PCN Port of Wells Civil Enforcement Ltd

BTBATOG

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 believed that the land in question is under Statutory Control, therefore not ‘Relevant Land’. 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 is not transparent, is confusing, inconsistent and deliberately misleading. The Claimant's sign 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'.

4.         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 a 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.

5.        The Defendant has since returned and obtained their own images to confirm this, those images clearly show that the signage at entry point of the land in question is impossible to read fully by any driver, within any vehicle, whether moving or stationary, as it is located on the offside of the vehicle or on the side of the entrance furthest away from the driver depending from which direction the driver is travelling, plus some of the wording is so small it is barely legible at kerbside / pedestrian level.(Ref: XXX01)

6.        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 COMMISSIONERS’ and does not make clear or indeed offer ANY alleged contract or Terms and Conditions of any such alleged contract with Civil Enforcement Limited. 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 landowner and therefore no reasonable correlation can be expected to be drawn.(Ref: XXX02)

7.        Therefore, that 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 Wells Harbour Commissioners' but the words are still just about visible when taken in the context of the image captured just inside 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. 

8.        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 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.

9.        The Civil Enforcement Limited signage displaying the £100 parking charge (albeit NOT in the largest font) is however displayed on the rear of the entry sign facing roadside, again, impossible for any driver to read on entry. (Ref:XXX03).  Furthermore, the grace period is also illegible (black on blue which does not conform to BPA COP) from any drivers perspective. It is not easily read even when standing relatively close. (Ref: XXX04)

10.        Based on the above it is wholly reasonable that any driver would act on the information provided without the need to patrol the area on the basis that the signs may be different, (which in fact they are) pay the stated parking fee, go about their business, return to their vehicle and then leave being none the wiser that they have done anything wrong.

11.         Inflated charges – Abuse of Process.(Defence Template original point 4 onwards)

Is this better?

KeithP

As @Le_Kirk said earlier, every paragraph needs a number.

You are not numbering points - you are numbering paragraphs.

You appear to have something like twelve paragraphs there, which is fine, but every single one needs a sequential number.

Clearly all subsequent paragraphs will need re-numbering to fit.

BTBATOG

Thank you both....Previous post updated, is that better?

Le_Kirk

5.        Signage is not transparent, confusing, inconsistent and deliberately misleading.

I would alter that as indicated as it reads as if the signage is NOT confusing!

5.        Signage is not transparent, is confusing, inconsistent and deliberately misleading.

Why have you got such short paragraphs - in fact they are sentences.  For example your points 2 & 3 are the same point and could be combined into one para.

BTBATOG

Duly condensed on previous post as before

Coupon-mad

The first letter was the NTK even if they didn't head it up with those words.  Often they call it a parking charge notice. It's still the NTK.

We are just double checking that the back page of the document you suddenly showed us, was the back of the first letter (ergo, the NTK)?  In which case, it is not capable of holding a registered keeper liable due to the lack of compliance (at all) with paragraph 9 from Schedule 4. Notably, the absence of the 9(2)f warning about the recipient of the letter becoming liable in law.

BTBATOG

Thanks Coupon-mad

To confirm...Yes the back page was from the first letter sent by CEL as shown below.

Apologies - was only able to upload that information after receiving it as part of SAR.

Not available up to that point, never received as it was sent to a previous adddress unfortunately.

Redacted

Coupon-mad

Yes, so the easy focus for a Judge is to draw their attention to:
 
(a) the fact that the POFA says land that is 'under statutory control' is not included in the POFA law for 'keeper liability' (it was deliberately excluded by Parliament because such land has its own rules under byelaws - as in this case where the Harbour Byelaws prevail - and/or the Traffic Management Act where Council-owned land is concerned), and
(b) the fact that, for the avoidance of any doubt for the courts, operators and consumers alike, the CMA Guidance on the CRA 2015 clarifies 'on what land does the POFA apply'
(c) the fact that the PCN was a 'non-POFA' version (as expected for byelaws land) and this is easy to see from the omission of certain wording, most notably 9(2)f warning about keeper liability, and 
(d) this means that, as a matter of fact and law, a registered keeper cannot be held liable for parking on this land. 

In conclusion re this vital point about lack of liability: although the Claimant has failed to make it clear, this was a driver-liability-only PCN and because the first time the keeper Defendant actually saw the PCN was in a SAR reply from the Claimant in 2021, it is far too late to know which of the authorised drivers visited an unremarkable site for what appears to be 40 minutes, a year ago.  More than one family member has driven the vehicle and the Claimant's images give no assistance in identifying the driver.  A registered keeper cannot be lawfully assumed to be the driver on private land - if that had been possible then the POFA would not have been needed at all in 2012 - and this was confirmed by POPLA Lead Adjudicator and parking law expert barrister, Henry Greenslade, in his notes about keeper liability misunderstandings, in the POPLA Annual Report 2015.

BTBATOG

It's been covered in point 2 of the defence, now including the 'for the avoidance of doubt' part.

Being emailed as we speak.

Thank you so much again Coupon-mad.

BTBATOG

Sorry...meant to post this last week...

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. The land in question is under Statutory Control, therefore for the purposes of ‘keeper liability’, the Protection of Freedoms Act 2012 does not apply, and, for the avoidance of any doubt for the courts, operators, and consumers alike the CMA Guidance on CRA 2015 also clarifies on which land POFA 2012 applies. As such, transfer of liability from Driver to Keeper does not apply, and should never have been invoked. It should be noted that a private operator cannot hold a keeper liable on any land where parking is controlled by statute law. Notwithstanding the above, the driver-liability-only PCN which was issued, fails to comply with POFA 2012 Paragraph 9 Schedule 4, notably, the absence of 9(2)(f), warning about the recipient of the letter becoming liable in law. A registered keeper cannot be lawfully assumed to be the driver on private land - if that had been possible then the POFA would not have been needed at all in 2012 - and this was confirmed by POPLA Lead Adjudicator and parking law expert barrister, Henry Greenslade, in his notes about keeper liability misunderstandings, in the POPLA Annual Report 2015.

3.        Signage at the car park site is not transparent, is confusing, inconsistent and deliberately misleading. The Defendant has recently returned and obtained their own images to confirm this and aid their defence, the Defendant’s images clearly show that the signage at entry point is impossible to read fully by any driver within any vehicle, whether moving or stationary, as it is located on the nearside of the vehicle. or on the side of the entrance furthest away from the driver, depending from which direction the driver is travelling, any alleged contractual terms being so small they are barely legible even at kerbside / pedestrian level. (images prior to the Defendant’s (possibly in place at the time of the alleged breach) are also available clearly showing even more confusing/conflicting signage).

4.         The signage just inside the car park to the right, which CAN, on entering, 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 COMMISSIONERS’ and does not make clear, or indeed offer ANY alleged contract, or display Terms and Conditions of any alleged contract with the Claimant. (which conflicts with BPA Code of Practice Sect. 19.1). Neither does this signage make clear to any driver at any point, any ‘parking charges’ contained within the above mentioned alleged contract, or that the Claimant is acting on behalf of the landowner, and therefore no reasonable correlation can be expected to be drawn by the Defendant. Furthermore, the grace period on this signage is also barely legible from any drivers perspective (which conflicts with BPA Code of Practice Sect. 19.3). It is not easily read even when standing relatively close.

5.       The Claimant's sign 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.'

6.         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 a 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.

7.         'By Order of the Wells Harbour Commissioners' is also written at the bottom of another sign in the car park where the Claimants signage has been placed over the top of the words, though when taken in in context of the sign near the entrance it can be confusing. Therefore, that 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. 

8.         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 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.

9.         The Claimants signage correctly displaying the £100 parking charge, albeit not in the largest font, is however displayed on the rear of the Claimants roadside facing entry signage, again, making it impossible for any driver to read on entry. This signage was only noticed whilst images were being captured by the Defendant.  Based on the above it is wholly reasonable that any driver would act on the information they have seen on the sign just inside the car park, without the need to patrol the site on the basis that other signs may be different (which in fact they are - inconsistent).

10.       A Day Rate ticket was witnessed as having been purchased by the Defendant on the date of the alleged breach, unfortunately, the Defendant is no longer in possession of it. A redacted ticket machine log showing ‘exact matches’ or ‘near misses’ was requested from the Claimant by the Defendant as part of a Subject Access Request. This was not provided to the Defendant by the Claimant despite the reasonable request and the Defendant believing the log has relevance in order to confirm that payment had been made and to confirm correct recording of payment. Further, the Defendant puts the Claimant to strict proof that any financial loss at all was in fact suffered as a result of the alleged breach, and that the above mentioned log was interrogated fully and correctly prior to any DVLA request for keeper details). Given this, and notwithstanding the harassing, intimidatory and vexacious nature of the Claimant’s correspondence (Defendant now has access to the previously unreceived correspondence items beginning 03.07.2020 which were provided under the Subject Access Request), the Defendant believes this claim to be a deliberately misleading, punitive and flagrant Abuse of Process by the Claimant

11.       The Particulars of Claim set out an incoherent statement of case........(original points 4 - 18 renumbered 11 - 25)