County Court Claim Received - Daughter was the Driver

Old_Bird_65

Just a quick question.... when compiling my evidence bundle, is it acceptable for me to use a highlighter to draw attention to the relevant paragraphs?

Coupon-mad

Yes that is fine.

That's very kind of you to offer to support me at the hearing - it's on xxxth March at 11.30am. So, would you be allowed to speak in the court?  It would be a shame to keep pedantic middle aged women silent!

Yes I can speak at Lewes if you wish, as long as we sit together.

Head your costs page up 'SUMMARY COSTS ASSESSMENT' and sign and date it.

I suspect CEL will discontinue...so do you have a bit more time - BEFORE YOU START PRINTING! - to factor in some words about claiming your costs if they Judge agrees, even if the case is now discontinued? 
Sorry to throw two more things at you but read these, firstly a WS I wrote at silly o'clock that covers what I mean:
https://forums.moneysavingexpert.com/discussion/comment/76881914#Comment_76881914

That one means there is no need for a supplementary WS because it's all in there already - albeit that one talks a lot about the Equality Act.  What I wanted you to see is the wording about the discontinuance that appears in the middle and end and tries hard to put a foot in the door to claim costs even if the PPC discontinues (which CEL do, a lot).

And read today's news, another Southampton stylee win, this time by Lamilad of the Skipton area parish:
https://forums.moneysavingexpert.com/discussion/6108540/excel-lose-application-to-set-aside-six-struck-out-parking-charge-cases-where-60-was-added

Old_Bird_65

Coupon-mad said:

Yes that is fine.

That's very kind of you to offer to support me at the hearing - it's on xxxth March at 11.30am. So, would you be allowed to speak in the court?  It would be a shame to keep pedantic middle aged women silent!

Yes I can speak at Lewes if you wish, as long as we sit together.

Head your costs page up 'SUMMARY COSTS ASSESSMENT' and sign and date it.

I suspect CEL will discontinue...so do you have a bit more time - BEFORE YOU START PRINTING! - to factor in some words about claiming your costs if they Judge agrees, even if the case is now discontinued? 

That would be brilliant! Thanks very much - hope you're right about CEL discontinuing! I'll just look at the links now

Old_Bird_65

After lots of help from Coupon-mad and her friend Parking-mad, my Witness Statement is finally in the post!  Thanks so much for all your help! My hope is that CEL now discontinue the case so I can get back to normal life!
For the record, here's is my WS (split into 2 halves) (excuse the formatting which won't behave!):

In The County Court at Lewes                                                                                                         Claim Number XXXXXXXX                   Civil Enforcement Limited  (Claimant)                        v                       XXXXXXXX   (Defendant)

 WITNESS STATEMENT

I, XXXXXXXXXXXXX, of XXXXXXXXXXXXXXX will say as follows:

The facts set out in this Statement are within my own knowledge save where I state otherwise. Where I refer to facts that are not within my own knowledge I will give the source of my knowledge of those facts. Please note, all correspondence referred to in this Witness Statement can be found in date order, in the Evidence Bundle

I am the Defendant in this claim and keeper of the Peugeot Registration XXXXXX in question. My daughter was the driver of the vehicle at the time of this incident.

Order of Events:

1. On XXXXXX  2018 my daughter parked in the ‘Car Park at The Centre’, High St., Polegate, BN26 6AQ, in order to take the train to London. She used the ‘Phone & Pay’ facility to pay her £4 parking charge, which she told me took 3 attempts to successfully complete, as follows:

Call 1 (12:24pm): Lasted 3 mins 28 secs. Having followed all the automated instructions and submitted debit card details, the recorded voice failed to confirm that the transaction was completed.

Call 2 (12:28pm): Call didn’t connect

Call 3(12:28pm): Lasted 3 mins 36 secs. She followed all the automated instructions and submitted debit card details, the recorded voice indicated that the transaction was complete.

2. We later extracted the call data from my daughter’s phone (JD/01). The payment channel did not indicate any failure to process payment on the 3rd attempt and responded as if payment had been made. As such, my daughter believed the necessary payment had been made, so proceeded to the train station. She told me at no time was any error message sent to her phone indicating a problem.

3. In late June, 2018 I received a ‘Letter of Notification Regarding Keeper Liability’ from the Claimant (dated 25/6/18) (JD/02) – 42 days after the incident (which at the time of my Statement of Defence, I believed to be a Notice to Keeper) This letter referred to a Parking Charge notice (PCN) they had allegedly issued to me more than 30 days previously. It claimed my outstanding debt was £100 and the Independent Appeals Service was no longer available to me. I had received no such PCN (aka Notice to Keeper (NTK)) and this letter was the first I knew of the incident.

4. My daughter and I checked her bank statements and discovered that her £4 payment hadn’t been debited from her account.

5. On 3rd July ’18 I submitted an online appeal to the Claimant, copy and pasting the letter I had composed on the same date. (JD/03) As well as explaining the issue my daughter had with the Phone and Pay system, I explained that I had received no communication whatsoever from them prior to receiving their letter chasing payment.

6. The Claimant responded on 26th July, 2018, informing me that my appeal had been unsuccessful. They insisted that the Phone and Pay system had been working correctly on the day of the incident. In response to my complaint of having received no PCN/NTK, the Claimant provided no proof of posting or any other evidence that the Notice had indeed been posted, but rather offered me a 14 day window to pay the parking charge at the initial reduced rate of £60.00. (JD/04)  The Claimant re-iterated this point in a letter to my MP, Nus Ghani, dated 21st August, ’19 by saying:

7. “Whilst she states that she did not receive the original PCN, she was in no way prejudiced by this as she was still afforded the opportunity to appeal with us and with POPLA, as well as being offered the chance to pay the reduced rate of the PCN.”(JD/05)

8. This same comment is included in the Claimant’s Witness Statement, Parag. 35. I submit to the court that this was an indication that they could not be certain that they had indeed posted a PCN to me.  

9. I appealed to POPLA on 15/08/18, which was rejected. Written in the Assessor’s Summary (JD/06), was the statement: “I have reviewed the notice to keeper against the relevant sections of the Protection of Freedoms Act 2012 and I am satisfied that it is compliant,…” At this point I was invited by POPLA to view the evidence supplied by the Claimant and this was the first time I saw a copy of the NTK which the Claimant alleged to have sent me. I appealed the decision on 4/09/18 which was again rejected

10. The Claimant also supplied ‘Phone and Pay’ transaction reports for the day of the incident as evidence to POPLA that the system was functioning correctly. My daughter’s 2 calls which appeared on the Claimant’s phone log took place at 12:24 and 12:28. The transaction report shows no successful Phone and Pay payments between 09:55 and 20:20 during that day - a total of 10 hours, 25 mins. For a busy car park adjacent to a mainline train station this is surprising. (JD/07) I checked the Trustpilot reviews for Phone and Pay to see if others have had similar problems to me and found many frustrated customers and an average review rating of 1.5 out of 5 stars (JD/08).

11. In Jolley v Carmel Ltd. 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. This frustration of contract was discussed in the commons between MP’s Tim Loughton & Sir Greg Knight https://hansard.parliament.uk/Commons/2018-02-02/debates/CC84AF5E-AC6E-4E14-81B1-066E6A892807/Parking(CodeOfPractice)Bill (JD/09:Bundle of Authorities).

12. On 12th March, 2019 I received a ‘Letter Before Action’ from the Claimant’s Debt Collector, ZZPS Ltd., followed by warning letters on 1st April and 18th April from QDR Solicitors, instructed by ZZPS Ltd. (JD/10) During this time the alleged debt owed rose to £182.00.

13. The Claimant generated a court claim against me on 17th July, 2019 (JD/11) which prompted me to issue a Subject Access Request on 12th August, 2019. In response, the Claimant finally sent me a NTK on 10th September, 2019, almost 16 months after the incident. (JD/12)

Notice to Keeper:

14. The Claimant's NTK was not served in time for keeper liability because 24th May 2018 was a Thursday and the POFA says it's deemed delivered two working days (excluding Sat, Sun and Bank Holidays) later. Given the fact that 28th May 2018 was Spring Bank Holiday, the earliest that document was deemed delivered was the second working day from the alleged issued date - i.e. Tuesday 29th May 2018. This is 'day 15' which - as a matter of fact and law - would be one day too late. POPLA's Lead Adjudicator, John Gallagher of the Ombudsman Service, has admitted to errors by POPLA Assessors that are an exact match for this situation (see exhibits JD/13 & JD/14) and these complaint outcomes from POPLA both resulted in parking charges from BPA members being cancelled, once it was exposed by the complainant that the NTK was not compliant after all. The time limit is nothing to do with the NTK being issued, but about it being 'given' and the dates are prescribed and mandatory in the POFA 2012, schedule 4, and the Act states: 

(4) The notice must be given by:
(a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.

(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

Signage:

15. On the car park signage, in contrast to the huge font the ‘parking charges’ were displayed in, the Terms and Conditions relating to any additional punitive parking charge were buried in the small print which is too small to be read from a passing vehicle. In fact, no passing vehicle could see the sign at all because it was facing away from the road, into the car park. I don’t believe the requirement in the BPA Code of Practice 18.3 (JD/15: Bundle of Authorities) for signs to be ‘conspicuous and legible’ has been adhered to in this case. In comparison to the signs which were approved of in the ParkingEye v Beavis Case, the fonts in this case are tiny. (JD/16) This is contrary to Lord Denning's 'Red Hand Rule' which says:

16. “I quite agree that the more unreasonable a clause is, the greater the notice which must be given of it. Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient.”

17. In addition to this, the entrance sign creates confusion by making the instruction ‘Payment must be made within 10 minutes of arrival’ as well as ‘make payment within 2 hours 30 minutes of arrival’. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract, thus, no contract has been formed with the driver to pay the amount demanded by the Claimant, or any additional fee charged if unpaid in 28 days.

18. The Phone And Pay facility is indisputably an offer of a 'distance contract' which does not comply with The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, Pt 1, Parag. 16 (JD/17: Bundle of Authorities)

..../

Old_Bird_65

 Abuse of Process:

19. The breakdown in the Claimant’s Witness Statement includes £82 for ‘debt recovery’ costs. This amounts to an Abuse of Process not in keeping with the guidelines set out in CPR 44.3 (2). I believe that alleging the letters the parking firm sent have caused an additional loss, is simply untrue. The standard wording for parking charge/debt recovery contracts is/was on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process.

20. I have the reasonable belief that the Claimant has not incurred an additional £82 in damages or costs to pursue an alleged £100 debt. The arbitrary addition of a fixed sum purporting to cover 'damages/costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will:

(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

21. Further, the purported added 'costs' are disproportionate, vague and in breach of the CRA 2015 Schedule 2. (paragraphs 6, 10, 14 and 18) This Claimant has arbitrarily added an extra 82% of the parking charge in a disingenuous double recovery attempt that has already been exposed and routinely disallowed by many Courts in England and Wales. I would invite the court to consider the following:

(a)    the pre-Beavis High Court case ParkingEye v Somerfield,

https://www.bailii.org/ew/cases/EWCA/Civ/2012/1338.html where at #419 it says:

 ''It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.''

and 

(b) exhibits JD/18 and JD/19 (Bundle of Authorities) = ( the 6 page Southampton Approved Judgment, and the single page Skipton Order strike out, which has since been resolved by DJ Wright agreeing with DJ Grand from Southampton and refusing to reinstate any struck out or stayed parking claims where £60 or more was added).

Landowner Authority:

22. Further, I have seen no evidence that this Claimant has landowner authority, because they also failed to include any evidence to the court (or earlier to POPLA) that they have the required locus standi to make contracts in their own name and/or to pursue motorists for alleged breach of the landowner terms. 

23. In order to pursue charges and obtain the requisite information these sorts of operators are required to comply with their BPA CoP, paragraphs 7(1), 7(2) and 7(3) that, ‘Private operators must have the written permission of the landowner in order to issue and enforce parking charges’. That part of the pleading derives its force from, in particular, paragraph 7(1) of the code which says: ‘If you do not own the land on which you are carrying out parking management you must have that written authorisation of the landowner, or their appointed agent. The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all aspects of car park management for the site that you are responsible for. In particular it must say that the landowner, or their appointed agent, requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges’.(emphasis added)  That makes it abundantly clear as to the necessity for written consent, in compliance with the code itself. That code whilst not statutory was given further force in Neuberger J’s judgment in the seminal authority of Parking Eye Limited v Beavis [2015] UKSC 67 where at paragraphs 95 and 96 His Lordship referred to the need for compliance with the Code, in order for parking operators to obtain data from the DVLA.

24. In Simon Clay v Civil Enforcement Ltd, Case No: D9QZ9E8Q, (JD/20: Bundle of Authorities) heard at High Wycombe in 2018, this same Claimant was successfully sued by a motorist for £200 in damages and the claim revolved around exposing that Civil Enforcement Ltd ('CEL') had no authority flowing from the landholder to their company and therefore, there was no reasonable cause to obtain or process the data of the registered keeper. Three more cases, all counterclaims against CEL in 2018 were also successful or settled by this Claimant for substantial sums, following on from the Clay case, where the parking contract was shown to be with Creative Car Parks, a separate legal entity, and the provenance of the documents provided by CEL were called into question and thrown out by District Judge Jones. 

Statement of Truth:

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

XXXXXXXXXXXXXXXX                       Date:…………………

Coupon-mad

Nice one...we will see if it is discontinued or if we have to rock up at court together!

Old_Bird_65

Yes! It would be lovely to meet you... but rather not in this situation!   
Thanks so much for your help! I definitely couldn't have done it without you! 

Old_Bird_65

Yay!! At last, after a two year battle we have defeated CEL! Coupon-mad and her friend (Parking-mad?) have been absolute gems and worked their socks off to help me win the battle!
In the end we did a 'Cloud Video Platform' hearing which turned out to be fairly straightforward and the judge had clearly taken the time to read through my court bundle and very quickly recognised that CEL were at fault.
Once again, thank you so much girls... it's so satisfying to see CEL fall!

Ralph-y

well done !

can you do a write up ... judge name case number ... what the scammers failed at ?   ........... Or is CM going to do it?

Ralph

1505grandad

"..........it's so satisfying to see CEL fall!"  -  and hopefully forced to pay YOU money