I have a County Court Summons from Civil Enforcement Ltd

cornboy

I have spent over two hours searching and i can't find any witness statements all i can find is defence statements, can anyone help me.

My Deadline is 19th July and i am starting to panic a little.

Coupon-mad

You click on the links in the second post of the NEWBIES thread that say 'here's an example Witness Statement'.

If it's that hard to read a few words, why not just have the NEWBIES thread open and do 'control & F' and put in the word 'witness' and get there that way? In less than one second...

cornboy

Thanks coupon-mad i have read throught them and i think i have something now.

Let try this:

Witness Statement:

I,xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this case.

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
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.

1.1 The Claim relates to an alleged debt arising from the vehicle having been parked at xxxxx, xxxxxxxx on xx/xx/2017. Civil Enforcement Ltd (CEL) are arguing I was bound by unknown terms creating a contractual charge, yet this £100 was not a term known or agreed at the point of making the contract.

1.2 I did not receive any 'Parking Charge Notice' either on the windscreen nor in the post, nor any warning. Letter before Claim was the first I knew about this allegation; hence I had no fair opportunity to appeal or show my evidence prior to proceedings. I put the Claimant to strict proof of any letters they contend were served and the address used.

2. The Claim Form issued on the 18th April 2018 by Civil Enforcement Ltd 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: Civil Enforcement: as the Claimant!!!8217;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.

3.1 This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017) 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.

3.2 The claimant is put to the strictest proof of their assertions.
4. Section 7 of the British Parking Association Code of Practice outlines to operators some of the common law principles of operating on someone else's land as a licensee. One such item is written authority - a written contract - to be there. It defines the elements of this written authority as follows:

7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all the aspects of the management and enforcement of the site that you are responsible for.
In particular, it must say that the landowner requires you to keep to the Code of Practice and that either you have the authority to pursue outstanding parking charges, through the courts if necessary or that you have the authority to pursue outstanding parking charges and, with their permission, through the courts if necessary.

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.

5. This Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information'. This Code confirms that it applies to ANPR systems, and that the private sector is required to follow this code to meet its legal obligations as a data processor. Members of the British Parking Association AOS are required to comply fully with the DPA, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land. The Claimant's failures to comply include, but are not limited to:
a) Lack of an initial privacy impact assessment, and
b) Lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle, and
c) Failure to regularly evaluate whether it was necessary and proportionate to continue using ANPR at all times/days across the site, as opposed to a less privacy-intrusive method of parking enforcement (such as 'light touch' enforcement only at busy times, or manning the car park with a warden in order to consider the needs of genuine shoppers and taking into account the prevailing conditions at the site on any given day), and
d) Failure to prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR system and how the data would be used, and
e) Lack of the 'Privacy Notice' required to deliver mandatory information about an individual's right of subject access, under the Data Protection Act (DPA). At no point has the Defendant been advised how to apply for a Subject Access Request, what that is, nor informed of the legal right to obtain all relevant data held, and

6. The Court's attention will be drawn to the case of Andre Agassi v S Robinson (HM Inspector of Taxes). Whilst not wholly aligned to the issues in this case, it is on all fours with the above point, because of the principle it extols that no one should profit from their unlawful conduct. Paragraph 20 of the Transcript of that case states: ''It is common ground that, whatever costs may be recoverable by a litigant in respect of professional services such as those provided by Tenon to the appellant, they cannot include the cost of any activities which are unlawful''. Paragraph 28 continues - ''...cannot on any view recover the cost of activities performed by Tenon which it was not lawful for them to perform.''

7.1. Further, in RTA (Business Consultants) Limited v Bracewell [2015] EWHC 630 (QB) (12 March 2015), at paragraph 34 the Judge discusses the relevance of the public law principle going back well over 200 years, that no man should profit from his crime; it is submitted that this is particularly relevant in this action. The Judge cited Lord Mansfield CJ to explain that: ''The principle of public policy is this; ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If [...] the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff.''

7.2. Even if there was a purported contract between the unidentified driver and the Claimant, it was illegal at its formation because it was incapable of being created without an illegal act (the failure to comply with points #14 a - e above, as part of the legal obligations that must be communicated up front and/or undertaken by a consumer-facing service provider, some of which were required even before commencing any use of ANPR at all).

7.3. Where a contract is illegal when formed, neither party will acquire rights under that contract, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it had never been entered into. As such, the asserted contract cannot be enforced.

7.4. In this case it was not lawful for the Claimant to process any data using ANPR camera systems upon which it relied for the entire ticketing regime, due to its failure to meet its specific legal obligations as a data processor of ANPR information. The collection of the information was unlawful; breaching principle one of the DPA.

7.5. To add weight, the Defendant also cites from ParkingEye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338, which concerns an alleged illegal contract involving a similar BPA member parking firm. Whilst the facts of that case are not relevant, the Judge's comments at paragraph 29 of the Transcript of the Somerfield case are of importance:
''At common law, historically, a distinction has been drawn between cases where the guilty party intended from the time of entering the contract unlawfully and cases where the intention to perform unlawfully was only made subsequently''.
As has already been stated, in this case the problem arose at (and before) the formation of the alleged contract and was not in relation to any subsequent act. Laws LJ, in Somerfield, concluded that ParkingEye did not have an intention, when creating that contract, to deliberately break the law so the contract was upheld. Differently in this case, it is asserted that the Claimant did deliberately or negligently break the DPA and as it was a BPA member with access to a wealth of DPA compliance information, articles and legal advice, and being a signatory to the KADOE contract with the DVLA, the Claimant cannot be excused from, nor justify, their conduct in failing to meet their legal obligations.

7.6. At paragraphs 65-74 of the Somerfield transcript, Laws LJ set out three factors which need to be considered in a defence of illegality. The Defendant submits that the key issues in this action are that:
(a) the commission of an illegal wrong being present at the time of entering the contract means that the Claimant will not be able to enforce the contract.
(b) the illegality is central to the contract and is not merely a minor aspect, thus it should not be held to be too remote so as to render the contract enforceable.
(c) the nature of the illegality: in this case it was a breach of legal obligations regarding data, and not merely a civil tort as in Somerfield. The gravity of the illegality is therefore far greater.

7.7. It should be noted that the issue of breach of the DPA also transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015, which was enacted after the final hearing in Beavis. This charge and use of ANPR by this claimant is both unfair and not transparent and can be fully distinguished from Beavis, where none of the issues in the Defendant's points 6 and 7 above were argued.

8. In the alternative, the attention of the court is drawn to para. 4(5) Schedule 4 Protection of Freedoms Act 2012 which sets out that the maximum amount recoverable from the registered keeper, where the keeper liability provisions have been properly invoked (which is expressly denied in this case) is that amount specified in the Notice to Keeper (whether issued in accordance with paras 8(2)c; 8(2)d, 9(2)c or 9(2)d of the Act).
9. The Claimant is attempting to claim additional charges such as solicitors, court fee and legal costs of £75 The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have indeed been incurred. Furthermore, legal costs cannot be recovered in the Small Claims Court and should be struck out as unrecoverable.


10. It is trite law that a contractual term cannot be relied upon that is only communicated after conclusion of a contract, as that is too late to be incorporated into the prior agreed terms.

11.1 As am the keeper not the driver at the timer I did not agreed to any charge so this is surely just the sort of 'unconscionable' charge exposed as offending against the penalty rule, in the wholly different and 'complex' case of ParkingEye Ltd v Beavis [2015] UKSC 67 (the Beavis case) which can be fully distinguished from my case. In Beavis, ParkingEye did not rely upon the keeper agreeing to a contract between an unknown driver and ParkingEye as the excuse for a parking charge.


11.2 At the Supreme Court at 107 it was stated !!!8221;In our opinion the term imposing the £85 charge was not unfair. The term does not exclude any right which the consumer may be said to enjoy under the general law or by statute!!!8221; But in my case the 'parking charge' is not only unfair, disproportionate and unconscionable given the facts of the case (known by this Claimant to be true) but the fact is the charge was never agreed at the time the parking agreement with Civil Enforcement Ltd was made.
FIND THIS

12. Had I received a 'PCN' (which was not received) I understand that this unwarranted charge would have been cancelled on appeal. Further, despite knowing that I was a registered keeper - as their own VRN records confirm in sufficient detail - Civil Enforcement Ltd have tried to apportion blame to myself at all stages, blaming me for:

(a) the non-receipt of a PCN they have failed to prove was even posted.

(b) not appealing a PCN I never received.

(c) providing evidence 'not at the earliest opportunity' when in fact Letter before Claim were the first I knew of this unwelcome dispute.

13. The fact I made reasonable endeavours and cannot be penalised under UK contract law is also a circumstance supported by trite law. Authority for this is the case of Jolley v Carmel Ltd [2000] 2 EGLR 154, where it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

14.1 Even if the Court believes a contract potentially existed, the Law Reform (Frustrated Contracts) Act 1943 applies. It states at 1.(1) ''money due but not paid before frustration ceases to be payable'' and !!!8220;a contract may be discharged on the ground of frustration. The unforeseeable frustration brings a contract to an end forthwith and automatically!!!8221;

14.2 Due to frustration of contract, where matters were outside my control due to me not being present (the Claimant has adduced no evidence of fault on my part) the contract was never properly or fairly made.

17. The Court is invited to dismiss the Claim, and to allow such Defendant!!!8217;s costs as are permissible under Civil Procedure Rule 27.14.


I believe the facts stated in this Defence Statement are true.

System

Your numbering is all off as it jumps from 7 back to 5.

It is also not a Witness Statement as it has elements that are not related to your knowledge (stated first) and could be construed by a judge on an off day as an abuse of process.

Take out anything you cannot prove. Facts only. Especially the bits about "crime" and "illegal acts".

Why not start with the evidence you have and build the WS from that.If you haven't evidence, then you say on the balance of probabilities it is .....

cornboy

Thanks for the reply, which points do you think I should take out.

I am going to send this in tomorrow as the deadline is 19th.

System

which points do you think I should take out.

As was mentioned above

Take out anything you cannot prove. Facts only. Especially the bits about "crime" and "illegal acts".

So what can you evidence to a judge in a hearing. What is simply an opinion? What is possible libel?

Then you can go through it and say "I have evidence that ..." or "I have the opinion that ..." but it is never wise to make comments about criminality which cannot be proven as unproven accusations may leave you open to a claim for defamation at worst, or detracts from your strongest points which should be high up the page.

cornboy

So I have revised it to this.

Witness Statement:

I,xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this case.

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
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.

1.1 The Claim relates to an alleged debt arising from the vehicle having been parked at xxxxx, xxxxxxxx on xx/xx/2017. Civil Enforcement Ltd (CEL) are arguing I was bound by unknown terms creating a contractual charge, yet this £100 was not a term known or agreed at the point of making the contract.

1.2 I did not receive any 'Parking Charge Notice' either on the windscreen nor in the post, nor any warning. Letter before Claim was the first I knew about this allegation; hence I had no fair opportunity to appeal or show my evidence prior to proceedings. I put the Claimant to strict proof of any letters they contend were served and the address used.

2. The Claim Form issued on the 18th April 2018 by Civil Enforcement Ltd 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: Civil Enforcement Ltd: as the Claimant!!!8217;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.

3.1 This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017) 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.

3.2 The claimant is put to the strictest proof of their assertions.

4. Section 7 of the British Parking Association Code of Practice outlines to operators some of the common law principles of operating on someone else's land as a licensee. One such item is written authority - a written contract - to be there. It defines the elements of this written authority as follows:

7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all the aspects of the management and enforcement of the site that you are responsible for.
In particular, it must say that the landowner requires you to keep to the Code of Practice and that either you have the authority to pursue outstanding parking charges, through the courts if necessary or that you have the authority to pursue outstanding parking charges and, with their permission, through the courts if necessary.

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.

4.2 I believe that Civil Enforcement Ltd do not have written authority and The claimant is put to the strictest proof of their assertions

5. Had I received a 'PCN' (which was not received) I understand that this unwarranted charge would have been cancelled on appeal. Further, despite knowing that I was a registered keeper - as their own VRN records confirm in sufficient detail - Civil Enforcement Ltd have tried to apportion blame to myself at all stages, blaming me for:

(a) the non-receipt of a PCN they have failed to prove was even posted.

(b) not appealing a PCN I never received.

(c) providing evidence 'not at the earliest opportunity' when in fact Letter before Claim were the first I knew of this unwelcome dispute.


6. This Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information'. This Code confirms that it applies to ANPR systems, and that the private sector is required to follow this code to meet its legal obligations as a data processor. Members of the British Parking Association AOS are required to comply fully with the DPA, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land. The Claimant's failures to comply include, but are not limited to:
a) Lack of an initial privacy impact assessment, and
b) Lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle, and
c) Failure to regularly evaluate whether it was necessary and proportionate to continue using ANPR at all times/days across the site, as opposed to a less privacy-intrusive method of parking enforcement (such as 'light touch' enforcement only at busy times, or manning the car park with a warden in order to consider the needs of genuine shoppers and taking into account the prevailing conditions at the site on any given day), and
d) Failure to prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR system and how the data would be used, and
e) Lack of the 'Privacy Notice' required to deliver mandatory information about an individual's right of subject access, under the Data Protection Act (DPA). At no point has the Defendant been advised how to apply for a Subject Access Request, what that is, nor informed of the legal right to obtain all relevant data held, and


7. The attention of the court is drawn to para. 4(5) Schedule 4 Protection of Freedoms Act 2012 which sets out that the maximum amount recoverable from the registered keeper, where the keeper liability provisions have been properly invoked (which is expressly denied in this case) is that amount specified in the Notice to Keeper (whether issued in accordance with paras 8(2)c; 8(2)d, 9(2)c or 9(2)d of the Act). I never received a notice to keeper and the claimant is put to the strictest proof of their assertions.

8. The Claimant is attempting to claim additional charges such as solicitors, court fee and legal costs of £75 The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have indeed been incurred. Furthermore, legal costs cannot be recovered in the Small Claims Court and should be struck out as unrecoverable.


9.1 As I am the keeper not the driver at the time, I did not agreed to any charge so this is surely just the sort of 'unconscionable' charge exposed as offending against the penalty rule, in the wholly different and 'complex' case of ParkingEye Ltd v Beavis [2015] UKSC 67 (the Beavis case) which can be fully distinguished from my case. In Beavis, ParkingEye did not rely upon the keeper agreeing to a contract between an unknown driver and ParkingEye as the excuse for a parking charge.


9.2 At the Supreme Court at 107 it was stated !!!8221;In our opinion the term imposing the £85 charge was not unfair. The term does not exclude any right which the consumer may be said to enjoy under the general law or by statute!!!8221; But in my case the 'parking charge' is not only unfair, disproportionate and unconscionable given the facts of the case (known by this Claimant to be true) but the fact is the charge was never agreed at the time the parking agreement with Civil Enforcement Ltd was made.

.

10.1 Even if the Court believes a contract potentially existed, the Law Reform (Frustrated Contracts) Act 1943 applies. It states at 1.(1) ''money due but not paid before frustration ceases to be payable'' and !!!8220;a contract may be discharged on the ground of frustration. The unforeseeable frustration brings a contract to an end forthwith and automatically!!!8221;

10.2 Due to frustration of contract, where matters were outside my control due to me not being present (the Claimant has adduced no evidence of fault on my part) the contract was never properly or fairly made.

11. The Court is invited to dismiss the Claim, and to allow such Defendant!!!8217;s costs as are permissible under Civil Procedure Rule 27.14.


I believe the facts stated in this Defence Statement are true


Does this work better?

Coupon-mad

Remove this, as a WS is meant to be the fact you know, not legal argument or an entire quoting of a part of the BPA CoP:

4. Section 7 of the British Parking Association Code of Practice outlines to operators some of the common law principles of operating on someone else's land as a licensee. One such item is written authority - a written contract - to be there. It defines the elements of this written authority as follows:

7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all the aspects of the management and enforcement of the site that you are responsible for.
In particular, it must say that the landowner requires you to keep to the Code of Practice and that either you have the authority to pursue outstanding parking charges, through the courts if necessary or that you have the authority to pursue outstanding parking charges and, with their permission, through the courts if necessary.

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.

The numbering also really confused matters, switching from #4 to #7 due to that unnecessary chunk of text, so get rid.

Here you suggest you were driving:

1.1 The Claim relates to an alleged debt arising from the vehicle having been parked at xxxxx, xxxxxxxx on xx/xx/2017. Civil Enforcement Ltd (CEL) are arguing I was bound by unknown terms creating a contractual charge, yet this £100 was not a term known or agreed at the point of making the contract.

Then here you say as fact you were not? No lies, best to just say you were the keeper:

9.1 As I am the keeper not the driver at the time,

And surely half the stuff in that WS is already in your defence, so no repeating it.

Just copy someone else's CEL WS and adapt it; search the forum and change the default search to SHOW POSTS.

cornboy

Thanks, I have done a fair amount of searching and found lots defences bit the only WS I could find was from a person who had CEL's WS.

To be fair I am struggling with this

Coupon-mad

So what about the WS (various PPCs) linked in the second post of the NEWBIES thread?

And when searching (which you appear to be doing wrong, despite being told what to change in the default search) what's wrong with this one from 2 weeks ago, that I just found by searching the forum EXACTLY as I told you to do?

https://forums.moneysavingexpert.com/discussion/5811002/claim-form-cel-poc-included-in-claim-form&page=2

all I did was put in CEL witness statement, changed the search to SHOW POSTS (never leave it to show threads), then I ignored your own thread in the results, looked further down & saw that.