Civil Enforcement Ltd - Restaurant PCN

RF10 · 20 November 2018 at 9:35PM

Hello,

I received a PCN in the post from Civil Enforcement Ltd for parking without permit on a restaurant car park. I have followed the initial steps as set out on the 'Newbie Thread' and used the template provided. I have received a POPLA code and need to put together an appeal prior to the 23rd November.

If I am being honest, I feel completely out of my depth regarding how to go about drafting a POPLA appeal and what grounds to appeal on. I have emailed the restaurant with the following which I feel is my case, however do not feel it would stand as a POPLA appeal.

Dear Owner / Management of Business,
I have received a PCN (parking charge notice) from Civil Enforcement Ltd relating to my vehicle being parked on the premises of your business, and would like your assistance and kindly request for you to ask Civil Enforement Ltd to remove to charge.

Firstly, when my vehicle was parked on the premises I was not aware of any restrictions in place, as you are aware the entrance to the car park is off a very busy road, one which you do not have time to stop to read signage due to distance from A34 and entrance. Upon parking in approx 5 bays on the right side, near the bus station there is no signage facing you as you get out of the car and unless you inspect the car park this can easily be missed.

Secondly, the PCN received stated 'entered the premises at 11.01am and left at 12.35pm'. As the restaurant does not open until 5.30pm therefore I do not believe the business would have been affected as this is out of operating hours. On inspection of the signage it also states 'must obtain a permit within the restaurant', however this would not be feasible due to the establishment not being open.

Lastly, on the 31/8/18 at approx 4.40pm, I met with (name of met person and restaurant) in order to show around a property on Stone Road. During this meeting my vehicle was parked at the same place along side (name of met person). I did query at the time if there were any objections to me parking there and was told it was fine. Therefore the following week I parked in the same place. As (name of met person) and colleagues have met myself I hope they understand I am a genuine person who does not purposely set out to cause issues.

The email was sent last Thursday and yet to receive a response. One additional point which I thought since my email, is there is no evidence of my car actually parked in space, I have images provided of entered on vacating the car park and signage at the premises. I really do not wish to go down the route of court action, due to personal circumstances at the moment.

Coupon-mad · 21 November 2018 at 4:09AM

If I am being honest, I feel completely out of my depth regarding how to go about drafting a POPLA appeal and what grounds to appeal on.

That's why post #3 of the NEWBIES thread gives you templates, to stop you blabbing about who was driving and ruining your 100% winning appeal point.

The_Deep · 21 November 2018 at 8:56AM

If I am being honest, I feel completely out of my depth regarding how to go about drafting a POPLA appeal

As does nearly everyone else who comes here, but nearly all the work shas been done for you, all you need do is read and adapt.

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week, hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

The problem has become so widespread that MPs have agreed to enact a Bill to regulate these scammers. It has even been suggested that some of these companies have links with organised crime.

Watch the video of the Second Reading and committee stage in the House of Commons recently. MPs have a very low opinion of this industry.

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

and complain in the most robust terms to your MP. With a fair wind they will be out of business by in the not too distant future.https://hansard.parliament.uk/commons/2018-07-19/debates/2b90805c-bff8-4707-8bdc-b0bfae5a7ad5/Parking(CodeOfPractice)Bill(FirstSitting

RF10 · 21 November 2018 at 11:01AM

Thank you for your replies. Don't quite know how I missed the POPLA templates, they look fantastic. I will draft an appeal today and post on here. On my POPLA appeal is it wise to make the point regarding the manager not objecting to parking there the previous week therefore assumed satisfactory or will this void my claim as not the driver?

RF10 · 21 November 2018 at 9:09PM

I have now drafted my POPLA appeal. I have read through different points on the NEWBIE thread and used the examples which I feel are applicable to my case. The only confusion I have is on various items the wording CEL do not adhere to POFA 2012, is this still the case? If so is it neccesary to have an additional case point for this?

Quick explantion. I parked at area as I had an appointment close by (few building down from car park). I did not see any signage on display, however did not look around for it, I beleive it to be fairly new signage as it wasnt in place few months ago, therefore did not inspect the area. Less than two week previous I parked next to a memeber of staff belive to be management and had a discussion with them on car park, asked if was ok to park and got told yes. At no point did they make me aware of restriction. I received the postal PCN withing 14 days of the ''offence'' Having read through Breech of Freedoms Act - I beleive this section won't apply?

[FONT=&quot]POPLA Ref No.xxxxxxxx[/FONT]
[FONT=&quot]I am the registered keeper and I wish to appeal a recent parking charge from Civil Enforcement Ltd. The charge is levied despite the driver not being identified.[/FONT]
[FONT=&quot]The appeal is based on the following [/FONT]

[FONT=&quot]1) 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[/FONT][FONT=&quot]

I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the £100, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

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:

[/FONT][FONT=&quot](link)

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.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

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

...and the same chart is reproduced here:
[/FONT]

[COLOR=#333333[FONT=&quot]li[FONT=&quot]nk[/FONT][/FONT][/COLOR]

[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:
[/FONT][FONT=&quot]
[/FONT]
[FONT=&quot] 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.[/FONT]

[FONT=&quot]2) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice[/FONT][FONT=&quot]

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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

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 authorised on the material date, 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 but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal 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.

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[/FONT]

[FONT=&quot]3) The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge[/FONT][FONT=&quot]

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. As there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
'There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no 'reasonable presumption' in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.'

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.'[/FONT]

[FONT=&quot]4) This charge is unconscionable and offends against the penalty rule which was 'plainly engaged' in the case of ParkingEye Ltd v Beavis[/FONT][FONT=&quot]

The operator makes much of the Beavis case, yet they are well aware that the circumstances of the Beavis case were entirely different. Essentially, that case was about the abuse of a free, time-limited public car park where signage could be used to create a secondary contract arising from a relevant obligation and where there was a 'legitimate interest' flowing from the landowner, in charging more than could normally be pursued for trespass.

In this case, we have an authorised user using the car park appropriately and there has been no loss nor detriment caused to the owner. While the courts might hold that a large charge might be appropriate in the case of a public car park, essentially as a deterrent, there is nothing in the case to suggest that a reasonable person would accept that this 'fine' is a conscionable amount to be charged under these circumstances.

At the Supreme Court in Beavis, it was held at 14: ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty… ''

This is NOT a 'more complex' case by any stretch of the imagination. At 32 in the Beavis decision, it was held that a trader, in this case a parking company: ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

Therefore, any putative contract needs to be assessed on its own merits. Consumer law always applies and no contract “falls outside” The Consumer Rights Act 2015; the fundamental question is always whether the terms are fair:
[/FONT]

[FONT=&quot]link[/FONT]

[FONT=&quot] [/FONT]

[FONT=&quot] - Schedule 2: 'Consumer contract terms which may be regarded as unfair':
’’A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations…’’
''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

This charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which does NOT supersede other defences. It turned on completely different facts and related only to that car park with its own unique complexity of commercial justification. This case is not comparable.

In this case the specific question is whether a reasonable person would agree to a term where parking in a place that they enjoy rights of way and easements and pay a significant rent for the privilege of peaceful enjoyment would also accept a further unknown/not agreed liability. I would suggest that a court would not accept this is reasonable and indeed my next appeal point shows that a Senior Circuit Judge in a 2016 appeal case supports my view.[/FONT]

Coupon-mad · 23 November 2018 at 1:57AM

the wording CEL do not adhere to POFA 2012, is this still the case? If so is it neccesary to have an additional case point for this?

Yes.

I received the postal PCN withing 14 days of the ''offence'' Having read through Breech of Freedoms Act - I beleive this section won't apply?

Wrong. IT'S NOT JUST ABOUT THE DATES. There are mandatory words and warnings too.

Surely you spotted that the POFA doesn't just say:

''send anything, any words on paper headed 'Notice To Keeper' within 14 days and all PPC scumbags can have keeper liability''?

RF10 · 17 September 2019 at 9:16PM

Hello.
Following the above the POPLA appeal was rejected, since then Debt collection letters have been sent out to my old address which have been Returned to sender. I know this as it's my parents address.
The V05 document was changed during procedure and on one of document which was attached to POPLA appeal had my old address crossed out with new one written. No correspondence has ever been sent to the address supplied.

I have been informed today another letter has been Returned to Sender which I believe could be Letter before Court. I have since move address again and no longer own previous vehicle. Do Civil enforcement need my correct address in order to start proceedings. If my parents hadn't been at old address I would never have known letter were being sent at all.

KeithP · 17 September 2019 at 9:31PM

V05? Isn't that a shampoo?

You need to ensure that CEL have your correct up to date address at all times.

Without that you run the risk getting a County Court Judgment against you without any opportunity to defend yourself.

Tell your parents to stop returning mail unopened. Instead ask that they forward it to you.

RF10 · 17 September 2019 at 10:29PM

Something like that... I think!

The letter has not yet been Returned to CEL. Would writing the new address on Return to Sender class as sufficient or if not is email or letter better option. I would prefer email due to easier paper trial. What if after notifying them they carry on sending to old address?

I believe the letter from CEL is Letter Before Action which I was hoping would not reach this stage.

Coupon-mad · 17 September 2019 at 10:36PM

No returning mail - that is a pretty daft thing for anyone to do.

Simply email CEL's Data Protection Officer using their privacy page contact email, and tell them to rectify the address data for you, and to erase the old one. Use those words.

RF10 · 17 September 2019 at 11:01PM

Thanks very much. I have emailed them.
Should I wait for any correspondence to come to new address now or deal with Letter Before Action sent to old address.

Civil Enforcement Ltd - Restaurant PCN

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