CEL CCJ Set Aside - Support Please!

Coupon-mad

The CCJ will be removed in a couple of weeks, automatically.

Same advice as this one...read more threads and you'd be more confident and know this is normal.  You can see there that I say do your WS and evidence against the PCN as well as a defence even though the Judge has not asked for a WS:  Your first WS is not helpful because that wasn't about the PCN, so you must so a second one, and submit evidence (and the defence) like in this thread:

https://forums.moneysavingexpert.com/discussion/comment/78555452#Comment_78555452

And please tell us you know about these other two threads (below) and have done both required urgent tasks?

I really hope you have done the Government Consultation and objected absolutely to ANY debt recovery fake 'costs' being added on top of a parking charge (of course) and told them what you think of them increasing charges to £130 instead of £100...which is already extortionate.

You have 5 days to do the consultation.  Please, please, do and do it by email so you attach evidence.  Spread the word, is closes within days, next week!

Also, I hope you've also registered for the Group Action, against the DVLA (open to anyone with a PCN since 2018?).  Gotta be in it to win it!  Nothing to lose, and it's genuine.

Read the threads about those important matters, they both need doing, right now, this week.

redredelise

That's great @Coupon-mad. Thank you.
I was feeling overwhelmed and like I was loosing it a bit with my focus.
This has got me back on track.

Many thanks!

redredelise

Hello All,

I have put together my WS for the defence court hearing.
Chunks have been taken from a forumite with a similar scenario.
Can you have a look and let me know if there are any glaring mistakes?

Thank you 🙏🏼



Claim No. xxxxxxxx

Between

Civil Enforcement Limited (Claimant)

and

xxxxxxxxx (Defendant)


WITNESS STATEMENT

 

I, xxxxxxx, of xxxxxxxxxx, will say as follows:
I am the Defendant in this matter. 

Attached to this statement is a paginated bundle of documents marked Exhibit xxxxx-xxxxx to which I will refer.

FG 01 - xxxxxxxx Car Park - Signage at Entrance as seen when turning right into the car park from the road
FG 02 – Image of ANPR Camera placement
FG 03 – Image of xxxxxxx Car Park

FG 04 – Images of Parking Signs
FG 05 – Image of the road when exiting the car park
FG 06 – Images taken by ANPR Camera of the vehicle, entering and exiting the car park
FG 07 – British Parking Association Code of Conduct – Version 7 January 2018 – Excerpt detailing grace periods

FG 08 – Transcript of the case between NCP vs HMRC (MAY 2019)

FG 09 – Image of area of land at the bottom end of car park used by other businesses and their vehicles

FG 10 – Excerpt of British Parking Association Code of Conduct – Version 7 January 2018 – detailing requirement to have clear signage at the entrance to a car park

FG 11 – Not Used

FG 12 – Ladak v DRC Locums UKEAT/0488/13/LA

FG 13 – The Protection of Freedoms Act 2012, Schedule 4

FG 14 – Cost Schedule

1. The Claimant asserts that I entered into a contract with it, that I breached that contract and must pay a contractual charge, with further undefined and unexplained additional charges. It claims that I was in the relevant car park for a total of 42 minutes, when only 30 minutes was permitted. It is these 12 minutes with which the Claim is concerned.

2. I confirm that the essence of my defence to this claim is that:

a. I did not breach the terms and conditions of parking

b. The Claimant's signage did not make it clear (Exhibit FG 04) whether the 30 minutes free parking period offered included time spent after entering the site via its ANPR cameras, looking for a space and parking in it and locating and reading the terms and conditions and deciding to accept them, and time spent when leaving the site via the same cameras exiting the space, driving through the car park’s narrow layout and then driving out onto a public highway – (Exhibit FG 05). 

It is my case that it offered 30 minutes of free parking, and that is the period I parked for. It is trite law that any uncertainty in a contract should be resolved against the person who offered it under the contra proferentemrule.

c. Even if I did breach the terms, the Claimant is obliged by the compulsory Code of Practice of its own Accredited Trade Association to apply a grace period of at least ten minutes at the start and end of each period of parking to allow for potential delays in finding a space, exiting the car park and to allow time for drivers to find and read the terms and conditions offered, and the 12 minute overstay is well within these.

3. Attached (Exhibit FG 01) is a photograph of the car park as approached from the road which shows there was no signage from Civil Enforcement Limited at the entrance, despite a clear sign saying it is Supreme Animal Food’s car park. 

The Claimant is required by the British Parking Association Code of Practice to display a sign of terms and conditions at the entrance of the car park (Exhibit FG 10), but this is not present.

The Claimant's ANPR machine is positioned to take images of vehicles immediately they pass through the entrance (Exhibit FG 02). Also shown is the layout of the car park and the narrow space with which one needs to manoeuvre, including the necessity to drive to the end of the car park and perform a careful three-point turn – on an area of land that is used by three more businesses and their vehicles - in order to exit the car park safely when leaving (Exhibit FG 03).

4. After turning right into the car park, driving in past the ANPR cameras at the entrance, it took me a few minutes to find a space and park, as the car park was quite busy. Exhibit FG 06 is an image received by the claimant showing the vehicle entering and exiting the car park. I remember waiting for a few other cars to manoeuvre in and out of spaces before parking myself. When I got out of the car, I walked over to the closest parking sign to read it. I estimate that this took four to five minutes, possibly a little more. 

The sign stated that there was a free 30 minute period of parking. I visited Supreme Animal Foods, which takes three to four minutes to walk to from the car park. All effort was made to return to the car within the 30 minutes allowed.

5. It is my understanding that there are three elements to a contract: offer, acceptance, and consideration. I could not possibly have accepted any contract offered by the Claimant at the precise moment I drove past the ANPR cameras, at the start of minute one of the 42 minute period, because at that point no offer had been made. An offer must be communicated to an offeree. As such, I refer to the case of NCP vs HMRC [2019] EWCA Civ 854 Case No: A3/2017/2435 (Exhibit FG 08 – Transcript of case) in which a person uses a pay machine to purchase a ticket in exchange for parking whereby judgment makes it clear that the offer and acceptance takes place when the paying motorist inserts the coins and hits the green button (Paragraph 18 highlighted on transcript), similarly in this case, offer and acceptance could not have been accepted merely by driving by the APNR cameras and ‘formally’ starting the parking from that minute and being at a disadvantage in determining whether a vehicle wants to accept or not.

6. There was no offer communicated at the entrance to the car park (Exhibit FG 01), but only once the driver is inside it - the Claimant’s signage setting out the terms and conditions are dotted around the site and cannot be seen immediately on entry). I could not read them from the car. It took four to five minutes to drive in, find a space, find a sign, read it and decide to avail myself of the parking. At that point I say an offer was made (insofar as the sign was capable of making an offer), and I accepted it.

7. Since no contractual terms were offered until I had read the sign, that leaves the remaining seven minutes of my alleged overstay.

8. When I returned to my car, the car park was busy. I know that I reached my car within the 30 minute limit, because I was mindful of the time. I did not remain parked when I returned to the car, I got straight in it and began to make my way to the end of the car park in order to turn around safely, and at that point I was no longer making use of the car parking facility but was exiting the car park.

9. It took me several minutes to reach the exit of the car park and then drive out onto the public highway (see Exhibit FG 05), because I had to navigate a narrow space (see Exhibit FG 03) involving carrying out a difficult three-point turn among other business vehicles (Exhibit FG 09) with cars parked in bays, stopping along the way to allow other cars to get in/out of spaces, and when I reached the exit, there was heavy traffic on the highway leading to traffic lights. 

I estimate that it took me around eight to nine minutes to get to the exit and out of the car park, past the ANPR cameras.

10. The Claimant, a company which manages many car parks including this one, should be aware of the issues relating to consideration and grace periods when entering and exiting - particularly when ANPR cameras take images immediately as you enter and exit - and should make reasonable allowances as stated by the British Parking Association (Exhibit FG 07).

11. Contractually, the Claimant’s signage (Exhibit FG 04) did not specify that the 30 minutes of free parking included time spent finding a space and then leaving the car park via the ANPR cameras. Had this been clear to me, I would have returned to the car earlier. Of the 12 minute alleged overstay, four to five minutes (possibly more) were spent in the car park prior to any contract being formed. The eight to nine minute delay in leaving at the end of the 30 minutes involved careful manoeuvring around other vehicles and waiting to exit onto a congested highway.

I made all reasonable endeavours to remain parked for only 30 minutes.

12. In addition to considering the contractual element of the claim, I have considered the Code of Practice ("CoP") of the British Parking Association ("BPA"), of which the Claimant is an accredited member. A copy of paragraph 13 of the CoP (Exhibit FG 07), which relates to grace periods. In order to be an accredited member of the BPA, compliance with the CoP is compulsory. The significance of being a member of the BPA and subscribing to its CoP is that the Claimant is only entitled to ask the DVLA for the details of a car’s registered keeper if it is a member (so without membership a private parking company would not be able to function without the ability to trace drivers/registered keepers).

13. Paragraph 13 of the CoP clearly states that a grace period is to be applied to parking. The CoP makes clear that such grace periods are to be applied both before the start of any parking period - and also at the end of any parking period. The whole point of these grace periods is to allow drivers time to find a parking space and to read the signage prior to commencement of the period of parking to agree to the terms, and time to exit the car park once they have finished parking. Grace periods are not defined, but the CoP requires them to be "a minimum of 10 minutes" either side of the actual parking. It is worthy of note that the recommendation is a minimum of 10 minutes, not a maximum.

14. There is no explanation for why the Claimant has declined to apply any grace period at all in my case, which is a clear breach of the BPA Code of Practice.

15. In the parking case of Cavendish Square Holdings BV v Talal El Makdessi; ParkingEye Limited v Beavis, the Supreme Court made clear in its judgment that strict compliance with the CoP is paramount where a Claimant seeks to enforce a private parking charge. Paragraphs 96 and 111 of the judgment stated:

Paragraph 96 – “The BPA Code of Practice is a detailed code of regulation governing signs, charges and enforcement procedures.”
Paragraph 111 – “And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced.”

16. In this case, the data produced and relied upon by the Claimant shows that the period passing between my car entering and leaving via the ANPR cameras was 42 minutes. Applying the "minimum" ten minutes either side of the parking, the minimum total grace period I should have been allowed by the Claimant under its own compulsory CoP was 20 minutes. I was therefore well within the grace period. Whilst I accept that, following the parking period, I was on site for around eight to nine minutes, this was because of negotiating the narrow areas of the car park as well as the congestion outside the car park, a matter which was outside of my control. The Claimant should have taken a reasonable and proportionate approach, complied with its own obligations under the CoP (not to mention exercised common sense) and should have applied the grace period, particularly considering the potential bottlenecks in the car park itself and at the junction between the exit of the car park and the main road. Furthermore, the issue the court is being asked to deal with is de minimis and the court's valuable time should not have been taken up with this matter.

17. The Claimant has refused to see reason, by applying an appropriate grace period of "a minimum of 10 minutes" before and after parking, which it is obliged to do by its compulsory Code of Practice.

 

18. I would ask the Claimant to provide its maintenance records for the ANPR camera in the car park belonging to Supreme Animal Foods for the period of the alleged parking event, showing clear evidence of calibration and/or accuracy, to prove that the alleged 12 minute overstay is correct.

 

 

 

 

 

redredelise

continued...



Costs on the claim - disproportionate and disingenuous

19. 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.

20. Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. In fact, it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low-cost business model and are already counted within the parking charge itself.

21. The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.

22. Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.

23. According to Ladak v DRC Locums UKEAT/0488/13/LA (Exhibit FG 12), a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

24. The Protection of Freedoms Act 2012, Schedule 4 (POFA) (Exhibit FG 13) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the Claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes almost triple recovery.

25. Judges have disallowed all added parking firm 'costs' in County courts up and down the country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Order was identical in striking out both claims without a hearing:

The judges stated:
''IT IS ORDERED THAT:
The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998.''

26. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed mendacious in terms of the added costs alleged.

27. There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.


The Court is invited to dismiss the claim and to award my costs (Exhibit FG 14) of dealing with this claim such as are allowable pursuant to CPR 27.14.

I believe that the facts stated in this defence are true.  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

KeithP

The first sentence in your Statement of Truth should be:

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

redredelise

Good spot, thank you @KeithP

redredelise

I also wanted to check - the cost schedule.
In the set aside judgment, costs were reserved.
Do I add them into the cost schedule for this?

redredelise

Also, I have changed my defence so I have altered and updated it and will resend it to the court to replace the draft defence they have that was submitted with the set aside.
Is this okay to do?

Jenni_D

redredelise said:

Also, I have changed my defence so I have altered and updated it and will resend it to the court to replace the draft defence they have that was submitted with the set aside.
Is this okay to do?

Of course, as that is exactly what the judge told you to do.  
So as C-m said previously, you send in (i.e. file with the court, serve on the claimant):

Defence
Witness Statement (even though the judge didn't specifically ask for it, but it is needed at this stage following a set aside)
Costs Schedule

redredelise said:

I also wanted to check - the cost schedule.
In the set aside judgment, costs were reserved.
Do I add them into the cost schedule for this?

Yes, you add in all the costs you wish to recover. See this thread for an example as that OP is at the same stage as you.

redredelise

Great, thank you.
Will put bundle together and send out to relevant people today.