Claim Form defence - Wells next to sea (CEL)

Gravis

Hi all,

This is my first post and I've been researching this as best as possible so's to not waste your valuable time.. I'm at the point of writing my defence for a Parking Charge Notice which was issued to me by Civil Enforcement Limited on 27/07/2020 for parking at Wells-Next-to-Sea quay car park. The incident date was 17/07/2020, I realise I should of appealed this earlier and probably wouldn't of ever come to this stage but it is what it is and I'm now at the point of having to make my defence with a possible court hearing?!

Letters received and my actions taken

- letter issue date 17/07/2020 PCN of £100 from CEL "payment not made in accordance with terms displayed on signage" My vehicle was parked for 21 minutes (Ignored)
- letter issue date 18/08/2020 Reminder before legal action from CEL (100) (ignored)
- letter issue date 14/09/2020 Reminder from CEL and PCN increase to £140 (Ignored)
- letter issue date 12/10/2020 Final Reminder from CEL (ignored)
- letter issue date 27/10/2020 debt collection notice from ZZPS for £170 (Ignored)
- letter issue date 27/04/2021 Letter before action - claim for debt from CEL for £182, reply form, press statement, financial statement (8 pages in total) (ignored)
- letter issue date 26/05/21 Final reminder before legal action from CEL for £182 (ignored)
- letter issue date 1/07/2021 Claim Form (Acknowledged service of the claim on 3/7/2021 as per the instructions 

I have found the defence template but just need some help tailoring it to my circumstance..

Basically we spent the day visiting wells and parked in the Beach car park (not the quay carpark), on leaving wells we needed to ask for directions to the nearest garage as our vehicle was having problems and happened to see some people we met at the beach that day in the quay car park, it was pretty empty as was past 9pm at night so we drove in and the passenger jumped out to ask them for directions, the passenger then nipped across the road and picked up a drink from the shop came back to the vehicle and we set our satnav had the drink and then left. We were in the carpark for 21 minutes and the driver never left the vehicle. Its not exactly extenuating circumstances but we assumed this car park operated the same as the other car park in wells which has a 30 minute grace period.. Turns out its operated by robbing scammers so im now looking at how to defend this. I have found that this particular car park in question is  governed by "Wells Harbour Revision Order from 1994" that indicates the harbour land is under statutory control.

"General byelaws

9 - (k)for regulating the movement, speed and parking of vehicles within the harbour estate;

“the harbour estate” means the docks, piers, wharves, quays, berths, roads, bridges, sheds and other works and conveniences and the lands, buildings and property, of every description and of whatever nature, which are for the time being vested in or occupied by the Commissioners for the purposes of the harbour; “

So from what I can gather Civil Enforcement Ltd can not take any action on these tickets as they have no right to operate on the land??

Can anyone help with how I go about modifying the defence template so I can make my case? Does the fact I've received a Claim form mean ill get a hearing?

Thanks for any help in advance, hopefully this post will enable others to relieve themselves from PCN's using the by laws defence.. 

Le_Kirk

Search the forum for "Wells next the sea" or "Wells-next-the-sea" and you should find loads of posters who have been caught there and have written defences.

Coupon-mad

There is a thread about Wells-Next-to-Sea, where I pointed out two things about the signs that are crucial to either a POPLA appeal or a court defence:

 (a) the words don't seek to make a contract with drivers for parking or remaining (there are no 'contractual agreement' words saying that by doing x you agree to y, as is normally seen).

(b) the signs identify the principal, the landowner.  

Search the forum for Wells Harbour Fairlie Fenton and I think you will find the words you need about (b).

D_P_Dance

Have you complained to your MP?

KeithP

Gravis said:

- letter issue date 1/07/2021 Claim Form (Acknowledged service of the claim on 3/7/2021 as per the instructions 

With a Claim Issue Date of 1st July, and having filed an Acknowledgment of Service on 5th July (3rd July being a Saturday), you have until 4pm on Monday 2nd August 2021 to file your Defence.

That's nearly four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Gravis

D_P_Dance said:

Have you complained to your MP?

I havent done that yet, does that help the case or is it to help prevent these companies from operating in the larger scale of things? I will do it regardless but just curious.

Coupon-mad said:

There is a thread about Wells-Next-to-Sea, where I pointed out two things about the signs that are crucial to either a POPLA appeal or a court defence:

 (a) the words don't seek to make a contract with drivers for parking or remaining (there are no 'contractual agreement' words saying that by doing x you agree to y, as is normally seen).

(b) the signs identify the principal, the landowner.  

Search the forum for Wells Harbour Fairlie Fenton and I think you will find the words you need about (b).

Thank you thats great information I will look that one up!! 

KeithP said:

Gravis said:

- letter issue date 1/07/2021 Claim Form (Acknowledged service of the claim on 3/7/2021 as per the instructions 

With a Claim Issue Date of 1st July, and having filed an Acknowledgment of Service on 5th July (3rd July being a Saturday), you have until 4pm on Monday 2nd August 2021 to file your Defence.

That's nearly four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Brilliant thanks for working out the date for me that's very helpful, its crazy busy here at the moment but determined to get this all sussed out by the end of next week.

D_P_Dance

omplaining to an MP is unlikely to get the PCN cancelled, however it may help   lead to the cancellation of the PPC.

Gravis

Hello again,

im still working on this and haven't had a chance to do much on the defence yet, i have been researching quite a lot and reading the threads relating to wells-next-the-sea. its difficult finding ones which have been taken to completion but I'm slowly compiling more information.

Couple of questions, is it to late to file a SAR? should i be doing that ASAP? I have found a good template which ive adapted as below, ill post up the defence ive made so far in the next post.

-------------------------------

 

Dear Sir or Madam

Letter before action PCN ############

With reference to your letter dated 27 April 2021 I have made a Subject access request (Data Protection Act 2018/ General Data Protection Regulations (GDPR)) and therefore I require a restriction of data processing and the case should be put 'on hold'.

Further, whilst I deny any liability, I am seeking debt advice and therefore, pursuant to the pre-action protocol for debt claims 4.2 I require you to suspend the action for 30 days..

In addition I request the following information.

- A copy of the byelaws related to the car park at Port of Wells Car Park, NR23 1AT

- A full unredacted copy of your contract to operate at Port of Wells Car Park, The Quay NR23 1AT

- All evidence you will rely on in court

- Whether or not [strike]Do[/strike] you intend to rely on POFA

- Evidence of the time the vehicle was parked (NOT car park entry and payment time).

- Contemporaneous images of signs in relation to where VRM ###### was parked

- Contemporaneous [strike]mages[/strike] images of signs and their location relative to the car park entrance (to show how they would be seen by a driver prior to entering the car park)

Please send the requested information to the above address.

Yours Faithfully

---------------------------------

########### SAR LETTER ############ (Template as above)

Dear Sir or Madam

Subject access request (Data Protection Act 2018/ General Data Protection Regulations (GDPR))

My address

PCN ##########

Please supply the data about me that I am entitled to under data protection law relating to myself.

- ALL photos taken on the day – 17/17/2020 – of vehicle VRN #########

- Copies of all letters/emails about or referring to me or VRN ######### sent and received, including any appeal correspondence earlier.

- A full copy of PCN or NTK regarding VRN##########

- A full copy of the electronic claim form used by me for the initial appeal on the CE website to include all questions, statements and options available together with responses by me.

- The PDT machine record for 17/07/2020 of payments for period ##########

- Any data about me or VRN ######## you have shared with any other parties together with the details of those persons/companies/parties.

If you need any more data from me to confirm my identity please let me know as soon as possible. It may be helpful for you to know that data protection law requires you to respond to a request for data within one calendar month.

If you do not normally deal with these requests, please pass this letter to your Data Protection Officer, or relevant staff member. If you need advice on dealing with this request the Information Commisioner’s Office can assist you. Its website is ico.org.uk or they can be contacted on 0303 123 1113.

Yours faithfully

Redx

It's never too late for a SAR , should have been done a few weeks ago !!

Gravis

Heres my defence, please advise.. 

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

(full name of parking firm, not the solicitor!) 

(Claimant) 

- and -  

Defendant’s name from N1 claim (can’t be changed to someone else now)                        

 (Defendant)

____________________

DEFENCE

____________________

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. It is admitted that the defendant was the driver of the vehicle in question but liability is denied

 

3.       The defendant parked in wells quay car park on 17/07/2020 at approximately 9:30pm as the defendant was looking for a safe place to pull over and find directions to the nearest service station. The vehicles engine management light had alarmed and the temperature gauge was showing signs of engine overheating. The defendant made a couple of phone calls to try and seek advise on how to manage the vehicle malfunction and was advised to let the vehicle cool down for 20 minutes and then proceed with the journey to the nearest service station where more checks could be made if the problem persisted. With the anxiety of the vehicle problems a quick glimpse to the car park signs on entry were noted by the defendant, the sign states "£4.50 DAY RATE ONLY". There are no other charges stated on this sign and the defendants interpretation is that charges only applied during the day time and that charges did not apply at all during the evening, this was in keeping with the other parking spaces around the area of wells-next-the-sea which are managed by the local council.

4.  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, 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.'

5.  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.

6.  'By Order of the Wells Harbour Commissioners' is written at the bottom of the signs where the disputed term about paying after 6pm is stated. 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. 

7.  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.

8.  The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon.  Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3.  That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71.  The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2.  NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

9.       It is denied that the exaggerated sum sought is recoverable.  The Defendant's position is that this moneyclaim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135.  Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper.  At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable.  ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event.

10.       Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of the cost of their standard automated letter-chain.  It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85.  

11.  The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties.  It is known that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing.  He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice.  He was not taken by either party to Somerfield in point #5 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed.  It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA').

12.  Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case).  It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land.  There is now also the Parking (Code of Practice) Act 2019 with a new, more robust and statutory Code of Practice being introduced shortly, which evolved because the two Trade Bodies have failed to properly govern this industry.

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

13.       Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable.  However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.  

14.       Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text.  The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach.

15.   Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  

16.   The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.

17.       The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

18.   Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

(i)                 Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

(ii)                Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2,

both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(ii)                 Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.  In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio.  To pre-empt that, in fact Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

19.   Fairness and clarity are paramount in the new statutory CoP being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, observed:  'Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike."   The Defendant's position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

20.  In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant.  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

 

In the matter of costs, the Defendant seeks:

21.   (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance.  The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

22.   The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim. 

Statement of Truth

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.

Defendant’s signature:

Date:

Gravis

Redx said:

It's never too late for a SAR , should have been done a few weeks ago !!

do i do that via their website? they dont seem to publish an email address that i can see