Civil Enforcement WON !!

[mystery1]

Re: Civil Enforcement

Can you post up the letter you refer to please?

Don't pay yet, i don't think you'll need to. I'd rather throw £60 out my window than give it to them.

M1

[carnybaby]

Re: Civil Enforcement

Ive attached the entire letter I was sent by these people. As can be seen the pictures are taken with a hand held camera as there is no automated system to take the photographs.
There is no main sign showing the name of the carpark or that it isnt part of the council carpark that is contained within. I added a picture from google maps so you can see what i mean.
The red circle seems to be one of their signs but its pretty faded and blurred out like the rest.

I asked for proof that the charging notice was sent to me on the date specified and this part of my original letter was ignored.
As the registered keeper, if I can prove I was not allowed to drive at the time of the incident does that make a difference?

Thankyou for your help

[mystery1]

Re: Civil Enforcement

I spy a magic popla code in there

Edit http://www.legalbeagles.info/forums/...-Appeal-Letter to suit.

M1

[carnybaby]

Re: Civil Enforcement

Mystery1 should I remove everything from the letter bar the section on unreasonableness or by editing do you mean replacing 'parking eye' with 'Civil enforcement ltd'?
I know that a few sections would need amending such as where it mentions free car parks as this was a pay carpark. Sorry if this is a silly question, all this is making my head spin!

[mystery1]

Re: Civil Enforcement

Only change parking eye and replace with Cel and remove the free parking part. "There was no parking charge levied, the car park is “free”. On the date of the claimed loss it was nearly empty and there was no physical damage caused. There can have been no loss arising from this incident."

The section on genuine pre estimate of loss MUST remain. Everything else should also remain.

M1

[carnybaby]

Re: Civil Enforcement

Only change parking eye and replace with Cel and remove the free parking part. "There was no parking charge levied, the car park is “free”. On the date of the claimed loss it was nearly empty and there was no physical damage caused. There can have been no loss arising from this incident."

The section on genuine pre estimate of loss MUST remain. Everything else should also remain.

M1

Thank you very much. I'll copy/paste into word and then change Parking eye/PCC to CEL and delete that one line and any other references to free parking.
I will amend it and paste it here just in case I don't edit it all correctly. If you or anyone else on this great forum would give it the once over I'd be forever grateful.

[carnybaby]

Re: Civil Enforcement

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.
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 (date) to “seek to recover the monies owed to us” 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 section 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,”
There can have been no loss arising from this incident. Neither can Civil Enforcement Ltd lawfully include their operational day-to-day running costs in enforcing parking restrictions at the site (for example, by erecting signage and employing administration staff) in any 'loss' claimed. See VEHICLE CONTROL SERVICESLIMITED -v- MR R IBBOTSON and A Retailer v Ms B and Ms K, Oxford County Court. This does not represent a loss resulting from a breach of the alleged parking contract. In other words, were no breach to have occurred, the cost of parking enforcement would still have been the same. This has been quoted by PoPLA itself in adjucation.
I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.
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. This is all the more so for the additional charges which operator states accrues after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by 40% by early payment that it is unreasonable to begin with.


NO CONTRACT WITH THE DRIVER
There is no contract between Civil enforcement Ltd and the driver, but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999.. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc, were not satisfied.


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 further contend that Civil Enforcement Ltd have failed to show me any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR) and would require POPLA to consider that particular section of the Code in its entirety and decide whether the Operator has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence. I, as registered keeper, contend that these cameras and their operation do not meet the standards laid down in the BPA code of practice.
I would contend that this appeal should be allowed for these reasons.

Sorry for the huge copy paste. We have since had another red reminder for an incident dated 3rd of January 2014 and another dated 7 February 2014. If we had received the original PCN in december these following two wouldnt even have occured as we would have been aware that our permits didnt cover this zone. I intend to use the same letter for all three so want to get it perfect. Thanks once again for all the help here.

[mystery1]

Re: Civil Enforcement

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.
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 (date) to “seek to recover the monies owed to us” 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 section 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,”
There can have been no loss arising from this incident. Neither can Civil Enforcement Ltd lawfully include their operational day-to-day running costs in enforcing parking restrictions at the site (for example, by erecting signage and employing administration staff) in any 'loss' claimed. See VEHICLE CONTROL SERVICESLIMITED -v- MR R IBBOTSON and A Retailer v Ms B and Ms K, Oxford County Court. This does not represent a loss resulting from a breach of the alleged parking contract. In other words, were no breach to have occurred, the cost of parking enforcement would still have been the same. This has been quoted by PoPLA itself in adjucation.
I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.
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. This is all the more so for the additional charges which operator states accrues after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by 40% by early payment that it is unreasonable to begin with.


NO CONTRACT WITH THE DRIVER
There is no contract between Civil enforcement Ltd and the driver, but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999.. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc, were not satisfied.


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 further contend that Civil Enforcement Ltd have failed to show me any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR) and would require POPLA to consider that particular section of the Code in its entirety and decide whether the Operator has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence. I, as registered keeper, contend that these cameras and their operation do not meet the standards laid down in the BPA code of practice.
I would contend that this appeal should be allowed for these reasons.

Sorry for the huge copy paste. We have since had another red reminder for an incident dated 3rd of January 2014 and another dated 7 February 2014. If we had received the original PCN in december these following two wouldnt even have occured as we would have been aware that our permits didnt cover this zone. I intend to use the same letter for all three so want to get it perfect. Thanks once again for all the help here.

:thumb:

M1

[carnybaby]

Re: Civil Enforcement

Mystery1 I am so grateful for your assistance, regardless of how successful we are, I want you to know that we both appreciate all the help you have provided.
Just for reference, it seems CEL date mark their letters earlier than they post them. The reminder letter is dated 17 February 2014 yet the envelope is date stamped as 18 February 2014. Seems like evidence that their letter dates do not indicate when they post them Im glad I recorded myself opening the letter from the envelopes!

[carnybaby]

Re: Civil Enforcement

Appeal filed, Ill let you guys know how it goes.
Now to write to them about these follow up tickets!

[carnybaby]

Re: Civil Enforcement

Well the first one was a postive result!
Got an email from Popla saying CEL have cancelled the first ticket with no explanation given
Lets see how the second two pan out now

[mystery1]

Re: Civil Enforcement

Well the first one was a postive result!
Got an email from Popla saying CEL have cancelled the first ticket with no explanation given
Lets see how the second two pan out now

:yo:

M1

[carnybaby]

Re: Civil Enforcement WON !!

Just an update for everyone who may have read my initial post.
The two notices i received recently have also been cancelled.
I wrote to them asking for popla codes and outlining our previous defences of actually holding permits to park there. They cancelled the first notice but ignored the second until it was followed up with threats of legal action and a demand for the full £100. I wrote back telling them I had already written to them about this and they had only dealt with one of the two notices. Within a few days of this letter the second notice was also cancelled.
I didnt even get as far as needing to appeal via popla!
Good luck to everyone who is in this situation and dont let them scare you into paying up which is what my wife wanted to do. Thanks to the great people on this forum and keep up the good work!

[mystery1]

Re: Civil Enforcement WON !!

Top stuff.

M1

[BorderRiever]

Re: Civil Enforcement

For what it is worth, one lady, registered keeper, who contacted me said she had a CC summons, CEL claiming a parking infringement occurring in ........... 1900! I think she won!