Civil Enforcement Ltd!!!

Hi

Thank you Coupon-mad for your help ....again.

Over the weekend I've read lots of threads as advised, wow there is so much info. Our defence
I would say is CEL had no financial loss from the incorrect input of the reg no. and no evidence that the keeper was driving.
With this do I amend my original defence statement with this information or create a new statement, if the latter could you suggest a thread please.

Many thanks

Great thanks, any chance you can point me in the direction of a suitable thread please.

Many thanks

Thanks
My amended defence, what do you guys think?

Claim Number xxxxxxxx



I xxxxxx xxxxxxxxxx the defendant and the registered keeper of xxxxxxxx contend that I am not liable for the alleged parking charge.
I am appealing against the charge on the following grounds and I respectfully ask that all points are taken into consideration:

1. The Notice to Keeper is not compliant with Protection of Freedoms Act 2012.
2. Doctrine Maxim de minimis non curat lex
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.
4. Insufficient signage - Signage does not comply with the BPA Code of Practice and was not prominent enough to form any contract with a driver.
5. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
6. Failure to show evidence of reliable ANPR system

1. The Notice to Keeper is not compliant with Protection of Freedoms Act 2012

The Notice to Keeper is not compliant with Protection of Freedoms Act 2012 (POFA) for the following reasons:-

a) The Notice to Keeper (NTK) was delivered outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)
b) The Notice to Keeper does not warn the keeper that, if after a period of 28 days, Civil Enforcement Limited has the right to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012 (POFA)
a) The Notice to Keeper is not compliant with Protection of Freedoms Act 2012

The Notice to Keeper (NTK) was delivered outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)

Sub-paragraph 9 (5) specifies that the relevant period for delivery of the Notice to Keeper for the purposes of sub-paragraph 9 (4) is a period of 14 days beginning with the day after that on which the specified period of parking ended. According to the PCN, the specified period of parking ended on XX/XX/2016. The relevant period is therefore the 14 day period from XX/XX/2016 to XX/XX/2016 inclusive. Sub-paragraph 9 (6) states that a notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose, “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales. The “Letter Date” stated on the PCN is XX/XX/2016 and in accordance with sub-paragraph 9 (6) is presumed to have been “given” on XX/XX/2016, 16 days outside of the relevant period.
b) The Notice to Keeper does not warn the keeper that, if after a period of 28 days, Civil Enforcement Ltd has the right to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012 (POFA)

POFA 2012 requires that an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle, if certain conditions are met. As sub-paragraph 9 (2) (f) highlights a NTK must adhere to the following points:
The notice must—
warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii) the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 14 days beginning with the day after the parking event. As this operator has evidently failed to serve a POFA compliant NTK, in accordance with paragraph 9, they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory documents with paragraph 9 wording and prescribed warning about 'keep liability' we're not properly given.
2. Doctrine Maxim de minimis non curat lex

An abbreviated form of the Latin maxim de minimis non curat lex, "the law cares not for small things." A legal doctrine by which a court refuses to consider trifling matters.
In a lawsuit, a court applies the de minimis doctrine to avoid the resolution of trivial matters that are notworthy of judicial scrutiny. Its application sometimes results in the dismissal of an action.

The Lead Adjudicator , Bryn Holloway (Barrister) , of the IAS has published his annual report for 2016/2017. In his forward he stated that:

A commitment to continuous improvement must be a prerequisite for any service that seeks to provide truly independent redress for consumers. While the IAS has continued to grow since the 2015/2016 report, it is significant that we have also taken every opportunity to ensure the service evolves and develops to provide the best possible service to the Consumer. One example involved a growing concern that motorists were being unduly penalised for the most trivial of mistakes when entering their vehicle registration numbers as they are registering for parking. Of course, it is incumbent upon the motorist to take reasonable care in entering their details, and when they fail to do so properly very often a charge may be justified. However, where the mistake is so trivial that even someone applying their full attention might not realise - such as entering a ‘0’ instead of a ‘O’ or a ‘1’ instead of an ‘I’ - then it is, in my view, unfair to enforce a charge.
As a consequence, I released guidance to all the adjudicators that they should have regard to the nature and extent of such mistakes in determining whether a charge is lawful. I am pleased to say that, since issuing the guidance, there has been a visible reduction in the amount of cases where operators pursue such parking charges and far fewer (justifiably) frustrated motorists as a result.

It is impossible to differentiate between a 0 (zero) and the letter O on a vehicle registration mark and feel it is unfair to penalise customers for such a trivial mistake. The fact that a ticket had been purchased (Figure 1) meant that there could be no loss for Smart Parking Ltd and the fact that a zero was used instead of the letter O is a minimal error.
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

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 of the PAFA 2012. 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 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 ( ) 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.''
4. Insufficient signage - 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

So, for this appeal, I put Civil Enforcement Ltd 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 Civil Enforcement Ltd 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.

Also I require Civil Enforcement Ltd to show how the full "terms and conditions" appear when facing a "pay and display" ticket machine. I submit that the full "terms and conditions" simply cannot be read from this position and are not stated on the ticket machine. I also submit that based on the signage on the payment machine that no contract was formed. There are no notices on the payment machine to inform customers that if the full VRM is not entered that they will be charged if they fail to do so.
5. 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.
6. Failure to show evidence of reliable ANPR system
Also Civil Enforcement Ltd have provided no evidence that the ANPR system is reliable. The operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
Civil Enforcement Ltd has not provided any evidence to show that their system is reliable, accurate or maintained.

A correctly calibrated ANPR system and associated pay and display machine software used to pay for parking should be able to know if a registration plate being entered by the customer using the car park has in fact entered the car park. In this case a payment was made for a car registration incorrectly entered therefore never existed on the ANPR system however a payment for the correct amount covering the period stayed was still accepted and made using the "pay and display" ticket machine option. In these circumstances when a number plate entered does not match up with the ANPR system a warning should be generated by the system. A simple character recognition software or even a human being could then attempt to match the number plate recorded by the ANPR to the most closely matching number plate registered and paid for by the customer. To ensure accuracy of this simple yet effective measure the time the customer entered the car park could be correlated with the time the payment was made.

I would like to draw your attention to the following case where a motorist received a parking ticket as a result of them entering their registration number in wrong

Newcastle County Court, B3GF344V Park With Ease Ltd -v- Mr D

The judge ruled - that the case hinged on whether the motorist had paid or not, and that the burden of proof lay with Park With Ease to show that the motorist hadn't. As he felt they hadn't been able to show that without any doubt the claim was dismissed.

I conclude it is perfectly possible to have "pay and display" ticket machine software that only accepts valid registration numbers especially registration numbers recently recorded on ANPR cameras occupying the car park in question. Civil Enforcement Ltd would be well advised to use this type of software and level of quality control rather than waste their money prosecuting motorists because their own system is flawed.
Summary
Based on these points, it is believed that Civil Enforcement Ltd are not complying with the Protection of Freedoms Act 2012 (POFA), the BPA Code of Practice with regard to position, clarity of terms and conditions and drivier safety. Therefore, without clear, compliant signs there was no contract established and therefore no breach of that alleged contract either. In summary, these points demonstrate the claim by Civil Enforcement Ltd is invalid and should the claim continue, further action and evidence requested in this appeal is required from Civil Enforcement Ltd.

In experience "pay and display" ticket machines ask for the last 3 digits of the VRM. To avoid any confusion for customers I suggest that Civil Enforcement Ltd install software that only allows a ticket to be printed when the full VRM is entered into the "pay and display" ticket machine.
Entering a 0 instead of an O is a very trivial matter and as there is proof of purchase for the time parked I feel it is unfair to penalise customers for a minimal error.
Signed xxxxxxx
Dated xxxxxxx