Help - Letter from Civil Enforcement Ltd - WON

[loafboy]

Hi

There was a thread about these people but it appears to have been closed (if this needs to be moved somewhere else mods please do so)

My wife has recieved a fine from the above company. Essentially she arrived at the parking spot whilst still on a telephone call on her hands free. She pulled into a spot and continued the call (for another 12 mins or so), she didnt even switch off the engine (waste of petrol i know). Anyway as soon as she had finished the call she got out of the car and purchased a ticket. (fortunately she is self employed so she keeps all her parking tickets)

24 days later she recieved the notice below



As you can see the parking ticket is attached, and is one of those where you need to put your registration in so it cannot be argued that she 'found the ticket'.

After recieving this she writes to the company explaining that she has got a valid ticket covering this period and sent them a copy of it, she requested that the then cancel the fine.

She has recently recieved the letter below



They appear to be saying that as she was over the 10 mins the parking fine still stands (the original letter stated she parked at 12:02 and the ticket claims she purchased it at 12:16, although how accurate these times are, who knows)

As you can see they have issued a POPLA number, however having never dealt with this sort of thing before I wanted some advice on how to proceed before contacting them

Any advice would be gratefully recieved

Cheers

[mystery1]

Re: Help - Letter from Civil Enforcement Ltd

I closed the CEL thread as i prefer people to start their own threads as it's less confusing :tinysmile_twink_t2:

What utter morons they are. I'll sort you a popla appeal asap.

M1

[loafboy]

Re: Help - Letter from Civil Enforcement Ltd

Many thanks

[mystery1]

Re: Help - Letter from Civil Enforcement Ltd

Is it this car park ? http://goo.gl/maps/MRj8H ? Doesn't look much signage to me (pic May 2014) ( I assume it is)


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. Civil Enforcement Limited (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 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 a stay in a car park in which the vehicle was entitled to be in but purchasetime quickly enough but ultimately did purchase more than enough time. Neither is it commercially justified because it would make no sense. CEL want to charge a motorist who paid for 4 hours parking and only used 2 hours 46 minutes and 7 seconds. There was no loss and certainly can be no genuine pre estimate of loss. The charge paid more than covered any time on site. Upon a google map search, there was certainly no signage giving only 10 minutes to purchase time and as per Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ 2 (18 December 1970) you cannot changes or add terms after the event.There is nothing to signify that further terms should be read and nothing to indicate that you cannot finish a phone call prior to purchasing a ticket as the driver did.

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 imposes a parking fee for the area in question, there is only the limited loss to whoever it is due. 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.''


In Parking Eye v Beavis it was found that the charges were penalties although specific to that car park they were commercially Justifiable which clearly can't be in the case or trespass. DDJ Mahy found in Parking Eye v Cargius that commercial justification such as in Beavis did not apply to a paid car park


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


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. If it is dark it is not good enough for signs just to be present, they must be able to be seen. As per 1 above i contend there were no signs at entry and nothing that said payment must be made within 10 minutes.




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 of my 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 CEL system and I put this Operator to strict proof to the contrary.




M1

[Kati]

Re: Help - Letter from Civil Enforcement Ltd

Is it this car park ? http://goo.gl/maps/MRj8H ? Doesn't look much signage to me (pic May 2014) ( I assume it is)

this one M1?

[loafboy]

Re: Help - Letter from Civil Enforcement Ltd

Many thanks M1

Yes Kati that is the one

https://www.google.co.uk/maps/place/...5dc9717f3481da

Do i not mention the fact that she was on the phone taking a call and after it had finished then got out of the car and paid immediately or does that not matter ? And also that if the had a camera the saw she left at 14:48 the camera should have noticed that there was a ticket on the screen (which in fact covered her till 16:16?)

Cheers

Mark

[mystery1]

Re: Help - Letter from Civil Enforcement Ltd

Is it this car park ? http://goo.gl/maps/MRj8H ? Doesn't look much signage to me (pic May 2014) ( I assume it is)


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. Civil Enforcement Limited (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 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 a stay in a car park in which the vehicle was entitled to be in but purchasetime quickly enough but ultimately did purchase more than enough time. Neither is it commercially justified because it would make no sense. CEL want to charge a motorist who paid for 4 hours parking and only used 2 hours 46 minutes and 7 seconds. There was no loss and certainly can be no genuine pre estimate of loss. The charge paid more than covered any time on site. Upon a google map search, there was certainly no signage giving only 10 minutes to purchase time and as per Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ 2 (18 December 1970) you cannot changes or add terms after the event.There is nothing to signify that further terms should be read and nothing to indicate that you cannot finish a phone call prior to purchasing a ticket as the driver did.

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 imposes a parking fee for the area in question, there is only the limited loss to whoever it is due. 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.''


In Parking Eye v Beavis it was found that the charges were penalties although specific to that car park they were commercially Justifiable which clearly can't be in the case or trespass. DDJ Mahy found in Parking Eye v Cargius that commercial justification such as in Beavis did not apply to a paid car park


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


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. If it is dark it is not good enough for signs just to be present, they must be able to be seen. As per 1 above i contend there were no signs at entry and nothing that said payment must be made within 10 minutes.




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 of my 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 CEL system and I put this Operator to strict proof to the contrary.




M1

It's there.

M1

[loafboy]

Re: Help - Letter from Civil Enforcement Ltd

indeed it is, shouldn't have skim read it

Many thanks mate

[loafboy]

Re: Help - Letter from Civil Enforcement Ltd

Just a quick update on this. I submitted the letter as above and today have recieved the docs from POPLA that civil enforcement have submitted. Which appears to be a judgement on Parking Eye V Beavis & Wardley, a copy of a POPLA descision 1413024514 on 29th December 2014 for one that they refused the appeal (the details are redacted) a photograph of the sign and their response (attached)

I will wait for the response and keep you informed

Cheers

Mark

[mystery1]

Re: Help - Letter from Civil Enforcement Ltd

Did they include signs ?

I'll respond properly later.

One thing that made me laugh though, their list of pre estimate of loss includes commercial justification ROFL how is that a loss ? A court may rule the charges are commercially justified but a loss ? Someone is drinking too much herbal tea.

M1

[loafboy]

Re: Help - Letter from Civil Enforcement Ltd

They included the attached, which i presume is the sign thats there

[mystery1]

Re: Help - Letter from Civil Enforcement Ltd

They state, in their evidence pack

" We are unable to include a copy of our contract with our client however out contract with our client does authorise Civil Enforcement Ltd to manage the car park and enforce parking charge notices to any vehicle that does not adhere to the stated terms"

This should win your appeal on it's own because they have not refuted the claim that they do not have adequate rights to operate on the land. It is also contrary to the contractual charge nonsense they spout "does not adhere to the stated terms" Oops.

Anyway i would submit further representations to popla along the lines of :-



The operator contends that

" The nature of the relationship between the driver and our company is contractual"

"We are seeking performance of a specific contractual performance"

"If the charge is found to be a pre estimate of loss"

The appellant is confused. Is it contractual or not ? It seems the operator is making things up to justify their charges rather than stating a fact and sticking with it. Is it multiple choice now ?

With regards to the formation of a contract, when one looks at the map supplied by the operator it is clear that if you enter by the entrance marked "This entrance we can block with a chain" and immediately park in the spaces on the left as you enter, you will have passed no signs. As such no contract was formed as the signs were NOT bound to be seen, indeed it is impossible to see something which is not there, and the driver would not know they only had 10 minutes to purchase a ticket. In any event the driver did purchase a ticket for up to 4 hours parking all be that it was some 14 minutes after the anpr camera picked the driver up upon entry however as stated no signs were passed at this time. The driver finished a phone call before exiting the vehicle and then reading the signs she then saw and purchasing a ticket.


These charges are to deter, in any event, as was found in CEL v McCafferty, on appeal, where Recorder Gibson QC said "In my judgment the proper construction of the contract formed by these signs and Mrs McCafferty’s actions in parking in the car park is to the effect that she had accepted an obligation to pay by phone upon arrival. The contract then provided for a charge which can, in my judgment, properly be described in everyday language as a penalty charge, of £150, or a lower sum if certain actions were taken, in default of complying with that initial obligation. No attempt has been made at this appeal to justify the charge of £150 as being an actual loss suffered by the claimant and accordingly this appeal is dismissed."

In their Response to representations the operator said " Signs in the above car park clearly advise that payment for parking must be made within 10 minutes of arrival and on this occasion you failed to do so. It is the responsibility of the driver to ensure that they adhere to the parking terms." This is further evidence of the real purpose of the charge and that is to deter which shows that this is in fact an unlawful penalty as stated by recorder Gibson QC.

The operator claims the charges are commercially justifies based on Parking Eye v Beavis. This case is subject to the court of appeal and is due to be heard on 24/02/15. In any event in Parking Eye v Cargius DDJ Mahy ruled that Beavis was not applicable in a paid car park.

The operators PCN does not comply with PoFA 2012 schedule 4. For starters the creditor is not identified.

The pre estimate calculation provide, in case their other options fail, includes business costs and made up nonsense such as commercial justification which i am struggling to comprehend as a loss in any way shape or form.




That's what i send for further info to popla.

M1

[redleg]

Re: Help - Letter from Civil Enforcement Ltd

Just a quick question M1, regarding signage in this case.
"It states that payment must be made within 10 minutes of arrival to get these discounted rates".
My question is, what is the standard rate for parking?
If they are looking to quantify their loss or running costs as a business, Wouldn't they have to revert to the standard parking rate as apposed to the discounted rate after 10 minutes and not just impose a penalty of £100.00 on the motorist?

[loafboy]

Re: Help - Letter from Civil Enforcement Ltd

Cheers M1 have sent on

[mystery1]

Re: Help - Letter from Civil Enforcement Ltd

Trying to justify £100 in any which way. That's what they are doing. They think contractual works but McCafferty won. It's all a farce. Confusion reigns supreme.

If they advertise as £100 per day then business sucks. IT's not a real or viable option.

At the end of the day it's a penalty.

M1