Update: CEL PCN, we won at POPLA! Thank you everyone!

creek48

Hi everyone,

Updates on 5 July:

I won the POPLA appeal! Thank you all for your help.

Updates on 24 April:

I have uploaded my first rebuttal draft in my latest comments. Thanks to anyone who can offer advice.

Updates on 22 April:

So CEL came back today with long comments and some more evidence. They have in total raised 28 points. I uploaded them in the latest comments, and here I pick out a few points that I would like to focus my reply on. Could the experts here kindly provide some advice? I understand I only have 2000 characters so want to make sure they are cut to the points.

•  CEL's point 14: Signage in the car park clearly states: "PHONE AND PAY OR PAY AT MACHINE…PAYMENT MUST BE MADE WITHIN 10 MINUTES OF ARRIVAL…If you breach these terms and conditions you will be charged £100”.

The charge of 100 is in tiny text and thus unreadable.

• CEL's point 16 and 17: 

16. The Appellant has erroneously suggested that Star Park Limited was being used to enforce parking charges at the site in question and was the entity with which the appellant contracted when parking. The BPA requires that the Entrance Sign states who the site is operated by – that is, the entity that the motorist is contracting with when agreeing to park at the site. This is clearly set out as Civil Enforcement Limited (as evidenced by the attached photograph of the entrance sign). It is also clearly stated on the ‘Terms and Conditions’ signage that Civil Enforcement Limited is the entity which enforces the terms and conditions and monitors compliance of those terms.

17. The appellant is incorrect when seeking to assert that Star Park Ltd (which has been dissolved and voluntarily struck off the Companies register) is being used by Civil Enforcement Limited as trading style or to demand payment from the appellant. There is not and never has been any suggestion that it is Star Park which enforces the terms and conditions of parking at the site. The reference to ‘www.starpark.co.uk’ at the foot of the sign is of no legal effect in relation to the parking contract or the terms and conditions of parking and is therefore irrelevant.

Their wording is quite confusing. Could the experts here kindly suggest a reply? 

• CEL's point 1, 18, 19, 24: 

CEL provided a further pack of pictures (signs and a floor plan) and claim there are many clear signs, but the picture (link below) only shows one sign. The rest of the signs are just on the floor plan and cannot be seen. Also, they suggested my google image is unreliable but I submitted many more pictures that were taken afterwards, they never referred to those.

https://drive.google.com/file/d/1EhnolZ5ptA_Edo2SwIiWCBd3D5lpag2a/view?usp=sharing

• CEL's point 20: We note the Appellant’s comments that the text was too small, however, motorists must be expected to have sufficiently good sight to read signs brought to their attention. Furthermore, it is clear that the Appellant was aware that there was signage on site.

How could they assume the Appellant was aware of the sign? My appeal made it clear that the picture of the site and observations were done on foot on a later date.

• CEL's point 27: Please note that we are not relying on the Protection of Freedoms Act 2012, as the Appellant admitted the he was the driver of the vehicle. Please note that Section 21.6 and 21.7 of the BPA code state that the Operator has up to 28 days to apply to the DVLA, and once the registered keeper’s details have been obtained, the Operator has a further 14 days in which to send the PCN.

I am quite sure that all the appeal and correspondence I had with CEL is in the name of the keeper. How could they say 'the Appellant admitted the he was the driver'? How do I dispute this?

• CEL's point 22: they submitted a 'The Confirmation of Authority' document, which I attach here in the link:
  

https://drive.google.com/file/d/1310p_OvsKcVhpbmiD47-7ofHno8-sLeI/view?usp=sharing

It is clearly not a sufficient contract with no actual signature. Could the experts here kindly suggest some good wording for a reply? I found some good wording from an old thread but it's too long. 

Civil Enforcement Limited (CEL) has not provided a valid landowner contract. The document submitted by CEL is not proof of authority of that land. The alleged contract has not been signed by two people from each company nor by a director and witness of each company and has not been signed by authorised signatories.

The signatures are illegible and digitally typed (not by hand). CEL has not proven they are authorised by Mark Vallis and there is no named person or signature from CEL at all. It does not match the handwritten signature of Mark Vallis as listed on companies house

As such the contract is not valid in accordance with the above Act of Parliament, and thus the PCNs are also invalid. This contract failure is a British Parking Association code of practice failure concerning a private company’s permission to operate.

I also upload all of their response in this folder:

https://drive.google.com/drive/folders/1ShI1SI9j9jUINk61XL2A9E1ul6McR4N2?usp=sharing

Thanks to anyone who can offer advice.

Updates on 6 April:

I have put together a draft to POPLA appeal, could you be so kind to have a look for me? The link to the document is here:

draft 2:

https://docs.google.com/document/d/1csbOxhA9R3CcLhj4Y2Fky9_kZeS0ltxryzE1D_kExes/edit?usp=sharing

draft 1:

https://docs.google.com/document/d/1HX_SnKSRD5h-kKvLiirYx0psIAMqB7IizT9po-N2PHI/edit?usp=sharing

Original Post:

Newbies here. I received a PCN letter by post from Civil Enforcement Limited on 12 March 2021 from the incident on 04 March 2021. The driver parked in a car park but didn't notice the pay here sign. The car was there 17 mins 58 sec. 

I read a lot on here (even a few post regarding the same parking lot but with no luck finding a successful POPLA), and here is what I have done so far:

• Appealed to the CEL following the exact blue template letter of appeal
• Received CEL's appeal rejection with POPLA code letter by post

Now I am trying to put together an appeal to POPLA. Before I put together a draft, I have a few questions on my planned grounds of appeal. Could you be so kind as to advise me on the following:

• No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

This might be the most vital point. In a previous post, I found CEL's alleged Proof of Land Authority for the same parking lot. The question is that is there something I can write in advance to prevent them from even submitting this alleged contract? e.g. to point out a valid contract should have two signatories from each company, etc.

The link to CEL's alleged Proof of Land Authority is here: 

https://ibb.co/GRMBP87

And the original post is this:

https:// forums.moneysavingexpert.com/discussion/6050449/update-cel-popla-response-with-alleged-proof-of-land-authority

• There are no entrance signs for the regular entry, and signs in this car park are not prominent, clear or legible from all parking spaces.

Here is link to some pictures of the parking lot, could you kindly advise which one should be used? Also, there is some ongoing construction, can you make a point about it? 

https://drive.google.com/drive/folders/12ZOF0FhbTGGeHAldNmnKSDhgP2atgOdX?usp=sharing

• No Keeper Liability

It looks like CEL's letter comes with POFA wording. Are there any points to raise here? Here are the redacted PCN and appeal rejection letter received:

https://drive.google.com/drive/folders/1znAX-bpwoqUaLsS13r0jgKL36X1Pjo-2?usp=sharing

• Grace Period: BPA Code of Practice – non-compliance

There is a perfect example from the NEWBIE's link (parked for 10mins 48sec): 

https://www.dropbox.com/s/p7ltb9rcr6zy7kn/Appeal_stage2_POPLA_ECP_draft5.pdf?dl=0

But my car was parked for 17 mins 58 sec. Does this still make a strong case regarding the grace period?

• The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

CEL's alleged photo evidence does no shows the driver, so is it right to include this point? I have and will, of course, write as the keeper only.

• Is there any other points that can be added?

Thanks, everyone!!

creek48

Please let me know if the link doesn't work! Had to remove h t t p s : / /  from the front of each link. Thanks

Fruitcake

The formatting of your post is mucking up the links for some reason. Proof of Land Authority is here:
https://ibb.co/GRMBP87
The original post is this: https://forums.moneysavingexpert.com/discussion/6050449/update-cel-popla-response-with-alleged-proof-of-land-authorityI'll have a go at your other links as well.Signage. Use anything and everything that you think will be useful.
https://drive.google.com/drive/folders/12ZOF0FhbTGGeHAldNmnKSDhgP2atgOdX?usp=sharing I can't get the grace periods link to work. You need to check the BPA CoP currently in effect. I think it is version 7, but make sure you have the one applicable to this year.

creek48

Hi Fruitcake, thanks so much for helping me with the link!! but the Proof of Land Authority link included extra characters. The link stopped before 'And'. It should be h t t p s : / / ibb.co/GRMBP87 

Fruitcake

Yes, I worked it out eventually so the link now works. However, there is something strange with the formatting of your original post that is mucking up my quotes of your post.

Sections 43 and 44 of the Companies Act apply. They are very short so I suggest you have a look and get your head round them.

More to follow in a mo.

Fruitcake

The alleged landowner authority fails the strict requirements of Sections 43 and 44 of the Companies Act 2006, but I doubt a PoPLA assessor is bright enough to understand it. That shouldn't stop you expanding on that point though.

There is only one signature from the landowner's agent. There is no authority with or flowing from the landowner giving landowner authority to the scammer, or landowner authority to the agent to form contracts with a third party scammer.
The scammers have not signed it at all, so there is no contract with either the landowner or agent, and no proof a contract ever existed.

A simple contract as per S37 of the Act requires application of the company seal, or, express or implied authority from both parties and therefore needs a signature from both parties for a contract to be formed.
Express authority means an officer of the company such as the owner, a director, a company secretary, or a person with significant interest in the company (my interpretation).
Implied authority would be say a specific position (job title) in the company such as operations manager being given authority from an officer of the company as above, or written into say, the company's articles of association in order to form a contract.

S44 applies to the valid execution of documents. This requires two authorised signatures such as a director or company secretary, or one director and a witness, from each party. In other words, four signatures.

So, the alleged contract fails both sections of the Act because it has not been signed by the landowner, has not been signed by the scammers at all, and there is no contract between the landowner and their alleged agent authorising them to form a contract with the scammers.

This might be too much for PoPLA to understand though. Last year their assessors and senior assessors had trouble counting to 14.

Fruitcake

Signage is in the name of Starpark. Although this is a trading name of CEL, I believe a contract must be in the name of a company, not the trading name. This is outside my foeld of knowledge but hopefully one of the regulars will be able to shed more light on this.

The sign itself is woefully inadequate. The charge amount cannot be read, neither can the name CEL. Signage in the car park is what purports to form a contract with a motorist, yet the alleged landowner authority is in the name of a different entity. I would suggest including this point that the company name on the sign is different to the company name on the alleged landowner authority, therefore the scammers are strangers to any contract formed between the driver and the company named on the signs.
There are many companies named Starpark registered at Companies Huse. Most of these have been dissolved, and all the rest have different company numbers to CEL.

creek48

Hi Fruitcake, thanks again for your valuable comments on the alleged landowner authority.

Since that alleged landowner authority is from a post in 2019,  we cannot be sure if CEL has adapted (e.g. they might have added some more signatures). I will definitely use your points in the rebuttal stage if they provide the same document this year. 

As for the initial appeal for POPLA, would you recommend adding some of the Company Act wording you mentioned above to this template I found?

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 a 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 Code of Practice) 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 Code of Practice 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. 

7.3 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 23 

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.

Should I add some of the Company Act wording here?

Fruitcake

At PoPLA stage I wouldn't go in to deep and tip the scammers off. Just state that the scammers are not the landowner, and do not have the authority to issue charges in their own name. Put them to strict proof that the contrary is true.
I would mention the alleged contract as per the signage is between Starpark and the motorist. Put CEL to strict proof they have standing to issue charges in the name of CEL.

I wouldn't mention anything about the Companies Act unless you get sight of the alleged contract from the scammers themselves.

The idea is just to make it as difficult as possible for CEL to win, and for you to extract information now that me be of use later if the scammers try court. You only need to win on one point. The scammers have to win every point

The inadequate signage point is much stronger than grace peiods, which probably does not apply according to the latest version of the BPA CoP, but keep the latter in anyway.

So, use all the points from the third post of the NEWBIES that are relevant. Post your draft here for checking before you submit it.

With regards to the formatting problems, did you create your post elsewhere such as in a Word document and then paste it into your first post? Offsets and indents etcetera kept shoving all my quotes increasingly to the right, and I couldn't get spacing between lines to work either.

creek48

Hi Fruitcake, thank you for all the advice, especially for pointing out that the signage is between Starpark and the motorist. I will post a draft here for checking as soon as I have it.

Regarding the formatting problems, I did write everything in a grammar check app and then paste them here. Oddly enough that everything looks fine when I click preview before I post but it changes to this weird format after I posted. I am so sorry for the inconvenience caused. Is there a way where I can edit the format again?

Le_Kirk

creek48 said:

Regarding the formatting problems, I did write everything in a grammar check app and then paste them here. Oddly enough that everything looks fine when I click preview before I post but it changes to this weird format after I posted. I am so sorry for the inconvenience caused. Is there a way where I can edit the format again?

I find that posting in WordPad, copy and then paste as plain text into the forum box normally does the job and then adjust formatting on the forum but it is a forum and not a desk top publisher so does have its shortcomings.