Claim Form defence - Wells next to sea (CEL)

Redx

A lot better , but still says advise , so you didn't take everything I said onboard 🤔🤔🤔

And not would OF been , it's have been !!🤔🤔🤔

Gravis

Redx said:

A lot better , but still says advise , so you didn't take everything I said onboard 🤔🤔🤔

And not would OF been , it's have been !!🤔🤔🤔

Ah that bit went over my head.. now amended.

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 on the telephone to a vehicle specialist whilst still inside the vehicle. The alternative to this would have 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 without incurring any costs or fines.

Le_Kirk

Gravis said:

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 would have been to stop and cause a dangerous obstruction on "The Quay" (B1105).

4. 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 advice without incurring any costs or speculative invoices [PCNs] fines.

You need to check the whole of your submission for grammatical  and spelling errors like these!  They are not fines.

Coupon-mad

As long as you have the stuff about the lack of contractual offer in the signs and a mention of Fairlie v Fenton and why it applies here, you seem good to go. 

Follow the numbered steps in the Template Defence thread on submitting the Defence and the next form by email, and spare us any questions about next steps, and we will all be good! 

Do also come back in August to do the final Government Consultation on stoping the level of parking charges from being £100.  We need the motoring public to take part to cement the Government’s plans and it won’t be open for comments for long!

Gravis

So looks like i might need to rejig things a little.. i went back to the car park last night to get photos of the signage, which i hoped would help my defence.. I had be replying on memory and google street map images, however ive since learned the drivers recollection is appalling and the google street view images were taken in 2019 so not even relevant.

Ive attached the images of the signs below taken on 26/07/2020 so you can see them all, ive also attached the google street view images for s#1ts and giggles which were taken at some point 2018/2019.

Of course im now worried my defence is blown out the water as seems these new signs were in place on on that dreaded day of 17 July 2020 and seemingly the driver didn't pay any attention to them, overwhelmed with the vehicle problems no doubt..

There does seem to be a fair bit of conflict in the signage as some say "by order of wells harbour commissioners" and others screwed over the top suggest Civil enforcement Ltd are running things.

I would just take the opportunity now to apologise for not having the up to date information from the start as feel like ive wasted a fair bit of your time.

I guess all I'm left with is that its non relevant land the driver was in an emergency?

Wells quay carpark signage 26/07/2020

left side of Entrance

right side of entrance


close up of CEL sign screwed ontop of wells harbour commissioners sign


payment machine and signage


---------------------------------------------------
Google street view images taken 2018/2019

Entrance


payment machine

payment machine

Gravis

The small print from left hand side of the entry 26/07/20

Coupon-mad

I don't see why you think the usual points about no contract offered and the 'Fairlie v Fenton' argument are no longer valid?  You won't be including any evidence with your defence so you can't (and don't need to) guess what the signs looked like that day, but at least one even in 2021 still says the rules are 'BY ORDER OF THE WELLS HARBOUR COMMISSIONERS' so clearly CEL are a mere middleman broker.

As per the defence we discussed with this person in April:

https://forums.moneysavingexpert.com/discussion/comment/78252887/#Comment_78252887

Gravis

Coupon-mad said:

I don't see why you think the usual points about no contract offered and the 'Fairlie v Fenton' argument are no longer valid?  You won't be including any evidence with your defence so you can't (and don't need to) guess what the signs looked like that day, but at least one even in 2021 still says the rules are 'BY ORDER OF THE WELLS HARBOUR COMMISSIONERS' so clearly CEL are a mere middleman broker.

As per the defence we discussed with this person in April:

https://forums.moneysavingexpert.com/discussion/comment/78252887/#Comment_78252887

Yes thank you, i will keep that included. I think I've just struck gold from another wells thread which I hadn't previously seen. I've hacked bits in and out and feel like I now have a full blown defence to be proud of. The below is all to be inserted into the template, its a lot so I don't expect you to read it all...

1. The Defendant is the registered keeper of the vehicle stated in the Particulars of Claim ('POC'). The Defendant denies that the claimant is entitled to relief in the sum claimed or at all. It is denied that the driver of the vehicle entered into any contractual agreement, whether express , implied or by conduct , to pay a 'parking charge' to the claimant 

2. Whilst it is admitted that the defendant was the keeper, the mandatory requirements to establish 'keeper liability' have not been met and the defendant is not liable in law.

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 on the telephone to a vehicle specialist whilst still inside the vehicle. The alternative to this would have been to stop and cause a dangerous obstruction on "The Quay" (B1105). The Claimant’s POC is not specific, in that it only alleges a breach of terms and conditions thus no details are provided in the PCN, only ‘payment not made in accordance with terms displayed on signage.

4. It is denied that the Claimant's signage was capable of creating a legally binding contract. It is denied that there was any contravention of a prominently displayed 'relevant obligation' or that there was any agreement by the driver to pay the Claimant a punitive £100 parking charge over and above the advertised tariff paid. The Claimant is put to strict proof of their compliance with their Trade Body's strict rules set for 'mandatory' signage and for new/changed restrictions in the BPA CoP. This is a code which the Supreme Court held was not just guidance but effectively 'regulatory' and that access to DVLA registered keeper data depends upon full compliance.

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, 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 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. 

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 car park in question is owned by the wells harbour commissioners and is governed entirely under statutory control  by byelaws, regulations and subordinate rules stated clearly by the car park signs which display the authority of such with the wording "BY ORDER OF THE WELLS HARBOUR COMMISSIONERS"

10. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary and lawful authorisation from the landowner to issue parking charge notices at this Harbour location, and specifically, that Civil Enforcement LTD  is lawfully authorised in it,s own name to pursue payment from a registered keeper  via a small claim. This point is vital for the Claimant to evidence, and it will not be enough merely to produce a contract from the Wells Harbour Commissioners because the legal position is that registered keepers cannot be held liable for parking charges at this Port. Liability cannot pass from driver to keeper , because this is not 'relevant land' under Schedule 4 of the Protection of Freedoms Act 2012 ('the POFA') which says at paragraph 3(1)(c):

''In this Schedule ''relevant land'' means any land (including land above or below ground level) other than [...] any land [...] on which the parking of a vehicle is subject to statutory control. 3(3) For the purposes of sub-paragraph (1)(c) the parking of a vehicle on land is ''subject to statutory control'' if any statutory provision imposes a liability (whether criminal or civil, and whether in the form of a fee or charge or a penalty of any kind) in respect of the parking on that land of vehicles generally or of vehicles of a description that includes the vehicle in question. [...] ''statutory provision'' means any provision (apart from this Schedule) contained in - (a) any Act (including a local or private Act), whenever passed; or (b) any subordinate legislation, whenever made, and for this purpose ''subordinate legislation'' means an Order in Council or any order, regulations, byelaws or other legislative instrument.''

11. There is legislation  in place at [wells harbour car park ] thus this location is not ''relevant land" under the POFA definition, and therefore parking matters incurring a charge or 'penalty fine' can only be pursued by the Harbour Master through the magistrates court. This is outside of the jurisdiction of any private parking company using the small claims track. This view is further supported by the Department for Transport's 2012 Guidance about this section of the POFA.

12. The  (DFT) clarify the question at schedule  4: ''On what type of land does Schedule 4 apply? 4.1 The provisions in Schedule 4 are intended to apply only on private land in England and Wales. Public highways are excluded as well as any parking places on public land which are either provided or controlled by a local authority (or other government body). Any land which already has statutory controls in relation to the parking of vehicles (such as byelaws applying to airports, ports and some railway station car parks) is also excluded.''

13. 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''. 

14. In relation to parking on private land , it is settled law from the Supreme court, that a parking charge must be set at a level which includes recovery of the cost's of operating a scheme .However this claimant is claiming a global sum of £280.88. This figure is a penalty, far exceeding the £85 parking charge in the Parking eye LTD v Beavis case .The global sum claimed is unconscionable and it was not shown in large lettering on any consumer signs, and it is averred that the charge offends against schedule 2 of the consumer rights act 2015 ( 'the CRA') , where s71 (2) creates a duty on the court to consider the fairness of a consumer contract .The Court's attention is drawn  ( but not limited to) parts 6,10, 14 and 18 of the list of terms that are likely to be unfair.

15.Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent sign's -which is denied-they are attempting double recovery of cost's.The sum exceeds the maximum amount which can be recovered from a registered keeper , as prescribed in schedule 4 (5) of the protection of freedom act 2012 ('the POFA')

16. In addition to the original penalty, the Claimants have artificially inflated the value of the Claim by adding purported admin/legal costs or 'damages' which have not actually been incurred by the Claimant, given that they have an in-house Litigation Team. No genuine legal costs arise, per case and this is in fact an artificially invented figure, which represents a cynical attempt to circumvent the Small Claims costs rules and achieve double recovery. According to Ladak v DRC Locums UKEAT/0488/13/LA, a Claimant can only recover the direct and provable costs of the time spent by legally qualified staff on actually preparing the claim and/or the cost of obtaining advice for that specific claim, in a legal capacity.

17. 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.''

18. Whilst quantified costs can be considered on a standard basis, this Claimant's costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred any added costs and cannot plead a case in damages at all. Any debt collection letters were either sent by a third party which offers a 'no collection, no fee' service, or were a standard feature of a low cost business model. The Beavis case is the authority for recovery of the parking charge itself and no more, since that sum is, by definition, already hugely inflated for profit, not loss, and the Judges held that a parking firm not in possession cannot plead their case in damages, as none exist.

19. The defendant avers that a parking firm's claim which adds a duplicitous  'cost's sum to the parking charge are now easily identified to be unlawful.Such claims  are against the public interest , requiring no further assessment , and listing such cases for trial should be avoided. The Court is invited to exercise it,s  case management  powers pursuant to C.P.R 3.4 to strike out this claim, which is entirely tainted by abuse of process and breaches of the CRA.

20.     Should this claim continue, the Claimant will no doubt try to mislead the court by pointing to their Trade Association ‘ATA’ Code of Practice (‘CoP’) that now includes a hastily-added clause 'allowing' added costs/damages.  The Defendant points out that the CoP is a self-serving document, written in the parking firms’ interests. Further, the ‘admin fee’ model was reportedly invented by a member of the British Parking Association Board, Gary Osner, whose previous firm, Roxburghe (UK) Limited, folded after being declared ‘unfit’ by the Office of Fair Trading who refused to renew their consumer credit licence due to ‘unfair and misleading’ business practices. Mr Osner states in an article that has been in the public domain since 2018: ''I created the model of ‘admin fees’ for debt recovery because ticket value was so low that nobody would make any money. Parking is business and business is about money, after all.'' 

 

21.   The two competing ‘race to the bottom’ ATAs have engineered a veil of legitimacy to protect this industry for too long.  They are not regulators and have failed consumers so badly, that Parliament is currently working on replacing them with a new CoP overseen by the Secretary of State, following the enactment of the Parking (Code of Practice) Act 2019.  Many courts have now recognised that a predatory parking firm Claimant using unfair and predatory business practices and inflating their claims with false ‘admin fees’, is not the ‘innocent party’ in a dispute.  In stark contrast to the BPA Board member’s mindset, the will of Parliament as set out in the new 2019 Act is very much consumer-focussed, aiming for:  ''good practice...in the operation or management of private parking facilities as appears to the Secretary of State to be desirable having regard to the interests of persons using such facilities.''  

22.  In the alternative, the defence is prejudiced and the court is invited to note that, contrary to the Pre-Action Protocol for Debt Claims, the Letter Before Claim omitted evidence of any breach and failed to append the wording of the sign or consumer notice.  Further, the Particulars of Claim are embarrassing and incoherent, lacking specificity re the location of the event and status of the contracting parties and failing to detail any conduct or liability that could give rise to a cause of action.  There is insufficient detail to ascertain the nature, basis and facts of the case but the sum claimed includes unrecoverable costs/damages and is clearly an abuse of process.

23. Further, this Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information' ('the ICO Code'). This is both a specific Data Protection breach and yet again, this regime flouts the requirements of the BPA CoP and the Claimant can have no excuse for such breaches.

Gravis

24. The ICO Code applies to all ANPR systems, and states that the private sector is required to follow it, in order to meet its legal obligations as a data processor. Members of the BPA are required to comply fully with the Data Protection Act (DPA) and GDPR and all ICO rules and guidelines, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land. At this location, the Claimant has failed on all counts and the data gathered about patrons of the site who have made valid payment for their vehicles to cover the full time on site (a fact known to this Claimant before the postal NTK was even issued) is unconscionable and excessive, given the lack of transparency about the risk of a 'penalty fine' charge.

25. In summary , the Claimant cannot reasonably recover an additional three figure sum in damages or costs to pursue an alleged £100 debt. The POFA states that the maximum sum that may be recovered from a registered keeper is the charge stated on a compliant NTK, and only if all requirements of Schedule 4 are met. This is not the case in this claim, in any respect, and there was no breach of any 'relevant obligation' or 'relevant contract' at all.

26. The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.

Coupon-mad

A lot of that is very old.  The one I linked for you from April is better although it doesn't mention Excel v Wilkinson like the current advised template defence does.

Remove #16.19, 23 and 24 - out of date stuff - and put this right (you have a rogue apostrophe in 'costs' and 'signs' - eek!! these are plurals and don't take any apostrophe):

15.  Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent sign's -which is denied-they are attempting double recovery of cost's. The sum exceeds the maximum amount which can be recovered from a registered keeper , as prescribed in schedule 4 (5) of the protection of freedom act 2012 Protection of Freedoms Act 2012   ('the POFA').