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Re: Civil Enforcement Limited
[QUOTE=mystery1;463790]
Edit http://www.legalbeagles.info/forums/...-Appeal-Letter to suit. Post a copy up before you send and i'll look although if it contains genuine pre estimate of loss it'll do the trick
M1
Hi Mystery 1,
Thank you for your support and guidance.
Please see below my adapted form of the template that I am about to sent to Popla. Please make corrections as necessary.
Kind regards
Obb
Dear Sir/Madam,
I appeal against the decision of Civil Enforcement Ltd because they have failed to follow the BPA code of practice and attempted to impose a penalty charge for either breach of contract or trespass.
Firstly, we had the verbal authorisation to park where my car was photographed by the garage which was performing the MOT on my son's car. Please see attached MOT Certificate for proof of patronage. ( the MOT certificate showed the time coinciding with time of alleged offence).
Although we had authorisation as mentioned above, I was not aware of any signage as referred to by Civil Enforcement Limited.
The operator does not appear to own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, The operator has not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.
I require the operator to provide a full copy of the actual contemporaneous, signed & dated contract with the landowner.
Contracts are complicated things, so a witness statement signed by someone is not good enough, neither is a statement that a person has seen it. A copy of the original, showing the points above, is the only acceptable item as evidence that a contract exists and authorises the Operator the right, under contract, to write numerous letters to an appellant chasing monies without taking them to Court, to pursue parking charges in their own name, to retain any monies received from appellants and to pursue them through to Court.
I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.
I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges.
It was stated that, "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be."
The ruling of the Court stated, "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services."
In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated losses, as set out above.
The Operator also make reference in their appeal refusal of 18/08/2014 to “pay at the original reduced rate by a further 14 days" and makes no reference to the Landlord at all.
7.1 of the BPA code of practice makes it a requirement that Civil Enforcement Ltd either own the land, or have the written authorisation of the land owner to enable them to operate on the land. I, as registered keeper, put Civil Enforcement Ltd to strict proof that a valid contract exists that enables them to act in this manner on behalf of the landowner. It is not an onerus task to produce the contract as secttion 8.1 of the code means it has to be available at all times.
19.5 of the code of practice states, “If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer,”
The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges for all day parking.
UNLAWFUL PENALTY CHARGE
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .
The operator is either charging for losses or it is a penalty/fine.
UNFAIR TERMS
The charge that was levied is an unfair term, and therefore not binding, pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer" and 5(2) states: "A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term."
UNREASONABLE
The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”
I would contend that this appeal should be allowed for these reasons.
[QUOTE=mystery1;463790]
Originally posted by Obb
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Edit http://www.legalbeagles.info/forums/...-Appeal-Letter to suit. Post a copy up before you send and i'll look although if it contains genuine pre estimate of loss it'll do the trick
M1
Thank you for your support and guidance.
Please see below my adapted form of the template that I am about to sent to Popla. Please make corrections as necessary.
Kind regards
Obb
Dear Sir/Madam,
I appeal against the decision of Civil Enforcement Ltd because they have failed to follow the BPA code of practice and attempted to impose a penalty charge for either breach of contract or trespass.
Firstly, we had the verbal authorisation to park where my car was photographed by the garage which was performing the MOT on my son's car. Please see attached MOT Certificate for proof of patronage. ( the MOT certificate showed the time coinciding with time of alleged offence).
Although we had authorisation as mentioned above, I was not aware of any signage as referred to by Civil Enforcement Limited.
The operator does not appear to own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, The operator has not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.
I require the operator to provide a full copy of the actual contemporaneous, signed & dated contract with the landowner.
Contracts are complicated things, so a witness statement signed by someone is not good enough, neither is a statement that a person has seen it. A copy of the original, showing the points above, is the only acceptable item as evidence that a contract exists and authorises the Operator the right, under contract, to write numerous letters to an appellant chasing monies without taking them to Court, to pursue parking charges in their own name, to retain any monies received from appellants and to pursue them through to Court.
I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.
I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges.
It was stated that, "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be."
The ruling of the Court stated, "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services."
In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated losses, as set out above.
The Operator also make reference in their appeal refusal of 18/08/2014 to “pay at the original reduced rate by a further 14 days" and makes no reference to the Landlord at all.
7.1 of the BPA code of practice makes it a requirement that Civil Enforcement Ltd either own the land, or have the written authorisation of the land owner to enable them to operate on the land. I, as registered keeper, put Civil Enforcement Ltd to strict proof that a valid contract exists that enables them to act in this manner on behalf of the landowner. It is not an onerus task to produce the contract as secttion 8.1 of the code means it has to be available at all times.
19.5 of the code of practice states, “If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer,”
The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges for all day parking.
UNLAWFUL PENALTY CHARGE
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .
The operator is either charging for losses or it is a penalty/fine.
UNFAIR TERMS
The charge that was levied is an unfair term, and therefore not binding, pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer" and 5(2) states: "A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term."
UNREASONABLE
The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”
I would contend that this appeal should be allowed for these reasons.
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