County Court Claim Received - Daughter was the Driver

Old_Bird_65

In The County Court at *****                                Claim Number: *****

  Parties                        Civil Enforcement Limited                           Claimant

                                      *************                                              Defendant

 WITNESS STATEMENT

I, ******************************************* 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.

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

1. On ******, 2018 my daughter parked in the ‘***************, 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: 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: Call didn’t connect

Call 3: 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.

We later extracted the call data from ******’s phone (Evidence: JD01)

As 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 ******* believed the necessary payment had been made, so proceeded to the train station.

2. In late June, 2018 I received a ‘Letter of Notification Regarding Keeper Liability’ from the Claimant (dated 25/6/18) – 42 days after the incident. (Evidence: JD02). 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 and this letter was the first I knew of the incident. Only later, when I appealed to POPLA did I see an electronic PCN document in their evidence bundle, and was eventually sent a copy by the Claimant on 10th September, 2019 as a result of my Subject Access request to them.

3. My daughter and I checked her bank statements and discovered that her £4 payment hadn’t been debited from her account. On 3rd July ’18 I submitted an online appeal to the Claimant, giving all the details we had. This appeal was unsuccessful.

4. I appealed to POPLA on 15/08/18 and supplied the ‘Letter of Notification Regarding Keeper Liability’ I had received. POPLA rejected my appeal, commenting that they were satisfied that the ‘Notice to Keeper’(NTK) I had supplied was compliant with the Protection of Freedoms Act 2012 (POFA). (Evidence: JD03) I appealed the decision on 4/09/18 which was again rejected. Considering that no PCN was supplied to me, this so called NTK fails to comply with POFA Schedule 4 Paragraph 9(1), 9 (2)a,b,c,e,f,g, 9(4), 9(5), 9(7) & 9(8). If the Claimant had given me a PCN, this NTK would still fail to comply with Paragraph 8(1), 8 (2)a,b,c,e,f,g, 8(7).

Schedule 4 of POFA also makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

5. The Claimant has supplied ‘Phone and Pay’ transaction reports for the day of the incident as evidence that the system was functioning correctly *******’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. 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 (Evidence: JD04)

6. 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 comparison to the signs which were approved of in the ParkingEye v Beavis Case, the fonts in this case are tiny. (Evidence: JD05) This is contrary to Lord Denning's 'Red Hand Rule'(Evidence: JD06) and contrary to the requirements of the Consumer Rights Act 2015. (Evidence: JD07) 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.

7. 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(Evidence: JD08)

 

8. The ‘costs’ on the claim are disproportionate and disingenuous. The original  fee stated on the NTK was £100 which has been inflated to £274.07 (not including ‘further legal costs for preparation, attendance and travel’ which the Claimant will seek to recover at the upcoming hearing’. This amounts to an Abuse of Process not in keeping with the guidelines set out in CPR 44.3 (2) (Evidence: JD09). Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. Any debt collection letters were a standard feature of a low cost business model, and are already counted within the parking charge itself. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22 (Evidence: JD10), and rendering the Statement of Truth a nullity. 

The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. (Evidence: JD11) There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.

 

 

Statement of Truth:

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

 

************

Date:

Old_Bird_65

Ignore the formatting... copying and pasting messed it all up!

Coupon-mad

 am a self-confessed perfectionist who hates making mistakes!

Me too! 

Very good so far but same advice as here, you need three things, not one statement (I'd remove your #8 onwards):
https://forums.moneysavingexpert.com/discussion/6045943/bps-bw-legal-claim-form-invalid-permit#latest

Old_Bird_65

Thanks Coupon-mad... it's encouraging that my WS is going in the right direction!
I've carefully read the whole of the Fenners and Seagull threads and I'm painfully aware of my woefull lack of understanding in all things legal! Are you suggesting that my #8 onwards should form a Supplementary Witness Statement, therefore making my three things my 'Witness Statement', 'Supplementary Witness Statement' and 'Schedule of Costs'?
I've been sourcing and printing every Legal Act, Code of Practice and Court Document I've referenced in my WS, to include in my evidence bundle, but I see that A_Seagull appears to refer to or quote clauses from some of his sources within the body of his WS rather than including them with his evidence. Should I be doing this too? I read that if the WS was too long then the court may not bother to read it.
Also, you made a comment about when CEL receive their WS email bundle from me - I received theirs by 'signed for' recorded delivery, so assumed I would do the same. Would you recommend that email would be better? 
Thanks again for all the help! 

Redx

Yes she is saying that , to stop one statement being war and peace , but briefly mention your exhibits in the WS , giving each exhibit a reference of your initials / number , such as SRW/001 etc

Do not use email unless the claimant has allowed it , post is best , first class with a free certificate of posting for bundle 1

Plus ideally hand deliver the bundle (bundle 2) to your local court clerk , in person , or ask someone to do it for you , not email , not post

Take bundle 3 with you on the day

nosferatu1001

Where relevant quotes within the WS help a lot. If you are look at statute then you do not print it all off, jus tthe relevant page and cite where it comes from, as the court can simply look it up themselves on the day as necessary

Old_Bird_65

Thanks Redx and nosferatu1001... I'm aiming to get all parts completed and posted on here by the end of the day so I can get them in the post tomorrow. 

Old_Bird_65

I don't know if it's relevant at all, but I've noticed that on one of my evidence sheets (my POPLA appeal rejection), which also appears in CEL's evidence bundle, it mentions, when relaying my story, that I said I was only aware of the parking payment not being taken once I had received the PCN. I hadn't received a PCN at this point so they have either misquoted me, or I accidentally referred to the first letter I received as a PCN. This was an online appeal, and my statement wasn't available to view once I had submitted it (and I didn't think to screenshot it beforehand), so I can't say for sure. I had clearly informed CEL in previous correspondence that I hadn't received a PCN and no-one has questioned the comment below, so should I be concerned about that? 
The POPLA report muddles the free parking time and says that the NTK conforms with regulations, which it definitely doesn't so I'm thinking that on the whole this is still a beneficial piece of evidence for me. I've pasted it below, with the relevant comment in bold italics....


Decision: Unsuccessful

Assessor Name : Alexandra Roby

Assessor summary of operator case

The operator’s case is that the motorist exceeded the two hours free parking time.

Assessor summary of your case

The appellant’s case is that the motorist paid for her parking by phone. On her third attempt, she states that she was advised that the transaction had been successful. It was only after the Parking Charge Notice (PCN) was received, the appellant advises that she realised that payment had not been taken. The appellant advises that the motorist parked correctly. 

Assessor supporting rational for decision

While I can see that the appellant has named the motorist to POPLA, I have not been presented with any evidence that this information has been provided to the operator. Therefore, I must consider whether the operator has complied with the Protection of Freedoms Act 2012, in order to pursue the keeper of the vehicle. The operator has provided a copy of the notice to keeper sent to the appellant. 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, and that the operator has successfully transferred liability to the keeper of the vehicle. The terms and conditions of the site state: “Phone and Pay. Up to 2 ½ hours…FREE. Up to 24 hours…£4. If you park for longer than 2 ½ hours without making a payment, you agree to pay £100 to Civil Enforcement Ltd”. The operator has issued the PCN as the motorist exceeded the two hours free parking time without making a valid payment to do so. Images from the operator’s Automatic Number Plate Recognition system have been provided, which show that the appellant’s vehicle entered the car park at 12:19 and exited at 23:00 on the day in question, staying for a total of 10 hours and 41 minutes. A copy of its transaction report has also been provided, showing that the motorist did not make a payment for her parking session that day. The appellant’s case is that the motorist paid for her parking by phone. On her third attempt, she states that she was advised that the transaction had been successful. It was only after the PCN was received, the appellant advises that she realised that payment had not been taken. The appellant advises that the motorist parked correctly. While I acknowledge the appellant’s version of events, the operator has provided a transcript of the telephone calls which show that the motorist terminated the phone call before the transaction went through. I appreciate that the motorist attempted to make a payment, however, evidently, the transaction was not completed. It is a motorist’s responsibility to ensure that they have made a valid payment before leaving their vehicle parked at the site. Ultimately, it is a motorist’s responsibility to ensure they adhere to the terms and conditions of a site when parking on it. As the motorist exceeded the two hours free parking time without making a valid payment to do so, she has failed to comply. As such, I conclude that the PCN was issued correctly. Accordingly, I must refuse this appeal.

Old_Bird_65

Okay, I think I've finished my WS, Supplementary WS and Schedule of Costs. Here they are.....

WITNESS STATEMENT

In The County Court at *****                                Claim Number: *****

Parties                        

Civil Enforcement Limited                     Claimant

 *************                                              Defendant

WITNESS STATEMENT

I, ******** of ***************************** 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, in date order can be found in the Evidence Bundle (JD/01)

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

1. On ******, 2018 my daughter parked in the ‘***************, 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: 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: Call didn’t connect

Call 3: 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.

We later extracted the call data from ******’s phone (Evidence: JD/02)

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 ******* 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.

2. In late June, 2018 I received a ‘Letter of Notification Regarding Keeper Liability’ from the Claimant (dated 25/6/18) – 42 days after the incident. (Evidence: JD/03). 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 and this letter was the first I knew of the incident. Only later, when I appealed to POPLA did I see an electronic PCN document in the Claimant’s evidence bundle, and was eventually sent a copy by the Claimant on 10th September, 2019 as a result of my Subject Access request to them.

3. My daughter and I checked her bank statements and discovered that her £4 payment hadn’t been debited from her account. On 3rd July ’18 I submitted an online appeal to the Claimant, giving all the details we had. This appeal was unsuccessful.

4. I appealed to POPLA on 15/08/18 and supplied the ‘Letter of Notification Regarding Keeper Liability’ I had received. POPLA rejected my appeal, commenting that they were satisfied that the ‘Notice to Keeper’(NTK) I had supplied was compliant with the Protection of Freedoms Act 2012 (POFA). (Evidence: JD/04) I appealed the decision on 4/09/18 which was again rejected. Considering that no PCN was supplied to me, this so called NTK fails to comply with POFA Schedule 4 Paragraph 9(1), 9 (2)a,b,c,e,f,g, 9(4), 9(5), 9(7) & 9(8). If the Claimant had given me a PCN, this NTK would still fail to comply with Paragraph 8(1), 8 (2)a,b,c,e,f,g, 8(7).

Schedule 4 of POFA also makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

5. The Claimant has supplied ‘Phone and Pay’ transaction reports for the day of the incident as evidence that the system was functioning correctly *******’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. 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 (Evidence: JD/05)

6. 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 comparison to the signs which were approved of in the ParkingEye v Beavis Case, the fonts in this case are tiny. (Evidence: JD/06) This is contrary to Lord Denning's 'Red Hand Rule' which says:

“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.”

It is also contrary to the requirements of the Consumer Rights Act 2015. (Evidence: JD/07) 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.

7. 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 (Evidence: JD/08)

Statement of Truth:

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

 ************

Date:

Old_Bird_65

SUPPLEMENTARY WITNESS STATEMENT

In The County Court at *****                                Claim Number: *****

Parties

 Civil Enforcement Limited                     Claimant

 *************                                              Defendant

 SUPPLEMENTARY WITNESS STATEMENT

The purported added 'costs' are disproportionate, a disingenuous double recovery attempt, vague and in breach of both the CPRs, and the Consumer Rights Act 2015 Schedule 2 'terms that may be unfair'.

 1.      The original fee stated on the Notice To Keeper was £100, which has been inflated to £274.07 on the accompanying letter to the Witness Statement sent to me. The letter advises that this does not include ‘further legal costs for preparation, attendance and travel’ which the Claimant will seek to recover at the upcoming hearing’. This amounts to an Abuse of Process not in keeping with the guidelines set out in CPR 44.3 (2) (Evidence: JD/09).

 2.      I have the reasonable belief that the Claimant has not incurred an additional £174.07 in damages or costs to pursue an alleged £100 debt. The price breakdown in the Claimant’s Witness Statement covers £199.07 of the money claimed which leaves me with the following breakdown:

 £70.00:  Debt recovery admin costs (3 x standard, unsigned letters)

£12.00:  Trace Fees (undertaken 10 ½ months after the incident)

£17.07:  accrued interest

£75.00:  unexplained

3.      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

 4.      Any debt collection letters were a standard feature of a low cost business model, and are already counted within the parking charge itself. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22 (Evidence: JD/10), and rendering the Statement of Truth a nullity. Even the Claimant’s ‘Statement of Truth’ has not been signed by Scott Wilson’s hand, but typed in the ‘Lucida handwriting’ font.

 5.      The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. (Evidence: JD/11) There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.

 Statement of Truth:

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

 ************

Date: