Civil Enforcement Ltd

Coupon-mad

I'm guessing because the letter arrived over a month after the occurence and is more than 14 days that the postal ticket arrived?

14 days doesn't apply to a Notice to Hirer. But that's nothing to get bogged down with.

This one seems like a good example of how to set this out:

https://forums.moneysavingexpert.com/discussion/comment/74192034#Comment_74192034

KarlD19

Thanks!


So I have drafted my response - see below.

In regards to submitting this, I have taken a look on the POPLA site and it asks to specify a reason and then to give the driver's and my details - on this basis, do people mainly send this in by post, or continue to give this detail?


[FONT=&quot]POPLA Ref -
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[FONT=&quot]Civil Enforcement Ltd PCN No -
[/FONT]
[FONT=&quot]Vehicle Registration –
[/FONT]

[FONT=&quot]As the hirer/leasee of the above vehicle at the time of the PCN, I wish to appeal the parking charge notice Civil Enforcement Ltd issued against it. I would like to have the parking charge notice cancelled based on the following grounds:

1. Failure to comply with the strict requirements of PoFA
2. No evidence of Landowner Authority
3. The signs in this car park are not prominent, clear or legible from all parking spaces and there isn't any lighting on the signs
4. BPA Code of Practice & PoFA - further non-compliance - Appeal Rejection Letter.

[/FONT]
[FONT=&quot]
1. Failure to comply with the strict requirements of POFA

In the case of a PCN issued in respect of a hire vehicle, in order to have the right to use the provisions of Schedule 4 of POFA to claim unpaid parking charges from a vehicle's hirer, an operator must:

a) deliver a Notice to Keeper to the vehicle-hire firm in full compliance with PoFA, Schedule 4, Paragraph 8 or 9 (as the case may be);

Civil Enforcement Ltd hasn't issued a notice to keeper.

b) be provided with the documents specified under PoFA, Schedule 4, Paragraph 13 (2) and;

These have not been received.

3) deliver a Notice to Hirer to the vehicle's hirer in full compliance with PoFA, Schedule 4, Paragraph 14.

Again, this has not been received.

POPLA has promised that my case will be independently reviewed by one of its professional assessors taking into consideration the relevant law, guidance and standards and the BPA Code of Practice. The requirements set out in Schedule 4 of PoFA are quite straightforward for any reasonable professional to understand and I expect that all POPLA assessors shall have a clear understanding of this particular piece of relevant law. It should therefore be very obvious to POPLA that Civil Enforcement Ltd has failed to comply with Schedule 4 of PoFA.

The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4, PoFA; the conditions that the Creditor must meet in order to be able to hold the Hirer liable for the charge are set out in Paragraph 14.

Paragraph 14 (2) (a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the Hirer with a copy of the documents mentioned in paragraph 13(2) i.e.[/FONT]

[FONT=&quot](a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; [/FONT]
[FONT=&quot](b) a copy of the hire agreement and [/FONT]
[FONT=&quot](c) a copy of a statement of liability signed by the hirer under that hire agreement), together with a copy of the Notice to Keeper

Civil Enforcement Ltd did not provide us with a copy of any of these documents.

Further, Civil Enforcement Ltd should have Issued a Notice to Hirer according with the requirements of Paragraph 14(5) including:

a) Contrary to the requirements of Paragraph 14(5)(a), Civil Enforcement Ltd's PCN to me did not inform the hirer that by virtue of this paragraph any unpaid parking charges may be recovered from the hirer;
Contrary to the requirements of Paragraph 14(5)(b), Civil Enforcement Ltd's PCN to me did not refer the hirer to the information contained in the Notice to Keeper;
Contrary to the requirements of Paragraph 14(5)(c), Civil Enforcement Ltd's PCN to me did not warn the hirer that if, after the period of 21 days beginning with the day after that on which the notice to hirer is given, the amount of unpaid parking charges referred to in the notice to keeper under Paragraph 8(2)(f) or 9(2)(f) (as the case may be) has not been paid in full, the creditor will (if any applicable requirements are met) have the right to recover from the hirer so much of that amount as remains unpaid.

POPLA must not attempt to presume that the hirer is appealing this PCN on behalf of the driver. For the avoidance of doubt, I am simply exercising my right as hirer to appeal this PCN in my own name in exactly the same way as any other vehicle keeper or hirer is entitled to do.

2. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - 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 (legal action regarding land use disputes generally being a matter for a landowner only).

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.[/FONT]
[FONT=&quot]
7.3 The written authorisation must also set out:[/FONT]
[FONT=&quot]
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.

3. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

The closest sign to the parking bay in question, is more than 30 metres away and is not visible whilst driving at night as it is too small, written in small font and not illuminated.

The signage within the carpark is not visible at all during the night time hours and there are not enough signs in all areas of the car park. There are no lights and photos are only illuminated by the flash on the camera.

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

link: [/FONT]
[FONT=&quot]
In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

[/FONT]
[FONT=&quot]This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park there other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

The letters seem to be no larger than .40 font size going by this guide:

link: [/FONT]
[FONT=&quot]
As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

link: [/FONT]
[FONT=&quot]
[/FONT][FONT=&quot] ''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. [/FONT][FONT=&quot]1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger
[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot] ...and the same chart is reproduced here:

[/FONT]link:

[FONT=&quot]''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

link: [/FONT]
[FONT=&quot]
This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. 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.


4. BPA Code of Practice & PoFA - further non-compliance - Appeal Rejection Letter.

PoFA 2012 Paragraph 9(2)(e) which states:

(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;

Civil Enforcement Ltd’s appeal letter states that the keeper should notify the operator of the driver's details, but the legislation says the operator can only invite the keeper to do so.[/FONT]

Coupon-mad

No-one ticks to say they are appealing 'on behalf of' anyone.

I don't even tick that when I put POPLA appeals in for family, colleagues and even complete strangers (as I do fairly often). I just fill it in as the person who got the rejection letter and I've done it that way for years.

POPLA does NOT ask who was driving.

Please just read post #3 of the NEWBIES thread which tells you no-one posts it, and exactly how to submit the PDF under other.

KarlD19

So I have received my response - I have taken a look through the newbie thread but they seem to cover things like signage and GPEOL.



The only thing I can pick out is that they have said I have admitted to being the driver and it was issued to me, which I have not, as mentioned initially, my wife responded to them writing as me and saying that it was her that was driving not me, and not naming herself. We know now



Any help or poining in the right direction would be most appreciated!


Link:

1drv.ms/f/s!AiaYIhP0KMxVgkQJ7Rq_o7vCwO1j

Redx

if they have followed POFA then they can hold a keeper liable , irrespective of who was actually driving

the wrong person initially appealed it (making things worse), because it wasnt addressed to her , it was addressed to you as keeper, so legally only YOU should open your mail and only YOU should have appealed it, in your name (or named the driver)

but as I said, IF they followed POFA, then you are liable, so you need to assume that you appealed it and wrote the popla appeal and so YOU need to go through their evidence pack and see if anything supports your version of your appeal , like signage issues , no current landowner contract , failure under POFA , no hire contract , you were not the driver etc, and write them down in notepad in short and sweet bullet points, because you only have 2000 characters to play with (not words)

look at previous popla rebuttals on here for inspiration

look for anything that supports anything in your appeal, plus anything they failed

the fact that your wife/partner made a dogs breakfast of it is collectively you and your partners fault, not theirs, they thrive on mistakes, so should you

KarlD19

Thanks - I'll have a dig around.



Will it make a difference that they have said I said I was the driver, which I didn't, because in the original appeal written by myself stated it was my wife, but not naming her? They have said I was the driver and I was not, although I am the keeper, so not sure if this means the fine can't stand as they haven't written to my wife instead?


Also, the postal PCN is dated nearly a month after the parking occurence, so does this mean keeper liability cannot be claimed?

Redx

despite your o/h appealing , their letter was addressed to you and all their correspondence is with you

anything that was done by said o/h was incorrect and they are addressing what was sent in YOUR NAME, as far as they are concerned your o/h is not involved

you cannot blame them for the mistakes made at your end, as you o/h should not be reading your mail nor appealing anything sent in your name, as I said earlier

those mistakes are yours and not theirs, so concentrate on their legal mistakes and not your "in house" mistakes

if the best strategy to appeal a private pcn was to get the homeless guy in the tent down the street to appeal it (and not the person named in the letter), it would be in the newbies thread


remember , if they followed POFA then you as KEEPER are liable, doesnt matter who was driving

and as you are at the rebuttal stage, you can only rebut their evidence pack, you cannot introduce new evidence

ie:- they have invited your comments about the evidence pack you have received, so make comments

if YOU were not the driver, I assume that YOUR popla appeal said so ? in which case reiterate it as the first comment

so as their NTK was late, they failed POFA, so check their evidence pack and say that too, as the second comment, plus no hire agreement either

KarlD19

Ok, so I have written up a response - your views would be much appreciated, not sure if there are items which would shoot myself in the foot anymore!












In response to the "evidence pack" CEL have submitted, CEL Have submitted a 23 point ‘evidence’ pack in support of their speculative and disputed invoice. I do not intend to address each and every point they have raised in detail as their submission is clearly a quickly hashed template, much of which is repetitive or indeed irrelevant to the matter at hand.

In making their assessment I ask the POPLA assessor to consider the following in further support of my original POPLA appeal.

1) CEL have failed to establish keeper liability

- My initial appeal and subsequent appeal was as the keeper and my comments do not state or admit that I was the driver, quite contrary in fact, in both they state I was not the driver
- The rules of POFA are required to be adhered to, which they were not as I received the PCN by post over a month after the incident occurred (not within 14 or 21 days)
- A number of my points in my original POPLA appeal have not been addressed e.g. all POFA requirements raised in point 1
- There has been no re-issuance of any notice to me as the driver after my “admission” as stated by CEL, only a reply to my original appeal to say it was unsuccessful. If any drop-down box on their site implied this, then it was an error at best as the explanation clearly contradicts this
- CEL continues to insinuate that I was the driver by saying I was aware of the terms and I agreed to them when parking. This is completely false and irrelevant to this case. These are desperate pleas to try and make myself (the registered keeper) liable for these charges, which is not the case as proven by section 1 with the operator not complying with POFA 2012. There simply are no loopholes to exploit – they have failed to follow the law.

2) Contract with Landowner

- This authority does not show who James Cheeseman is nor whether he is authorised by the actual landowner

3) Inadequate Signage
- Regarding signage, my original POPLA appeal point 3 on signage makes reference to Lord Denning's Red Hand Rule and the charge itself being disproportionate and in the same colour (i.e. not prominent) and there is no evidence provided to show where the car was located and so it cannot be determined how far away the closest sign was
- The photos of the signage at the entrance of the car park do not indicate that there is sufficient lighting to illuminate this sign in dark conditions

4) CEL additional comments
- My original appeal did not raise issues raised in my POPLA appeal and was not required to. Therefore, this does not prove any attempt to subvert the appeals process. Instead, it is highlighting the other factors which make this fine unreasonable as my original points were clearly disregarded in order for the business to profit more
- Pertaining to inadequate signage, there is no mention of a helpline or that a drive should call this number should there be issues with parking and the availability of parking

Redx

2 issues for a start

spelling , says driver and not driver near the end

secondly and more importantly, I told you to use 2000 characters or less, so you need to dump about 500 characters from the above, , not including dumping the waffler sentences and paragraphs at the beginning which are not required (see below)

In response to the "evidence pack" CEL have submitted, CEL Have submitted a 23 point ‘evidence’ pack in support of their speculative and disputed invoice. I do not intend to address each and every point they have raised in detail as their submission is clearly a quickly hashed template, much of which is repetitive or indeed irrelevant to the matter at hand.

In making their assessment I ask the POPLA assessor to consider the following in further support of my original POPLA appeal.

study those in here and linked in here too


https://forums.moneysavingexpert.com/discussion/comment/75352180#Comment_75352180

KarlD19

Thanks for the advice - indeed you did! I have cut it down to product the below (I have checked and it fits).

Any further comments would be most appreciated.









My initial appeal and subsequent appeal was as the keeper and my comments do not state or admit that I was the driver, in both they state I was not the driver.

The rules of POFA are required to be adhered to as CEL have failed to establish keeper liability, which they were not as I received the PCN by post over a month after the incident occurred.

A number of my points in my original POPLA appeal have not been addressed by CEL
There has been no re-issuance of notice to me as the driver after my “admission” as stated by CEL, only a reply to my original appeal to say it was unsuccessful.

CEL continues to insinuate that I was the driver by saying I was aware of the terms and I agreed to them when parking. This is completely false and irrelevant to this case. These are desperate pleas to try and make myself (the registered keeper) liable for these charges, which is not the case as proven by section 1 with the operator not complying with POFA 2012. There simply are no loopholes to exploit – they have failed to follow the law.

This authority does not show who James Cheeseman is nor whether he is authorised by the actual landowner.

My original POPLA appeal point 3 on signage makes reference to Lord Denning's Red Hand Rule and the charge itself being disproportionate and in the same colour (i.e. not prominent) and there is no evidence provided to show where the car was located and so it cannot be determined how far away the closest sign was.

The photos of the signage at the entrance of the car park do not indicate that there is sufficient lighting to illuminate this sign in dark conditions.

My original appeal did not raise issues raised in my POPLA appeal and was not required to. I am highlighting the other factors which make this fine unreasonable as my original points were clearly disregarded.

There is no mention of a helpline or that a driver should call this number should there be issues with parking on the signage.