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    • LawLaw
    • By LawLaw 16th Jun 17, 6:03 PM
    • 3Posts
    • 1Thanks
    Civil Enforcement PCN Help!
    • #1
    • 16th Jun 17, 6:03 PM
    Civil Enforcement PCN Help! 16th Jun 17 at 6:03 PM
    Hi, I've read the post for new users but I am mind boggled on what I can do now.

    On June 3rd I received a PCN from Civil Enforcement Ltd, the issue date was the 2/06/2017 with the incident date being the 20/04/2017 I'm led to believe the Protection of Freedoms Act 2012 states that all Notice to Keepers should be presented with 14 days of the alleged incident.

    I wrote them with the following response:
    Wednesday 7th of June 2017

    Dear Sir or Madam,

    Ticket number:
    Vehicle registration number:

    You issued me with a parking ticket on 02/06/2017 but I believe it was unlawfully issued. I will not be paying your demand for payment for the following reason:

    The Notice to Keeper failed to meet the obligations of Schedule 4 of the Protection of Freedoms Act 2012. The notice was issued on the 02/06/2017 however the incident is dated back to the 20/04/2017.

    I will not enter into any further correspondence with you, and this will be the only email you will receive from me.

    Yours faithfully,
    To which I got this response:
    We refer to your recent letter. Your appeal has been unsuccessful. We have no record of a payment made for the above vehicle registration on the day in question.

    There is no legal requirement to send out the PCN within 14 days of the incident day as there is no reference to POFA on this ticket. Unfortunately your interpretation of the Act in incorrect.
    They've now referred me to POPLA and I'm unsure what to do now.

    No where in the Act does it state they have to mention the Act?

    Thanks in advance for any help
    Last edited by LawLaw; 19-06-2017 at 9:32 PM.
Page 1
    • Coupon-mad
    • By Coupon-mad 16th Jun 17, 6:14 PM
    • 57,473 Posts
    • 71,073 Thanks
    • #2
    • 16th Jun 17, 6:14 PM
    • #2
    • 16th Jun 17, 6:14 PM
    You will win at POPLA by continuing in the same vein, appealing as keeper. The words are already written for you in post #3 of the NEWBIES thread. We always suggest you use 3 or 4 of the template points: no keeper liability, no evidence that the appellant is the individual liable, dodgy sign and no landowner authority.

    Show us your draft, to be sure, but these are all pre-written appeal points and deliberately LONG! Because that will win.

    BTW what they say is true, they do not *have to* use the POFA for keeper liability! But by not doing so...well I think you know the rest!
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • Umkomaas
    • By Umkomaas 16th Jun 17, 6:31 PM
    • 17,607 Posts
    • 27,817 Thanks
    • #3
    • 16th Jun 17, 6:31 PM
    • #3
    • 16th Jun 17, 6:31 PM
    They don't have to use PoFA, but they then can't hold the keeper liable!

    They've not referred me to POPLA and I'm unsure what to do now.
    If you haven't had a POPLA code I'd send in the standard initial appeal (in blue text) from the NEWBIES FAQ sticky, post #1 and see if that drags one out of them (not that you should have to do that).

    If that doesn't do the trick, it will be time to complain to the BPA and DVLA.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • LawLaw
    • By LawLaw 19th Jun 17, 4:56 PM
    • 3 Posts
    • 1 Thanks
    • #4
    • 19th Jun 17, 4:56 PM
    • #4
    • 19th Jun 17, 4:56 PM
    Okay so here is my appeal, what do you think? Is there anything I need to change?

    Appeal re POPLA code: 1*********9 – ****** ****** v Civil Enforcement Ltd

    I am writing to you to lodge a formal appeal against a Parking Charge Notice sent to myself as registered keeper of the vehicle in question. I was NOT the driver.

    I contend that I am not liable for this parking charge on the basis of the below points:

    Civil Enforcement’s Parking Charge Notice is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used.

    Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met as stated in paragraphs 5, 6, 11, and 12. Civil Enforcement have failed to fulfil the conditions which state that an operator must have provided the keeper with a Notice to Keeper (NTK) in accordance with paragraph 9, which stipulates as mandatory, a set timeline and wording:-

    The notice must be given by—
    (a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
    (b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.

    The applicable section here is (b) because the Parking Charge Notice/NTK that I have received was delivered by post. Furthermore, paragraph 9(5) states:

    ’’The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended’’

    The Parking Charge Notice sent to myself as Registered Keeper was produced showing a purported ‘date issued’ which was already past the 14 days by which, under statute, it had to be in my hands/served. Even if they had posted it that day it would be impossible for the notice to have been delivered within the 'relevant period' as required under paragraph 9(4)(b).

    In fact, this NTK arrived over six weeks after the alleged event. This means that Civil Enforcement have failed to act within the 14 day relevant period.

    Furthermore, it is clear that Civil Enforcement know this because they have used the alternative version of their template ‘Parking Charge Notice’ – The one with no reference to ‘keeper liability’ or the POFA.

    So, this is a charge that could only be potentially enforced against a known driver and there is no evidence of who that individual was, which brings me to point #2:

    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

    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. I am the appellant throughout (as I am entitled to be), and 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.''

    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

    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 Removed

    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:

    Link Removed

    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:

    Link Removed

    As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

    Link Removed

    ''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:

    Link Removed

    ''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 Removed

    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.

    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.

    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
    • Redx
    • By Redx 19th Jun 17, 5:17 PM
    • 18,119 Posts
    • 22,906 Thanks
    • #5
    • 19th Jun 17, 5:17 PM
    • #5
    • 19th Jun 17, 5:17 PM
    you said earlier you had not received a popla code, which is where this thread was left

    are you now saying that they HAVE provided a popla code ?
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • LawLaw
    • By LawLaw 19th Jun 17, 9:31 PM
    • 3 Posts
    • 1 Thanks
    • #6
    • 19th Jun 17, 9:31 PM
    • #6
    • 19th Jun 17, 9:31 PM
    Sorry beg my pardon I made a spelling mistake, did wonder why I got the responses I did. Have corrected my mistake.
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