PCN from Civil Enforcement Ltd. - WON

[mystery1]

Re: PCN from Civil Enforcement Ltd.

Was trying to google the car park and see where and what the signs said. Some areas near there may be covered by a byelaw which is an additional argument.

M1

[mbaldw]

Re: PCN from Civil Enforcement Ltd.

The res on Google Maps isn't good enough. I have a pic on my mobile (I can probably post it here) of the current signs, but not the original one.

Cheers,
Marc.

[mystery1]

Re: PCN from Civil Enforcement Ltd.

Sure, also what is the location so i can check if it's covered by the byelaws. http://parking-prankster.blogspot.co...-worth-of.html I know that's a different part as it's ParkingEye but it's the same principle

M1

[mystery1]

Re: PCN from Civil Enforcement Ltd.

http://www.southamptonvts.co.uk/admi...%20Byelaws.pdf

I'm not around much for next 3 days as i'm at work so hope to have it done at weekend :okay:

M1

[mbaldw]

Re: PCN from Civil Enforcement Ltd.

I can't seem to upload a pic directly to the forum, so I've put it on my website: http://wildlifeonline.me.uk/pcn.html

The carpark is directly opposite the Red Funnel Ferry Terminal in Southampton (about SO14 2AL). Does that help?

Cheers,
Marc.

[Amethyst]

Re: PCN from Civil Enforcement Ltd.

No idea about the parking ticket ( leave that to those who do) but couldn't resist a nosey at your website ... you have taken some amazing and beautiful photographs, I'm quite envious xxx

[mbaldw]

Re: PCN from Civil Enforcement Ltd.

Thanks M1 - I really appreciate your help.

Thanks also Amethyst - I'm pleased you liked the photos. I find it helps pass the time when I'm not parking illegally

[mystery1]

Re: PCN from Civil Enforcement Ltd.

I wish to appeal this parking charge on the following grounds.




1. The charges are penalties and not a contractual charge, breach of contract or trespass. They are not a genuine pre estimate of loss either.




2. In order to form a contract the signs need to be clear so that they must be seen by an average person. They were not. There was no breach of contract.




3. CEL do not hold sufficient interest in the land to offer a motorist a contract to park. They have no locus standi.




4. CEL have failed to adhere to the BPA code of practice.




5. Unreliable, unsynchronised and non-compliant ANPR system.
















1.The charges are penalties.

The charges are represented as a breach of contract. Whilst it is disputed that a contract was entered into (see point 2) according to the BPA code "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 proportionate and commercially justifiable. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance"

£100 is clearly not proportionate to an 88 second overstay when parking initially is free. In fact the 88 seconds would be accounted for by entry and exit and in any event is covered under the de minimis principle and as such it is not commercially justified. The car park wasn't full so there was no intial loss. As this is clearly a trespass scenario, although not described as such, the charges in law need to be a genuine pre estimate of loss.

I require CEL to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. CEL cannot lawfully include their operational day to day running costs (e.g. provision of signs, ANPR and parking enforcement) in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement ' would still remain the same.

According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the landowner does not impose a parking fee for the area in question for the first 10 minutes, there is no loss to CEL nor the landowner. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.''

The signs state that the £100 charge is to deter abuse which is clearly in line with the law on penalties and the charge, being a penalty, is unenforceable. CEL v McCafferty.


2. Unclear and non-compliant signage, forming no contract with drivers.

I did not see any signs at the site. I require signage evidence in the form of a site map and dated photos of the signs at the time of the parking event. I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. As such, the signs were not so prominent that they 'must' have been seen by the driver - who would never have agreed to pay £100 in a free car park - and therefore I contend the elements of a contract were conspicuous by their absence. In any event the signs state that the £100 charge is to deter abuse.

3.. Contract with landowner - no locus standi


CEL do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that CEL has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow CEL to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between CEL and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 (Transcript linked): http://nebula.wsimg.com/71a4eb1b5de2...essKeyId=4CB8F 2392A09CF228A46&disposition=0&alloworigin=1

In that case the Judge found that, as the Operator did not own any title in the car park: 'The decision to determine whether it is damages for breach...or a penalty...is really not for these Claimants but...for the owners. We have a rather bizarre situation where the Claimants make no money apparently from those who comply with the terms...and make their profit from those who are in breach of their contract. Well that cannot be right, that is nonsense. So I am satisfied that...the Claimants are the wrong Claimants. They have not satisfied this court that they have suffered any loss...if anything, they make a profit from the breach.'

I challenge this Operator to rebut my assertion that their business model is the same 'nonsense', and is unenforceable. CEL cannot build their whole business model around profiting from those they consider to be in breach of a sign, on land where they have no locus standi, and then try to paint that profit as a perpetual loss.

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.

4. Failure to adhere to the BPA code of practice.

The signs do not meet the minimum requirements in part 18. They were not clear and intelligible as required.


5. ANPR ACCURACY

This 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 my 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 ParkingEye 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.

So, in addition to showing their maintenance records, I require the Operator in this case to show evidence to rebut this point: I suggest that in the case o fmy vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from this Operator in this car park is just as unreliable as the ParkingEye system and I put this Operator to strict proof to the contrary.



M1

[mbaldw]

Re: PCN from Civil Enforcement Ltd.

Wow, thanks for taking the time to do that M1. Do I need to write back to Civil Enforcement to inform them that I have appealed to POPLA?

Cheers,
Marc.

[mystery1]

Re: PCN from Civil Enforcement Ltd.

No. Popla will contact them.

M1

[mbaldw]

Re: PCN from Civil Enforcement Ltd.

Cool, thanks. I'll let you know how I get on.

Cheers,
Marc.

[mbaldw]

Re: PCN from Civil Enforcement Ltd.

One more thing, M1. When making the appeal online, I need to pick my reason for appealing from:

1. I was not improperly parked.


2. The parking charge (ticket) exceeded the appropriate amount.


3. The vehicle was stolen.


4. I am not liable for the parking charge.

Clearly, it's not 3, but I'm not sure whether it's 1 or 2.

Cheers,
Marc.

[mystery1]

Re: PCN from Civil Enforcement Ltd.

Or 4. Not sure if you can pick more than 1 option but it's not that important.

M1

[mbaldw]

Re: PCN from Civil Enforcement Ltd.

Hi M1,

just a quick update that my PoPLA appeal was pushed back to next month. Today I received an e-mail from Creative Parking with some of the claim documentation (their counter appeal, I guess) along with a document that is presumably meant to make me think that my appeal is likely to be rejected. The document is a copy of a PoPLA appeal from December that they rejected stating that:

"This is not a liquidated damages clause triggered by a breach of contract, so the requirement for the charge to represent a genuine pre-estimate of loss does not apply. I further find that the operator's photographic evidence and site plan shows there to have been sufficient signs to bring the free stay limit and the charge for exceeding it to the attention of the reasonably observant motorist in the appellant's position. This means that the appellant was bound by the terms on the signs. Therefore, in the light of these findings, I must find that the charge notice was validly issued."

I will let you know the outcome of my appeal next month, but I thought you might be interested in this apparent ruling in the meantime.

Cheers,
Marc.

[mystery1]

Re: PCN from Civil Enforcement Ltd.

If you have time to post up the evidence pack please do.

M1