Civil Enforcement Ltd PCN

Carthesis

POPLA **SHOULD** dismiss it purely on that, but sadly, forum experience has suggested that single-point POPLA defences rarely work, as assessors do not fully understand the ins-and-outs and allow themselves to be blinded and baffled, deliberately or otherwise, by whatever stream of consciousness nonsense the PPCs care to spoon-feed them.

Therefore **EVERY** POPLA appeal should contain three or four "standard" appeal points, on top of any other specific ones the appellant may have.

In this case, you will be alleging that the systems the PPC have installed are not sufficiently robust in their linkage between ANPR camera and ticket machine. The link apparently works well enough to determine that a certain reg number hasn't paid, but insufficiently well to only accept payment for "valid" reg numbers it has detected entering. It is not the responsibility of either the driver or the RK to ensure the correct functionality of the systems provided etc. etc.

And **THEN** you move onto alleging a faulty keypad, hence frustration of contract etc. etc. as a separate point

sniper7

Thanks for explaining that, I'm astonished that a breach of the BPA CoP aren't sufficient enough. I mean, it's there in black and white on their own document that the timescales weren't adhered to!

So raise the faulty keyboard if and when it gets to court, not in the POPLA appeal?

Coupon-mad

sniper7 wrote: »

I'm happy taking it to court, but they haven't complied with the POFA dates, so why wouldn't POPLA dismiss it?

They will. This is a non-POFA PCN so I have every confidence CEL will most likely bail out.

raise the faulty keyboard if and when it gets to court, not in the POPLA appeal?

I WOULD put it into the POPLA appeal as a final point. See point #6 in this POPLA appeal, tweak this to suit (NOT point #7, it is pointless and weaker):

https://forums.moneysavingexpert.com/discussion/comment/71327170#Comment_71327170

6) The charge is a penalty, breaches the CRA and is not saved by ParkingEye vs Beavis. No 'relevant obligation'.

It appears that a partial registration number may have been recorded, either by inadvertent error of the driver, or by failure of the operator's own keypad, or failure of the signage to make the full VRN a clear 'obligation' with risk of a penalty. No evidence has been produced either way by this operator as to the cause of the issue and it is not disputed by any party that there was certainly no attempt to avoid payment, which was paid in full.

This situation is an 'ordinary' contract involving no overstay and no breach of the legitimate interests of the landowner. This was a simple consumer/trader transaction with a ticket for parking being purchased in good faith and produced by a machine and can be very easily distinguished from the case of ParkingEye Ltd v Beavis.

Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position. At 47 in the Court of Appeal Judgment in 'ParkingEye Ltd v Beavis' it was held:

''When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.” ''

And at the Supreme Court it was held at 14. ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty;’ ''

At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated complex cases (Beavis) from ordinary/standard contracts with a transaction and tariff paid at a machine:

''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''

This is NOT a 'more complex' case by any stretch of the imagination.

At 32, it was held that a trader, in this case a parking company:
''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

Clearly a charge out of all proportion to the tariff - which was paid in any case - is an unfair penalty to the mind of any reasonable man, regardless of whether in the small print, the sign may have said somewhere 'enter the full registration'. A huge charge arising under the excuse of such a minor term is unjustified and unfair, if the remedy is out of all proportion with the 'breach' and the (completely different) Beavis case does NOT apply to this argument.

The Consumer Rights Act 2015 (the CRA, enacted after the Beavis parking event) supports a consumer's position in at least two ways:

- the signage failed to make any obligation and/or risk of penalty prominent, to enter the FULL VRN.

The CRA states: ''A trader must ensure that a written term of a consumer contract or a written consumer notice is transparent. To be transparent it must be expressed in plain and intelligible language and be legible...any subject matter terms must not be hidden in any small print otherwise the price and the subject matter terms will be assessed for "fairness". ''

- Under Schedule 2 'Consumer contract terms which may be regarded as unfair' it includes: ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

As this charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which turned on completely different facts and related only to that car park with its own unique complexity of commercial justification.

HTH - tell us when CEL give up!

sniper7

Thanks very much, you're all absolute legends for giving up your time and knowledge so that these bar stewards don't get money they're not owed.

I'll post my POPLA appeal tomorrow as a PDF (will attach paperwork as PDF's too).

Thanks again Bosses :-)

sniper7

Thank you so much everyone for your help and advise. I received this email just now from POPLA! Appeal successful and rightly so too!

Dear X

Thank you for submitting your parking charge Appeal to POPLA.

An Appeal has been opened with the reference X.

Civil Enforcement have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

Yours sincerely

POPLA Team

ET6116/001