PCN Port of Wells Civil Enforcement Ltd

KeithP

Can I suggest that you spell out POW in full?

It is unlikely that anyone searching for a post about this place will use POW as their search argument.
You are unnecessarily limiting the help you may get.

BTBATOG

Of course you can ...Done...cheers and apologies KeithP (Post and Thread confusion)

BTBATOG

Just wanted to say thank you to 'FrankCannon' and 'spb042413A' for the images of signage which are really appreciated and a great help / start.

In addition and (in an attempt to nail this down almost watertight) if at all possible, I would like to get some images from around June 2020 or even how the signage is now to compare any updates / differences, and confirm the general consensus that the signage is indeed woeful, or at best 'poor and confusing'.
Thanks again to those mentioned above and also everyone else who has commented / assisted so far.

SayNoToPCN

Have you written para 2 and 3 of the defence yet?
this needs doing regardless of whether the SAR turns up before the deadline or not. So get it done! 

As it is land under statutory control, it is not "relevant land" as per POFA2012 - so you will include an explicit ref to that, naming the act in full then in brackets say ("The Act") or ("POFA2012")  to make it clear, an excerpt of the def of relevant land and where it comes from within POFA, and some proof that PoW has bye laws in place. 

A private operator cannot permit something - and bind you to a contract - that is illegal under byelaws. Point 1
A private operator cannot hold a keeper liable for ANYTHING where parking is controlled by stat. Nothing,. But they can potentially hold the driver liable for anything not barred by statute (ie if the byelaws are silent on going off site, then they can say you can only stay on site and if you leave you owe money) points 2 and 3

BTBATOG

Thank you SayNoToPCN...I'll work out what that means shortly

I'm doing the defence tonight for submission tomorrow, along with letters to CEL, Wells Harbour Commisioners, MP, DVLA, ICO, and anyone else I can think of between now and then, based on the below....

Quick update...received docs from CEL today and there is no mention of POFA 2012 on the original PCN (will post once I print it off and redact/scan as it's a PDF and I have no editing facility)...for the purposes of this post though please take my word for it for now.

PCN is dated 03.07.2020 'Payment not made in accordance with terms displayed on signage' (Well done CEL for getting it in within 14 days...assuming of course that the letter was actually posted on the date it was printed)

I may be missing something glaringly obvious here, but I'd love to know how, without using or referring to POFA 2012 they are able to assume the registered keeper was actually driving, thereby allowing a legitimate DVLA request / transfer of liability...bearing in mind that at no point has the drivers identity actually been revealed. (Umkomaas previous post)

Coupon-mad

They were allowed to get your DVLA data. 

I expect the PCN has the POFA words on the top back section about hire companies.  They hide para 9(2)f words there, now.  

BTBATOG

Yes they are, as you say 'hidden' in that section, with something to the right about reasonable cause.

No specific mention of the legislation or relevant paragraph 9.2 (e) which one should expect for clarity / fairness / the avoidance of doubt surely, or am I just being daft?

Umkomaas

Coupon-mad said:

They were allowed to get your DVLA data. 

I expect the PCN has the POFA words on the top back section about hire companies.  They hide para 9(2)f words there, now.  

I don't think, to my knowledge, CEL do that for PoW, they know it's under 'statutory control' and can't invoke PoFA keeper liability. (@BTBATOG - please check the back section about hire companies to be sure - let us know). 

Parking 'byelaws' don't exist here - as the Harbourmaster is quick to point out as there has been a byelaws revision in 1994 - but nonetheless, the site is under statutory control, ergo, no keeper liability. 

https://www.legislation.gov.uk/uksi/1994/1440/made

BTBATOG

.....as promised

BTBATOG

Good morning - here are my points 2, 3 & 4(thanks to OP for this one) oh and 20 sneaked in at the end...points 1, original 4-18 amended to 5-19 and remain unaltered.

Posted for critique, and constructive advice on positioning or where I may have gone wrong please...any help at all is, as always, greatly appreciated.

1.       The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

 

The facts as known to the Defendant:

 

2.       It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied, as with the passage of time the Defendant is unable to confirm or deny with any level of absolute certainty, who the driver may have been at the time of the alleged contravention, having only become aware of it by means of a letter received late December 2020, some 6 months later.

The Defendant therefore puts the Claimant to strict proof that the Registered Keeper and Driver are indeed the same person, which they have already (by means of wording within their own initial Notice to Keeper / PCN Payment Options section) admitted that they are unable to do.

 

2.1       It is the Defendants belief that a Day Rate (£4.50) ticket was purchased on the date of the alleged breach, and a redacted ticket machine log showing  ‘exact matches’ or ‘near misses’ was requested by the Defendant as part of a Subject Access Request (relative to the Claimant’s DVLA keeper personal detail request).

This was not furnished to the Defendant in order to substantiate their belief, allowing subsequent removal of this particular defence point, therefore the Defendant puts the Claimant to strict proof that any financial loss was in fact suffered (or indeed confirmed by means of the abovementioned ticket machine information prior to the DVLA request for keeper details) at all in this case.

 

 

3.         As this appears to be a poorly attempted / hidden claim under the Protection of Freedoms Act 2012, Schedule 4 (Legislation not clearly stated anywhere on the Claimant’s PCN but rather, an extract of wording from it included in the small print within the Claimant’s PCN Payment Options Section again) which the Defendant only became aware of per letter received late December 2020 (believed by the Defendant to be a ‘Letter before Claim’ though again, at no point in that letter are those word’s clearly used), the Defendant therefore puts the Claimant to strict proof that they are ‘unaware’ that the land in question is not ‘Relevant Land’, and is under ‘Statutory Control’ meaning that their claim has no basis as ‘Liability’ cannot be transferred from Driver to Keeper, under POFA 2012 legislation.

 (leg. references to rel. land, stat. cont., to be added when I get back later)

(i)                 A private operator cannot permit something - and bind anyone to a

contract - that is illegal under byelaws. (unsure whether byelaws apply here per previous member post)

 

(ii)               A private operator cannot hold a keeper liable for ANYTHING where parking is controlled by statute.

 

(iii)             They can potentially hold the driver liable for anything not barred by statute (ie if the byelaws are silent on going off site, then they can say you can only stay on site and if you leave you owe money)

 

3.1.      Given all of the above (and below), and notwithstanding the harassing, intimidatory and vexacious nature of the Claimant’s correspondence, the Defendant believes this to be nothing more than a deliberately misleading, confusing, and flagrant Abuse of Process by the Claimant.  (Possibly better at the end)

 

4.         The Claimant states that their role is to 'enforce', 'monitor' and 'patrol' and it is clear that their limited function is to facilitate the terms offered by the principal, including 'contact the DVLA' and 'issue PCNs'.  This limited function is confirmed in the Claimant's own Linked In page at https://www.linkedin.com/company/civil-enforcement-ltd where they proclaim 'Civil Enforcement Ltd process and administer Parking Charge Notices (PCN's) on the behalf of UK Small Businesses and Major UK Brands.'

 

Unlike in the Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67, there is no sentence in the signage that offers or attempts to create a contract between this Claimant and the Defendant or any driver.  A parking management firm could use wording to make themselves personally liable on the contract and they could make a contractual offer themselves by saying 'by parking at this site you, the driver, are entering into a contract with us' (or words to that effect) but there is no such contract on the signs.  In fact, at no point is a driver told that they are entering into any contractual relationship and futhermore, even if they were, it would be impossible to easily determine who any alleged contract was actually with, at best it could possibly be argued either Skypark (given that their name is more prominent than the Claimant), or the Claimant themselves, and at worst, Wells Harbour Commissioners could be added.

 

The term and the licence to park is made by the principal, Wells Harbour Commissioners.  In one image, the Claimant's sign has covered up a larger one that also says 'Order of The Wells Harbour Commissioners' but the words are still just about visible when taken in the context of other images and at the entrance, it is clear that the licence is offered by, and the site maintained by, the Port of Wells Harbour Commissioners, who are the disclosed principal.

 

Therefore, unlike in ParkingEye v Beavis, this Claimant has placed their service, and themselves, in the position of an agent/broker/middle-man, making the bargain for another party and collecting monies (the parking fees from the machine) for that party.  The Defendant avers that this Claimant does not retain nor pay VAT on the tariffs and they have no possessory title in this land.  Fatally to their claim, the Claimant made no clear and concise offer of a contract to the driver, at all.  The Claimant is put to strict proof if their position is to the contrary of that stated by this Defendant, who takes the point that the principles established by the authority of Fairlie v Fenton (1870) LR 5 Exch 169 apply and there is no contractual relationship between this Claimant and the Defendant.

20.       The Defendant would also like to reserve the right to invoke a possible counterclaim against the Claimant for misuse of personal data (under GDPR/DPA)