code of Conduct.



In this case, the objective is to prevent vehicles from parking in the leisure centre car park and going somewhere else for the whole day. Therefore any charge made to someone who can prove they were a legitimate user of the leisure centre should be revoked. 

It seems however that the purpose of the PCN’s issued to anyone without consideration, is to maximise revenue, rather than minimise unauthorised parking by non centre users. This approach conflicts with the spirit of the AOS Code of Conduct, which is to adopt a reasonable approach to enforcement.



The PPC's contract (if any) with the landowner is non compliant with the BPA Code of Practice.


CEL has not provided me with any evidence that it is lawfully entitled to demand money from me, since they do not own nor have any interest or assignment of title of the land in question. I do not believe that CEL has the necessary legal capacity to enter into a contract with the owner of a vehicle parking in the car park, or indeed to allege a breach of contract. I would require POPLA to check whether CEL have provided a full copy of the actual site agreement/contract with the landowner/occupier (not just a signed slip of paper saying it exists) and check whether that contract specifically enables them to pursue parking charges in the courts, and whether that contract is compliant with the requirements set out in the BPA Code of Practice.



The signage in the car park provides no indication of the reasonable period of time (grace period) it allows to leave the car park.



The BPA Code of Practice indicates at paragraph 13.4 that the Respondent should “allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.” The signage in the car park provides no indication of the period of time it allows and this is unreasonable, especially as CEL rely on pictures taken of a vehicle at first arrival and then when leaving (not showing any evidence at all of actual parking time). So, there is no evidence that the respondent can produce to indicate that my vehicle was parked for more than the arbitrary time limit they are relying upon and no breach of contract by the driver can be demonstrated by their evidence at all. On that basis the sum claimed fails to meet the standards set out in paragraph 19 of the BPA Code of Practice.




The camera system and checks/maintenance are not compliant with the requirements of the BPA Code. 



I further contend that CEL have failed to show me any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR) and would require POPLA to consider that particular section of the Code in its entirety and decide whether the Operator has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence.



ezerscrooge

I would strongly urge you to base your appeal on the templates - with similar formatting so that the POPLA assessor can easily consider each point.

Winning appeals and layout are here.....

https://forums.moneysavingexpert.com/discussion/comment/62180281#Comment_62180281

The G24 one closely matches your case it is here....

https://forums.moneysavingexpert.com/discussion/comment/66594270#Comment_66594270

It matters not a jot what actually happened on the day, so you are wasting page space on that part.

Hit them with these;

No GPEOL
Inadequate Signage (I bet a pound to bucket of muck that the entrance signage is not correct)
No authority (it is CEL afterall)
Inaccurate/poorly maintained ANPR
No keeper liability as PoFA has not been satisified

Do make sure the points are put out as stated in the templates.

You've made a good stab at it though - and that is great to see for the regulars. Do post your revised appeal on here for further comment.

Route_66

Thank you so mauch for taking the time to comment ezerscrooge. There is so much information on here it is so easy to get overwhelmed when reading it all for the first time. I have based my rewrite on the G24 & CEL templates. I hope this is now a better attempt. :-)


As the driver, I would like to appeal this notice on the following grounds:

The Charge not a genuine pre-estimate of loss
No standing to pursue charges in the courts nor to make contracts with drivers
Signage inadequate and not compliant with BPA Code of Practice.
No grace period given
ANPR Accuracy and breach of the BPA Code of Practice 21
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 Ltd (CEL)to strict proof of the alleged loss including a detailed breakdown of how the amount of the “charge” was calculated. The PCN refers to 'breach of Parking Terms & Conditions (i.e.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 drivers on their signage 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 CEL 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. Signage inadequate and not compliant with BPA Code of Practice.


The signage says ‘Three Hours Free Customer Parking.’ then in tiny writing ‘If you exceed the free parking allowance, you agree to pay £100. To deter abuse of this car park, these terms apply at all times.’

The entrance signs and signs around the car park are ambiguous and do not explain the correct situation for parking at the car park because:-

There is no mention of a ‘grace period’ (see point 4)
Parking is allowed for longer than three hours for Leisure Centre customers. There is a terminal at reception to register their car details. Quite clearly, if you are a legitimate centre user you are not abusing the car park.
The operator should make the terms of proving the car is 'exempt', by including it on their car park signage. However, there is no mention of this on the signage.
There is a mismatch in Terms & Conditions stated on PCN v Terms & Conditions on actual signage. The PCN quotes the Terms & Conditions as ‘Maximum 3 hours free parking.’
The terms & conditions are in particularly small font compared with the offer to park for three hours free.
Anyone can park for three hours, not just customers. 


The sign's wording is therefor 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 operator to ensure their terms are clear and unambiguous, otherwise any ambiguity must be interpreted in the favour of the consumer.


4. No grace period given despite BOA Code of Practice


The BPA Code of Practice indicates that the operator should “allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.” The signage in the car park provides no indication of the period of time it allows. CEL rely on pictures taken of a vehicle at first arrival and then when leaving (not showing any evidence at all of actual parking time). So, there is no evidence that the respondent can produce to indicate that my vehicle was parked for more than the arbitrary time limit they are relying upon and no breach of contract by the driver can be demonstrated by their evidence. On that basis the sum claimed fails to meet the standards set out in paragraph 19 of the BPA Code of Practice.


5. ANPR Accuracy and breach of the BPA Code of Practice 21.3

This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I say that CEL have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. I have also seen no evidence that they have complied with the other requirements in that section of the code.

In addition I question the entire reliability of the system. I require that CEL present records as to 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 two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

So, in addition to showing their maintenance records, I require CEL to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in 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 with an accurate time. Therefore I contend that this ANPR "evidence" from the cameras in this car park is just as unreliable and unsynchronised as the evidence in the Fox-Jones case. As their whole charge rests upon two timed photos, I put CEL to strict proof to the contrary.


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.

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

Umkomaas

Sorry, but can't go through another word-for-word, but you seem to have covered the main, important bases.

Please number your bullet points to match the appeal point sections. Also you refer to 'BOA' - typo - BPA.

The primary point you need to concentrate on is GPEOL. Just make sure you've checked other winning appeal points in other winning threads on this thoroughly, then get it off to POPLA.

Don't miss the POPLA deadline - a major opportunity to kick this permanently into the long grass!