port of wells dilemma

parkerdan

HI folk , just a little introduction into an apparent brainteaser , 
parked at well,s next the sea quayside car park in may 2019 £4.50  all day -15 min grace to get ticket -we park  here every year cus the place is so nice,
ya all know what am going to say next -       CEL have decided they wish for me to share my pension pot .
WE always pay the ask for fee [ no probs ] if it,s going to the upkeep of the place so we can park there to enjoy .
The place was very  busy and we eventually parked in a marked bay , realizing  we had not sufficient funds in cash to satisfy the charge required an attempt was made to get some from the local shops ,being busy made the deposit of coins for the ticket 5 min over the supposed grace time of 15 min .
It,s an all day charge so on assumption enjoyed about two hours and left . an NTK arrived quite quickly and our son advised us to just ignore as he has with others with success several times . we now are at court claim time ccbc claim is for £ 260 plus 
Now the brainteaser bit = I,ve spent a little time looking through your amazing forum for help .wonderful stuff.
Come across the wells harbour byelaw issue  and noticed some here have requested confirmation from various sources including the harbour master whether there are any byelaws "actually" in place at the quayside car park area .the consensus for most on here seems to be yes there are byelaws covering the car park , =your evidence ? ( there don,t appear to be any signs there with byelaws written on like at other locations ) harbour master saying yes there are /no there,s not seems to be un-provable verbal,
1994 statutory declaration empowering the wells commissioners to make byelaws at will does not seem to substantiate the fact either .
Harbour master saying "yes the land is under an umbrella of  a statutory instrument but we  have made no byelaws governing the car park"
We have google searched allsorts trying to find evidence of byelaws for wells quayside without success. T'is would be nice to be shown some .
SO, is there reason for doubt here ? or is there categorical proof otherwise ? 
CEL do not know the driver 
claim= payment not made in accordance with terms displayed on signage.  -----what exactly does this statement mean .
Have noticed an interesting fact the car park signage has the words " BY ORDER OF THE HARBOUR COMMISSIONERS" what legal meaning might this have ?
opinions would be gratefully appreciated.  parkerdan

Redx

already discussed to death on here as we have dozens of popla threads and also court claims for the port of wells on the go already

my advice ? read a dozen of them so you get the idea on what the arguments are and where people are up to, because some are almost at court

I was reading several only 20 minutes ago looking for one particuilar thread for another member on this page

try Foxyloxey , mattybill and FrankCannon for starters

parkerdan

thanks redx , I have read quite a lot already trying to establish whether there are  ACTUALLY any byelaws at the quayside but it feels there is still room for doubt =hence my request . I will continue of course as I,m finding all this extremely interesting as CEL,s procedures seem to be a blatant contempt of court  --well and truly 

parkerdan

Hi folk , many thanks to the people on this forum , from all your data I,v e managed to put together a defence  and was wondering if some on here could  run their aching fingers over the attempt to advise on corrections etc, many thanks in advance. parkerdan 

parkerdan

oops forgot to insert the defence =IN THE COUNTY COURT

CLAIM No: 

BETWEEN:

Civil Enforcement Limited (Claimant)

-and  (Defendant)

DEFENCE

1. The Defendant is the registered keeper of the vehicle stated in the Particulars of Claim ('POC'). The Defendant denies that the claimant is entitled to relief in the sum claimed or at all. It is denied that the driver of the vehicle entered into any contractual agreement, wether express , implied or by conduct , to pay a 'parking charge' to the claimant 

2. Whilst it is admitted that the defendant was the keeper, they were not the driver of the vehicle at the time . Further, the mandatory requirements to establish 'keeper liability' have not been met and the defendant is not liable in law.

3. The claim was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by ''Civil Enforcement Limited''. The claim does not have a valid signature and is not a statement of truth. It states that it has been issued by Civil Enforcement Limited, as the Claimants Legal Representative. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. Despite being a serial litigator with its own in-house litigation department, this Claimant is in clear breach and it is averred their POC should be struck out without any relief from sanctions, due to the claim being unsupported by any facts or details giving rise to any claim in law, nor even a signature to confirm the purported statement of truth.

4. The facts are that the driver paid (ticket still in possesion)  £4.50 for an all day tariff (8am-6pm) as soon as reasonably practicable on the material date, showing that there was no intention of avoiding payment to park , the actual time parked was considerably less . The Claimant’s POC is not specific, in that it only alleges a breach of terms and conditions thus no details are provided in the PCN, only ‘payment not made in accordance with terms displayed on signage.

5. In relation to parking on private land , it is settled law from the Supreme court, that a parking charge must be set at a level which includes recovery of the cost's of operating a scheme .However this claimant is claiming a global sum of £182.00. This figure is a penalty, far exceeding the £85 parking charge in the Parking eye LTD v Beavis case .The global sum claimed is unconscionable and it was not shown in large lettering on any consumer signs, and it is averred that the charge offends against schedule 2 of the consumer rights act 2015 ( 'the CRA') , where s71 (2) creates a duty on the court to consider the fairness of a consumer contract .The Court's attention is drawn  ( but not limited to) parts 6,10, 14 and 18 of the list of terms that are likely to be unfair.

6.Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent sign's -which is denied-they are attempting double recovery of cost's.The sum exceeds the maximum amount which can be recovered from a registered keeper , as prescribed in schedule 4 (5) of the protection of freedom act 2012 ('the POFA')

7. Claims pleaded on this basis by multiple parking firms have routinely been struck out ab initio in various County Courts areas in England and Wales since 2019.Recent examples are appended to this defence , a february 2020 Order from District Judge Fay Wright, sitting at skipton county court (appendix A) and a similar Order from Deputy District Judge Josephs, sitting at warwick county court (appendix .

8. Applications by AOS members parking firms to try to reach the usually low threshold to set aside multiple strike-out Orders have been reviewed by more than one area circuit Judge ,including His Honour Iain Hughes QC , occasioning District Judge Grand at southampton to hear submissions from a barrister on 11th november 2019 . The Court refused to set aside the Orders and , tellingly no appeal was made .

9.The judge found that the claims -both trying to claim £160, with some ten or more similar cases stayed -represented an abuse of process that had "tainted" each claim . It was held to be not in the public interests for a court to let such claims proceed and merely disallow £60 in a case by case basis , thus restricting and reserving the proper application of the relevant consumers rights ,legislation only for those relatively few consumers who reach hearing stage . That Judgment is appended (appendix c).

10.The CBBC and/or the allocated Court Judge is invited to read the appendices at the earliest opportunity .

11. In addition to the original penalty, the Claimants have artificially inflated the value of the Claim by adding purported admin/legal costs or 'damages' which have not actually been incurred by the Claimant, given that they have an in-house Litigation Team. No genuine legal costs arise, per case and this 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. 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.''

13. Whilst quantified costs can be considered on a standard basis, this Claimant's costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred any added costs and cannot plead a case in damages at all. Any debt collection letters were either sent by a third party which offers a 'no collection, no fee' service, or were a standard feature of a low cost business model. The Beavis case is the authority for recovery of the parking charge itself and no more, since that sum is, by definition, already hugely inflated for profit, not loss, and the Judges held that a parking firm not in possession cannot plead their case in damages, as none exist.

14. The defendant avers that a parking firm's claim which adds a duplicitous  'cost's sum to the parking charge are now easily identified to be unlawful.Such claims  are against the public interest , requiring no further assessment , and listing such cases for trial should be avoided. The Court is invited to exercise it,s  case management  powers pursuant to C.P.R 3.4 to strike out this claim, which is entirely tainted by abuse of process and breaches of the CRA.

15.     Should this claim continue, the Claimant will no doubt try to mislead the court by pointing to their Trade Association ‘ATA’ Code of Practice (‘CoP’) that now includes a hastily-added clause 'allowing' added costs/damages.  The Defendant points out that the CoP is a self-serving document, written in the parking firms’ interests. Further, the ‘admin fee’ model was reportedly invented by a member of the British Parking Association Board, Gary Osner, whose previous firm, Roxburghe (UK) Limited, folded after being declared ‘unfit’ by the Office of Fair Trading who refused to renew their consumer credit licence due to ‘unfair and misleading’ business practices. Mr Osner states in an article that has been in the public domain since 2018: ''I created the model of ‘admin fees’ for debt recovery because ticket value was so low that nobody would make any money. Parking is business and business is about money, after all.''  

16.   The two competing ‘race to the bottom’ ATAs have engineered a veil of legitimacy to protect this industry for too long.  They are not regulators and have failed consumers so badly, that Parliament is currently working on replacing them with a new CoP overseen by the Secretary of State, following the enactment of the Parking (Code of Practice) Act 2019.  Many courts have now recognised that a predatory parking firm Claimant using unfair and predatory business practices and inflating their claims with false ‘admin fees’, is not the ‘innocent party’ in a dispute.  In stark contrast to the BPA Board member’s mindset, the will of Parliament as set out in the new 2019 Act is very much consumer-focussed, aiming for:  ''good practice...in the operation or management of private parking facilities as appears to the Secretary of State to be desirable having regard to the interests of persons using such facilities.''  

17.  In the alternative, the defence is prejudiced and the court is invited to note that, contrary to the Pre-Action Protocol for Debt Claims, the Letter Before Claim omitted evidence of any breach and failed to append the wording of the sign or consumer notice.  Further, the Particulars of Claim are embarrassing and incoherent, lacking specificity re the location of the event and status of the contracting parties and failing to detail any conduct or liability that could give rise to a cause of action.  There is insufficient detail to ascertain the nature, basis and facts of the case but the sum claimed includes unrecoverable costs/damages and is clearly an abuse of process.

18. It is denied that the Claimant's signage was capable of creating a legally binding contract. It is denied that there was any contravention of a prominently displayed 'relevant obligation' or that there was any agreement by the driver to pay the Claimant a punitive £100 parking charge over and above the advertised tariff paid. The Claimant is put to strict proof of their compliance with their Trade Body's strict rules set for 'mandatory' signage and for new/changed restrictions in the BPA CoP. This is a code which the Supreme Court held was not just guidance but effectively 'regulatory' and that access to DVLA registered keeper data depends upon full compliance.

19.The car park in question is owned by the wells harbour commissioners and is governed entirely under statutory control  by byelaws, regulations and subordinate rules stated clearly by the car park signs which display the authority of such with the wording "BY ORDER OF THE WELLS HARBOUR COMMISSIONERS"

20. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary and lawful authorisation from the landowner to issue parking charge notices at this Harbour location, and specifically, that Civil Enforcement LTD  is lawfully authorised in it,s own name to pursue payment from a registered keeper  via a small claim. This point is vital for the Claimant to evidence, and it will not be enough merely to produce a contract from the Wells Harbour Commissioners because the legal position is that registered keepers cannot be held liable for parking charges at this Port. Liability cannot pass from driver to keeper , because this is not 'relevant land' under Schedule 4 of the Protection of Freedoms Act 2012 ('the POFA') which says at paragraph 3(1)(c):

''In this Schedule ''relevant land'' means any land (including land above or below ground level) other than [...] any land [...] on which the parking of a vehicle is subject to statutory control. 3(3) For the purposes of sub-paragraph (1)(c) the parking of a vehicle on land is ''subject to statutory control'' if any statutory provision imposes a liability (whether criminal or civil, and whether in the form of a fee or charge or a penalty of any kind) in respect of the parking on that land of vehicles generally or of vehicles of a description that includes the vehicle in question. [...] ''statutory provision'' means any provision (apart from this Schedule) contained in - (a) any Act (including a local or private Act), whenever passed; or (b) any subordinate legislation, whenever made, and for this purpose ''subordinate legislation'' means an Order in Council or any order, regulations, byelaws or other legislative instrument.''

21. There is legislation  in place at [wells harbour car park ] thus this location is not ''relevant land" under the POFA definition, and therefore parking matters incurring a charge or 'penalty fine' can only be pursued by the Harbour Master through the magistrates court. This is outside of the jurisdiction of any private parking company using the small claims track. This view is further supported by the Department for Transport's 2012 Guidance about this section of the POFA.

22. The  (DFT) clarify the question at schedule  4: ''On what type of land does Schedule 4 apply? 4.1 The provisions in Schedule 4 are intended to apply only on private land in England and Wales. Public highways are excluded as well as any parking places on public land which are either provided or controlled by a local authority (or other government body). Any land which already has statutory controls in relation to the parking of vehicles (such as byelaws applying to airports, ports and some railway station car parks) is also excluded.''

23. Further, this Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information' ('the ICO Code'). This is both a specific Data Protection breach and yet again, this regime flouts the requirements of the BPA CoP and the Claimant can have no excuse for such breaches.

24. The ICO Code applies to all ANPR systems, and states that the private sector is required to follow it, in order to meet its legal obligations as a data processor. Members of the BPA are required to comply fully with the Data Protection Act (DPA) and GDPR and all ICO rules and guidelines, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land. At this location, the Claimant has failed on all counts and the data gathered about patrons of the site who have made valid payment for their vehicles to cover the full time on site (a fact known to this Claimant before the postal NTK was even issued) is unconscionable and excessive, given the lack of transparency about the risk of a 'penalty fine' charge.

25. In summary , the Claimant cannot reasonably recover an additional three figure sum in damages or costs to pursue an alleged £100 debt. The POFA states that the maximum sum that may be recovered from a registered keeper is the charge stated on a compliant NTK, and only if all requirements of Schedule 4 are met. This is not the case in this claim, in any respect, and there was no breach of any 'relevant obligation' or 'relevant contract' at all.

26. 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 believe the facts contained in this Defence are true.

Name  

Signature

Date

Coupon-mad

Remove #3 as it is not true.  The claim is signed by Wonga man, surely (see other CEL threads!).

And ONLY say this is it is true that the D was not the driver:

2. Whilst it is admitted that the defendant was the keeper, they were not the driver of the vehicle at the time .

parkerdan

Thanks CM will do,  the defendant def. was not the driver , in case they have some kind of photographic evidence ?

parkerdan

is a typed signature acceptable in court areas 

KeithP

What is the Issue Date on your County Court Claim Form?

parkerdan

24 feb kp  == an issue here is putting rather deep furrows in my forehead -how are these guys getting away with consistent blatant lies in court, surely that is perjury stuff , contempt -weird ??

KeithP

With a Claim Issue Date of 24th February, you had until Monday 16th March to file an Acknowledgment of Service. 

I am going to assume that you did file an AoS before yesterday.
Please confirm.

If not, then you must do it now - about ten minutes work - see link below.


Having filed an AoS, you have until 4pm on Monday 30th March 2020 to file your Defence.

That's under two weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To file both an AoS and a Defence, follow the guidance in this post:

https://forums.moneysavingexpert.com/discussion/comment/76880595#Comment_76880595

Guidance on creating a Defence is also in that thread - in the first post on that thread.

Don't miss the deadline for filing an Acknowledgment of Service, nor that for filing a Defence.