PCN Port of Wells Civil Enforcement Ltd

Le_Kirk

ALL paragraphs require a number.  Also simple numbering is preferred.  I am not sure about reserving a right to counterclaim, maybe a lawyerly type will be along to advise.  I thought you had to tick a box on the MCOL AoS submission and also pay a fee.

BTBATOG

Guessed that but I was nodding off so thought just get it on and amend later

I haven't really noticed x.x format on other posts so should have known better ...more a draft for the 'lawyerly types' as you so eloquently put it to right my wrongs.

Yeah it's £255 I believe...but claimable from / payable by them should they lose

Win Win really

Umkomaas

Yeah it's £255 I believe...but claimable from / payable by them should they lose

Nope. That's a set aside fee. 

MCOL (counter)claim fees start at £25 for up to £300. Upward sliding scale thereafter. 

Civil court fees:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/904862/ex50-eng.pdf

BTBATOG

Apologies Umkomaas, Le_Kirk and anyone else  there goes my concentration again

Coupon-mad

''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 said:

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

No the POFA words about keeper liability, from 9(2)f of Schedule 4, etc., are not there, in the image you then showed.
Umkomaas was right.

BTBATOG

Umkomaas was right, as you are, (by them not having directly extracted from 9.2(f)) and as I was in that they had used a clear extract from 9.2(e).

I now understand the points made and realise I didn't correctly answer the question Re: Keeper Liability, and apologise for any confusion from my side, though some words from 9.2(f) are, just not 'keeper liability'.

All I was trying to say at that time was, they extract (copy/paste ) from POFA2012, whilst not actually invoking that PCN via the same means.
No idea why? apart from obviously trying to get the keeper to cough to who the driver was, and as I understand it, there is no obligation on the keeper to do so.

All this while they clearly know they are unable to transfer liability as Umkomaas has previously pointed out (Statutory Control)

1

Not Relevant Land, covered as such under a byelaw (as still shown within the Revision Order 1994 by)

General Byelaw 9.1(k)

for regulating the movement, speed and parking of vehicles within the harbour estate

Not sure why the Harbour Master insists there are no byelaws in place?,

or

Land under Statutory Control,

2

Still confusing, unclear, unable to see safely, signage in place (I now have some interesting up to date images)

3

Costs clearly increase with each letter (amply covered within the template defence)

Those will now be the three main defence points.

It will be in by 4PM Monday.

Umkomaas

Umkomaas was right, as you are, (by them not having directly extracted from 9.2(f)) and as I was in that they had used a clear extract from 9.2(e).

But is the reverse of the CEL letter you are showing on the previous page that of the original Notice to Keeper, if it's from a subsequent letter, it's meaningless in the context of PoFA. Have you now received a copy of the NtK via your SAR?

BTBATOG

Hi Umkomaas, from my (CEL SAR) updated info (and possibly still incorrect understanding), it looks to me like the extract I refer to 9.2(e) would be used in a 'Notice to Driver' and from what I can see there is still no NTK per se. just a transfer of liabilty I assume as no driver details have been provided.

BTBATOG

Updated defence, all numbers having been updated..

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 basis and relevant points on which the claim is being defended:

 

Point 1(above)

Land in question under Statutory Control, therefore not ‘Relevant Land’.

Signage is unclear/not transparent, confusing, inconsistent and deliberately misleading.

Inflated charges – Abuse of Process.

 

The facts as known to the Defendant:

 

2.         It is believed that the land in question falls under ‘Statutory Control’.

As such the transfer of liability from Driver to Keeper does not apply and therefore should not be invoked.
It is believed and should be noted that a private operator cannot hold a keeper liable on any land where parking is controlled by statute law.

 

3.         Signage (per BPA Code of Practice Sect. 19) at entry point to land in question is impossible to read by any driver, within any vehicle, whether moving or stationary, as it is located on the offside of any vehicle regardless from which direction they are entering, plus, the font is so small it is barely legible at kerbside pedestrian level.(Ref: XXX01)

The signage inside the car park that CAN actually be read by any driver of a vehicle under normal, safe, and reasonable circumstances is far from transparent, and deliberately misleading, as it states ‘BY ORDER OF WELLS HARBOUR COMMISIONERS’ and does not make clear or indeed offer ANY alleged contract or Terms and Conditions of any such alleged contract.
Neither does the signage make clear to any driver at any point, any ‘parking charges’ contained within the above mentioned alleged contract, or that Civil Enforcement Limited are acting on behalf of the principal landowner and therefore no correlation can be expected to be drawn.(Ref: XXX02)

Furthermore, the grace period is also illegible (black on blue which does not conform to BPA COP) (Ref: XXX03) from any driver perspective.

Based on the above it is wholly reasonable that any driver would act on the information provided, pay the stated parking fee, go about their business, and then leave.

 

4.         The Claimant states that their role is to 'enforce', 'monitor' and 'patrol', 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’.

It is clear that their limited function is to facilitate the terms offered by the principal, including 'contact the DVLA' and 'issue PCNs'. 

 

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.

Le_Kirk

ALL paragraphs require a number.  What are those loose words doing between your paragraph 1 & 2?  Signage points are contained within the standard defence template; if your words are meant to supplement those points, suggest they be kept together rather than present a fragmented story to the judge.