CEL Claimform -and Popla

[madmatt1009]

 

Good evening everyone,

 

I have received a county court claim from Civil Enforcement.

 

As usual I apealled to popla initially and got turned down; I have just re-read the adjudication;

 

Decision

Unsuccessful

Assessor Name

Lauren Bailey

Assessor summary of operator case

The operator’s case is that the appellant failed to make a valid payment for parking.

Assessor summary of your case

 

The appellant’s case is that the operator’s photographs do not prove that the vehicle parked on site. The appellant questioned the accuracy of the ANPR system. The appellant said that the operator has not provided evidence it has the authority to issue parking charges on this land. The appellant said that the operator has not shown the charge is a genuine pre estimate of loss.

Assessor supporting rational for decision

 

The appellant has raised a number of grounds of appeal however my decision will focus solely on the parking charge amount.

The appellant said that the parking charge is not a genuine pre estimate of loss.

 

I will therefore consider the prominence of the parking charge on the signs at the site.

The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis.

 

Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable.

It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount.

 

Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable.

Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty.

Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss.

 

The interest of the landowners was the provision and efficient management of customer parking for the retail outlets.

The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin.

 

Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.” As such, I must consider whether the signage at this site is sufficient.

 

When doing so, I must consider the minimum standards set out in Section 18 of the BPA Code of Practice.

Within Section 18.1 of the BPA Code of Practice, it states as follows:

“You must use signs to make it easy for them to find out what your terms and conditions are.”

 

Furthermore, Section 18.3 of the BPA Code of Practice states:

“You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”

 

As stated, these are the minimum standards that could be expected of the parking operator when informing motorists of the terms and conditions at a particular site.

In addition to this, I note that within the Protection of Freedoms Act 2012 it discusses the clarity that needs to be provided to make a motorist aware of the charge.

 

Specifically, it requires that the driver is given “adequate notice” of the charge.

 

The act then moved on to define “adequate notice” as follows:

(3) For the purposes of sub-paragraph (2) “adequate notice” means notice given by:

(a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or

(b) where no such requirements apply, the display of one or more notices which:

(i) specify the sum as the charge for unauthorised parking; and

(ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.

 

Having reviewed the signage, I do not consider the parking charge is prominently displayed on the signs.

The parking charge is written in smaller text that the terms and conditions.

It is also included within other terms and could easily be missed by motorists.

 

On this occasion, I do not conclude that the parking charge is

“adequate to bring the charge to the notice of drivers who park vehicles on the relevant land”.

 

I will therefore allow the appeal.

 

your attention is drawn to a) the unsuccessful verdict at the start, and b) the final line of the text.......

 

has someone dropped a major one here????

 

many thanks in advance

[dx100uk]

irrelevant to a court claim.

 

please complete this:

 

 

[madmatt1009]

Have already acknowledged service, whats my next step to cause maximum hell for this company....

 

Background, I work for a local authority, we deliver to schools,charities etc....I hate these private [EDIT] companies because they feel that by targetting my employer, they are onto an easy buck.....

 

I know you will think I'm mad (crazy even) but I take these tickets on in my own name and fight them as far as I can.....

[dx100uk]

as you should

link please

[ericsbrother]

Right POPLA deliberately chose to pick holes in one part of your appeal becasue that part was utter bo**oCks and 10 years out of date and it saves them the embarrassment of having to answer the other points which were more pertinent and would possibly ahve won you the day.

had you not put this bit about loss in your appeal they would be forced to ask CEL for their contract and you may well ahve won the day.

however, as said above that is all irrelevant to a court claim and what you need to put in your defence.

 

For the moment all you need to do is go moneyclaim online and create an accout and enter the case ref and acknowledge the claim. that gives you an extra fortnight to submit an outline of your defence and will also give you tiem to send CEL a CPR 31.14 request for documents ( see library fo letter) and to gather a bit of evodence for us to look at and make suggestiosn of what to put in your outline defence.

 

Now pictures of the site and its signage will be the most important thing you can get for us and also say who owns the land if known

[madmatt1009]

thank you for your reply ericsbrother, fair enough about the damages, I realised after I had sent to appeal to POPLA last year that this foolish.

 

My issue here now is that POPLA have said that their signs are non compliant and at the bottom of my adjudication they say that my appeal should be allowed, they also made a mistake at the start of the adjudication saying it was unsuccessful (obviously CEL don't bother to read past the start of such adjudication and have now launched a county court summons against me.)

 

I have acknowleged service of the summons

 

In the light of this adjudication, I planned to contest the court summons on the grounds that they have been told my appeal should be allowed

[dx100uk]

can you please complete this link and answer the Q&A back here

dx

 

[FTMDave]

Is it worth quickly e-mailing POPLA, pointing out the contradiction, and asking if your appeal was upheld or not?

 

If they say "Yes" you're in the clear.

 

If they say "No", well, CEL don't have to know about the mail.

[brassnecked]

If appeal was upheld you will be able to make CEL have a very bad time.

[ericsbrother]

The wording is a bit vague and we dont really take a great deal of notice of POPLA decisions as they are not binding on the motorist and as this one says they have breached their regs a bit but the appeal WAS allowed so CEL have NO CAUSE FOR ACTION as it was determined that there wasnt a breach of contract so yes, tell POPLA and the BPA that CEL have ignored the determination and what are they going to do about it?

 

.The first line of your defence will be that there is no cause for action by the claimant against the defendant as the POPLA determiantion number xxxyyy of the date 2018 ordered that the appeal be upheld and the claimant  has breached  their legal obligations to comply with this ruling by commencing this action. The claim is thus vexatious

 

Then say for point 2 "there was no breach of contract as the sigange was determined to be insufficient to create one"  just to rub it in and

 

if you want to add any other brief points like the paucity of the detail in the claim itself,

the addition of costs that have not been paid out such as legal fees when no solicitor used contrary to civil procedure rules etc.

 

Then you ask for the claim to be dismissed by the court using its powers under CPR 3.4 and ask for a full cost recovery  order for their unreasonable conduct under CPR 27.14.2(g). 

 

I would say LiP research and presentation costs for 3 hrs@£19.50/hr plus postage etc

 

.

[madmatt1009]

Thank you very much ericsbrother and everyone else.

 

I have had an email from the BPA stating that they intend to contact CEL to explain themselves.

 

I'll be entering my defence this evening as I don't want them to drop the case before I have had a chance to a) embarass them and b) claim LiP costs.

 

 

I'll come back as and when I have further news on this.......Thank you all once again

[madmatt1009]

Quick question....does asking for LiP costs qualify as a counterclaim??

[dx100uk]

no

[madmatt1009]

thank you

[madmatt1009]

Received in post this morning, letter from CEL that the pcn has been cancelled and the claim discontinued....

 

Well it wasn't when I entered my defence last night......wait and see what the county court have to say I guess

[honeybee13]

You're right, check with the court to be on the safe side.

 

HB

[brassnecked]

Yes check with court CEL know they have been rumbled, and would get a tolchocking off a judge whan that POPLA upheld appeal was presented.  They are silly/duplicitous enough to say they have discontinued, then carry on and go for Summary Judgment.

[ericsbrother]

send a CPR 27.14.2(g) request for costs anyway as the claim is vex. Explain why in the letter. You can send this by post to your local county court or by email to Northampton BCC but dont expect a response from them in under a fortnight

The reason they have cancelled is BECAUSE you have submitted a defence, if you hadnt they would have won by default and you can bet they wouldnt be keen to pay you your costs for the set aside.

[ericsbrother]

forgot to say, add the point that they failed to send a proper LBA as requiered under Pre action Protocols. Look up the relevant CPR number if there is one and add this you your unreasonable conduct part and that the claim is Vex as already explained in post 10

[madmatt1009]

Good morning everyone,

 

I have just checked online and they issued a discontinuance 12 hours after my filing my defence....

 

Hopefully I'll at least get LiP costs out of this, shame they never got a butt kicking from a judge

[ericsbrother]

you will have to write and ask for them as said so itemise every penny and explain. Northampton BCC may be able to tell you if you should put this to your local court or whether they can use their management powers to order it (probably not).

Be persistent though until you get a proper answer