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WItness Statement Civil Enforcement - Review Please ?
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ParkingJustice
Posts: 5 Forumite
Hi
I have drafted my Witness Statement which I need to send off. This case is a little different to the norm and I would be really grateful if someone can check it for me? Thanks so much... this site has been so helpful..
In the matter of
Civil Enforcement Limited(Claimant)
v
xxx
Claim no: xxx
Witness statement of xx xx of Road xxxxxxxxxxxxxx
I am the Defendant in this matter, I am unrepresented, with no experience of Court procedures. If I do not set out documents in the regular way I trust the Court will excuse my inexperience.
1. I received a Parking Charge Notice on or around the 18th September 2017 in relation to my use of a car park on xxxxxxxxxx 2017.
3. On xx xx 2017 I parked in xx Car Park and refer you to Exhibit A which is a photograph of the yellow and purple entry sign. I followed the instructions to park at the rear in spaces numbered 1-26 as I expected to park for more than 2.5 hours. The sign told me to see the detailed signage in the car park and pay. The sign also had a large P sign on display and the logo of the BPA. There is no mention on the entry sign of any contractual obligation or that payment can only be made by telephone. The sign simply refers to ‘Terms’ which I read as to be the requirement to park only in bays numbered 1-26 for longer term parking.
4. I parked my vehicle in bay number 17 - please see exhibit B which is an aerial photograph produced from Google Earth of the site and I have marked with an X the location of my vehicle.
5. Having exited my vehicle I looked around me for the ‘detailed signage in the car park’. Immediately to my left, (Marked Y on exhibit B ) I saw the paystation with a yellow sign saying ‘pay here’. Please see Exhibit C which is a photograph of the paystation I used. Also on the machine was the same ‘P’ sign I had seen on entry. I paid the fee, inserted my registration number and displayed the ticket in my windscreen. I attach as Exhibit D a copy of my ticket.
6. Having received the Parking Charge Notice on or around the xxx xxxxxx 2017 I emailed the appeals”ce-service.co.uk and attached a copy of my ticket showing that I had indeed paid the fee. Exhibit E
7. I received a reply from Civil Enforcement Limited advising me that they did not operate a pay and display machines in their car park and therefore I was liable for the charge. They mentioned that the car park displayed sufficient signage detailing their payment method which was only by telephone.
8. I was shocked by the reply I had received and I visited the car park to investigate their claims.
9. I attach Exhibit F which is a Google Earth Street View of the site showing that there were no signs within my reasonable view , or indeed anywhere in the vicinity of the rear long term parking area from near or around bay 17 and the signs which I sought out during my investigative visit were in excess of 15 metres away and measured a mere 50cm wide by 60 cm high and the signs were posted just 117cm from the ground. These signs were more than very likely obscured by vehicles at the time I parked and it is not unreasonable that I did not see them and instead I saw the clear elevated yellow ‘pay here’ sign just 5 metres from my parking bay. (Exhibit C)
10. When I conducted my investigative visit to the site I also looked for the CCTV which recorded my entrance and exit to the car park. I eventually found the camera which was mounted on a lamp post. I attach a photograph of the lamp post on …..Exhibit G and the accompanying signage on …….(exhibit H) which you will see is in a state of terrible disrepair and damaged and unreadable and not fit for purpose.
11. I received various correspondence from the Claimant which I did not respond to as I did not believe that the Claimant had a valid case in Law and I was reluctant to spend any more of my valuable personal time on what I consider to be a unfair and unlawful parking charge. In some of the correspondence the Claimant referred to the Beavis case in their favour.
12. I believe that the signage on site does not comply with the BPA Approved Code of practice. Attached is the BPA code of practice in which point B4.2 states that signs must be placed at the entrance to the site and inform a driver that the location is private land and also point B4.5 states that all signs must be visible, clear and legible. Easy to see and read.
13.. B4.5 of the BPA code of practice also states, “You must clean and maintain signs regularly”. I refer to Exhibit F in which one of the claimant’s sign is visibly damaged and broken. Clearly the Claimants are not adhering to the terms of the BPA Code of practice.
14.. In my original defence I asked the claimant to provide me with particulars of the claim that comply with Practice directions. The claimants deliberate refusal to cooperate, by not providing documentation or a proper explanation of their claim, which has affected my ability to fully defend the case, as i have had to make assumptions as to what exactly the claimant is attempting to claim for. I am clearly entitled to this information under paragraphs 6(a) and 6(c) of the Practice Direction. I also need it to comply with my own obligations under paragraph 6(b).
15. It is my opinion that the Claimant’s action is vexatious and that Civil Enforcement Limited is a speculative serial litigant issuing a large number of identical draft particulars which contain very little detail or reason and in addition their claim is not valid in Law l and in this regard I draw to your attention the following points:-
16) 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. These documents, should 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 or to “take stock”, pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:
i. ‘early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute
ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure
iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and
iv. support the efficient management of proceedings that cannot be avoided.’
e) The Defence therefore asks the Court to strike out the claim as disclosing no cause of action and having no reasonable prospect of success as currently drafted.
f) 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
(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
g) Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.
17. The Claimant has added unrecoverable sums to the original parking charge.
18. 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. As far as I can ascertain, based upon the very vague particulars of claim and complete lack of evidence and without having been furnished with the alleged signage 'contract', none of this applies in this material case.
18. 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. I refer the Honourable Court to Exhibit G and the Restrictive Covenants Schedule which detail the issues faced by the Claimant in restricting signage hoarding and lighting at the site.
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 and any terms were 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.
19. 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 no such evidence has been submitted. 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.
20.. No legitimate interest - this distinguishes this case from the Beavis case:
21. 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.
22. 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.
23. 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 and belief.
…………………………………………………………………
Defendant
I have drafted my Witness Statement which I need to send off. This case is a little different to the norm and I would be really grateful if someone can check it for me? Thanks so much... this site has been so helpful..
In the matter of
Civil Enforcement Limited(Claimant)
v
xxx
Claim no: xxx
Witness statement of xx xx of Road xxxxxxxxxxxxxx
I am the Defendant in this matter, I am unrepresented, with no experience of Court procedures. If I do not set out documents in the regular way I trust the Court will excuse my inexperience.
1. I received a Parking Charge Notice on or around the 18th September 2017 in relation to my use of a car park on xxxxxxxxxx 2017.
3. On xx xx 2017 I parked in xx Car Park and refer you to Exhibit A which is a photograph of the yellow and purple entry sign. I followed the instructions to park at the rear in spaces numbered 1-26 as I expected to park for more than 2.5 hours. The sign told me to see the detailed signage in the car park and pay. The sign also had a large P sign on display and the logo of the BPA. There is no mention on the entry sign of any contractual obligation or that payment can only be made by telephone. The sign simply refers to ‘Terms’ which I read as to be the requirement to park only in bays numbered 1-26 for longer term parking.
4. I parked my vehicle in bay number 17 - please see exhibit B which is an aerial photograph produced from Google Earth of the site and I have marked with an X the location of my vehicle.
5. Having exited my vehicle I looked around me for the ‘detailed signage in the car park’. Immediately to my left, (Marked Y on exhibit B ) I saw the paystation with a yellow sign saying ‘pay here’. Please see Exhibit C which is a photograph of the paystation I used. Also on the machine was the same ‘P’ sign I had seen on entry. I paid the fee, inserted my registration number and displayed the ticket in my windscreen. I attach as Exhibit D a copy of my ticket.
6. Having received the Parking Charge Notice on or around the xxx xxxxxx 2017 I emailed the appeals”ce-service.co.uk and attached a copy of my ticket showing that I had indeed paid the fee. Exhibit E
7. I received a reply from Civil Enforcement Limited advising me that they did not operate a pay and display machines in their car park and therefore I was liable for the charge. They mentioned that the car park displayed sufficient signage detailing their payment method which was only by telephone.
8. I was shocked by the reply I had received and I visited the car park to investigate their claims.
9. I attach Exhibit F which is a Google Earth Street View of the site showing that there were no signs within my reasonable view , or indeed anywhere in the vicinity of the rear long term parking area from near or around bay 17 and the signs which I sought out during my investigative visit were in excess of 15 metres away and measured a mere 50cm wide by 60 cm high and the signs were posted just 117cm from the ground. These signs were more than very likely obscured by vehicles at the time I parked and it is not unreasonable that I did not see them and instead I saw the clear elevated yellow ‘pay here’ sign just 5 metres from my parking bay. (Exhibit C)
10. When I conducted my investigative visit to the site I also looked for the CCTV which recorded my entrance and exit to the car park. I eventually found the camera which was mounted on a lamp post. I attach a photograph of the lamp post on …..Exhibit G and the accompanying signage on …….(exhibit H) which you will see is in a state of terrible disrepair and damaged and unreadable and not fit for purpose.
11. I received various correspondence from the Claimant which I did not respond to as I did not believe that the Claimant had a valid case in Law and I was reluctant to spend any more of my valuable personal time on what I consider to be a unfair and unlawful parking charge. In some of the correspondence the Claimant referred to the Beavis case in their favour.
12. I believe that the signage on site does not comply with the BPA Approved Code of practice. Attached is the BPA code of practice in which point B4.2 states that signs must be placed at the entrance to the site and inform a driver that the location is private land and also point B4.5 states that all signs must be visible, clear and legible. Easy to see and read.
13.. B4.5 of the BPA code of practice also states, “You must clean and maintain signs regularly”. I refer to Exhibit F in which one of the claimant’s sign is visibly damaged and broken. Clearly the Claimants are not adhering to the terms of the BPA Code of practice.
14.. In my original defence I asked the claimant to provide me with particulars of the claim that comply with Practice directions. The claimants deliberate refusal to cooperate, by not providing documentation or a proper explanation of their claim, which has affected my ability to fully defend the case, as i have had to make assumptions as to what exactly the claimant is attempting to claim for. I am clearly entitled to this information under paragraphs 6(a) and 6(c) of the Practice Direction. I also need it to comply with my own obligations under paragraph 6(b).
15. It is my opinion that the Claimant’s action is vexatious and that Civil Enforcement Limited is a speculative serial litigant issuing a large number of identical draft particulars which contain very little detail or reason and in addition their claim is not valid in Law l and in this regard I draw to your attention the following points:-
16) 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. These documents, should 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 or to “take stock”, pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:
i. ‘early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute
ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure
iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and
iv. support the efficient management of proceedings that cannot be avoided.’
e) The Defence therefore asks the Court to strike out the claim as disclosing no cause of action and having no reasonable prospect of success as currently drafted.
f) 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
(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
g) Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.
17. The Claimant has added unrecoverable sums to the original parking charge.
18. 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. As far as I can ascertain, based upon the very vague particulars of claim and complete lack of evidence and without having been furnished with the alleged signage 'contract', none of this applies in this material case.
18. 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. I refer the Honourable Court to Exhibit G and the Restrictive Covenants Schedule which detail the issues faced by the Claimant in restricting signage hoarding and lighting at the site.
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 and any terms were 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.
19. 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 no such evidence has been submitted. 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.
20.. No legitimate interest - this distinguishes this case from the Beavis case:
21. 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.
22. 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.
23. 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 and belief.
…………………………………………………………………
Defendant
0
Comments
-
So CEL are saying there are no Pay & Display ticket machines in the car park.
But you have a PDT purchased there? What went wrong?0 -
Is it a Council car park next to a CEL one?
Remove 16e - g which make little sense at this WS stage.I also looked for the CCTV
should be
because CEL do not use any 'CCTV'.I also looked for the hidden ANPR camera
What a shame you didn't come here last year, as you would have seen it off with one template email, within a week.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Perhaps I actually haven't made that clear in my statement actually,
essentially the car park adjacent in which i did purchase a ticket is managed by network rail I believe, so I bought the wrong ticket due to what I believe to be improper signage0 -
Yes, you need to make that clearer, but without admitting you did anything wrong.
Is this Warrington Central Station?0 -
Thanks All. I have amended to clarify that I paid in the wrong car park. I also added the extracts from the restricted covenants detailed on the Land Registry title deed which I think are very relevant to explain why CEL have such inadequate signage. I did include photos of my exhibits but they haven't come out in my copy and paste for some reason. I appreciate all your comments, thank you.
In the matter of
Civil Enforcement Limited(Claimant)
v
xxx
Claim no: xxx
Witness statement of xx xx of Road xxxxxxxxxxxxxx
I am the Defendant in this matter, I am unrepresented, with no experience of Court procedures. If I do not set out documents in the regular way I trust the Court will excuse my inexperience.
1. I received a Parking Charge Notice on or around the 18th September 2017 in relation to my use of a car park on xxxxxxxxxx 2017.
3. On xx xx 2017 I parked in xx Car Park and refer you to Exhibit A which is a photograph of the yellow and purple entry sign. I followed the instructions to park at the rear in spaces numbered 1-26 as I expected to park for more than 2.5 hours. The sign told me to see the detailed signage in the car park and pay. The sign also had a large P sign on display and the logo of the BPA. There is no mention on the entry sign of any contractual obligation or that payment can only be made by telephone. The sign simply refers to ‘Terms’ which I read as to be the requirement to park only in bays numbered 1-26 for longer term parking.
4. I parked my vehicle in bay number 17 - please see exhibit B which is an aerial photograph produced from Google Earth of the site and I have marked with an X the location of my vehicle.
5. Having exited my vehicle I looked around me for the ‘detailed signage in the car park’. Immediately to my left, (Marked Y on exhibit B ) I saw the paystation with a yellow sign saying ‘pay here’. Please see Exhibit C which is a photograph of the paystation I used. Also on the machine was the same ‘P’ sign I had seen on entry. I paid the fee, inserted my registration number and displayed the ticket in my windscreen. I attach as Exhibit D a copy of my ticket.
6. Having received the Parking Charge Notice on or around the xxx xxxxxx 2017 I emailed the appeals”ce-service.co.uk and attached a copy of my ticket showing that I had indeed paid the fee. Exhibit E
7. I received a reply from Civil Enforcement Limited advising me that they did not operate a pay and display machines in their car park and therefore I was liable for the charge. They mentioned that the car park displayed sufficient signage detailing their payment method which was only by telephone.
8. I was shocked by the reply I had received and I visited the car park to investigate their claims. I then became aware that the car park is actually two separate car parks separated by a low rail of approx 45cm high. There is no signage to indicate the two separate car parks. The ticket I bought was for the car park on the right hand side of exhibit B.
9. I attach Exhibits F and G which is a Google Earth Street View of the site showing that there were no signs within my reasonable view , or indeed anywhere in the vicinity of the rear long term parking area from near or around bay 17 and the signs which I sought out during my investigative visit were in excess of 15 metres away and measured a mere 50cm wide by 60 cm high and the signs were posted just 117cm from the ground. These signs were more than very likely obscured by vehicles at the time I parked and it is not unreasonable that I did not see them and instead I saw the clear elevated yellow ‘pay here’ sign just 5 metres from my parking bay. (Exhibit C)
10. When I conducted my investigative visit to the site I also looked for the hidden ANPR camera which recorded my entrance and exit to the car park. I eventually found the camera which was mounted on a lamp post. I attach a photograph of the lamp post and the accompanying signage (exhibit H) which you will see is in a state of terrible disrepair and damaged and unreadable and not fit for purpose.
11. I received various correspondence from the Claimant which I did not respond to as I did not believe that the Claimant had a valid case in Law and I was reluctant to spend any more of my valuable personal time on what I consider to be a unfair and unlawful parking charge. In some of the correspondence the Claimant referred to the Beavis case in their favour.
12. I believe that the signage on site does not comply with the BPA Approved Code of practice. Attached is the BPA code of practice in which point B4.2 states that signs must be placed at the entrance to the site and inform a driver that the location is private land and also point B4.5 states that all signs must be visible, clear and legible. Easy to see and read.
13.. B4.5 of the BPA code of practice also states, “You must clean and maintain signs regularly”. I refer to Exhibit F in which one of the claimant’s sign is visibly damaged and broken. Clearly the Claimants are not adhering to the terms of the BPA Code of practice.
14.. In my original defence I asked the claimant to provide me with particulars of the claim that comply with Practice directions. The claimants deliberate refusal to cooperate, by not providing documentation or a proper explanation of their claim, which has affected my ability to fully defend the case, as i have had to make assumptions as to what exactly the claimant is attempting to claim for. I am clearly entitled to this information under paragraphs 6(a) and 6(c) of the Practice Direction. I also need it to comply with my own obligations under paragraph 6(b).
15. It is my opinion that the Claimant’s action is vexatious and that Civil Enforcement Limited is a speculative serial litigant issuing a large number of identical draft particulars which contain very little detail or reason and in addition their claim is not valid in Law l and in this regard I draw to your attention the following points:-
16) 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. These documents, should 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 or to “take stock”, pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:
i. ‘early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute
ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure
iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and
iv. support the efficient management of proceedings that cannot be avoided.’
e) The Defence therefore asks the Court to strike out the claim as disclosing no cause of action and having no reasonable prospect of success as currently drafted.
f) 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
(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
17. The Claimant has added unrecoverable sums to the original parking charge.
18. 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. As far as I can ascertain, based upon the very vague particulars of claim and complete lack of evidence and without having been furnished with the alleged signage 'contract', none of this applies in this material case.
18. 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. I refer the Honourable Court to Exhibit J which is a copy of the HM Land Registry Title Deed showing the Restrictive Covenants Schedule which detail the issues faced by the Claimant in restricting signage hoarding and lighting at the site.
2 No hut shed caravan house on wheels or other chattel adapted or
intended for use as a dwelling or sleeping apartment nor any booths
shows swings roundabouts advertisements or hoardings shall be erected
made used or placed or be allowed to remain upon any part of the said
land
3 Not to light or permit or suffer to be lighted the Property or to
display or permit or suffer to be displayed a lighted sign or other
illuminations on the Property or any part thereof in such manner or
such as to cause confusion with the signals of the Transferor railway
or to be likely in the opinion of the Chief Civil Engineer of the
Southern Region of the Transferor (whose opinion as to question by the
Transferee) to be so confused And if any lighted sign or other
illuminations shall at any time be found to be confused with such
signal or to be likely to be so confused then upon the request from the
Transferor at once to alter the same in such a manner as to avoid such
confusion or likely confusion."
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 and any terms were 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.
19. 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 no such evidence has been submitted. 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.
20.. No legitimate interest - this distinguishes this case from the Beavis case:
21. 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.
22. 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.
23. 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 and belief.
…………………………………………………………………
Defendant0 -
You are missing a point #2.
And haven't removed these bits yet:Remove 16e - g which make little sense at this WS stage.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Thanks CM. I have done removed 16g and sorted out the numbers by making para 1 , number 1 and changing 1 to 2 ... on the original.
How do you think it reads... are we in with a chance?0 -
16 e - g needed to all go.
Everyone is in with a chance. We win 99% of cases!
We've just heard another person won today - 5 minutes ago. See the top threads and he/she will no doubt give us a full report.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Ok then I am going to send it off as it is by recorded delivery for the Monday deadline. Thank you !0
-
OK (to the court, if you can't get there in person and hand in a ring binder file with it all nicely organised?). Make sure the date and time of the hearing & claim number & parties names, are on the front contents page. You do not want this lost at the court building.
But not recorded to CEL. That gives them a chance NOT to sign. Then all you have is proof of NON delivery!
You just ask the PO for a free certificate of posting to CEL. Keep that slip stapled to a copy of the WS in your own hearing bundle.
Or use email to them, and print off the proof of sending it to CEL (add a read receipt).PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0
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