Help with CEL witness statement

ahmedadam1982

Hi guys, I am supposed to send a witness statement regarding a parking ticket I acquired while attending an emergency dental appointment.

I appreciate your help and advice.

1. I am xxxxxxxxxxxx, the Defendant in this matter. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge, they are true to the best of my information and belief.

2. I am an unrepresented consumer who has never attended the County Court before, I have been provided with insufficient information by the Claimant in order to defend this claim, however I will do so to the best of my ability. I have no knowledge of the terms and conditions in question, or signage that was on display at the time of the alleged incident.

3. I deny any liability for the alleged breach of Terms and Conditions with the Claimant.

4. The details of the breach of contract that occurred are unclear. I am yet to see a copy of the terms and conditions and any evidence that these were in fact clearly on display at the time of the alleged incident.

5. I was a patient who attended My Dentist dental practice at Martonside way in Middlesbrough on the day of the alleged incident, I attended an emergency appointment having not slept well for few days because of a broken tooth. The dental practice has not included any information beforehand in writing or email regarding their car park restrictions.

6.As there was no written information, I tried to call the dental practice between 1 pm on the 12th of October 2018 and 2pm of the same day to verify my appointment. I received no response and there was no automatic answer machine on their line. I made the decision to go by myself upon entering the site I haven’t seen any clear signs and I recall that the weather was cloudy and rainy, I found the practice doors were closed and was informed by a passer by that they close between 1 and 2 pm for lunch.

7. I waited until 2 pm and when they opened they informed me that my appointment was 15 minutes past 2 pm, I attended my appointment, took sometime to recover from the procedure I had done and headed home.

8.I have not seen any signs in the practice and no member of staff alerted me to the parking restrictions or the need to register.

9.I paid the practice for their services and included a copy of the receipts with this statement.

10.I received a penalty charge notice sometime after that, I complained to CEL who advised me to appeal to POPLA with not much information supplied to me by them, the appeal was rejected.

11. CEL didn’t inform me of the ability of the dental practice to cancel parking tickets which they mentioned in their statement in a deliberate act to avoid the ticket cancellation.

12.I complained to the dental practice and their response included a statement that they don’t have the right to cancel any tickets, this brings to light a potentially deliberate act of misleading the court and myself.

13.I would like to mention that I am led to believe that the registration for extra time is free, I don’t think a failure to obtain a registration at the practice makes me liable for this penalty charge, you can refer to the documents confirming my attendance for treatment at the practice on the day of the alleged incident.

14. I have not seen any evidence outlining the relationship between Mydentist at Martonside way and CEL. Presumably CEL run the car park for the interest of the dental practice and other businesses within the specified area. I would argue that my stay within the car park benefited the dental practice as I paid … pounds for this appointment, hence I deny that any damage or loss has occurred.

15. My vehicle was in motion on both ANPR images however the Claimant has stated the breach of contract as Parked for longer than the maximum period permitted. The Claimant has not evidenced whether the permitted maximum free parking period of 60 minutes included time entering the site, looking for a space and parking, as well as exiting the car park. If the terms and conditions do state the parking period permitted is the full period of time spent within the car park and not the time the vehicle is parked (as stated on the Letter Before action,) then I question the prominence and clarity of this condition. I also find it unreasonable to assume that any driver would clearly understand the implications between whether entrance / exit time is included within the permitted parking period by the terminology used on the signage and contract that was displayed at the time, or if indeed they could be led to believe the time stated is merely the period of time a vehicle is parked upon the premises.

16. According to the IPC code of practice (Ex6) a grace period should be applied in addition to the maximum permitted parking period. This is to allow drivers time to find a parking space, to read the signage, and to exit the car park once they have finished parking. The ANPR photographs of my vehicle were taken upon entry at 13:32 and exit at 14:58. If the maximum parking period permitted is 60 minutes, I would not find it unreasonable to say that a 20-minute grace period should also have additionally been taken into account.

17.  All the letters from the claimant in addition to the claim form fail to mention any grace periods allowed under the alleged contract which the defendant believe is a deliberate attempt to mislead the defendant and court about any estimated alleged damages and costs.

17. I believe the lack of information and facts in regard to the case plus the overbearing amount of payment ‘advice’ given along with the artificial inflation to the charge is deliberate in order to intimidate unrepresented defendants like myself into paying these charges without question. The Claimant has shown complete disregard for the correct procedures and protocols of both the court and the IPC which I find ironic in a case that relates to breach of contract.

18. The Unfair Terms in Consumer Contract Regulations 1999 applies
      

a. It is asserted that the Claimants charges are unlawful, as they are in breach of the Unfair Terms in Consumer Contract Regulations 1999, specifically regulation 8(1) of the Regulations and article 6(1) of the Unfair Terms Directive (in providing that an unfair term is not to be binding on the consumer), which is to redress the imbalance between the contracting parties bargaining power, and to re-establish equality between them, so that the contract terms which bind the parties are such as the parties would have agreed if they had negotiated the contract on equal terms.

 

19.The Claimant states in their witness statement that the signage is clearly displayed but this is not agreed. Thus, the necessary elements of offer and acceptance to form a contract were not present.

 

20    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 or running an automated regime of template letters. Thus, there can be no ‘costs’ to pile on top of any parking charge claim.

 

21.  In addition to the original penalty, the Claimant has artificially inflated the value of the Claim by adding purported legal costs and interest, 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 services provision, files many thousands of similar ‘cut and 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 service.

 

22.  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 a 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.

 

23.  Alleging that 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 ''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 they used a third-party debt collector during the process.

 

 

24.  This case is fully distinguished in all respects from ParkingEye 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’.

 

25.  This parking charge is not valid, as the registered keeper has been invoiced for time it took the vehicle to enter and exit the carpark. The ANPR does not record how long the vehicle was parked for, and therefore cannot issue a charge for overstaying the parking limit.

 

26.   No standing - this distinguishes this case from the Beavis case:
It is believed Civil Enforcement do not hold a legitimate contract at this car park. As an
agent, the Claimant has no legal right to bring such a claim in their name which should be
in the name of the landowner.

 

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

 

 

Coupon-mad

You have two number 17s, and the entire stuff about the UTCCRs needs to be binned as that was replaced by the CRA in 2015.  And CEL are not in the IPC so you can't copy a WS from an IPC firm. 

You have said nothing about the added £70 and 'abuse of process' and nothing about Wonga man (see recent CEL threads with far more suitable WS drafts, that you can adapt).

1505grandad

Can you post the Defence you filed at Court?

ahmedadam1982

This was my defence

·         IN THE COUNTY COURT



BETWEEN:

CIVIL ENFORCEMENT LTD (Claimant)

-and-

xxxxxxxxxxxxxx (Defendant)

 

·         DEFENCE

 

·         The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

 

·         The defendant is the registered keeper of the vehicle in question. The claim relates to an alleged debt arising from the driver’s breach of contract, which is denied.

 

·         The defendant would like to explain that the car parking charge relates to the attendance of an emergency dental appointment for which not enough information regarding the site were given by the dental practice. Additionally, the practice was shut between 1pm and 2 pm and answered no phone calls or left any answer machine messages. 

 

·         The defendant would like to maintain that any time spent on the car park was due to inability to contact the dental practice which should be held liable for any alleged breach of contract.

 

 

·         The defendant maintains that no clear signs were seen and that there were exceptional circumstances that day, the details of which will be submitted to court.

 

·         The POFA, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper. The claim includes an additional amount, for which no clear calculation or explanation is given, and which appears to be an 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 or running an automated regime of template letters. Thus, there can be no ‘costs’ to pile on top of any parking charge claim.

 

·         In addition to the original penalty, the Claimant has artificially inflated the value of the Claim by adding purported legal costs and interest, 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 services provision, files many thousands of similar ‘cut and 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 service.

 

·         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 a 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.

 

·         Alleging that 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 ''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 they used a third-party debt collector during the process.

 

·         All the letters from the claimant in addition to the claim form fail to mention any grace periods allowed under the alleged contract which the defendant believe is a deliberate attempt to mislead the defendant and court about any estimated alleged damages and costs.

 

·         Any alleged damages and costs should consider the extra time spent minus any grace period in addition to any sums of money earned by the landowner as a result of the defendant’s presence.

 

·         On the 14th of November an offer letter from CEL to settle the matter mentioned that all costs that have been incurred to date will be waived and a 75 pounds PCN would be accepted. This clearly shows the conflicting calculations that Civil Enforcement LTD uses to inflate their charges.

 

·         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 patients attending the dental practice on a pre-arranged appointment.

 

·         Even if the Claimant was 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 issue unfair charge notices. The defendant argues that the landowner has an interest in the attendance of genuine patients, any commercial justification in the form of landowner support for such unfair ticketing is de facto absent.

 

·         This case is fully distinguished in all respects from ParkingEye 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 where the dental practice closes its doors for an hour between 1 pm and 2 pm in addition to that the phones are not answered and there are no answer machines which clearly predispose any unfamiliar customers to fall into the penalty charge trap while waiting for a prearranged appointment.

 

·         It is mentioned that the dental practice is to be asked for any extension to the free parking period however the defendant would argue that knowing in advance about the exact minutes spent receiving dental care is a form of a guess specially in the context of an emergency appointment as was in this case. Henceforth this is an unfair request which sets patients to fall into the parking charge trap which is an abuse of the vulnerable state of patients.

 

·         The Defendant relishes the chance to question this Claimant at trial and invites the dental practice manager to explain his position in allowing this firm to continue to trap patients attending the practice and whether there were any genuine steps taken by the practice to minimize the chance of a parking charge being issued.

 

·         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 and BPA Code of Practice breach. The Supreme Court Judges in Beavis held that a Code of Practice is effectively ‘regulation’ for this blatantly rogue industry, full compliance with which both mandatory and binding upon any parking operator.

 

·         The ICO Code applied 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 all ICO rules and guidelines, as a prerequisite 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 patients at the site is unconscionable and excessive, given the lack of transparency this clearly threatens breaching the right to confidentiality.

 

·         The parking firm sent information and photos from the parking site to the registered keeper, being a site with medical facilities this clearly threatens the right to confidentiality as the keeper and driver might be different. It is worth mentioning that this could be extremely dangerous in some cases, the company in this situation is clearly in breach of codes of practice and patient rights.

 

·         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 drivers could not miss the signs and secondly, could not miss the fact that, if they did receive an unfair PCN as a genuine patient, they have the right to ask the landowner/managers to cancel it. Clearly the Claimant’s interest is purely in misleading and punishing users of the car park and extracting as much money as possible in three figure penalties, given that this is the only way Civil Enforcement LTD make any money.

 

·         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.

 

·         The particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

 

·         This parking charge is not valid, as the registered keeper has been invoiced for time it took the vehicle to enter and exit the carpark. The ANPR does not record how long the vehicle was parked for, and therefore cannot issue a charge for overstaying the parking limit.

 

·         This charge is unconscionable, with no 'legitimate interest' excuse that the Claimant can rely upon. The charge is designed purely to confuse, entrap and then punish drivers and the penalty rule has not been disengaged, unlike in the factually different and 'complex' Beavis case.

 

·         The claimant is put to strict proof to show photo/video evidence of the clarity and legibility of their signs on the particular day which according to my recollection was rainy.

 

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

 

 

·         I believe the facts contained in this Defence are true.

KeithP

I t might be a good idea to edit your post recent post to remove the Claim Number.

That uniquely identifies your incident.

ahmedadam1982

Coupon-mad said:

You have two number 17s, and the entire stuff about the UTCCRs needs to be binned as that was replaced by the CRA in 2015.  And CEL are not in the IPC so you can't copy a WS from an IPC firm. 

You have said nothing about the added £70 and 'abuse of process' and nothing about Wonga man (see recent CEL threads with far more suitable WS drafts, that you can adapt).

another quesion: I am supposed to hand this in by the 23rd of March which is coming Monday, if I filed it online to the court and sent it in an email to CEL does that work or I have to submit actual paper WS to both of them, and is better to send it as special delivery or just signed for first class

Redx

your BUNDLE should consist of the WS + EXHIBITS (numbered) + your costs as well, plus anything else, not just one WS , I dont see ANY exhibits listed and no numbered references to exhibits , nor costs schedule , nor the CRA 2015 , POFA etc

the first bundle should be handed in IN PERSON to your local court

the second bundle should be posted with a free certificate of posting , first class, not signed for , not emailed , to the claimant named on your court documents

the third bundle you take with you on the day of the hearing

KeithP

Never ever send anything to a parking company or their solicitors using any service that requires a signature.

All that does is give the intended recipient the opportunity to not sign and hence refuse delivery.

All you have then is proof of non-delivery. Not quite what you want.

If you want to use Royal Mail, then send it by standard first class post obtaining a free Certificate of Posting from the Post Office counter. The item is deemed delivered two working days later.

Keep that Certificate of Posting as proof.

ahmedadam1982

Redx said:

your BUNDLE should consist of the WS + EXHIBITS (numbered) + your costs as well, plus anything else, not just one WS , I dont see ANY exhibits listed and no numbered references to exhibits , nor costs schedule , nor the CRA 2015 , POFA etc

the first bundle should be handed in IN PERSON to your local court

the second bundle should be posted with a free certificate of posting , first class, not signed for , not emailed , to the claimant named on your court documents

the third bundle you take with you on the day of the hearing

I guess one of my problems is that at some point I think I admitted I am the driver.

Redx

so not POFA, but I dont see any exhibits other than this WS , nothing exhibited as evidence to back up the claims being made, a judge is unlikely to look them up

watch any court case on tv like law and order, they have numbered exhibits as well as witnesses , such as ABC01 , ABC02 etc , your court case papers would have stated exhibits as well as your statement, or any other winess statements such as the practice manager etc

and where is your costs schedule ? case law ? CRA 20105 ? (abuse of process exhibits ?)

ahmedadam1982

Redx said:

so not POFA, but I dont see any exhibits other than this WS , nothing exhibited as evidence to back up the claims being made, a judge is unlikely to look them up

watch any court case on tv like law and order, they have numbered exhibits as well as witnesses , such as ABC01 , ABC02 etc , your court case papers would have stated exhibits as well as your statement, or any other winess statements such as the practice manager etc

and where is your costs schedule ? case law ? CRA 20105 ? (abuse of process exhibits ?)

Do I have to print and include all the act or just the pages I quoted from