CEL defence statement draft - Help please

Progression

Hello guys a court date has been set and I’ve unfortunately left my witness statement until the last minute I need to send it off tomorrow. Any advice on what to include getting a bit confused trying to link it to Defense . I have read several others and will try post or later but I have started with signage as it says permit holders only and unseen keypad or input error and also abuse of process inflation of claims.

Progression

Any help would be much appreciated , as I am getting slightly confused about how to organise the witness statement and evidence I am going to attach includes photos from site , letters received ie county claim form and debt collector letters. Is there anything else you think I should include ?

Thank you !

Coupon-mad

evidence I am going to attach includes photos from site ,

Yes.

letters received ie county claim form and debt collector letters.

Don't attach either of those, at all.

You need to slow down a little, even if it takes an extra day. We couldn't help as you didn't show us your draft WS yet!

You need:

- a supplementary witness statement about the falsely added £82

- a costs schedule

...both of which are easy to search for and are DEFINITELY required, along with mentioning and bringing to court, the CRA 2015 schedule 2 (the grey list of unfair terms), the POFA para 4(5) and the three Beavis case quotes that show a PPC cannot say the costs of the operation are not part of the parking charge, and can't collect the 'costs' twice.

You need to spend a day or two on the WS, supplementary WS, and all the proper case law and photo evidence (not a copy of their silly claim form & debt letters!) even of it makes you a day or two late in filing & serving it all. The court's copy should be in a ring binder folder with a contents page - and every page and piece of evidence needs a number.

If you have been off forum since August, you missed CEC16's thread. READ IT!

Progression

Thank you for your reply coupon mad i have been working on the following WS and with the county claim form even though it isn't signed and also with very vague particulars of claim ?

Progression

WITNESS STATEMENT

In the county court

CLAIM No.

BETWEEN:

Civil Enforcement Ltd (Claimant)

-and-

X X (Defendant)


Witness Statement


1. I am XX 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 driver of the vehicle in question. The Claim relates to an alleged debt arising from the driver's alleged breach of contract, which is denied. It is further denied that there was any agreement to pay the Claimant a punitive £100 'parking charge notice' (PCN) for the lawful conduct described below.

2.1 The allegation appears to be that the 'vehicle was not authorised to use the car park' based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit and is no evidence of 'No Authorisation' or not being a patron of the facility. ( EV-1)


2.2 I did park in the gym as I normally do and entered the gym signing in without noticing any signs or keypad. However, I was informed by a patron who was aware of the conditions to input my VRN into this keypad which was hidden behind the information counter and which was previously unseen and unknown to me. I completed the required information on the information desk ipad/tablet as instructed I made reasonable endeavours and believe I entered my VRN in full. A colleagues and the gym manager/owner were also present and could confirm this. (EV-2) email pic

2.1. I have already proved that patronage(EV-2), and it is the Claimant's own failure, caused by their deliberately obscure terms and iPad that catches out far too many victims at this location, that has given rise to a PCN that was not properly issued from the outset. (EV 2)

2.2. Upon receipt of a parking charge notice from the Claimant, I supplied them with this evidence, however they have elected to pursue this matter via litigation (EV 2 & 3)

2.3 The Claimant asserts that I entered into a contract with it, that I breached that contract and must pay a contractual charge, with further undefined and unexplained additional charges. It claims that I was in the relevant car park when it was for “Permit holders only”

b. The Claimant's signage did not make it clear whether the sign only applies to permit holder only or what the parking conditons are. (EV-4)

3. Even if I did breach the terms, the Claimant is obliged by the compulsory Code of Practice of its own Accredited Trade Association to apply separate grace periods for regular patrons and these were brand news signs Prior to the Defendant's visit, Civil Enforcement Ltd, had recently placed their signage within the car park creating new terms and conditions for motorists. Their Trade Body Code of Practice states at 18.11: ''Where there is any change in the terms and conditions that materially affects the motorist then you should make these clear on your signage. Where such changes impose liability where none previously existed then you should consider a grace period to allow regular visitors to the site to adjust and familiarise themselves with the changes.''

3.1 It is contended that the Claimant failed to alert regular local visitors to an onerous change and unexpected obligation to use an iPad, or risk £100 penalty.

3.2 Attached (Exhibit NFR002) is a photograph of the car park also the signage on the entrance near the time of said contravention was unseen and can easily be missed and the sign is placed a narrow entranceway which comes off a very busy road surrounded by parked cars either side therefore providing no time to stop, read or even be able to realise there is a sign due to concentrating on manoeuvring through this narrow entrance and avoiding any traffic collisions. ( EV-5)


Unclear terms - unconscionable penalty relying upon a hidden keypad

4. According to the sparse signs in this car park, it now transpires that to avoid a Parking Charge visitors were expected to know to input their Vehicle Registration Number (VRN). This was unclearly signed and the purported keypad was nowhere to be seen upon entering the gym. (Ev-6).

5. Upon receiving the claim, I researched this all too common issue and was advised to complain to the landowner. Unsurprisingly, this was conspicuous by its absence as an option offered by Civil Enforcement LTD in their signs or paperwork, prior to commencing proceedings. The Manager was incensed that these complaints were becoming a daily occurrence, blighting the business and upsetting customers ever since the ill-advised contract began, yet the business was now stuck with it for the time being.

5.1. The Manager stated that the staff now have to take time out to verbally prompt the customers that come in because the iPad used for signing in VRN details, and the sign used to indicate this, are far from obvious. The Manager expressed his disgust with the Claimant suing their patrons and driving away business, and sent a clear email stating his wish that the unfair PCN be cancelled.(Ev 3)

5.2. The initial route offered was a supposed 'appeal' to Civil Enforcement LTD themselves, but the Defendant knew that no offence or mischief had occurred and honestly believed from initial research, that private parking charges and the appeals systems were unlikely to be fairly weighted in favour of consumers.

5.2 Exhibit NFR004 is a letter received by the claimant and showing photo of the vehicle entering and exiting the car park. I remember waiting for a few other cars to manoeuvre in and out of spaces before parking myself. When I got out of the car, I walked into the gym and signed in without noticing and iPad or signs.


5.3 Contractually, the Claimant’s signage (Exhibit 4)) did not specify what the parking conditions were and implied conditions only applied to permit holders.


No legitimate interest - the penalty rule remains engaged

6. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices in these circumstances, and to pursue payment in the court in their own name. Even if they hold such authority, the Claimant is put to strict proof that this authorisation expressly allows litigation against patrons even when the business in fact supports the Defendant in wanting an unfair charge to be cancelled. (EV 4)

6.1. Even if the Claimant is able to produce such a landowner contract, it is averred that there can be no legitimate interest arguable by the Claimant in this case. When - all too often at this location - Civil Enforcement LTD unfairly harvest the data of a registered keeper to charge a genuine patron, any commercial justification in the form of landowner support for such unfair ticketing is de facto absent.

6.2 Even if it was found that the there was a contract in place with land owner, I do not believe a contract could be formed from the signage in the car park. The entrance signage (Exhibit EV1) clearly prohibits anyone who doesn’t have a permit from parking there by saying in large letters “PERMIT HOLDERS ONLY”. As such no contract could have been in place with someone who allegedly doesn’t have a permit. I include a copy of PCMUK v Bull (Exhibit EV6) regarding prohibited signs. A sign that says "Permit Holders Only" is not offering a contract to anyone except permit holders. It is what is often referred to as a 'prohibitive sign'. (EV1)


7. Further, there was no overstay nor any mischief to deter, nor was there any misuse of a valuable parking space by the Defendant, whose car was parked in good faith, not in contravention nor causing an obstruction, and was certainly not 'unauthorised'. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant's claim is reduced to an unrecoverable penalty and must fail.

7.1. This case is fully distinguished in all respects from Parking Eye Ltd v Beavis [2015] UKSC 67. That Supreme Court decision sets a high bar for parking firms, not a blanket precedent, and the Beavis case essentially turned on a 'complex' and compelling legitimate interest and very clear notices, where the terms were held not to involve any lack of good faith or 'concealed pitfall or trap'. Completely unlike the instant case.

Lack of good faith, fairness or transparency and misleading business practices

8. If a parking firm was truly acting in good faith and keeping the interests of consumers at the heart of their thinking, they would concentrate on ensuring firstly, that patrons could not miss the keypad(s) and secondly, could not miss the fact that, if they did receive an unfair PCN as a genuine customer, they had a right to ask the landowner/Managers to cancel it. Clearly the Claimants interest is purely in misleading and punishing customers and extracting as much money as possible in three figure penalties, given that this is the only way Civil Enforcement LTD make any money.

9. The Claimant's negligent or deliberately unfair business practice initially caused the unfair PCN to arise, then the Claimant's silence regarding the simple option of landowner cancellation rights, directly caused these unwarranted proceedings. This Claimant cannot be heard to blame consumers for not trying a futile 'appeal' to them, whilst themselves hoping the Defendant does not discover that Civil Enforcement LTD withheld the option of landowner cancellation all along.

9.1. By failing to adequately alert patrons to the keypad, and then withholding from the registered keeper any/all information about the 'user agreement' with the landowner which would have enable an immediate route of cancellation, are 'misleading omissions' of material facts. These are specific breaches of the Consumer Protection from Unfair Trading Regulations 2008 and transgress the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015 (this relatively untested legislation was enacted after the final hearing in Beavis and not actively considered in that case). As such, this claim must fail. ( picture of gym entrance exhibit)


Inflation of the parking charge and double recovery - an abuse of process

10. This claim inflates the total charges in a clear attempt at double recovery. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable conduct as a gross abuse of process. It was held in the Supreme Court in Beavis (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters. Thus, there can be no 'costs' to pile on top of any parking charge claim.

10.1. In addition to the original penalty, the Claimants have artificially inflated the value of the Claim by adding purported legal costs of £50, which have not actually been incurred by the Claimant. Civil Enforcement LTD have not expended any such sum in this case, given that they have a Legal Team with salaried in-house Solicitors and this firm whose main business is supposed to be parking 'management' as a service provision, files tens of thousands of similar 'cut & paste' robo-claims per annum. No genuine legal costs arise, per case, and their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services. (county claim form)

11. The added 'legal' cost is in fact an artificially invented figure, which represents a cynical attempt to circumvent the Small Claims costs rules and achieve double recovery. According to Ladak v DRC Locums UKEAT/0488/13/LA, a Claimant can only recover the direct and provable costs of the time spent by legally qualified staff on actually preparing the claim and/or the cost of obtaining advice for that specific claim, in a legal capacity.

12. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.

I confirm that the facts in this defence are true to the best of my knowledge and belief.


Name/signature


Date

Progression

I will be adding the evidence into my WS very shortly there main defence is that they have the right to pursue , i knew about the terms and conditions and the system was working on the day .

Also I mentioned PCMUK vs Bull in point 6.2 and lady vs DRC in 11 do I need to add these case files in as evidence to refer to?

THANK YOU!

Progression

I also have an email from the gym manager/ land owner confirming he believes I did sign into the system on the day and doesn't want to pursue charges against me as land owner.

KeithP

Progression wrote: »

I also have an email from the gym manager/ land owner confirming he believes I did sign into the system on the day and doesn't want to pursue charges against me as land owner.

Then this email needs to be shown as evidence.

It needs to be clearly stated in your Witness Statement that the gym manager/ land owner does not support this claim against you.

Coupon-mad

I also have an email from the gym manager/ land owner confirming he believes I did sign into the system on the day and doesn't want to pursue charges against me as land owner.

This needs to be really clearly stated near the top of the WS.

I mentioned PCMUK vs Bull in point 6.2 and lady vs DRC in 11 do I need to add these case files in as evidence to refer to?

PCM v Bull, yes you need the transcript.

Get rid of #11 about Ladak v Locums as we never use it now. This is old.

You also need, as I said:

- a supplementary witness statement about the falsely added £82

- a costs schedule

Search the forum for supplementary and copy one, then the same for the costs schedule, putting in your own costs for attending the hearing, and your hours at £19 per hour LiP rate, for reading, preparing and researching the law to defend the case.

Progression

Ok thank you for all the help I will add in those recommendations and post an amended version tomorrow morning. Hopefully after that it will be ready.