Claim Form defence - Wells next to sea (CEL)

Umkomaas

Gravis said:

Umkomaas said:

As the Wells site is under statutory control, there can never be keeper liability, and if (as I suspect) CEL did not issue a PoFA-compliant NtK, you shouldn't reveal the driver's identity (unless you have done so previously in correspondence with them). 

The DJ Grand/Southampton reference should be removed and replaced with Excel v Wilkinson. 

EXCEL v WILKINSON JUDGMENT

https://www.dropbox.com/s/16qovzulab1szem/G4QZ465V%20Excel%20v%20Wilkinson.pdf?dl=0

add some words about Excel v Wilkinson, into the usual point about the added £60.

 e.g. your extra paragraph could say (wording courtesy of @Coupon-mad):

 At the Bradford County Court, District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) decided to hear a 'test case' a few months ago, where £60 had been added to a parking charge despite Judges up and down the country repeatedly disallowing that sum and warning parking firms not to waste court time with such spurious claims.   That case was Excel v Wilkinson: G4QZ465V, heard in July 2020 and leave to appeal was refused and that route was not pursued.  The Judge concluded that such claims are proceedings with 'an improper collateral purpose'.   This Judge - and others who have since copied her words and struck dozens of cases out in late 2020 and into 2021 - went into significant detail and concluded that parking operators (such as this Claimant) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015.   DJ Hickinbottom has recently struck more cases out in that court area, stating: ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''.

In addition this link takes you to a further judgment which adds even more weight:

https://forums.moneysavingexpert.com/discussion/6279348/witness-statements-2-transcript-exhibits-re-parking-firms-falsely-added-contractual-costs/p1

Ah ok thanks, I’ll look into this this evening

Please do, because your draft defence IDs the driver, which blows the protection provided by law (PoFA) to you as the keeper. 

Can you show us a redacted copy of CEL's first letter (Notice to Keeper) you received - both sides of it, but please leave any dates showing. 

Redx

3 looks more like a wordy witness statement than a defence paragraph , very good for a witness statement by an admitted driver. What is the legal submission ??  To me it's about breakdown or signage or something else , but rambling !

Why is the defendant mentioning who was driving ? Has CEL already been told who was driving ?

Le_Kirk

If you need any more data from me to confirm my identity please let me know as soon as possible.

Do not offer them any chance to obfuscate and delay the supply of your data.  The GDPR only requires you to provide the V5C (or at most proof of where you live, i.e. a copy of any letter they have sent to you).  You certainly do not want to be offering (nor should they demand) things like passport and/or driving licence.

Gravis

Umkomaas said:

Gravis said:

Umkomaas said:

As the Wells site is under statutory control, there can never be keeper liability, and if (as I suspect) CEL did not issue a PoFA-compliant NtK, you shouldn't reveal the driver's identity (unless you have done so previously in correspondence with them). 

The DJ Grand/Southampton reference should be removed and replaced with Excel v Wilkinson. 

EXCEL v WILKINSON JUDGMENT

https://www.dropbox.com/s/16qovzulab1szem/G4QZ465V%20Excel%20v%20Wilkinson.pdf?dl=0

add some words about Excel v Wilkinson, into the usual point about the added £60.

 e.g. your extra paragraph could say (wording courtesy of @Coupon-mad):

 At the Bradford County Court, District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) decided to hear a 'test case' a few months ago, where £60 had been added to a parking charge despite Judges up and down the country repeatedly disallowing that sum and warning parking firms not to waste court time with such spurious claims.   That case was Excel v Wilkinson: G4QZ465V, heard in July 2020 and leave to appeal was refused and that route was not pursued.  The Judge concluded that such claims are proceedings with 'an improper collateral purpose'.   This Judge - and others who have since copied her words and struck dozens of cases out in late 2020 and into 2021 - went into significant detail and concluded that parking operators (such as this Claimant) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015.   DJ Hickinbottom has recently struck more cases out in that court area, stating: ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''.

In addition this link takes you to a further judgment which adds even more weight:

https://forums.moneysavingexpert.com/discussion/6279348/witness-statements-2-transcript-exhibits-re-parking-firms-falsely-added-contractual-costs/p1

Ah ok thanks, I’ll look into this this evening

Please do, because your draft defence IDs the driver, which blows the protection provided by law (PoFA) to you as the keeper. 

Can you show us a redacted copy of CEL's first letter (Notice to Keeper) you received - both sides of it, but please leave any dates showing. 

Thank you for this, I will add in the part about the Excel v Wilkinson wording and have attached the 1st letter i received from CEL as you requested. I have not admitted to being the driver yet so i will edit the defence to suit. I assume i just admit to being the registered keeper and leave it at that?
                                 

Gravis

Redx said:

3 looks more like a wordy witness statement than a defence paragraph , very good for a witness statement by an admitted driver. What is the legal submission ??  To me it's about breakdown or signage or something else , but rambling !

Why is the defendant mentioning who was driving ? Has CEL already been told who was driving ?

Thanks for looking it over, the template said to to describe what I saw in my own words, having zero legal experience I just started writing and this is what happened lol. I will do my best to condense and stick to the points but essentially yes its about a breakdown and poor signage.

No CEL hasnt been told who was driving, i will edit the defence to only admit to being the registered keeper. 

Gravis

Here are the edits.. Should I make 2 separate points out of 3? 1 to do with the emergency breakdown and 1 do to with the signage?

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.

 

3.       The defendants vehicle was parked in wells quay car park on 17/07/2020 at approximately 9:30pm in an emergency due to vehicle breakdown. At no point was the defendants vehicle left unoccupied as the entirety of the 21 minute stay was spent seeking mechanical advise via mobile telephone whilst still inside the vehicle. It was noted that the entry sign to the car park in question states "£4.50 DAY RATE ONLY". There are no other charges stated on this sign, no implications that a contractual agreement is being entered into, no implications that any fines apply and no implications on the car parks operational hours. It is therefore a reasonable interpretation that a flat rate of £4.50 applies during the day time and that charges do not apply at all during the evening. Given the signage at the entry to the car park, it would be reasonable for the driver to feel confident in entering the carpark as a safe place to stop and seek mechanical advise without encoring any costs or fines. The alternative to this would of been to stop and cause a dangerous obstruction on "The Quay" (B1105).

8. At the Bradford County Court, District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) decided to hear a 'test case' a few months ago, where £60 had been added to a parking charge despite Judges up and down the country repeatedly disallowing that sum and warning parking firms not to waste court time with such spurious claims.   That case was Excel v Wilkinson: G4QZ465V, heard in July 2020 and leave to appeal was refused and that route was not pursued.  The Judge concluded that such claims are proceedings with 'an improper collateral purpose'.   This Judge - and others who have since copied her words and struck dozens of cases out in late 2020 and into 2021 - went into significant detail and concluded that parking operators (such as this Claimant) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015.   DJ Hickinbottom has recently struck more cases out in that court area, stating: ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''.

Redx

It's advice , and incurring !!

In 3 , I wouldn't be saying was parked , maybe stopped for a short while , or similar

Yes , split into 3 & 4

Coupon-mad

You’ve not yet found the wording in a few CEL Wells threads, about there being no contractual terms or agreement offered on the signs and the fact that the principle landowner is on the signs means CEL are only acting as middlemen on behalf of the landowner.  CEL can’t sue.

Search the forum for CEL Wells Fairlie v Fenton. 

I think we helped with one last week. 

You also need a short paragraph pointing out that the land is not ‘relevant land’ due to active Port byelaws and thus isn’t covered by the ‘keeper liability’ law set out in Schedule 4 of the Protection of Freedoms Act 2012.  

There is no applicable law whereby this agent can hold a keeper liable for a parking event at this particular location and their Notice to Keeper shows that the Claimant has not attempted to hold the keeper liable because the POFA 2012 wording in para 9 of Schedule 4 is absent.  Only the landowner based on the signs could sue an identified driver so this claim has no merit.

Gravis

Coupon-mad said:

You’ve not yet found the wording in a few CEL Wells threads, about there being no contractual terms or agreement offered on the signs and the fact that the principle landowner is on the signs means CEL are only acting as middlemen on behalf of the landowner.  CEL can’t sue.

Search the forum for CEL Wells Fairlie v Fenton. 

I think we helped with one last week. 

You also need a short paragraph pointing out that the land is not ‘relevant land’ due to active Port byelaws and thus isn’t covered by the ‘keeper liability’ law set out in Schedule 4 of the Protection of Freedoms Act 2012.  

There is no applicable law whereby this agent can hold a keeper liable for a parking event at this particular location and their Notice to Keeper shows that the Claimant has not attempted to hold the keeper liable because the POFA 2012 wording in para 9 of Schedule 4 is absent.  Only the landowner based on the signs could sue an identified driver so this claim has no merit.

Hi yes I did find that and have included it in the defence on page 2. No one had commented on that part so assumed it was all ok, I’ve just been posting the edits to help condense the reading. 😊

that extra paragraph at the end looks good though! Thanks!

Gravis

Redx said:

It's advice , and incurring !!

In 3 , I wouldn't be saying was parked , maybe stopped for a short while , or similar

Yes , split into 3 & 4

It is appreciated!! 

Feel like I’m getting somewhere 😊

3.       The defendants vehicle had stopped at wells quay car park on 17/07/2020 at approximately 9:30pm in an emergency due to vehicle breakdown. At no point was the defendants vehicle left unoccupied as the entirety of the 21 minute stay was spent seeking mechanical advise via mobile telephone whilst still inside the vehicle. The alternative to this would of been to stop and cause a dangerous obstruction on "The Quay" (B1105).

4. It was noted that the entry sign to the car park in question states "£4.50 DAY RATE ONLY". There are no other charges stated on this sign, no implications that a contractual agreement is being entered into, no implications that any fines apply and no implications on the car parks operational hours. It is therefore a reasonable interpretation that a flat rate of £4.50 applies during the day time and that charges do not apply at all during the evening. Given the signage at the entry to the car park, it would be reasonable for the driver to feel confident in entering the carpark as a safe place to stop and seek mechanical advise without incurring any costs or fines.