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  • FIRST POST
    • Peperlini
    • By Peperlini 27th Jun 17, 5:12 PM
    • 21Posts
    • 4Thanks
    Peperlini
    Civil Enforcement (CEL) Defence - Help please
    • #1
    • 27th Jun 17, 5:12 PM
    Civil Enforcement (CEL) Defence - Help please 27th Jun 17 at 5:12 PM
    I have read tonnes of threads drafting CEL Defence and have to say you guys are amazing, this resource has been invaluable to me!


    To give you a bit of background.
    I tried to pay by phone for my parking but the payment would not go through. With no option to pay by cash I decided to leave the car park (after approx. 15 mins).


    27 days later I received 'PCN' invoice from Civil Enforcement £100
    I wrote to them to appeal on grounds that the automated telephone system failed and the 'PCN' or notice to keeper exceeded the 14 days.
    I never received a response to this letter nor a POPLA code to appeal further
    3 months later I got the standard hassling letters from ZZPS followed by Letters from Wright Hassle (no pun intended there I'm sure) I ignored these letters.
    14th June I received County Court Claim signed by Claimants Legal representative (no signature) and a day or two later some additional particulars of claim signed by the infamous Mr Cohen. I did not receive a LBA or LBCCC


    ...so I have taken a stab at my defence, lifting all the relevant parts from other CEL defence threads that I could find, but before I email the signed pdf to the county court email address I was hoping you guys could take a look and give me any feedback.


    I hope I am posting this correctly, this is the first time I have ever used a forum so please forgive me if this is too long for one post.




    In the County Court Business Centre
    Claim Number XXX Between:
    Civil Enforcement Limited (Claimant) v XXX (Defendant)






    Defence Statement




    I am XXX, the Defendant in this matter and the registered keeper of vehicle XXX. I currently reside at XXX.


    I deny I am liable to the Claimant for the entirety of the claim on the following grounds, any of which are fatal to the Claimant’s case:
    1. The Claim Form issued on the 12th June 2017 by Civil Enforcement Limited was not correctly filed under The Practice Direction as it was not signed by a legal person. The claim does not have a valid signature and is not a statement of truth. It states that it has been issued by “Civil Enforcement Limited” as the Claimant’s Legal Representative. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer.

    2. This Claimant has not complied with pre-court protocol. And as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.



    a) There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.


    b) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.


    c) The Schedule of information is sparse of detailed information.


    d) The Claim form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has no idea what the claim is about - why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information. The Claim form Particulars did not contain any evidence of contravention or photographs. Furthermore, the due date of the purported £249.81 sum is listed as due on 15th September 2016, but the alleged debt did not exist on that date as the PCN was not issued until 12th October 2017 (exceeding the 14 day limit) and was for £100.No sum could have been outstanding on the date stated in the Particulars of Claim that are therefore untrue


    e) The additional particulars of claim are signed purportedly by Ashley Cohen, Mr Cohen was reported to sign off witness statements under London Councils POPLA on behalf of landowners, for CEL POPLA cases falsely stating authority. It is submitted that he is a director of another company, Bemrose Mobile Limited which supplies the pay by phone payment methods for parking. Mr Cohen was a former director of Creative Contracts Ltd but has since resigned. Mr Cohen is therefore put to strict proof the capacity and authority he has in signing such statements.


    f) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.


    g) Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;
    (i) Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
    (ii) A copy of any contract it is alleged was in place (e.g. copies of signage)
    (iii) How any contract was concluded (if by performance, then copies of signage maps in place at the time)
    (iv) Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
    (v) Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
    (vi) If charges over and above the initial charge are being claimed, the basis on which this is being claimed
    (vii) If Interest charges are being claimed, the basis on which this is being claimed



    h) Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.


    3. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012 (“POFA 2012”). Such a notice was not served within 14 days of the parking event and when the notice was served, did not fully comply with statutory wording. The Claimant is therefore unable to hold me liable under the strict ‘keeper liability’ provisions:


    The Claimant did not comply with POFA 2012 and give the registered keeper opportunity at any point to identify the driver. A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered no later than 14 days after the vehicle was parked. No ticket was left on the windscreen and no notice to keeper was sent within the 14 days required to comply with POFA 2012 only a speculative invoice entitled “Parking Charge Notice” which was sent outside of the 14 day period, which did not comply with POFA 2012. This would exclude the registered keeper being liable for any charges.


    Henry Greenslade, lead adjudicator of POPLA in 2015 and an eminent barrister and parking law expert, stated that “However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. ”Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and ‘relevant contract' fairly and adequately communicated, which there was not) is the sum on the Notice to Keeper. They cannot pluck another sum from thin air and bolt that on as well when neither the signs, nor the NTK, nor the permit information mentioned a possible £324.81 for outstanding debt and damages.


    4. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee, Ashley Cohen, who drew up the paperwork is remunerated by Civil Enforcement Ltd and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs' were incurred. The Defendant believes that Civil Enforcement Ltd has artificially inflated this claim. They are claiming legal costs when not only is this not permitted (CPR 27.14) but the Defendant believes that they have not incurred legal costs. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost. The Defendant denies that the Claimant is entitled to any interest whatsoever. The claimant has not explained how the claim has increased from the original £100 parking notice to £249.81 If the claimant alleges that they claim the cost of its in-house administration, these cannot be recovered - they are staff performing the task that they have been employed for and essential to the claimant's business plan.

    5. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.


    6. In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.



    a) The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.


    b) In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.


    c) Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
    (i) Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum.
    (ii) Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
    (iii) It is believed the signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from by an authorised party using the premises as intended.
    (iv) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
    (v) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.



    d) BPA CoP breaches - this distinguishes this case from the Beavis case:
    (i) the signs were not compliant in terms of the font size, lighting or positioning.
    (ii) the sum pursued exceeds £100.
    (iii) there is / was no compliant landowner contract.


    7. No standing - this distinguishes this case from the Beavis case:
    It is believed Civil Enforcement do not hold a legitimate contract at this car park. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.


    8. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.



    9. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.

    10.
    Claimants failure to process the payment is not the responsibility of the defendant, and no parking charge can be due. Driver made a telephone call to 0141 404 0000 at 12.24 pm on the 15th September 2016 to make payment. The call was automated and the driver followed all of the instructions. Evidence of this outgoing call was supplied to Civil Enforcement Ltd on 18th October 2016. This was a technical failure outside of the drivers control and therefore the driver discharges their duty to pay the sum necessary.

    The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:



    a) failed to disclose any cause of action in the incorrectly filed Claim Form issued on 12th June 2017.


    b) Sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.


    c) failed to issue a compliant notice to keeper within 14 days under Schedule 4 of the Protection of Freedoms Act 2012 such that Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.


    d) failed to respond to letter from the Defendant dated 18th October 2016 to address the technological failure of the automated payment system.


    e) failed to provide a POPLA code so that the matter could be referred for their decision (in accordance with BPA AOS Code of Practice 22.12)

    The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

    I confirm that the above facts and statements are true to the best of my knowledge and recollection.


    Signed XXX
    Date XXX
Page 2
    • Peperlini
    • By Peperlini 25th Nov 17, 12:12 PM
    • 21 Posts
    • 4 Thanks
    Peperlini
    Thanks so much LoadsofChildren 123. I've just been drafting my witness statement but hadn't seen your advice before so I may need to remove all the POFA stuff. Would you mind taking a look at this first draft anyway and let me know whether you think I should cut it down?




    1 DEFENCE
    2 WITNESS STATEMENT OF [MY NAME]
    3 EXHIBIT IL1 – DEFENDANT DIRECTIONS QUESTIONNAIRE [DQ]



    4 EXHIBIT IL2 – DEFENDANT’S REQUEST FOR FURTHER INFORMATION MADE UNDER CPR PART 18
    5 EXHIBIT IL3 – POPLA ANNUAL REPORT 2015
    6 EXHIBIT IL4 – PROTECTION of FREEDOMS ACT 2012, SCHEDULE 4
    7 EXHIBIT IL5 – PARKING EYE SIGN (Re: The Beavis Case)
    9 EXHIBIT IL7 – BPA CODE OF PRACTICE
    10 EXHIBIT IL8 – BLENHEIM SHOPPING CENTRE CAR PARK SIGN



    11 EXHIBIT IL9 – DEFENDANT’S INITIAL CORRESPONDANCE INCLUDING PHONE RECORDS





    IN THE COUNTY COURT - Claim No.:

    Between

    CIVIL ENFORCEMENT LTD (Claimant)

    -and-

    *********** (Defendant)
    ____________________________
    WITNESS STATEMENT
    __________________________






    I, ……………………., am the defendant in this case.

    1.The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief.


    2.I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.


    3. I am the registered keeper of the vehicle in question in this case.


    4. I recall receiving the speculative parking invoice from the claimant but following research online noted that it did not meet the minimum requirements of Notice to Keeper since it was received long after the 14 day deadline for ANPR issued notices under POFA 2012 (Protection of Freedom Act 2012). I appealed on these grounds and never received a response from the claimant.



    5. I also stated in this letter that the driver attempted to use the Pay by Phone automated system but that the system failed to complete the payment so the driver was left with no alternative than to leave the car park and park elsewhere. Phone records were supplied to the claimant in support of this. As I heard nothing further for quite some time, I felt vindicated and assumed that the matter was closed.

    6. I was then surprised to receive a letter some months later from debt collection company ZZPS. I did some research into why I may have received this since I received no response to my initial letter nor opportunity to appeal to POPLA (Parking on Private Land Appeals)



    7. If I had been given the opportunity to appeal to POPLA at that point, POPLA would have had no other option than to have upheld my appeal for the single reason that the NTK was invalid and received long after the deadline for ANPR issued notices.


    8. I later found out that Alternative Dispute Resolution in the form of POPLA, can be progressed simply by any British Parking Association AOS member firm providing a code. POPLA place no time restriction on when a POPLA code can be provided, but BPA parking firms unilaterally refuse to provide one in pre-court exchanges, misleading consumers that it is 'too late' and thus wasting valuable court time and that of the presiding judge.

    9. I subsequently received several increasingly threatening letters from ZZPS and Wright Hassle. However from researching these 2 companies I had serious concerns about their legitimacy and business practices so did not engage in any correspondence with them.
    Also, as these were not offences or fines from an Authority like a Council, there was no reason or obligation upon a registered keeper to respond to these letters since these are non-POFA compliant PCNs, incapable of holding Registered keepers liable in law.


    10. On 15th June 2017 I received the claim form issued on 12th June2017 which on inspection was not correctly filed under the practice direction as it was not signed by a legal person. I did not receive any Letter before County Court Claim preceding this.


    11. Several days later I received the Claim form Particulars from the claimant which were extremely sparse and divulged no cause of action. It is well documented that the claimant and similar parking companies are submitting masses of court claims for old “parking charges” and are inappropriately using the court system as a form of debt collection to ‘scare’ their victims with the threat of CCJs.


    12. On 29th June I submitted my defence to the County Court business centre and at the same time mailed a copy to Civil Enforcement Ltd.


    13. On 25th August 2017 I submitted my Directions Questionnaire and mailed a copy to Civil Enforcement Ltd along with a preliminary request for further information made under CPR Part 18 (Exhibit IL2)


    14. I did not receive a copy of the claimants completed Directions Questionnaire.


    15. I did not receive any response from the claimant regarding my request for further information made under CPR Part 18.


    16. I did not receive from the claimant any further documentation, photographs, signed contracts or any detailed breakdown of the sum being claimed.


    17. I did not receive a copy of the claimants witness statement.


    18. I was never shown the alleged signage contract photos (not even the original ‘PCN’ showed the purported signs.


    19. I never saw the ‘contract’ they are trying to hold me liable to so based on the vague particulars of claim and being inexperienced in law I can only make assumptions as to what the claim is about and aim to cover them as detailed in my defence statement.


    20. The Claimant has failed further to meet their obligations under Civil Procedure Rules:
    The usual rule when a Claimant sues under a contract is that it must provide the Defendant with a copy of that contract (Practice Direction 16 paragraph 7.3(1)).

    As I understand it, Claimants in proceedings issued via MCOL are exempt from this (Practice Direction 7E paragraph 5.2A) EXCEPT when separate Particulars of Claim are served, as is the case in this Claim.

    21. The Claimant is therefore in breach of this aspect of the CPR because it has failed to provide the contract with the Particulars of Claim. The absence of the contract is a serious bar to me providing a proper defence to the claim (the Claimant should have produced a copy of it in the pre-action phase of the proceedings, against both the new Protocol for Debt Claims and the pre-existing Practice Direction - Pre-Action Conduct).

    22. The limited information that CEL did provide to me did not contain any evidence of contravention or photographs, nor a copy of the “Letter before County Court Claim” that was supposed to have been sent to me (I did not receive a Letter before County Court Claim), nor a copy of the landowner contract under which they assert authority to operate, nor a copy of the full terms set out in the signage, nor a map showing where the signs were located etc. I understand that these should all have been produced, pursuant to paragraph 6 of the Practice Direction – Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim properly or to “take stock”, pursuant to paragraph 12 of the Practice Direction.

    23. I have set out above CEL’s failures to comply with the CPR. Its failure to comply with the rules put me, an ordinary Litigant in Person, at a significant disadvantage. Given CEL's multiple breaches of the CPR, I ask the court to give consideration, under its inherent case management powers, to strike out the claim. The court's powers to do so are contained in CPR Rule 1.4(2) (c) and Practice Direction 26, paragraph 5.1.


    24. If the court is not minded to make an order of its own volition, then the court has the power to treat this as an application rather than asking me to issue a Notice of Application – the power to do this is contained in CPR Part 23.3(2) (b) which provides specifically that the court may dispense with the requirement for an application notice.


    25. The court’s powers to strike out a claim are contained in CPR Rule 3.4 and the “test” is if:
    (a) the statement of case discloses no reasonable grounds for bringing a claim; or
    (b) the statement of case is an abuse of the court’s process; or

    (c) there has been a failure to comply with a Rule, Practice Direction or Order.


    26. CEL is a commercial Claimant pursuing many other claims of this nature. It must therefore have knowledge of, and understand, the Civil Procedure Rules. These sorts of blatant, and from my researches, routine breaches should not be allowed because they prejudice Litigants in Person, who are not well versed in court procedures and the court rules. It is with some difficulty that I have understood the various obligations and time limits set out in the Civil Procedure Rules, as a Litigant in Person, whereas a commercial Claimant such as CEL has no such excuse.

    27. The sign at the entrance to the car park does not explicitly explain that a driver would be entering into a contract by the specific act of parking and neither does it clearly state who that contract would be with. This is contrary to BPA guidance. The sign submitted did not clearly show that there would be a charge of £100 or if it did then this part of the sign is in such small text that it is therefore illegible.

    28. The BPA state that signs should be simple and easy to read, and there should be strong colour contrast between text and background recommending black on white as a good example.

    29. I submit that Civil Enforcement Ltd do not comply with BPA CoP. The sign showing the possible PCN charge of £100 is hidden in the small print at the bottom of the sign. It is not prominent or obvious and not easy to see by a motorist driving, even very slowly, past the sign.

    30. In support of the above 3 points I enclose Exhibit IL7 – the BPA code of practice; and Exhibit IL8 – a sign from the car park in question.

    31. The claimant cites Vine vs Waltham Forest LBC [2002] in the mail merged particulars of claim which states that any driver did not have fair opportunity to discover the onerous terms by which they would later be bound.

    32. I submit that the case of Vine vs Waltham Forest LBC [2002] supports my case and not the claimant’s.

    33. Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently and in far larger lettering.


    34. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

    (1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
    (2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

    35. The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

    36. This judgment is binding case law from the Court of Appeal.

    37. This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established.



    38. Conclusion – no evidence of contravention and the Particulars lack any basis for a claim


    39. I also point out to the presiding Judge that the Claimant has not supplied any evidence at all that the alleged contraventions even occurred. ANPR camera photos merely show a vehicle arriving and leaving. All vehicles will have been recorded thus (assuming their VRNs were captured). All vehicles, including those whose drivers payments were completed without technical fault.

    40. In order to demonstrate that the driver failed to pay. The Claimant should have evidenced that, of course. As this is an ANPR site, where are the system records showing no payment was made? They have not even responded regarding the failure of their automated telephone payment system or that they had investigated using the phone records supplied whatsoever.

    41. A similarly poorly pleaded and evidenced ‘private parking ticket’ claim was struck out by District Judge Cross of St Albans County Court on 20/09/16 without a hearing, due to a the law firm’s template particulars being held to be ‘incoherent’, failing to comply with CPR 16.4, and ''providing no facts that could give rise to any apparent claim in law''.

    42. The Court is invited to dismiss this Claim, and to allow my wasted costs which will be submitted separately and in a timely manner, depending upon whether a hearing takes place. I firmly believe that to pursue me as registered keeper when the Claimant has no such right due to their own choice of non-POFA documentation, and to submit such incoherent particulars and lacking ‘evidence’ is wholly unreasonable and vexatious.



    I believe that the facts stated in this Witness Statement are true.


    Signed……………………..



    Dated………………………
    • Peperlini
    • By Peperlini 26th Nov 17, 4:19 PM
    • 21 Posts
    • 4 Thanks
    Peperlini
    So I have cut out paragraphs 34-38 but If anyone has any comments or can give me any advice today please feel free. I would be so grateful!!!

    I am going into hospital tomorrow for an operation and not sure how I’m going to be feeling afterwards so if there are no suggested changes I will probably print everything off to package up the tonight to send off to court in the morning.

    Thanks to everyone for all the help and support so far. Especially LoadsofChildren123 and Coupon-mad for your invaluable advice!
    • Peperlini
    • By Peperlini 30th Nov 17, 2:01 PM
    • 21 Posts
    • 4 Thanks
    Peperlini
    Final plea for help before Hearing..
    I've just got off the phone with the court and I was surprised to hear that CEL have actually paid the trial fee so it looks more and more likely that this may actually go ahead (unless they discontinue at the eleventh hour as I have heard can be their MO). Getting very scared now but I just have to stand up to these bullies...

    I need to get my witness statement to the court by Tuesday so I have a few days left but I'd like to get it into the post asap. I'm glad I did most of the work before my general anaesthetic this week as my head is still a bit befuddled but I would be ever so grateful for your help @Coupon-mad and @Loadsofchildren123 (unfortunately I don't have any such text or email as you suggested for evidence) or anyone else that has the time to give this a read for me.

    Here is the witness statement in semi final state:
    1 DEFENCE
    2 WITNESS STATEMENT OF [MY NAME]
    3 EXHIBIT IL1 – PARTICULARS OF CLAIM
    4 EXHIBIT IL2 – DEFENDANT'S INITIAL CORRESPONDENCE AND PHONE RECORDS
    5 EXHIBIT IL3 – DEFENDANT’S REQUEST FOR FURTHER INFORMATION MADE UNDER CPR PART 18
    6 EXHIBIT IL4 – PROTECTION of FREEDOMS ACT 2012, SCHEDULE 4
    7 EXHIBIT IL5 – BPA CODE OF PRACTICE
    9 EXHIBIT IL7 – PARKING EYE SIGN (Re: The Beavis Case)
    10 EXHIBIT IL8 – BLENHEIM SHOPPING CENTRE CAR PARK SIGNS

    IN THE COUNTY COURT - Claim No.:

    Between

    CIVIL ENFORCEMENT LTD (Claimant)

    -and-

    *********** (Defendant)



    ____________________________
    WITNESS STATEMENT
    __________________________
    I, ……………………., am the defendant in this case.

    1.The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief.

    2. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.

    3. I am the registered keeper of the vehicle in question in this case.

    4. I recall receiving the speculative parking invoice from the claimant but following research online noted that it did not meet the minimum requirements of Notice to Keeper since it was received long after the 14 day deadline for ANPR issued notices under POFA 2012 (Protection of Freedom Act 2012). I appealed on these grounds and never received a response from the claimant.

    5. I also stated in this initial correspondence that the driver attempted to use the Pay by Phone automated system but that the system failed to complete the payment so the driver was left with no alternative than to leave the car park and park elsewhere. Phone records were supplied to the claimant in support of this. As I heard nothing further for quite some time, I felt vindicated and assumed that the matter was closed.

    6. I was then surprised to receive a letter some months later from debt collection company ZZPS. I did some research into why I may have received this since I received no response to my initial letter nor opportunity to appeal to POPLA (Parking on Private Land Appeals)

    7. If I had been given the opportunity to appeal to POPLA at that point, POPLA would have had no other option than to have upheld my appeal for the single reason that the NTK was invalid and received long after the deadline for ANPR issued notices.

    8. I later found out that Alternative Dispute Resolution in the form of POPLA, can be progressed simply by any British Parking Association AOS member firm providing a code. POPLA place no time restriction on when a POPLA code can be provided, but BPA parking firms unilaterally refuse to provide one in pre-court exchanges, misleading consumers that it is 'too late' and thus wasting valuable court time and that of the presiding judge.

    9. I subsequently received several increasingly threatening letters from ZZPS and Wright Hassle. However from researching these 2 companies I had serious concerns about their legitimacy and business practices so did not engage in any correspondence with them. Also, as these were not offences or fines from an Authority like a Council, there was no reason or obligation upon a registered keeper to respond to these letters since these are non-POFA compliant PCNs, incapable of holding Registered keepers liable in law.

    10. On 15th June 2017 I received the claim form issued on 12th June2017 which on inspection was not correctly filed under the practice direction as it was not signed by a legal person. I did not receive any Letter before County Court Claim preceding this.

    11. A few days later I received the Claim form Particulars from the claimant which were extremely sparse and divulged no cause of action. It is well documented that the claimant and similar parking companies are submitting masses of court claims for old “parking charges” and are inappropriately using the court system as a form of debt collection to ‘scare’ their victims with the threat of CCJs.

    12. On 29th June I submitted my defence to the County Court business centre and at the same time mailed a copy to Civil Enforcement Ltd.

    13. On 25th August 2017 I submitted my Directions Questionnaire and mailed a copy to Civil Enforcement Ltd along with a preliminary request for further information made under CPR Part 18 (Exhibit IL2)

    14. I did not receive a copy of the claimants completed Directions Questionnaire.

    15. I did not receive any response from the claimant regarding my request for further information made under CPR Part 18.

    16. I did not receive from the claimant any further documentation, photographs, signed contracts or any detailed breakdown of the sum being claimed.

    17. I did not receive a copy of the claimants witness statement.

    18. I was never shown the alleged signage contract photos (not even the original ‘PCN’ showed the purported signs.

    19. I never saw the ‘contract’ they are trying to hold me liable to so based on the vague particulars of claim and being inexperienced in law I can only make assumptions as to what the claim is about and aim to cover them as detailed in my defence statement.

    20. The Claimant has failed further to meet their obligations under Civil Procedure Rules:
    The usual rule when a Claimant sues under a contract is that it must provide the Defendant with a copy of that contract (Practice Direction 16 paragraph 7.3(1)).
    As I understand it, Claimants in proceedings issued via MCOL are exempt from this (Practice Direction 7E paragraph 5.2A) EXCEPT when separate Particulars of Claim are served, as is the case in this Claim.

    21. The Claimant is therefore in breach of this aspect of the CPR because it has failed to provide the contract with the Particulars of Claim. The absence of the contract is a serious bar to me providing a proper defence to the claim (the Claimant should have produced a copy of it in the pre-action phase of the proceedings, against both the new Protocol for Debt Claims and the pre-existing Practice Direction - Pre-Action Conduct).

    22. The limited information that CEL did provide to me did not contain any evidence of contravention or photographs, nor a copy of the “Letter before County Court Claim” that was supposed to have been sent to me (I did not receive a Letter before County Court Claim), nor a copy of the landowner contract under which they assert authority to operate, nor a copy of the full terms set out in the signage, nor a map showing where the signs were located etc. I understand that these should all have been produced, pursuant to paragraph 6 of the Practice Direction – Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim properly or to “take stock”, pursuant to paragraph 12 of the Practice Direction.

    23. I have set out above CEL’s failures to comply with the CPR. Its failure to comply with the rules put me, an ordinary Litigant in Person, at a significant disadvantage. Given CEL's multiple breaches of the CPR, I ask the court to give consideration, under its inherent case management powers, to strike out the claim. The court's powers to do so are contained in CPR Rule 1.4(2) (c) and Practice Direction 26, paragraph 5.1.

    24. If the court is not minded to make an order of its own volition, then the court has the power to treat this as an application rather than asking me to issue a Notice of Application – the power to do this is contained in CPR Part 23.3(2) (b) which provides specifically that the court may dispense with the requirement for an application notice.

    25. The court’s powers to strike out a claim are contained in CPR Rule 3.4 and the “test” is if:
    (a) the statement of case discloses no reasonable grounds for bringing a claim; or
    (b) the statement of case is an abuse of the court’s process; or
    (c) there has been a failure to comply with a Rule, Practice Direction or Order.

    26. CEL is a commercial Claimant pursuing many other claims of this nature. It must therefore have knowledge of, and understand, the Civil Procedure Rules. These sorts of blatant, and from my researches, routine breaches should not be allowed because they prejudice Litigants in Person, who are not well versed in court procedures and the court rules. It is with some difficulty that I have understood the various obligations and time limits set out in the Civil Procedure Rules, as a Litigant in Person, whereas a commercial Claimant such as CEL has no such excuse.

    27. The sign at the entrance to the car park does not explicitly explain that a driver would be entering into a contract by the specific act of parking and neither does it clearly state who that contract would be with. This is contrary to BPA guidance. The sign submitted did not clearly show that there would be a charge of £100 or if it did then this part of the sign is in such small text that it is therefore illegible.

    28. The BPA state that signs should be simple and easy to read, and there should be strong colour contrast between text and background recommending black on white as a good example.

    29. I submit that Civil Enforcement Ltd do not comply with BPA CoP. The sign showing the possible PCN charge of £100 is hidden in the small print at the bottom of the sign. It is not prominent or obvious and not easy to see by a motorist driving, even very slowly, past the sign.

    30. In support of the above 3 points I enclose Exhibit IL5 – the BPA code of practice; and Exhibit IL7 – a sign from the car park in question. This is in stark contrast to the sign in the Beavis Case (Exhibit IL6). Case law from Beavis would lead to the conclusion that a vital ingredient is that the signage be ample, the charge clear.

    31. The claimant cites Vine vs Waltham Forest LBC [2002] in the mail merged particulars of claim which states that any driver did not have fair opportunity to discover the onerous terms by which they would later be bound.

    32. I submit that the case of Vine vs Waltham Forest LBC [2002] supports my case and not the claimant’s.

    33. Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently and in far larger lettering.

    34. I also point out to the presiding Judge that the Claimant has not supplied any evidence at all that the alleged contraventions even occurred. ANPR camera photos merely show a vehicle arriving and leaving. All vehicles will have been recorded thus (assuming their VRNs were captured). All vehicles, including those whose drivers payments were completed without technical fault.

    35. In order to demonstrate that the driver failed to pay. The Claimant should have evidenced that, of course. As this is an ANPR site, where are the system records showing no payment was made? They have not even responded regarding the failure of their automated telephone payment system or that they had investigated using the phone records supplied whatsoever.

    36. A similarly poorly pleaded and evidenced ‘private parking ticket’ claim was struck out by District Judge Cross of St Albans County Court on 20/09/16 without a hearing, due to a the law firm’s template particulars being held to be ‘incoherent’, failing to comply with CPR 16.4, and ''providing no facts that could give rise to any apparent claim in law''.

    37. The Court is invited to dismiss this Claim, and to allow my wasted costs which will be submitted separately and in a timely manner, depending upon whether a hearing takes place. I firmly believe that to pursue me as registered keeper when the Claimant has no such right due to their own choice of non-POFA documentation, and to submit such incoherent particulars and lacking ‘evidence’ is wholly unreasonable and vexatious.

    I believe that the facts stated in this Witness Statement are true.


    Signed……………………..



    Dated………………………
    • nosferatu1001
    • By nosferatu1001 30th Nov 17, 2:05 PM
    • 1,144 Posts
    • 1,173 Thanks
    nosferatu1001
    Remember you can serve your bundle on the court via email, which saves one lot of posting. For CEL first class, free proof of posting, and allow 2 working days for it to arrive

    Theyve discontinued beofre now, despite paying the hearing fee, as they are likely waiting to see if you submit a good bundle. If you do I predict they will discontinue

    I cant review this just yet, can others please?
    • Loadsofchildren123
    • By Loadsofchildren123 30th Nov 17, 2:16 PM
    • 1,754 Posts
    • 2,865 Thanks
    Loadsofchildren123
    I will look at this for you, just not now! Either later today, tomorrow or the weekend.
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
    • Peperlini
    • By Peperlini 30th Nov 17, 2:19 PM
    • 21 Posts
    • 4 Thanks
    Peperlini
    Remember you can serve your bundle on the court via email, which saves one lot of posting.
    Originally posted by nosferatu1001
    Really? I've scoured all the court docs but cannot work out how to email the bundle to the court as there is only a postal address saying to address it to the Court Manager. Wish I'd asked that while I was on the phone to them earlier today - I almost gave up as was holding for over 40 minutes on their automated hold system before I got through to a human being.
    • Peperlini
    • By Peperlini 30th Nov 17, 2:20 PM
    • 21 Posts
    • 4 Thanks
    Peperlini
    Thank you so much @Loadsofchildren123 !
    • IamEmanresu
    • By IamEmanresu 1st Dec 17, 6:13 AM
    • 1,812 Posts
    • 3,202 Thanks
    IamEmanresu
    As this will be one of the first CEL bundles we'll have seen, it would be useful to post it up or to share it with a trusted person off board.

    They will likely to have updated their template so will be useful to compare with an old one.

    Court email addresses can be found here: https://courttribunalfinder.service.gov.uk/search/
    Life's for living, get on with it rather than worrying about these. If they hassle, counter claim.

    Send them that costs schedule though, 24 hours before the hearing, and file it with the court. Take with you evidence that you have sent the costs schedule to them and when.
    LoC
    • Johnersh
    • By Johnersh 1st Dec 17, 6:50 AM
    • 734 Posts
    • 1,361 Thanks
    Johnersh

    Remember you can serve your bundle on the court via email, which saves one lot of posting.
    Originally posted by nosferatu1001
    ”Really? I've scoured all the court docs but cannot work out how to email the bundle to the court
    All true. But if your bundle contains a lot of information/documents don't rely on it all to be printed off by court staff.

    Email is great for lodging documents, but I would always prepare and send in my trial bundle in hard copy.
    • Peperlini
    • By Peperlini 1st Dec 17, 8:16 AM
    • 21 Posts
    • 4 Thanks
    Peperlini
    Great suggestions - so if I email the bundle to the court by the deadline @enosferatu1001 and mention that a hard copy is in the post, @Johnersh, I can then just mail the copy 1st class to the court and CEL with certificates of posting?

    @Loadsofchildren123 - do you want me to dropbox the whole bundle with all the supporting docs somewhere?

    Thanks again for this, Sally
    • nosferatu1001
    • By nosferatu1001 1st Dec 17, 11:12 AM
    • 1,144 Posts
    • 1,173 Thanks
    nosferatu1001
    Yep, sounds a plan

    Yes please. Break the link as youre not allowed to post real URLs yet - http becomes hxxp afte ryou have copied the link into the text box.
    • Peperlini
    • By Peperlini 2nd Dec 17, 5:29 PM
    • 21 Posts
    • 4 Thanks
    Peperlini
    Hi @LoadsofChildren123. Is there anything you need me to do at this point? I’m not sure how to post my bundle on here because it’s all scanned in as a pdf with my personal info all over it (I’m not massively technological). - I even had to write the page numbers on in pencil as I couldn’t work out how to do it in the computer
    • nosferatu1001
    • By nosferatu1001 3rd Dec 17, 1:37 PM
    • 1,144 Posts
    • 1,173 Thanks
    nosferatu1001
    Rescan it using bits of paper to cover the personal bits.
    • Peperlini
    • By Peperlini 3rd Dec 17, 4:29 PM
    • 21 Posts
    • 4 Thanks
    Peperlini
    Court bundle
    Hope this works. I have never used Dropbox before. I have scanned my court bundle except for the BPA code of practice doc which is a separate pdf to be included between p32-72. Not sure how much of it is relevant to my case so I thought best to include it all and then I can highlight any passages as necessary to refer to on the day of the hearing.

    https://www.dropbox.com/sh/jj6c5frfrij7cya/AABh9q8Pfqf74t6qraeA7Sgpa?dl=0

    ...And the link again with spaces added around Dropbox:
    https://www. dropbox. com/sh/jj6c5frfrij7cya/AABh9q8Pfqf74t6qraeA7Sgpa?dl=0
    • Peperlini
    • By Peperlini 4th Dec 17, 7:49 AM
    • 21 Posts
    • 4 Thanks
    Peperlini
    Last plea!
    Today is the day I need to get all my final docs off in the post

    Did you have any chance to look at this over the weekend @Loadsofchildren123
    Or if not, would you mind just giving me a quick Yay or Nay this morning as to whether my bundle looks okay to send?

    Really hope having got this far that I’m not going to mess it all up at this stage. Feeling anxious and out of my depth.
    • nosferatu1001
    • By nosferatu1001 4th Dec 17, 10:11 AM
    • 1,144 Posts
    • 1,173 Thanks
    nosferatu1001
    Youre not out of your depth!
    Youve done amazingly so far
    Annoyingly I cant get to dropbox from work. Im hoping others can.
    This is YOUR defence so you need to be happy yourself
    • Loadsofchildren123
    • By Loadsofchildren123 4th Dec 17, 10:36 AM
    • 1,754 Posts
    • 2,865 Thanks
    Loadsofchildren123
    OP, I'm working on your statement.
    I do not propose to include the out of time under POFA argument. you have already identified yourself as driver in the first appeal. You have a good driver's defence, which is that you drove in, saw the t&Cs, were unable to comply because their pay by phone system wasn't working, so you left. Therefore you never entered into any contract. I'd keep it simple.
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
    • Peperlini
    • By Peperlini 5th Dec 17, 11:48 AM
    • 21 Posts
    • 4 Thanks
    Peperlini
    Court bundle submitted
    Thank you so much to everyone that has advised me with this and helped me keep my sanity but particularly huge thanks to @Loadsofchildren123 for all the work on my witness statement yesterday.

    In case you are interested in reading it I will add the updated bundle to the drop box as soon as I can remove all the personal data.

    Its now in the lap of the gods (or the judge to be precise)
    • Loadsofchildren123
    • By Loadsofchildren123 5th Dec 17, 12:21 PM
    • 1,754 Posts
    • 2,865 Thanks
    Loadsofchildren123
    The crux of this case isn't signage or POFA. Inadequate signage is in the defence and the WS but in my view the real and primary defence is whether or not a contract was concluded.
    OP saw the signage. OP went to pay. The only method of payment was by phone. OP tried twice to pay by phone. Once the call didn't go through at all. Second time the call went through but at the end of it there was an automated message saying that payment had failed due to a technical error. OP decided enough was enough and left and parked elsewhere. OP therefore never accepted the contract, or any contract which was reached was frustrated by the failure of the payment system.
    OP thinks she was there about 10 minutes. PPC says ANPR data shows it was 19 minutes. Regardless of which one is correct, OP only stayed for so long as it took to find a parking space, park, walk to the machine, attempt twice to pay, return to the car and leave, and did not leave the car park in between (but in fact went and parked elsewhere).
    No contract concluded, therefore no breach.
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
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