CE PCNs x 3 in GREENWICH - ADVICE NEEDED PLEASE

Coupon-mad

OK, show us your draft POPLA appeal. Hope you didn't say who was driving in the appeals?

ClaraStarr

Hello....sadly I contacted CE via letter in July to query the PCN (postal) because I'd already appealed one and actually had it dropped, and I thought it was the same one they'd mistakenly re sent The wording of my letter unfortunately now makes it difficult to use the 'Keeper liability' on this appeal.

also 2 of the PCNs / NTK were received (all via post) because both times the single machine was broken and the driver didn't know there were alternative means of paying i.e there is no info on the pay & display machine to indicate a CC can be used and signage is angled away from the machine etc

I've drafted a POPLA appeal using templates I've read here, so I will put it up & thanks in advance. I have lots of photos of the car park & bad signage (and in one instance a photo of the 'faulty' machine saying Out of Order)

DEAR XXX
I am writing to you to lodge a formal appeal against a parking charge notice sent to myself as registered keeper of the vehicle in question.

I contend that I am not liable for this parking charge on the basis of the below points:

1) On entry to the car park, the driver spoke to a CE employee working on the machine that was being fixed: employee said it was OK to park. No indication was made that alternative means could be used to pay, and the driver didn’t see the sign that is angled away from machine that suggests paying by card or app.

These signs are not prominent, clear or legible from most parking spaces, but especially from the sole Pay & Display Machine, where there is NO information given at all about alternative payment methods. There is insufficient notice of the sum of the parking charge itself or of grace periods given the APNR.

There is no mention of APNR at all on any sign in the car park or the Pay Machine: ‘CCTV’ is handwritten on one sign, but this could mean anything (see photo).

Crucially, there were no prominent signs throughout the site on the material date indicating the ‘Phone and Pay’ service as an alternative to the faulty Pay & Display machine, and the tariff signage is angled away from the Pay & Display machine, rather than being near or attached to it; there is no Phone information on the Pay & Display machine at all. I put CE to strict proof otherwise. As well as a site map and installation records of the ‘Phone and Pay’ signs, they must also show photographs of the signs as the driver would see them on entering the car park and how they appeared on that date, at that time, from the angle of the driver’s perspective when parked. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

2) Civil Enforcement Limited has no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges.

As this operator does not have proprietary interest in the land then I require that they produce an unredacted, contemporaneous copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name.

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance: ‘7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.’

The written authorisation must also set out:

a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined.
b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation.
c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement.
d) who has the responsibility for putting up and maintaining signs.
e) the definition of the services provided by each party to the agreement.

Civil Enforcement Limited have not demonstrated that they had authority to issue parking notices for this site on the date that the PCN was given, and they have not provided a copy of the contract which would allow me to determine my liability and/or to request cancellation of the charge.

I do not believe that the contract allows Civil Enforcement Ltd to charge paying visitors £100 for a Pay and Display machine being faulty. It is submitted that to charge for this event is highly unlikely to be a feature of the agreement with the landowner. That is why a generic, bland witness statement with a lack of definition of contraventions will NOT counter this argument.





3) No contract could have been formed.

No contract could have been formed as consideration was not accepted by the parking company. Their Pay & Display machine was faulty, meaning payment could not be made. CEL claim “the signage in the car park clearly states that in the event that the payment machines are unavailable, the parking charges still apply and our ‘Phone and Pay’ service should be used.” However, a Notice is not imported into the contract unless brought home so prominently that the party ‘must’ have known of it and agreed terms. As the driver did not notice any such signs; there was no consideration/acceptance and no contract agreed between the parties.

3a) Frustration of contract.

Even if a contract was formed, which is impossible under contract law that POPLA must be aware of, the contract was frustrated because the claimant’s machine was broken. The alleged contract, created by the Claimant’s signage, is voidable under the Law Reform (Frustrated Contracts) Act 1943, and as held in Nicholl and Knight v Ashton, Eldridge & Co [1901] 2 KB 126, for the reason that it became impossible for me to insert coins into the machine through no fault of mine, and over which I had no control. In the alternative, in Jolley v Carmel Ltd [2000] 2 EGLR 154, it was held that a party who makes ‘reasonable endeavours’ to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.


4) The amount is a penalty not saved by Parking Eye v Beavis

This was no agreed contract and the sum is unfair, unreasonable and unrecoverable.
This case is an unfair penalty and differs from the 'Beavis v Parking Eye' judgement.

This charge is for an alleged breach of contract and therefore it must show to be socially or commercially justified, that Civil Enforcement Ltd who are the non-land-owning third party can claim a sum in excess of any damages.

Unlike in Beavis, it is argued that this charge has been artificially inflated and CEL have failed to disengage the 'penalty rule' by virtue of a want of good faith and also a failure in their duty to deal fairly with consumers and a failure to follow the requirements of their industry’s Code of Practice. £60 / £100 is hugely disproportionate to any alleged unpaid tariff and there is no commercial justification as the landholder has no incentive to maintain turnover of spaces at that location. As such it is an unenforceable penalty. Once again Beavis cannot apply in this location.

The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. An Operator cannot include 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment.

AND any reliance on the Supreme Court judgment in the case of Parking Eye v Beavis case was based on the use of that particular car park which was free and the charge should also be disregarded as the judgment simply reaffirms that the decision is justified to ensure motorists left within 2 hours for the good of all other drivers and the facility. As previously mentioned in this situation there is no such justification.

Thank you

Yours sincerely
xxx

Coupon-mad

APNR.

Should read

ANPR

and your point #3 about 'no contract' can also add a point that in fact:

The CEL employee mending the broken machine agreed an alternative contract with the driver, by agreeing that they could park without using a machine at all, and therefore that verbal contract was the one concluded. No breach of that contract occurred. The operator accepted new terms and they are put to strict proof if arguing otherwise, and are deemed to have accepted this appeal point, should they fail to address it.

By allowing the driver to park without requiring any payment, the claimant has by its employee's action, accepted by performance a revised contract. This is the car park equivalent of the ‘battle of the forms’ Butler Machine Tool Co Ltd v Ex-Cell-O Corporation (England) Ltd [1979] 1 WLR 401, Court of Appeal.

ClaraStarr

OK fab thanks so much for your help - I really appreciate it.
ps I have to do 2 of these for similar reasons - I guess I have to use the same appeal really for these, as it's similar reasons. The 2nd appeal can include the photo of the broken Pay & Display...

(pps is it best to avoid filling in the boxes on the appeal form in great detail as I Think is advised in Newbie thread?!)

Redx

save the appeal one with the references one embedded etc , as a pdf labelled appeal 1 or similar

then change the references to appeal 2 references (popla code and psc ref etc) and save again as a pdf as appeal 2 (or similar)

put appeal one in choosing OTHER and attaching the pdf to upload it , as detailed in the NEWBIES thread (just do it , dont ask, no need to ask because the newbies thread is always up to date)

rinse and repeat for appeal 2 , ensuring the correct appeal is chosen for upload each time (if you had 10 , you would do this 10 times)

always avoid the popla boxes except OTHER , always upload as a pdf , it really is that simple , just follow the parking prankster blog guide and the wise words by coupon-mad

ClaraStarr

OK got it! Ta very much all - much appreciated & fingers crossed.

Coupon-mad

Just adding a thought - bung into all 3 POPLA appeals a 'no keeper liability' non-POFA NTKs issued by CEL point anyway.

What you have said here is not necessarily fatal to that argument:

sadly I contacted CE via letter in July to query the PCN (postal) because I'd already appealed one and actually had it dropped, and I thought it was the same one they'd mistakenly re sent The wording of my letter unfortunately now makes it difficult to use the 'Keeper liability' on this appeal.

And the longer the appeal, the more likely CEL are to cancel it, IMHO. So add the kitchen sink anyway!

So have No keeper liability (explain the PCN is clearly non-POFA), and then as point #2, the template about the appellant not being shown to be the individual liable (already written in the NEWBIES thread post #3). Then the rest.

ClaraStarr

Ok great will try that . As usual, many thanks for advice, much appreciated

ClaraStarr

re: my final POPLA appeal just drafting now and your suggestion to add in No Keeper Liablity: I've searched it up on #3 of Newbies and copied from a relevant template there - do I include the Henry Greenslade bit re understanding liability / schedule 4?! Not sure if that's there for info or to include to POPLA. THanks

Then I'm done and hopefully won't (Ever have to) bother you again - honest! (does anyone ever buy you guys a pint?! you deserve it)

Coupon-mad

Yes, we always include Henry!

Mine's a white wine, I'm a lady!