FAO Civil Enforcement Limited, legal team
This is a formal response to your 'Letter before County Court Claim' received in September 2017. I am the registered keeper however I (xxxx xxxxxx) was not the driver at the time of the alleged penalty notice but rather my wife Mrs xxxx xxxxxxx of same address was, henceforth referred to in this response in first person (namely I). I contend that I am not liable for the parking charge on the grounds listed below. If this operator remains silent on any appeal point then it is deemed accepted.
1) This letter has been issued by the Civil Enforcement Limited Legal Team with no due diligence and no scrutiny of details. I believe the term for such conduct is ‘robo-claims’, which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair and disrespectful on unrepresented consumers such as myself.
2) Breach of the BPA Code of Practice Principles
Under section 21 of the CoP, AOS members are only allowed to use ANPR if they:
(a) Use it to enforce parking in a reasonable, consistent and transparent manner.
(b) Have clear signs which tell drivers that the operator is using this technology and what the data captured by ANPR cameras will be used for.
21 Automatic number plate recognition (ANPR) General principles
21.1 ''You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.''
The facts are that a ticket was bought, sent as proof and it was clear early on, that the driver had paid in good faith but had simply keyed in an incomplete registration number. This is not mitigation, this is a fact that I submit cannot give rise to a PCN because it is not 'transparent' in the terms on signs/the pay and display machine, that a correct VRN is an 'obligation' which runs such a risk and will be compared to the ANPR data for the purpose of imposing a charge (appendix A).
The fact is, a BPA AOS operator is required to have transparent, fair and professional procedures including manual checks to identify such minor infringements. I require that the operator provides the Court with a copy of their policy and proof that those checks were made in this instance. Further, I require proof that ''wrong VRN' is in fact incorporated into the contract from the landowner as a penalty-generating 'contravention' since I find it highly unlikely that the retailer/landowner allows this unfair fining of paying customers.
If it is not in the contract it is not a contravention that can give rise to a penalty.
In your rejection letter to my appeal wherein I included the ticket as way of evidence that parking had been paid for, Civil Enforcement Limited have failed to explain what manual checks were made or why they consider that enforcement is appropriate, nor whether the contract even allows a charge for 'wrong VRN'. Nor do they show in what terms it is made clear to the payee standing at the machine, that when making payment they have an obligation to input a correct vehicle VRN and run the risk of a punitive so-called 'parking charge' (unfairly set as a fixed sum at the same level as a non-payer) for that action alone. Indeed appendix A clearly shows that the input of a VRN is a payment instruction and not a clause listed or obviously related to the conditions of use.
This is an inappropriate parking charge which should have been cancelled on appeal. I remind Civil Enforcement Limited that operation and enforcement is not just about issuing PCNs and collecting money from hapless victims, regardless of any legitimate interest, reasonableness or appropriateness. In fact the BPA CoP mentions in the Introduction 'minimum standards' (suggesting they are set low) as well as the importance of 'acting in a professional, reasonable and diligent way' in issuing 'appropriate' parking charges:
2.6 By creating the Code the parking industry has set out the minimum standards by which you will be judged by anyone coming into professional contact with you. Members of the public should be able to expect that you will keep to the law, and act in a professional, reasonable and diligent way.
2.9 The Code and its appendices cover the operation of parking on private, unregulated land. This includes:
• designing and using signs
• using ANPR and associated systems
• appropriate parking charges.
And in the ANPR section:
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action.
To any right-minded person's viewing, refusing an appeal from a genuine parking customer who did pay and display is neither 'professional and reasonable' nor 'diligent'. Their own ANPR records show that there was no vehicle on site with the VRN I keyed in and as evidence, I was able to produce the ticket as proof that I paid but made an inadvertent error with the VRN, thereby showing that THIS ticket did relate to THIS vehicle and no other in the car park.
I submit that it was clear that it was not 'appropriate to take action' so the PCN should have been cancelled. I submit that to pursue a genuine customer who paid & displayed is contrary to the wishes of the landowners and this PCN is unauthorised. As such, the parking charge cannot be considered 'properly given' at the point of inappropriately refusing my appeal.
3) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner to evidence the definition of the services provided. This includes a list of grace periods, charges and all restrictions authorised where a parking charge can arise, as I do not believe they are authorised by the landowner to charge a paying customer for a mere VRN error.
The contract and any 'Manual' setting out details including restrictions, charges and exemptions - such as any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge.
It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).
Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:
7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.
7.3 The written authorisation must also set out:
a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d who has the responsibility for putting up and maintaining signs
e the definition of the services provided by each party to the agreement.
4) The signs (Appendix A) do not state what the ANPR system data will be used for.
The BPA CoP contains the following in paragraph 21:
''Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.''
Civil Enforcement Limited fail to tell drivers that the ANPR data will be compared to any VRNs input into the P&D machine and will then be used to issue 'parking charges' for any case where there is a VRN omission or error. If I had known this vital fact, I would have thought twice before inputting the VRN in error. As I did NOT know this, I cannot be deemed bound by the terms.
The ticket machines should be linked to the cameras and only allow correct details, or offer the nearest match and ask if it is the correct VRM before accepting the money
5) In your letter before action you reference The 'ParkingEye v Beavis' case. This case exposes this charge as unconscionable, with no overriding 'legitimate interest' to save it from offending against the penalty rule.
The Supreme Court made it perfectly clear that the judgment was not a silver bullet which justifies all parking charges. Indeed, cases which are not about a free parking licence but involve a simple financial transaction (e.g. paying a tariff and putting in a VRN) were said at the Court of Appeal stage to be likely to fall foul of Lord Dunedin's four tests for an unenforceable penalty.
Civil Enforcement Limited, if choosing to reference this case, should equally be well aware that the circumstances of the Beavis case were entirely different. In this case, we have an authorised user using the car park appropriately where there has been no loss to the owner and no abuse of a parking space, nor any overstay.
While the courts might hold that a large charge might be appropriate in the case of a 'free stay' car park, essentially as a deterrent to overstaying, there is nothing in the case to suggest that a reasonable person would accept that a £100 penalty is a conscionable amount to be charged for the simple problem of a VRN error which was explained and accompanied in good faith at appeal stage, by proof of pay & display.
In this case the vehicle would have been fully entitled to park as it did had the VRN been correctly keyed in (provided that obligation had been clearly brought to the motorist's attention). The justification and 'legitimate interest' that was held to rescue the 'ParkingEye v Beavis' charge is irrelevant and conspicuously absent. The Operator cannot argue that a 'legitimate interest' exists to punish customers for accidentally inputting a wrong VRN on a single occasion, yet using the car park for exactly the purpose intended and for no more than the paid-for time.
The Beavis case is not comparable and does not supersede any considerations of the specific facts in this case. It is certainly likely that the courts would say it is undoubtedly 'unconscionable' to penalise a customer who has proved they paid and displayed, at the same level as (for example) a trespasser, who parked all day across two bays without paying any tariff.
This charge issued to me as a paying driver is clearly capable of being held by the courts as an unenforceable penalty. This view is supported by the judgment of the Supreme Court, which did not disagree with the earlier judgment from the Court of Appeal in 'Parking Eye v Beavis' which held:
"44. All the previous cases shown to us have concerned contracts of a financial or at least an economic nature, where the transaction between the contracting parties can be assessed in monetary terms, as can the effects of a breach of the contract by one party or the other...
45. The contract in the present case is entirely different. There is no economic transaction between the car park operator and the driver who uses the car park...
47. When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker [...] should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) Bing. 141 at 148:
“But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.”
This judgment makes clear that the Court of Appeal (and by definition, the Supreme Court which agreed) would also consider the charge in this case to offend against the penalty rule which all Judges agreed WAS 'engaged' by a contract attempting to enforce a parking charge. And at the Supreme Court it was held at 14: ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty;’ ''
At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated complex cases (Beavis) from ordinary/standard contracts with a transaction and tariff paid at a machine:
''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''
This is NOT a 'more complex' case by any stretch of the imagination.
The purported contract with the motorist is an ordinary 'financial contract' where the loss that Civil Enforcement Limited thought had arisen (non-payment of a tariff) is easily calculable. Without intellectual dishonesty, it cannot be argued that there is a commercially or socially justifiable deterrent value in this charge, especially as soon as Civil Enforcement Limited knew that in fact, the driver had paid and displayed.
Any putative contract needs to be assessed on its own merits as regards what would be deemed 'out of all proportion' to the tariff paid and 'unconscionable' given the circumstances. Consumer law always applies and no contract “falls outside” The Consumer Rights Act 2015; the fundamental question is always whether the terms are fair.
In this case the specific question is whether a reasonable person would, when parking in a place where they had paid the correct tariff for the privilege, also accept a further unknown liability in the case of a VRN error (that they were not informed was vital nor ran the risk of a huge fine). I would suggest that a court would not accept that £100 was a reasonable amount given these specific circumstances.
Although the charge was different, the Beavis case was 'entirely different' and does not save the charge in this case, from being held to be unconscionable. This is an unenforceable penalty and cannot be upheld as properly given.
6) Reference the ICO Code of Conduct for surveillance.
Some interesting points arise from use of Automated Number Plate Recognition (ANPR) - see section 7.1. and in particular this:
“
When storing the information and cross referencing it with other
databases to identify individuals, you will need to ensure that these
databases are kept up-to-date and accurate and are of sufficient quality
to prevent mismatches
”
So if the camera takes personal data (registration) and stores it to then cross reference with the registrations inputted, I would argue that
(i) an accurate, quality system would be able to marry up the 4 letters that were inputted?
(ii) that to require more than 4 letters was, in any event, to process more personal data than reasonably required to check for payment.
7) This ticket was bought and paid for in good faith. According to the Consumer Rights Act 2015 any goods purchased should be 'Fit for Purpose'. The ticket that was issued to me was not 'fit for purpose'. Civil Enforcement Limited took my money to issue an invalid ticket and now want to charge me a penalty of £100 for having an invalid ticket. The invalid ticket was issued due to the ticket machine allowing the transaction to complete when I had entered an invalid Vehicle Registration Number. The ticket machines should be linked to the cameras and only allow correct details, or offer the nearest match and ask if it is the correct VRM before accepting the money
8) Example of previous case Parking Eye v Heggie
Example of previous case taken from many previous cases listed on Internet
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New transcript available. ParkingEye v Heggie
3JD04791 ParkingEye Ltd v Heggie (Barnsley, 13/12/2013). Deputy District Judge Obhi ruled that the amount charged by ParkingEye was not a genuine pre-estimate of loss.
Report
In this case Mr Heggie entered the wrong registration number for his vehicle. ParkingEye were able to trace this and confirm that he had paid. However, because they had started court proceedings they refused to drop the claim.
ParkingEye argued that their charge of £100 was a genuine pre-estimate of loss because the whole running costs of the car park needed to be considered.
Judge Obhi ruled that there was actually zero loss incurred.
ParkingEye then tried to argue there was an overstay of four minutes.
Judge Obhi dismissed the claim.
Although ParkingEye claim this was all the defendants fault for not contacting them, it is worth noting that it is their own systems which cause the problem. Systems from other organisations do not allow entry of numbers where a vehicle with that registration was not present.
It is also true that Civil Enforcement Limited will have had an entry on their system that charges were paid for a vehicle which was not present, and so could reasonable be said to be aware that the problem was likely to have been caused by an incorrect registration.
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I expect to hear from you within 14 days to confirm that this charge is now cancelled.
Yours Sincerely,
xxxxx xxxxxxxxx
