Civil enforcement ltd

[irene66]

Hi, i am the registed keeper of my sons car but he was the driver. I have recived a PCN informing me of a fine to pay. My son is adament that he telephoned and paid the charge when parking. I have a printout of his mobile call log showing the call lasting over 3 minutes. Nothing was taken from his bank account though, so looks like it didnt work! The time that he was parked was 10 minutes. Do i have to pay?

[mystery1]

Re: Civil enforcement ltd

Certainly not. Post up the PCN.

M1

[irene66]

Re: Civil enforcement ltd

Certainly not. Post up the PCN.

M1

Do you mean just the details or a scan of the letter? I wrote back enclosing a copy of the call log, and a cheque for £1 parking charge. This has been returned today stating they are rejecting it and i do need to pay. I did not say who was the driver.

[irene66]

Re: Civil enforcement ltd

Parking Charge Notice
Sunderland SR1 3NX

PCN no. XXXXXXXXXX
PCn issue date. 06/07/2015
Incident Date. 20/06/2015
"on 20 June 2015 the above vehicle was parked at:
CAR PARK AT COWAN TERRACE, SUNDERLAND, Sr1 3NX
from. 15:24:50 To 15:42:12
WE therefore require payment of the parking charge notice. In accordance with the parking terms and conditions clearly stated on the signage.

Payment not made in accordance with terms displayed on signage.
amount due. Within 28day £100
reduxed amount is paid within 14 days £60

[mystery1]

Re: Civil enforcement ltd

Dear Sirs,


I, as registered keeper, wish to invoke your appeals process. The driver did not see any signs. I note your notice to keeper is fundamentally flawed when compared to PoFA 2012 schedule 4 para 9.


Should you reject my appeal please supply a popla code.


Yours etc


If popla is need let me know.


M1

[irene66]

Re: Civil enforcement ltd

Thank you, when i received the letter back this mirning rejecting the cheque i sent for the 1 hour parking my son thought he had paid they quoted a popla code. What do i do with this code?

[mystery1]

Re: Civil enforcement ltd

Leave it with me and i'll sort a good appeal out.

M1

[irene66]

Re: Civil enforcement ltd

[QUOTE=mystery1;564666]Leave it with me and i'll sort a good appeal out.


Thank you.

[mystery1]

Re: 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. 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.


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


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

5. Keeper Liability


1.The charges are penalties.


The charges are represented as non payment of fee. The driver paid, or at least thought they had, via phone. Upon checking telephone records the call making payment lasted 3 minutes. 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 having paid the small fee applicable.. Neither is it commercially justified because it would make no sense to penalise a genuine paid visitor. There was no loss and certainly can be no 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 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 where the operator paid £1000 per week they were commercially Justifiable which clearly can't be in the case or trespass.


2. 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/0ce354ec669790b4b7d83754d8ca32e5?AccessKeyId=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.


3. 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.


4. 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.

5. The notice to keeper does not comply with the protection of freedoms act 2012 schedule 4 paragraph 9. The creditor is not identified, a period of parking is not specified (rather than a timed entry/exit). the keeper is not invited to pay etc.


M1

[irene66]

Re: Civil enforcement ltd

Wow thank you so much, i'll give it a go and let you know on the reply letter which will be coming back. Again many thanks

[irene66]

Re: Civil enforcement ltd

Good afternoon Mystery 1,

well after about 5 months hearing nothing back from Civil Enforcement I have now received a letter from ZZPS Ltd, informing me that they now are acting for Civil Enforcement Ltd and my fine is now 200.00 including late payment and debt recovery charges. I think they have no power to make me pay and I will keep on getting these letters, (probably rising in charges). Would your advice be to ignore? thanks

[mystery1]

Re: Civil enforcement ltd

What happened to the popla appeal ?

M1

[irene66]

Re: Civil enforcement ltd

What happened to the popla appeal ?

M1

i heard nothing back except the first letter saying my appeal had been rejected, and quoting a popla number then another bill telling me i had to pay the full amount, i ignored that one. Then this zzps letter upping the cost again. I know they are a "bully boy" company but should i ignore it and wait for more letters to arrive, read on goigle they have no power to enforce, only a court can do that. Any help/advice you can give will be very much appreciated.

[mystery1]

Re: Civil enforcement ltd

i heard nothing back except the first letter saying my appeal had been rejected, and quoting a popla number

Did you lodge the popla appeal i did for you ? Post 9

M1

[irene66]

Re: Civil enforcement ltd

What happened to the popla appeal ?

M1

i sent that letter straight back to civil enforcement co, think i have cocked this up mystery1, i didnt send it to popla but to the company sending out the invoice. Oh bugger have i made a big mistake