Wells-Next-The-Sea Quay - Civil Enforcement

YawningMarmot

Hi All,

I received a NTK on 7th March for a alleged incident on 19th February. Having misplaced the NTK I appealed on 5th May as the keeper of the vehicle (driver at the time not known).

Today I have received a response stating "it is now too late to make an appeal/representation against this PCN". Do this mean I am now unable to take this to POPLA and will have to resolve through the courts?

Thanks

D_P_Dance

IMO they are unlikely to take this to court as IIMU that the land is covered by bye laws.  There are several threads concerning this location on here, why not read a few.  Have you complained to your MP? j

FrankCannon

Yes, you have missed the opportunity of going to POPLA.

AFAIK, CEL have not taken anybody to court for this site, when people are willing to defend the claim, and I know of 1 case where a default judgement was granted when the claim was undefended.

CEL will likely pass your case to a debt collector, and then issue a Letter Before Claim, so ignore all further correspondence until you receive the LBC. There are about a dozen cases on this forum that you could read to prepare yourself. Also, read the NEWBIES, and check that you received a golden ticket.

Can I ask what the alleged breach of the Ts & Cs was ?

YawningMarmot

Thanks both for your responses.

No I have not complained to my MP yet but was looking to do this.

I have been reading the below threads which seem to be a good place to start for this location.

https://forums.moneysavingexpert.com/discussion/6340647/wells-next-the-sea-quay-civil-enforcement/p1

https://forums.moneysavingexpert.com/discussion/6346499/county-court-claim-old-life-boat-house-wells-next-the-sea/p1

I'm pretty sure I have not received a "Golden Ticket", however I'll post a picture of the back of the NTK on here in case I have missed anything.

And the NTK has the alleged breach of T&Cs as "Payment not made in accordance with the terms displayed on signage".

YawningMarmot

Back of NTK

Coupon-mad

Back of the NTK is POFA compliant, so if the dates also mean it would have been delivered on or before day 14 then that is a POFA one.  However, you suggested not:

I received a NTK on 7th March for a alleged incident on 19th February.

YawningMarmot

Coupon-mad said:

Back of the NTK is POFA compliant, so if the dates also mean it would have been delivered on or before day 14 then that is a POFA one.  However, you suggested not:

I received a NTK on 7th March for a alleged incident on 19th February.

"A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted..."

I assume "posted" is the issue date (1st March) and it doesn't matter that I did not receive the letter until the 7th?

FrankCannon

Yes, it would be deemed to have been delivered 2 working days later.

Did the driver not make payment or did they pay after the grace period ?

YawningMarmot

FrankCannon said:

Yes, it would be deemed to have been delivered 2 working days later.

Did the driver not make payment or did they pay after the grace period ?

No, payment wasn't made.
Apparently the card machine wasn't working and they did not have any money on them to try paying by cash.
The stay was 17 minutes, from other threads on here it appears the grace period is 15 minutes.

YawningMarmot

Claim for has now been received. (28/07/23)
Acknowledgement of service submitted via MCOL on (02/08/23)
SAR submitted (02/08/23) - However, I don't appear to have received a letter before claim, so unsure if the SAR will be responded to before the defence is due. 

Defence as follows

YawningMarmot

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. The land in question is under Statutory Control, therefore for the purposes of ‘keeper liability’, the Protection of Freedoms Act 2012 (PoFA 2012) does not apply. For the avoidance of any doubt for the courts, operators, and consumers alike the Competition and Markets Authority (CMA) Guidance on the Consumer Rights Act 2015 (CRA) also clarifies on which land POFA 2012 applies. As such, transfer of liability from Driver to Keeper does not apply and should never have been invoked. It should be noted that a private operator cannot hold a keeper liable on any land where parking is controlled by statute law. 

3.        Signage at the car park site is not transparent, is confusing, inconsistent and deliberately misleading. The Defendant has obtained images to confirm this and aid their defense. These images clearly show that the signage at entry point is impossible to read fully by any driver within any vehicle, whether moving or stationary, as it is located on the nearside of the vehicle, or on the side of the entrance furthest away from the driver.  
Any alleged contractual terms being so small that they are barely legible even at kerbside / pedestrian level. 

4.         The signage just inside the car park to the right, which can, on entering, actually be read by any driver of a vehicle under normal, safe, and reasonable circumstances is far from transparent, and deliberately misleading, as it states ‘BY ORDER OF WELLS HARBOUR COMMISSIONERS’ and does not make clear, or indeed offer ANY alleged contract, or display Terms and Conditions of any alleged contract with the Claimant. (which conflicts with BPA Code of Practice Sect. 19.1). Neither does this signage make clear to any driver at any point, any ‘parking charges’ contained within the above-mentioned alleged contract, or that the Claimant is acting on behalf of the landowner, and therefore no reasonable correlation can be expected to be drawn by the Defendant. Furthermore, the grace period on this signage is also barely legible from any driver's perspective (which conflicts with BPA Code of Practice Sect. 19.3). It is not easily read even when standing relatively close. 

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 at https://www.linkedin.com/company/civil-enforcement-ltd 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 also written at the bottom of another sign in the car park where the Claimants signage has been placed over the top of the words, though when taken in in context of the sign near the entrance it can be confusing. 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. 

Original points from 4 onwards continued.