Claim Form defence - Wells next to sea (CEL)

1505grandad

Another typo  -  "traveling"  -  should be travelling

Gravis

Done my best going from the template linked in the Newbies thread... How do I go about uploading it? and i have to send a copy to CEL solicitors? Anything glaringly obvious thats been missed? I will upload the pdf exhibits separately. 

 Thanks!

Index

Content	Page Number
Witness Statement	2-5
Exhibit-01 – [PHOTO] Signage at Entry to car park	6
Exhibit-02 – [PHOTO] Signage at Entry to car park	7
Exhibit-03 – [PHOTO] Signage at payment machine inside car park	8
Exhibit-04 - [SCREENSHOT] Civil Enforcement Ltd LinkdIn page	9
Exhibit-05 - [.PDF] ParkingEye Ltd v Beavis [2015] UKSC 67	Exhibit-05.pdf
Exhibit-06 - [.PDF] Fairlie v Fenton (1870) LR 5 Exch 169	Exhibit-06.pdf
Exhibit-07 - [.PDF] The Wells Harbour Revision Order 1994	Exhibit-07.pdf
Exhibit-08 - [.PDF] Excel v Wilkinson: G4QZ465V	Exhibit-08.pdf
Exhibit-09 - [.PDF] Consumer Rights Act 2015 Schedule 2	Exhibit-09.pdf
Exhibit-10 - [.PDF] Protection of Freedom Act 2012 Schedule 4	Exhibit-10.pdf
Exhibit-11 – [SCREENSHOT] Cancelled PCN	10
Exhibit-12 – Defendant's Schedule of Costs	11

IN THE COUNTY COURT

Claim No.: xxxxxxx

Between

CIVIL ENFORCEMENT LIMITED

(Claimant)

- and -

xxxxxxxxxxxxxxxxxxxxxxxx

(Defendant)

____________________

WITNESS STATEMENT FOR HEARING VIA CLOUD VIDEO PLATFORM ON xxxxxxxxxxxxx

____________________

1. I am xxxxxxxxxxxxxx and I am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

2. In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated and I will say as follows:

Sequence of events and signage:

1. I was travelling through Wells-Next-the-Sea town centre when my vehicle check engine light started flashing and the temperature gauge was moving into the red. Knowing that a overheating vehicle can cause catastrophic damage to the engine I decided to stop the vehicle in a safe place, where I could seek mechanical advice. I drove the vehicle into the nearest carpark which was the Port of Wells car park on xxxxxxxxxxx at approximately 9:30pm.

2. At the time of the incident the carpark didn't have any form of lighting to illuminate the signage at the entrance and as such the signs went un-noticed, it is only on a subsequent visit to the carpark during the day light hours that I was able to see how confusing, badly maintained and poorly written the signage is, (see Exhibit-01 and Exhibit-02 for signage at the entry signs, also Exhibit-03 shows the signage at the payment machine), note that there are no contractual terms on offer from this Claimant on any of the signs.

3. After parking the vehicle I called my father who advised me to stop the engine immediately and let it cool down before proceeding with the journey. After letting the engine cool for 20 minutes I then left the carpark and continued the journey. At no point did I exit the vehicle.

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. Through research and after visiting the location at the time of writing this defence, the Defendant's position is that 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.' (see Exhibit-04)

6. Unlike in the Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67 (Exhibit-05.pdf), 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. The term and the licence to park is made by the principal, Wells Harbour Commissioners. In one image (Exhibit-03), 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 (Exhibit-02), 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 (Exhibit-06.pdf), 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, in accordance with “The Wells Harbour Revision Order 1994” (Exhibit-07.pdf), stated clearly by the car park signs which display the authority of such with the wording "BY ORDER OF THE WELLS HARBOUR COMMISSIONERS".

Abuse of process:

10. 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 £182. This figure is a penalty, far exceeding the £85 parking charge in the Parking eye LTD v Beavis case (Exhibit-06.pdf).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') (Exhibit-09), 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.

11.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 costs. 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') (Exhibit-10).

12. At the Bradford County Court, District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) decided to hear a 'test case', 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 (Exhibit-08.pdf), 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''.

13. 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.

PCN cancelled

14. Out of curiosity I decided to check the status of the PCN and its amount on Civil Enforement Limited's own website (https://payments.ce-service.co.uk/), upon entering the vehicle registration and PCN number the webite clearly states in red lettering that “The parking charge notice has been cancelled”. (Exhibit-11).

My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14 25.

15. As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable time researching the law online, processing and preparing my defence plus this witness statement. I ask for my fixed witness costs. I am advised that costs on the Small Claims track are governed by rule 27.14 of the CPR and (unless a finding of 'wholly unreasonable conduct' is made against the Claimant) the Court may not order a party to pay another party’s costs, except fixed costs such as witness expenses which a party has reasonably incurred in travelling to and from the hearing (including fares and/or parking fees) plus the court may award a set amount allowable for loss of earnings or loss of leave.

16. The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at PD 27, 7.3(1) ''The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings)... are: (1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing ... a sum not exceeding £95 per day for each person.''

Statement of truth:

I believe that the facts stated in this Witness Statement 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.

SIGNATURE ……………………..

DATE / /

Exhibit-01

Exhibit-02

Exhibit-03

Exhibit-04

Exhibit-11

Exhibit-12

In the County Court at xxxxxxx

Claim Number: xxxxxxxxx

Hearing Date: xxxxxxxxxx

DEFENDANT’S SCHEDULE OF COSTS

Ordinary Costs

Loss of earnings through attendance at court hearing 03/02/2022: £200.00

Further costs for Claimant’s misconduct, pursuant to Civil Procedure Rule 44.11

Research, preparation and drafting documents (16 hours at Litigant in Person rate of £19 per hour): £304

TOTAL COSTS CLAIMED £504.00

Signature …………………….

Date / /

Coupon-mad

I am not convinced about exhibit 1 because that's a clear sign in daylight. I wouldn't use it.  The rest is good and the blue signs are terrible.

I would add somewhere that AOS members are required by the BPA to display the BPA AOS member roundel, under mandatory signage rules in order to show that a car park is enforced by a BPA AOS member (add exhibit of the BPA CoP page about mandatory entrance signs).  None of those signs have the BPA roundel.

Le_Kirk

5. Through research and after visiting the location at the time of writing this defence, the Defendant's position is that the Claimant's sign..................

It is a witness statement isn't it?

Coupon-mad

Also change 'the Defendant' to 'I' throughout.

Gravis

I received this in the post today. I guess I should still submit my witness statement anyway?

Sareck

Check with the court if it's discontinued and the hearing vacated first. Another one bites the dust 

Gravis

Sareck said:

Check with the court if it's discontinued and the hearing vacated first. Another one bites the dust 

Yes it’s great news!! Ok I’ll do that. If it has been discontinued then I assume I don’t need to bother filing the WS? I don’t want to get in trouble for disobeying a court order.

D_P_Dance

They have wasted your time, now consider wasting theirs, read this.

https://www.citizensadvice.org.uk/law-and-courts/legal-system/small-claims/making-a-small-claim/

Sareck

Gravis said:

Sareck said:

Check with the court if it's discontinued and the hearing vacated first. Another one bites the dust 

Yes it’s great news!! Ok I’ll do that. If it has been discontinued then I assume I don’t need to bother filing the WS? I don’t want to get in trouble for disobeying a court order.

Which is why you contact the court , for clarity