CEL Claim Defence

superstitiious

Hi folks,

I am sadly having to revive my own thread again so close to Christmas as CEL are up to their games again.

My 3rd PCN that I thought was put to bed a while ago has come back to life with CEL paying their £25 to take me to court on the 14th January 2019. I rang the court yesterday to confirm this.

Earlier this week, I received via normal post and recorded delivery copies of CEL's witness statement and about 30 pages of their exhibits and the whole copy of Schedule 4 from the Protection of Freedoms Act 2012.

The cover letter says the following:

"The amount claimed is £324.66 (including interest, court and legal fees), however, unless matters are resolved within the next 7 days, we will be forced to incur further legal costs for preparation, attendance and travel, which we will seek to recover at the upcoming hearing.

Notwithstanding the above, we are prepared to accept £100 in full and final settlement, if paid withing the next 7 days. If you wish to accept our offer, please email the legal team at legal(at)ce-service.co.uk providing your phone number, and a member of the team will return your call to take the payment.

Yours faithfully"

No one has signed it on one copy, and Ashley Cohen's scanned signature is on the other (the only difference between the 2 packs).

Now, at this time of the year, I think this is a pretty low move from CEL (but I wouldn't expect anything less) to do this just before Christmas and I hope I am right to think that they're clutching at straws and are trying to extort £100 from me with their scare mongering. I also am fully aware that I now need to write my own witness statement (which I have yet to begin and don't know where to start, so I'll research this later) and anticipate that I'll be at court by myself as they won't turn up (this is what I am hoping).

My wife is telling me that I should just pay the £100 to stop this once and for all, but I doubt that that would put an end to it (not sure on the legalities of them then pursuing this further down the line). I am quite stressed out about it and am very apprehensive about meeting the judge and them at court.

Any help/advice etc will be greatly appreciated at this time (pretty please) and I hope that people still check this forum at this time of year!

superstitiious

Hi all,

Looking for some help with writing my witness statement, I have tried to PM a couple of the well-known people who help on the forums but their inboxes are full so cannot send them messages.

I have to send off my WS by Monday as my hearing is 14th January. Is anyone able to help as I'd like to post some things but am aware that the Parking companies are monitoring the forums.

Thanks in advance

Le_Kirk

Witness statements are the story of what happened on the day in question, so only the keeper/driver knows that. Write it as it happened and refer to the legal points that you included in your defence and include/point to any evidence you want to rely on such as photos, points of law or codes of practice. There are some examples of WS if you search the forum.

superstitiious

Just unsure as to write it from the point of view of myself who was at work on said day, or from the point of view of the driver and include sigange issues etc in the witness statement.

If I was to do the first bit, my statement would literally just say that I am the registered keeper of the vehicle, that I hardly drive it and that i was at work during the times of the incident.

Surely that isn't it? Am I being stupid? Been reading up all evening and am brain dead amongst the panic

EDIT: Also sent a SAR in to see exactly what they have on me and the vehicle (I know this is probably too late but didn't know this was an option until I recently revisited the newbies thread.

KeithP

As the Defendant, you write your Witness Statement from your point of view.

You go to the car park.

You take pictures of the signs.

You state your opinion of the signs in your Witness Statement.

Have you nothing to say about how the NtK doesn't support transfer of liability to the keeper?
You state in your Defence that it doesn't.

You continue from there...


How on earth do you think other keeper defendants manage?

Have you read any of the Defence examples linked from post #2 of the NEWBIES thread?

Redx

it has to be a truthful statement and you have to look at your defence and see if you are relying on CEL failing POFA2012, or not

if you ARE using POFA , then its not a drivers WS, its a keeper WS (at WORK ALL DAY etc)

if CEL know who was driving then POFA21012 goes out of the window and its a drivers WS

DO NOT COMMIT PERJURY (lie)

you are telling the story to a judge in your own words, based on what you know (not what you have heard , so not hearsay)


as KeithP says, this may mean that as keeper you have been to the location SINCE THAT DAY and obtained your own evidence, AFTER THE FACT

superstitiious

What I have so far, I'm up to paragraph 11 and am not sure if I'm wording things correctly (legal terms etc), my grasp of the English language is OK at best as it is my second language so please bare with me. I have read many witness statements to this point, and thank you for your continued help and guidance.



In the County Court at XXXXXXXXXXXXXX
Claim No. XXXXXXXXXXX

Between

Civil Enforcement Ltd (Claimant)

and

XXXXXXXXXXXXXXX (Defendant)

---

Witness Statement

---

1. I am XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, the Defendant in this matter. 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 the registered keeper of the vehicle in question, XXXXXXXXXX, VRN: XXXX XXX but I am not the main driver of the vehicle as seen on exhibit XXX1: Vehicle Insurance Certificate. I have only driven this car on 5 occasions and these have been long journeys, never to this retail car park.

3. Exhibit XXX2 shows the defendant’s working diary, a SIMS screenshot of the day in question: XXXXXXXXXXXXXXX, which shows that the defendant was at work between the hours of 8:40am and 1:30pm. The defendant could not have been the driver due to this.

4. The paragraph numbers mentioned below relate to the Witness Statement filed by the Claimant, Ashley Cohen.

5. RE #8: The claimant submits that the defendant is the responsible person in charge of the vehicle which has incurred the charges referred to in Mr Cohen’ witness statement.

6. This is denied and Ashley Cohen was not there and has no knowledge of who was driving on any occasion. However, unlike Mr Cohen, I do have knowledge and attest that I was not the driver.

7. RE #4 & #6: The claimant submits to have many “clear and visible signs in the car park”. Exhibit 1 & Exhibit 3 are the claimant’s claims that these photographs are a true representation of the signs.

8. This is denied, not least because the photos are undated and are not a true representation of the signage in place on the day in question.

9. The defendant has since visited the retail park to review the signage and can attest that they are not clear and visible, and are quite the contrary. The claimant’s exhibit 3 shows a sign that the defendant could not find during their visit. The defendant took photos (Exhibit XXX3, XXX4, XXX5 & XXX6) of the signs and it can be noted that they are faded, distorted and are located at least 10 feet off the ground making them very difficult to read and not signs that are prominent with large lettering.

10. The defendant captured footage of the journey into the car park (Exhibit XXX7), and it can be seen that it is a difficult entry into a car park where any driver’s attention would be on the road and the blind corner to the right rather than the signs that are on the side of the road. The claimant have a small sign above the chevron seen on the first corner and watching the video at normal pace it is difficult to make out what it says when the driver’s focus is on the road and avoiding any other vehicles approaching as it is a blind bend. It can then be noted that on the next corner there are no obvious visible signs. The 3rd corner shows a 10mph sign which is prominent, taking focus away from the faded sign that the claimant claims to be “clear and visible”.

11. These inadequate signs are incapable of binding any driver which distinguishes this case from the case of ParkingEye v Beavis [2015] UKSC 67 (the Beavis case). Signage that is 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 could be formed to pay any clearly stated sum. The terms were not legible, this is an unfair contract, not agreed by any driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as compensation from any authorised party using the premises as intended.

12. I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

Statement of Truth

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

Signature
Date

KeithP

Yes, you are heading in the right direction.
Just think, yesterday you had nothing to say. Well done.

OK, you have good evidence that you were not the driver, but I still think you need something in there explaining exactly how they are unable to hold the keeper liable.

Paragraph 3 in your Defence states:

3. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict 'keeper liability' provisions.

You now need to explain in your Witness Statement, with evidence, exactly how that NtK is not able to transfer liability to the keeper.

superstitiious

Nowhere on the PCN does it mention that I am the keeper, its an assumption that I am the driver and if I am not then I am to inform them who the driver was.

Am I right to think that this is the part they're not compliant with?

Warn the keeper that if the parking charges remains outstanding after 28 days and the name and address of the driver has not been given, or otherwise known to the person entitled to the parking charge, that “creditor” will be entitled to recover the parking charge from the registered keeper.

Also, nowhere on the PCN does it state:

State whether a notice to the driver was given either to the driver or placed on the vehicle and if so to repeat the information in that notice about paying the parking charge and when

superstitiious

In the County Court at xxxxxxxxxxxxxx
Claim No.xxxxxxxxxxxx

Between

Civil Enforcement Ltd (Claimant)

and

xxxxxxxxxxxxxxxx (Defendant)

---

Witness Statement

---

1. I am xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, the Defendant in this matter. 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 the registered keeper of the vehicle in question, xxxxxxxxxxxxxxxxxxxxxxx but I am not the main driver of the vehicle as seen on exhibit XXX1: Vehicle Insurance Certificate. I have only driven this car on 5 occasions and these have been long journeys, never to this retail car park.

3. Exhibit XXX2 shows the my working diary, a SIMS screenshot of the day in question: xxxxxxxxxxxxxxxxxxxxxx, which shows that I was at work between the hours of 8:40am and 1:30pm. I could not have been the driver due to this.

4. The paragraph numbers mentioned below relate to the Witness Statement filed by the Claimant, Ashley Cohen.

5. RE #8: The claimant submits that the defendant is the responsible person in charge of the vehicle which has incurred the charges referred to in Mr Cohen’ witness statement.

6. This is denied and Ashley Cohen was not there and has no knowledge of who was driving on any occasion. However, unlike Mr Cohen, I do have knowledge and attest that I was not the driver.

7. RE #4 & #6: The claimant submits to have many “clear and visible signs in the car park”. Exhibit 1 & Exhibit 3 are the claimant’s claims that these photographs are a true representation of the signs.

8. This is denied, not least because the photos are undated and are not a true representation of the signage in place on the day in question.

9. I have since visited the retail park to review the signage and can attest that they are not clear and visible, and are quite the contrary. The claimant’s exhibit 3 shows a sign that the defendant could not find during their visit. I have taken photos (Exhibit XXX3, XXX4, XXX5 & XXX6) of the signs and it can be noted that they are faded, distorted and are located at least 10 feet off the ground making them very difficult to read and not signs that are prominent with large lettering.

10. I have captured footage of the journey into the car park (Exhibit XXX7), and it can be seen that it is a difficult entry into a car park where any driver’s attention would be on the road and the blind corner to the right rather than the signs that are on the side of the road. The claimant have a small sign above the chevron seen on the first corner and watching the video at normal pace it is difficult to make out what it says when the driver’s focus is on the road and avoiding any other vehicles approaching as it is a blind bend. It can then be noted that on the next corner there are no obvious visible signs. The 3rd corner shows a 10mph sign which is prominent, taking focus away from the faded sign that the claimant claims to be “clear and visible”.

11. These inadequate signs are incapable of binding any driver which distinguishes this case from the case of ParkingEye v Beavis [2015] UKSC 67 (the Beavis case). Signage that is 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 could be formed to pay any clearly stated sum. The terms were not legible, this is an unfair contract, not agreed by any driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as compensation from any authorised party using the premises as intended.

12. Re #16: The claimant states that the defendant did not respond to any of the notices referred to in Mr Cohen’s WS, nor were the parking charges settled or appealed.

13. I did not respond to the brightly-coloured alarmist Notices sent to me by the claimant because I believed they were spam (this sort of scam had been exposed on Watchdog & The Jeremy Vine Show on Radio 2). Also, as I was not the driver and these were not offences or fines from an Authority like a Council, there was no reason or obligation upon a registered keeper to ‘appeal’ to what appeared to be junk mail. I have since researched this, hence my knowledge that these are non-POFA PCNs, incapable of holding me liable anyway.

14. Re #18: The Claimant seeks to apportion blame to a keeper for not responding to their letters and for not naming the driver.

15. This is not an obligation or a failure on my part; I had no reason to respond and this is supported by my Exhibit XXX8, an extract from the POPLA Annual Report 2015 (Paragraph 3, Page 13).

16. Barrister and parking law expert Henry Greenslade was the ‘POPLA’ (‘Parking on Private Land Appeals’ independent service offered by the BPA) Lead Adjudicator from 2012 – 2015 and Civil Enforcement Ltd was under that Trade Body at the time of the first mentioned in this claim. I adduce as evidence Mr Greenslade’s opinion in the POPLA Annual Report 2015 which confirms that there is no presumption in law that a keeper was the driver and that keepers do not have any legal obligation whatsoever, to name drivers to private parking companies. No adverse inference can be drawn from my choice not to respond to what appeared to be spam. I refer you to paragraphs 8 and 14 from the claimant’s witness statement which state “The defendant parked his vehicle”.

17. Re #17: The claimant did not issue correctly the PCN under Schedule 4 or Protection of Freedoms Act (POFA) 2012. As stated in Schedule 4.4(2a), the conditions specified in paragraphs 5,6,11 &12 need to have been met. Schedule 4.12 (1) states that any applicable requirements prescribed under this paragraph were met at the beginning of the period of parking to which the unpaid parking charges relate. Schedule 4.12 (2) states:

“The appropriate national authority may by regulations made by statutory instrument prescribe requirements as to the display of notices on relevant land where parking charges may be incurred in respect of the parking of vehicles on the land.

The provision made under sub-paragraph (2) may, in particular, include provision—
(a)requiring notices of more than one kind to be displayed on any relevant land;
(b)as to the content or form of any notices required to be displayed; and
(c)as to the location of any notices required to be displayed.”

18. I reference paragraph 9 and 10 of this witness statement regarding the signage witnessed at the retail park which are not complicit of the above (paragraph 17).

19. Re #7: The claimant cites Vine vs Waltham Forest LBC [2002] regarding the presence of notices which are posted.

20. Even though I was not the driver. I submit that the case of Vine vs Waltham Forest LBC [2002] supports my case and not the claimants.

21. 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 and IPC 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, with fewer words and more prominent colours.


I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

Statement of Truth

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

Signature
Date