Civil Enforcement Ltd

outraged_

B789 said:

outraged_ said:
 If I attach the hire documents, I will admit who the driver was... would that be helpful?

No, because then they will just pursue the driver unless you don't mind throwing them under the bus. At the moment, do as @Coupon-mad advised.

I would like to try and clarify in my mind, did you hire the vehicle in your name but gave the name of someone else as the driver? I'm not sure how this was possible. If you are the named Defendant, in what capacity did they use your name and address on the claim? If the hire documents were in the name of the driver, how come you received the claim?

You also state that you were not even in the car as you were in London on your way to Gatwick. You also say that you "wrote with the driver next to you" but then you also say "I was helping the driver at the time via whatsapp, as the person called me to help with the payment on the app." There is confliction in the information you are providing.

Ok, let me clarify.

We hired the van in my company's name and the first PCN we received was in the business name, of which I am a director (but my name wasn't on it). I thought the hire documents are in the business name, not an individual in particular. However, I now have seen the agreement and it names the driver, so they clearly don't have this in their possession, otherwise they would have known it too. I don't know what the hire company sent to them, but obviously they just transferred liability to the company without naming any individuals.

I stupidly wrote the first appeal in the first person, with the driver next to me, because we thought it was a council location and not a private car park. After this first "appeal" (which was intended to be a mere communication, as we thought it was a misunderstanding), they took my name as the driver and are now pursuing me.

On the day the incident happened I was in London on my way to Gatwick. So on the day of the incident we were not together, we were together on the day I wrote the appeal. Is it a bit more clear now?

outraged_

Coupon-mad said:

Does the driver have the same surname as you? If not, I would supply the document but redact just the first name (to protect the driver).

Still proves it wasn't you driving.

Also, say all this to POPLA at the start:

I was NOT IN THE CAR AND NOT INSURED TO DRIVE IT.  I know about the case and was the hirer only.  Not the driver, nor was I even there. I appealed in the first person for simplicity.  That does not make it lawful for the operator to assume that the hirer appellant was the driver just because I appealed in my own name with knowledge of what happened.  And in this case they are wrong. I attach proof I was not insured.

 I was remotely helping the driver at the time via whatsapp, as the person called me to help with the payment on the app. We were convinced it was a RingGo location because they were the only machines available, hence why the initial appeal was made in the innocent assumption that the parking was only due for those 3 minutes.

It turns out the Ringo location is only for a few spaces, it seems to be a shared car park and some bays are for a private club, which we found out later doing an internet search. But again, this is not clear at all, either from the woefully inadequate signs & lines, or from the non-POFA NTH.

Sadly yes, we have the same surname ...

However, I now got a copy of the hire documents and it says "Mr XXX" so perhaps I can attach that to show it cannot be me as I'm a woman.

The other good news is, if they had the hire documents they would have known who the driver was too, but they clearly don't.

outraged_

So this is my updated draft and I'd be grateful for your opinions

As the director of XXX Limited, 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.

Firstly, I stress I was not the driver, not in the car at the time of the incident and not even insured to drive it. I know about the case and wrote to Civil Enforcement Ltd in the capacity of director of the business (the hirer). That communication was written in first person for simplicity and it does not make it lawful for the operator to affirm that I admitted driver’s liability just because I wrote in my own name, with knowledge of what happened. For the avoidance of doubt, I attach proof I was not even insured to drive that vehicle. The identity of the driver has been concealed for data protection and I have no legal obligation to name this person, but I identify as a female and use the title Mrs, therefore I cannot have been the driver. I AM NOT SURE ABOUT THIS BIT, PLEASE ADVISE

The address they provided in their PCN is incorrect, because it says XXX Street which has no car parks. An internet search showed car parks on the road parallel to it, XXX Road.  This appeared to be a RingGo location, belonging to North Warwickshire Council, which was free at the time of parking show in in the PCN (a Saturday evening). In fact, it is near impossible to know from the information in that PCN where this exact location is, since there seems to be numerous different car parks at that same address and its vicinity. The PCN shows no signs or any other further information to help identify the correct location where the incident happened.

This PCN is also unlawful for the following reasons:

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 the 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. Had these documents been supplied, Civil Enforcement Ltd would have known the identity of the driver, but the fact they are pursuing me personally is clear evidence of their lack of knowledge.

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. As explained in the first summary at the start of this appeal, the operator has not been able to correctly identify the relevant land on which the vehicle was parked either.

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. As explained above, there are no car parks on the address supplied.

The signage 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 and land. It appears some parking bays in the same land and entrance are controlled by different operators.

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.

Fruitcake

outraged_ said:

Coupon-mad said:

Does the driver have the same surname as you? If not, I would supply the document but redact just the first name (to protect the driver).

Still proves it wasn't you driving.

Also, say all this to POPLA at the start:

I was NOT IN THE CAR AND NOT INSURED TO DRIVE IT.  I know about the case and was the hirer only.  Not the driver, nor was I even there. I appealed in the first person for simplicity.  That does not make it lawful for the operator to assume that the hirer appellant was the driver just because I appealed in my own name with knowledge of what happened.  And in this case they are wrong. I attach proof I was not insured.

 I was remotely helping the driver at the time via whatsapp, as the person called me to help with the payment on the app. We were convinced it was a RingGo location because they were the only machines available, hence why the initial appeal was made in the innocent assumption that the parking was only due for those 3 minutes.

It turns out the Ringo location is only for a few spaces, it seems to be a shared car park and some bays are for a private club, which we found out later doing an internet search. But again, this is not clear at all, either from the woefully inadequate signs & lines, or from the non-POFA NTH.

Sadly yes, we have the same surname ...

However, I now got a copy of the hire documents and it says "Mr XXX" so perhaps I can attach that to show it cannot be me as I'm a woman.

The other good news is, if they had the hire documents they would have known who the driver was too, but they clearly don't.

As previously explained, no, they would only know the identity of the hirer, not the driver (unless an employee of the hire company witnessed the alleged event, or the driver told them who it was).
Anything else is hearsay.

The driver's identity cannot be inferred by the hirer's details.

outraged_

Fruitcake said:

outraged_ said:

Coupon-mad said:

Does the driver have the same surname as you? If not, I would supply the document but redact just the first name (to protect the driver).

Still proves it wasn't you driving.

Also, say all this to POPLA at the start:

I was NOT IN THE CAR AND NOT INSURED TO DRIVE IT.  I know about the case and was the hirer only.  Not the driver, nor was I even there. I appealed in the first person for simplicity.  That does not make it lawful for the operator to assume that the hirer appellant was the driver just because I appealed in my own name with knowledge of what happened.  And in this case they are wrong. I attach proof I was not insured.

 I was remotely helping the driver at the time via whatsapp, as the person called me to help with the payment on the app. We were convinced it was a RingGo location because they were the only machines available, hence why the initial appeal was made in the innocent assumption that the parking was only due for those 3 minutes.

It turns out the Ringo location is only for a few spaces, it seems to be a shared car park and some bays are for a private club, which we found out later doing an internet search. But again, this is not clear at all, either from the woefully inadequate signs & lines, or from the non-POFA NTH.

Sadly yes, we have the same surname ...

However, I now got a copy of the hire documents and it says "Mr XXX" so perhaps I can attach that to show it cannot be me as I'm a woman.

The other good news is, if they had the hire documents they would have known who the driver was too, but they clearly don't.

As previously explained, no, they would only know the identity of the hirer, not the driver (unless an employee of the hire company witnessed the alleged event, or the driver told them who it was).
Anything else is hearsay.

The driver's identity cannot be inferred by the hirer's details.

Thanks, so what do you think of my POPLA appeal so far? Good to go?

I can also attach a print of the email from the hire company that says "Driver was XXX" and conceal the driver's name.

Finally, on the POPLA appeal, do I choose other or do I choose I was not the driver or the registered keeper of the vehicle at the time of the alleged improper parking.?

Fruitcake

With regards to the address of the car park stated on the NTK, I believe this to be correct. I did ask you to confirm this in my reply, which was the first response to your query after you started this thread.
This needs to be resolved in conjunction with your point/para 5. 
You can't say you don't know which car park the charge is referring to then sate the signage is inadequate.
If it is the car park to the rear of the property as I suspect, then I wouldn't mention the other car parks at all.

In your appeal, you need to state at the beginning that the vehicle in question is a hire/lease vehicle, where you also state that you were not the driver.

I would actually make that an appeal point, under the heading: -

1) Not the driver nor the person liable for this charge.

Then adapt the wording you have used about not being the driver by preceding it with a statement that it was a hire vehicle and the hire/lease company is the registered keeper. I would also add something about any comment or inference from the hire company about the driver's identity is hearsay.

Obviously all your other points will need renumbering.

The rest looks okay to me.

Coupon-mad

Was the POPLA Code/rejection letter issued to the company by name, or to you by name?

Choose OTHER for a POPLA appeal.

Can you prove you were in Gatwick?  That would help (not vital but v useful).

outraged_

Coupon-mad said:

Was the POPLA Code/rejection letter issued to the company by name, or to you by name?

Choose OTHER for a POPLA appeal.

Can you prove you were in Gatwick?  That would help (not vital but v useful).

I don't know how I could prove other than to show my mum's flight ticket..

The letter was all addressed to the company.

Fruitcake said:

With regards to the address of the car park stated on the NTK, I believe this to be correct. I did ask you to confirm this in my reply, which was the first response to your query after you started this thread.
This needs to be resolved in conjunction with your point/para 5. 
You can't say you don't know which car park the charge is referring to then sate the signage is inadequate.
If it is the car park to the rear of the property as I suspect, then I wouldn't mention the other car parks at all.

In your appeal, you need to state at the beginning that the vehicle in question is a hire/lease vehicle, where you also state that you were not the driver.

I would actually make that an appeal point, under the heading: -

1) Not the driver nor the person liable for this charge.

Then adapt the wording you have used about not being the driver by preceding it with a statement that it was a hire vehicle and the hire/lease company is the registered keeper. I would also add something about any comment or inference from the hire company about the driver's identity is hearsay.

Obviously all your other points will need renumbering.

The rest looks okay to me.

I really don't know at all the correct car park. The address says high street, but there are no car parks in the high street. A google search around that area shows different car parks, so it is extremely confusing as we genuinely believed it was a public car park belonging to the council. If they can't supply the correct address or the exact location where the vehicle was parked, how can we know? They show no signage on the PCN either, so how can we know?
So you're saying you don't think I should mention signs?

outraged_

POPLA appeal sent! fingers crossed now!

THANK YOU SO MUCH all you superstars!

Fruitcake

outraged_ said:

Coupon-mad said:

Was the POPLA Code/rejection letter issued to the company by name, or to you by name?

Choose OTHER for a POPLA appeal.

Can you prove you were in Gatwick?  That would help (not vital but v useful).

I don't know how I could prove other than to show my mum's flight ticket..

The letter was all addressed to the company.

Fruitcake said:

With regards to the address of the car park stated on the NTK, I believe this to be correct. I did ask you to confirm this in my reply, which was the first response to your query after you started this thread.
This needs to be resolved in conjunction with your point/para 5. 
You can't say you don't know which car park the charge is referring to then sate the signage is inadequate.
If it is the car park to the rear of the property as I suspect, then I wouldn't mention the other car parks at all.

In your appeal, you need to state at the beginning that the vehicle in question is a hire/lease vehicle, where you also state that you were not the driver.

I would actually make that an appeal point, under the heading: -

1) Not the driver nor the person liable for this charge.

Then adapt the wording you have used about not being the driver by preceding it with a statement that it was a hire vehicle and the hire/lease company is the registered keeper. I would also add something about any comment or inference from the hire company about the driver's identity is hearsay.

Obviously all your other points will need renumbering.

The rest looks okay to me.

I really don't know at all the correct car park. The address says high street, but there are no car parks in the high street. A google search around that area shows different car parks, so it is extremely confusing as we genuinely believed it was a public car park belonging to the council. If they can't supply the correct address or the exact location where the vehicle was parked, how can we know? They show no signage on the PCN either, so how can we know?
So you're saying you don't think I should mention signs?

I believe the address on the NTK is correct. The car park happens to be at the back of the property with vehicular access at the rear from a different road, but it is still all part of the property with the postal address on the High Street. It would be highly unusual to have two street addresses for the same property just because one happens to have a back gate into their garden (car park).

The alleyway to the side of the property on the High street marked, Customer car park at rear, leads straight through to the car park at the rear, but it's all part of the same property with the same street address.