Civil Enforcement Ltd

outraged_

So do you think I should not write one last time ot them then? Is there any chance I can lose at POPLA? I thought about writing a brief email giving them the chance to cancel this before it goes to POPLA, but would that give them more ammunition against me? I'm just thinking of the tiny chance we could lose and then not get the chance to pay the reduced amount.

Fruitcake

The hirer can of course tell CEL if they wish that they have no chance of winning at PoPLA due to having issued a non-PoFA compliant NTH, and therefore they should cancel now to save themselves £27 + VaT.

B789

Stop thinking about the bribe that is the "discount" they offer to anyone gullible enough to cave in and pay them anything that is used to fund their scams. If you pay them a penny, then you become a part of the problem and are also marked as a "mug" who they will target at every possible opportunity in the future.

As long as you don't blab to them the identity of the driver, you have this one in the bag as their NtH is not PoFA compliant and therefore they cannot transfer liability to the hirer.

outraged_

Their response say now that I admitted I was the driver, even though I wasn't. 

The problem is, initially it seemed to be a ringo location, so my initial correspondence was made in the first person giving the impression I was driving the vehicle.

Ideas? I suppose that doesn't matter either as it was a non compliant notice to hirer.

B789

It will depend on how exactly you worded your "initial correspondence". If your "correspondence" was with RinGo and they are not a party to the claim, then it doesn't matter. However, who is the "their" in "their response say now that I admitted I was the driver, even though I wasn't."

Can you evidence you weren't the driver? If it were to go all the way to court and they only send a rep, your attendance and your word would hold much more sway than their WS.

outraged_

So I messed up in my initial response, I didn't come here first and I thought it was a RingGo location belonging to the council. I wrote that with the driver, but it wasn't myself. It now gave the impression that I was the driver.
My evidence is the hire documents. I wasn't the driver as I wasn't even insured to drive the hire vehicle. I know who the driver, but I have no legal obligation to tell them, do I?
Also, what happened to the fact the PCN is non PoFA compliant because they never sent any of the documents in paragraphs 13 and 14?
They also haven't given me information about your policy with the landowner or on site businesses, as required under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.
Even if I'm assumed to be the driver, this still doesn't make it compliant does it?

outraged_

Any suggestions on this draft POPLA Appeal? It was based on a template on this site, so I'm hoping it will suffice

As the hirer of the above vehicle, I wish to appeal the parking charge notice issued by Civil Enforcement Ltd and have the parking charge notice cancelled based on the following grounds:

1) No hirer liability
2) Photographic evidence is non-compliant
3) No evidence of period parked
4) No authority from landowner to operate
5) Lack of signage, unclear & incorrect signage
6) The ANPR system used is neither reliable nor accurate


1) No hirer/keeper liability, The Notice to Hirer is not compliant with either the Protection Of Freedoms Act 2012 or BPA code of practice.

Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”) gives a creditor the right to recover any unpaid parking charges from a vehicle’s keeper or hirer but this right is strictly subject to statutory conditions being met by the operator, without which the right to 'keeper or hirer liability' does not exist.

The registered keeper has absolved themselves of any responsibility for the parking charge in question by naming the hirer and supplying the hirer’s address.

However, the creditor has not satisfied the conditions to transfer liability from the driver to the hirer:
Paragraph 14 (a) the creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper.

The documents required are defined here:
Paragraph 13 (2)(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;
(b) a copy of the hire agreement; and
(c) a copy of a statement of liability signed by the hirer under that hire agreement.

This requirement is also clearly stated in the BPA Code of Practice (BPA CoP) section 21.19: Your Notice to Hirer must satisfy the detailed requirements of Paragraph 14, including:
the contents you need to include in the Notice to Hirer -paragraph 14(5)
the documents you must send with it paragraphs 13(2) & 14(2)

No such documents were supplied with the Notice to Hirer.

According to POFA, the Notice to Hirer must also:

Paragraph 14 (5) (a) inform the hirer that by virtue of this paragraph any unpaid parking charges (being parking charges specified in the notice to keeper) may be recovered from the hirer;
...
(c) 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.

The ‘notice to hirer’ such fails to quote Paragraph 14 (5) (a).

2) Photographic evidence non-compliant with BPA CoP

“When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered." BPA CoP 21.5a.

The parking charge notice in question contains two photographs of the vehicle number plate which allegedly show the vehicle entering or leaving the car park. However, the images have been closely cropped, in no way confirm the alleged incident and simply have some dates and times printed at the top.

I invite Civil Enforcement Ltd to produce evidence of the original time stamped images showing the vehicle entering and leaving.

3) No evidence of period parked

The PCN distinctly states that the vehicle was parked during the relevant period and POFA refers numerous times to the period of parking, specifically a Notice to Keeper must:
Paragraph 9 (2) (a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates

By virtue of the nature of only entry and exit times being recorded, Civil Enforcement Ltd are not able to definitively state this period of parking.

4) No authority to operate

BPA CoP:
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.

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
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 Ltd has not provided proof of both compliance with all of the above requirements and of the contract terms with the actual landowner (not a lessee who has no more title than the operator).
They do not own this car park and appear (at best) to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents on behalf of a principal. No evidence has been supplied lawfully showing that Civil Enforcement Ltd is entitled to pursue these charges in their own right in the courts (which is a strict requirement within the BPA CoP). I suggest that Civil Enforcement Ltd are not empowered by the landowner to sue customers and visitors in a free to enter car park and that issuing PCNs by post is no evidence of any right to actually pursue charges in court.
 
I contend that the contract (if this operator produces one) does not reflect the signage and if only a basic agreement or 'witness statement' is produced, then this will fail to demonstrate compliance, particularly points 7.3 b) & d).

This would destroy any attempt by this operator to argue there is a Beavis-case-style 'legitimate interest' backed by any commercial justification and wishes of the landowner to sue customers in a car park.
I require Civil Enforcement Ltd to provide a full copy of the contemporaneous, signed & dated contract with the landowner showing evidence to meet 7.3 of the CoP. In order to comply, a non-landowner private parking company must have a specifically-worded contract with the landowner – not merely an ‘agreement’ with a non-landholder managing agent – otherwise there is no authority.

Furthermore, multiple non-compliance with BPA CoP makes Civil Enforcement Ltd’s authority with the landowner null and void under BPA CoP 7.1


5) Lack of signage/unclear signage/non-compliant signage under BPA CoP/no contract with driver

The entrance signage:
is not present at all on the (road name) entrance.

is not suitably placed to be read from a distance for a driver in an approaching car whilst manoeuvring into the car park (Road Name) and is easily confused with the car park belonging to North Warwickshire Council which shares the same entrance.

Due to the poor signage, there can be no consideration/acceptance and no contract agreed between the parties.

6) The ANPR system is neither reliable nor accurate

The Civil Enforcement Ltd evidence shows no parking time, merely two images of a number plate corresponding with that of the vehicle in question. There is no connection demonstrated whatsoever with the car park in question.

Additionally, based on the evidence of the photographs, it cannot be discounted that the driver may have driven in and out on two separate occasions both within the allowable grace period. The BPA even mention this as an inherent problem with ANPR on their website.

'As with all new technology, there are issues associated with its use. Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'

From the BPA CoP:
22.3 Parking companies are required to ensure ANPR equipment is in good working order.

I therefore require Civil Enforcement Ltd to provide records with the location of the cameras used in this instance, together dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo images to ensure the accuracy of the ANPR images.

In the case of ParkingEye v Fox-Jones on 8 Nov 2013, the case was dismissed when the judge deemed the evidence from ParkingEye to be 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. As its whole charge rests upon two timed photo images, I put Civil Enforcement Ltd to strict proof to the contrary.

I suggest that in this case, a local camera took the image but a remote server added the time stamps. As the two are disconnected by the internet (with WIFI also introducing a delay through buffering), the camera and servers do not have a common time synchronisation system, there is therefore no proof that the time stamp appended to the PCN is actually the exact time of the image.

Hence, without a synchronised time stamp, there is no evidence that the images produced are or can be stamped with an accurate time.

I respectfully request that this parking charge notice appeal be allowed and await your decision.

B789

They can't "assume" you were the driver. If you definitely weren't then you would tell that to the judge and explain why you wrote what you did. You are defending as the RK only. You are correct about the non-PoFA compliance so liability cannot be transferred to the RK.

outraged_

B789 said:

They can't "assume" you were the driver. If you definitely weren't then you would tell that to the judge and explain why you wrote what you did. You are defending as the RK only. You are correct about the non-PoFA compliance so liability cannot be transferred to the RK.

They now sent me my initial response, which I didn't have anymore and I clearly give the impression it was myself driving it, as I write it in the first person. 

KeithP

outraged_ said:

They now sent me my initial response, which I didn't have anymore and I clearly give the impression it was myself driving it, as I write it in the first person. 

If they know who was driving then PoFA has no relevance.
I.e. no point in mentioning the lack of hire documents.