CEL witness statement

Not_for_real

http://ibb.co/PzQsv57

edit: link made live

Le_Kirk

Your link made live: -
https://ibb.co/PzQsv57
How on earth do they expect that sign to work? I could see that it wouldn't work unless you knew how long you were going to be (like any other PDT) but if you were going be one hour, how do you pay £0? Only way I could see it working is if you just leave your credit card number with an open order and they charge it once the ANPR has clocked you driving out. If that is the case surely the instructions should be on the sign?

Umkomaas

Not_for_real wrote: »

[IMG]hxxps://ibb.co/PzQsv57[/IMG]

@notforreal - I think with 22 posts under your belt, you probably now have linking privilege, so not likely to need to use hxxp in future.

Not_for_real

Le_Kirk wrote: »

Your link made live: -
https://ibb.co/PzQsv57
How on earth do they expect that sign to work? I could see that it wouldn't work unless you knew how long you were going to be (like any other PDT) but if you were going be one hour, how do you pay £0? Only way I could see it working is if you just leave your credit card number with an open order and they charge it once the ANPR has clocked you driving out. If that is the case surely the instructions should be on the sign?

my thoughts too - i will include a short para on sign being misleading to the public and paraphrase this exact scenario

i think im done - ill post my final version to be checked and have it submitted tomorrow

Umkomaas wrote: »

@notforreal - I think with 22 posts under your belt, you probably now have linking privilege, so not likely to need to use hxxp in future.

edited it now, thanks

Not_for_real

this is my latest version which I'm hoping should be good enough then I can print and submit tomorrow
new para is point 12 based on the signage being construed as misleading to the public - I hope the language is OK


Claim No. XXXXXXX

Between

Civil Enforcement Limited (Claimant)

and

XXXXXXXXX (Defendant)


WITNESS STATEMENT
I, XXXXXXXXX, of XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, will say as follows:

I am the Defendant in this matter. Attached to this statement is a paginated bundle of documents marked Exhibit NFR001-010 to which I will refer.

NFR001 - 003 AERIAL PHOTO OF CAR PARK – ENTRANCE AND EXIT ONTO HIGHWAY
NFR004 PHOTO OF NO SIGNAGE AT ENTRANCE AT TIME OF INCIDENT
NFR005 - 006 PHOTO OF CARPARK LAYOUT
NFR007 – LETTER RECEIVED FROM CLAIMANT SHOWING PHOTO OF VEHICLE ENTERING AND EXITING CAR PARK
NFR008 PHOTO OF VEHICLE PARKED LOCATIN AND NEAREST SIGN
NFR009 – 010 PHOTO OF SIGNS AT THE SITE AS CURRENT NEAR VEHICLE
NFR011 TRANSCRIPT OF THE CASE BETWEEN NCP VS HMRC
NFR012 BPA CODE OF PRACTICE
NFR013 COPY OF THE MINUTES AT THE PROFRESSIONAL STANDARD & DEVELOPMENT BOARD MEETING BY THE BPA
NFR014 A COPY OF SCHEDULE 4 OF THE POFA
NFR015 MY COST SCHEDULE


1. 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 for a total of 1 hour and 14 minutes, when only 1 hour was permitted. It is these 14 minutes with which the Claim is concerned.

2. Before I describe what happened on the day, I visited a restaurant (“the car park”), I confirm that the essence of my defence to this claim is that:
a. I did not breach the terms and conditions of parking
b. The Claimant's signage did not make it clear whether the 1 hour free parking period offered included time spent after entering the site via its ANPR cameras looking for a space and parking in it and locating and reading the terms and conditions and deciding to accept them, and time spent when leaving the site via the same cameras exiting the space, driving round the car parks narrow layout and then driving out onto a public highway – a junction at a traffic light is situated approximately 100m away. (Exhibit NFR001 - 003). It is my case that it offered 1 hour of free parking, and that is the period I parked for. It is trite law that any uncertainty in a contract should be resolved against the person who offered it under the contra preferentem rule;
c. 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 of at least 10 minutes at the start and end of each period of parking to allow for potential delays in finding a space, exiting the car park and to allow time for drivers to find and read the terms and conditions offered, and the 14 minute overstay is well within these grace periods.

3. Attached (Exhibit NFR004) is a google earth aerial photograph of the car park which shows there was no signage on the entrance near the time of said contravention and a photograph showing the Civil Enforcement Limited have seen erected a sign outlining its terms and conditions. The Claimant's ANPR machine is, I believe, almost next to the junction to the exit road (Exhibit NFR002 & 004). Also, shown is the layout of car park and the narrow space with which one needs to manoeuvre and avoid a road traffic collision (Exhibit NFR005 & 006)

4. After driving in past the ANPR cameras at the entrance, it took me a few minutes to find a space and park in it as the car park was quite busy. Exhibit NFR007 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 over to the closest parking sign to read it. I estimate that this took 4-5 minutes, possibly a little more. The sign circle green and where I parked my car (marked re) are marked on the aerial photograph on Exhibit NFR083. The sign stated that there was a free 1 hour period of parking. I visited the restaurant which had delays of its own. All effort was made to return to the car within the 1 hour with kids and ensuring they were in their car seats and seatbelts done

5. It is my understanding that there are three elements to a contract: offer, acceptance and consideration. I could not possibly have accepted any contract offered by the Claimant at the precise moment I drove through the ANPR cameras, at the start of minute 1 of the 1 hour and 14 minutes period, because at that point no offer had been made. An offer must be communicated to an offeree. As such, I refer to the case of NCP vs HMRC [2019] EWCA Civ 854 Case No: A3/2017/2435 (Exhibit NFR011 – Transcript of case) in which a person uses a pay machine to purchase a ticket in exchange for parking whereby judgment makes it clear that the offer and acceptance takes place when the paying motorist inserts the coins & hits the green button (Paragraphs 18 -20 highlighted on transcript), similarly in this case, offer and acceptance could not have accepted merely by driving by the APNR cameras and ‘formally’ starting the parking from that minute and being at a disadvantage in determining whether a vehicle wants to accept or not.

6. There was no offer communicated at the entrance to the car park, but only once I was inside it - the Claimant’s signage setting out the terms and conditions were dotted around the site and could not be seen immediately on entry (Exhibit NFR002, 004 & 005), and I could not read them from my car. It took me 4-5 minutes to drive in, find a space, find a sign, read it and decide to avail myself of the parking. At that point I say an offer was made (insofar as the sign was capable of making an offer), and I accepted it.

7. Since no contractual terms were offered until I had read the sign, that leaves the remaining 10 minutes of my alleged overstay.

8. When I returned to my car, the car park was very busy. I know that I reached my car within the 1 hour limit, because I was mindful of the time and the need to return home with the children. I did not remain parked when I returned to the car, I got straight in it, fastened the childrens seatbelts in their car seats and drove off, and at that point I was no longer making use of the car parking facility, but was exiting the car park.

9. It took me a long time to reach the exit road and then drive out onto the public highway (see Exhibit NFR001, 002 & 005), because I had to navigate a narrow space with cars parked in bays and along the kerbs, stopping along the way to allow other cars to get in / out of spaces and out of junctions within the car park, and when I reached the exit, there was a traffic jam leading to the highway. The car park entry and exit is at an intersection of the main road (insert Named Road) and on the day it was heavily congested which meant the traffic was almost at a standstill leading up to the traffic lights at the crossroads. There were a lot of cars stuck inside the car park waiting to get out. I estimate that it took me around 10 -11 minutes to get to the exit road and out of the car park, past the ANPR cameras.

10. I was not familiar with the car park layout or how busy the road outside it could be. The fact is that I returned to my car and drove it away from where it was parked within the 1 hour period and made every effort to exit the car park in a timely manner. I was delayed because of reasons beyond my control (the traffic jams both inside the carpark and on the public highway outside) and I could not have anticipated them. The entirety of the final 10 minutes spent in the car park were spent trying to exit it. The Claimant, a company which manages the car park, should be aware of these issues and should make reasonable allowances for the foreseeable delay’s users may experience in exiting the car park.

11. Contractually, the Claimant’s signage (Exhibit 009) did not specify that the 1 hour of free parking included time spent finding a space and then leaving the car park via the ANPR cameras. Had this been clear to me, I would have returned to the car earlier. Of the 14 minute alleged overstay, 4-5 minutes (possibly more) were spent in the car park prior to any contract being formed. The 10 -11 minute delay in leaving at the end of the 1 hour was beyond my control and unforeseeable. I made all reasonable endeavours to leave the car park and to remain parked for only 1 hour.

12. The signage (Exhibit 009) are deemed to misleading to the public in such that upon revisiting the site for the purposes of this case, the small print states that:
‘If you do not pay within 10 minutes of arrival, or if you agree to park longer than the period paid for, you agree to pay £100 to Civil Enforcement Limited…’

It is my argument that this could not be applied if I am to take the incentive of parking for free for 1 hour, thus no requirement for me to provide my payment details for what is effectively £0 charge, therefore it is my point that such instructions must be clearly written and displayed

13. In addition to considering the contractual element of the claim, I have considered the Code of Practice ("CoP") of the British Parking Association ("BPA"), of which the Claimant is an accredited member. A copy of paragraph 13 of the CoP (Exhibit 009), which relates to grace periods. In order to be an accredited member of the BPA, compliance with the CoP is compulsory, and a copy of paragraphs 4.1 and 6 of the CoP is at Exhibit 010. The significance of being a member of the BPA and subscribing to its CoP is that the Claimant is only entitled to ask the DVLA for the details of a car’s registered keeper if it is a member (so without membership a private parking company would not be able to function without the ability to trace drivers/registered keepers).

14. Paragraph 13 of the CoP clearly states that a grace period is to be applied to parking. The CoP makes clear that such grace periods are to be applied both at the start of any parking period and also at the end of any parking period. The whole point of these grace periods is to allow drivers time to find a parking space and to read the signage prior to commencement of the period of parking, and time to exit the carpark once they have finished parking. Grace periods are not defined, but the CoP requires them to be "a minimum of 10 minutes" either side of the actual parking (paragraphs 13.2 and 13.4). It is worthy of note that the recommendation is a minimum of 10 minutes, not a maximum.

15. Furthermore, I must add that the grace period was agreed to be changed to exceed 10 minutes and be set to a minimum 11 minutes at the Professional Development & Standard Board meeting by the BPA.

The minutes (Exhibit NFR013) of the above meeting on the 30th July 2015 state the following:
Implications of the 10 minute grace period were discussed and the Board agreed with suggestion by AH that the clause should comply with DfT guidelines in the English book of by-laws to encourage a single standard. Board agreed that as the guidelines state that grace periods need to exceed 10 minutes clause 13.4 should be amended to reflect a mandatory 11 minute grace period.

16. There is no explanation for why the Claimant has declined to apply any grace period at all in my case, which is a clear breach of the CoP.

17. In the well-known parking case of Cavendish Square Holdings BV v Talal El Makdessi; ParkingEye Limited v Beavis, the Supreme Court made clear in its judgment that strict compliance with the CoP is paramount where a Claimant seeks to enforce a private parking charge. Paragraphs 96 and 111 of the judgment stated:

96. ''The BPA Code of Practice is a detailed code of regulation governing signs, charges and enforcement procedures.''
111. “''And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced.''

18. In this case, the data produced and relied upon by the Claimant shows that the period passing between my car entering and leaving via the ANPR cameras was 14 minutes. Applying the "minimum" 10 minutes or 11 minutes agreed at the Professional Standards and Development meeting by the BPA either side of the parking, the minimum total grace period I should have been allowed by the Claimant under its own compulsory CoP was 20 or 22 minutes. I was therefore well within the grace period. Whilst I accept that following the parking, I was on site for around 10 minutes, this was because of the heavy traffic both inside and outside the carpark, a matter which was outside of my control. The Claimant should have taken a reasonable and proportionate approach, complied with its own obligations under the CoP (not to mention exercised common sense) and should have applied the grace period, particularly in light of the potential bottleneck at the junction between the exit of the car park and the main road (Insert named road here). Furthermore, the issue the court is being asked to deal with is de minimis and the court's valuable time should not have been taken up with this matter.

19. The Claimant has refused to see reason, by applying an appropriate grace period of "a minimum of 10 minutes" before and after parking, which it is actually obliged to do by its compulsory CoP.

Costs on the claim - disproportionate and disingenuous

20. CPR 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. 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. In fact, it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself.

22. 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. 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.

23. Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.

24. According to Ladak v DRC Locums UKEAT/0488/13/LA, a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

25. The Protection of Freedoms Act 2012, Schedule 4 (POFA) (Exhibit 014) 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.

26. Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Order was identical in striking out both claims without a hearing:

The judges stated:
''IT IS ORDERED THAT:
The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998.''

27. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed mendacious in terms of the added costs alleged.

28. There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.


The Court is invited to dismiss the claim and to award my costs (Exhibit 015) of dealing with this claim and attendance at the hearing, such as are allowable pursuant to CPR 27.14.

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


Signature of Defendant:

Coupon-mad

This doesn't make sense as it is describing what happened!

Before I describe what happened on the day, I visited a restaurant

This is an important sentence but it's very buried in 2b:

It is my case that it offered 1 hour of free parking, and that is the period I parked for.

I'd put that as a numbered point on its own.

Not_for_real

Thank you all - made the below correct and off to submit to the court today

I removed 'I visited restaurant bit' as its mentioned in para 4

and make the line a numbered section

Le_Kirk

Just a small point but if you are going to use points of law (even in Latin) it's best to get it right: -

contra proferentem

Redx

Not_for_real wrote: »

Thank you all - made the below correct and off to submit to the court today

And add the exhibits plus your costs schedule to the bundle

And email it all to the claimant too

Not_for_real

So CEL have written back disputing points I wrote and the evidences and have kindly offered us to pay £100 and call it quits

What do you reckon? I’m half tempted to call their bluff and take it all the way however the person I’m doing this for may be happy to settle here.