Wells-Next-The-Sea Quay - Civil Enforcement

YawningMarmot

Would it be worth adding something about unlit signs to the existing signage point (3) or does this warrant it's own point? (However, the only photos I have been able to obtain are during the day time.

And in terms of the bank card not working on the machine and then being unable to obtain any cash to pay so then leaving. Would that best be placed in the defence or the witness statement?

KeithP

YawningMarmot said:

Claim for has now been received. (28/07/23)
Acknowledgement of service submitted via MCOL on (02/08/23)

With a Claim Issue Date of 28th July, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Wednesday 30th August 2023 to file your Defence.

That's a whole week away. Plenty of time to produce a Defence and it is good to see that you are not leaving 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.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

Coupon-mad

YawningMarmot said:

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. 

Very good!

But I edited the Template Defence the other day so please use the new version.

Umkomaas

Defendant has obtained images to confirm this and aid their defense

Spelling.

I think CEL have had the heave-ho from the harbour, now replaced by a ticketless barrier system. Not a get out of jail card, but worth a little mention in dispatches. 

Quick reference, but do check if there are more references via other internet searches:

https://www.portofwells.co.uk/2022/10/21/port-of-wells-quayside-car-park/

YawningMarmot

Umkomaas said:

Defendant has obtained images to confirm this and aid their defense

Spelling.

I think CEL have had the heave-ho from the harbour, now replaced by a ticketless barrier system. Not a get out of jail card, but worth a little mention in dispatches. 

Quick reference, but do check if there are more references via other internet searches:

https://www.portofwells.co.uk/2022/10/21/port-of-wells-quayside-car-park/

Thanks for this. 

Think you're right about CEL getting the heave-ho. Google image from April 2023 shows barrier system and no mention of CEL on the entrance sign.

Le_Kirk

YawningMarmot said:

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. 

I would change "transparent" to "prominent" no-one want a transparent sign!  Also, if you use the latest template defence that @Coupon-mad rewrote recently you will note that signage is already covered.

YawningMarmot

Just had an email back from the harbour office, who have confirmed that CEL no longer manage this car park. Is it worth adding a point to highlight this?

YawningMarmot

1.       The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was in breach of any term.  Further, it is denied that this Claimant (understood to have a bare licence as agents) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the boilerplate text in the Particulars of Claim ('the POC'). 

 

The facts as known to the Defendant: 

2.       The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely. the Defendant observes after researching other parking claims with the same POC that this claim sets out a cut-and-paste incoherent statement of case.  The POC is sparse on facts and specific breach allegation, making it very difficult to respond. However, it is admitted that the Defendant was the registered keeper of the vehicle. Whilst the defendant is the keeper, the car in question is insured for two drivers. The defendant is not aware who the driver of the vehicle was on an unremarkable day over one year ago. 
 
3.       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. 
 
4.       Signage at the car park site is not prominent, is confusing, inconsistent and deliberately misleading. The Defendant has obtained images to confirm this and aid their defence. 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. Furthermore, the entrance signs are not adequately lit and as the alleged breach occurred during darkness they are not in compliance with The British Parking Association (BPA) Code of Practice. Appendix B, which states that ‘Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times.’.
 
5.       The signage just inside the car park to the right, which can, on entering, be read by any driver of a vehicle under normal, safe, and reasonable circumstances is confusing 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. 
 
6.       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.' 
 
7.         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. 
 
8.         '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.  
 
9.         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.

YawningMarmot

Thanks all for the feedback so far. I have update my defence to use the new template and made some amendments to points 2 and 4 from what I originally posted.

YawningMarmot

Coupon-mad said:

YawningMarmot said:

Just had an email back from the harbour office, who have confirmed that CEL no longer manage this car park. Is it worth adding a point to highlight this?

Yes.

Could you pm me the email contact and name?

I want to ask them a question about their experience as a landowner.  I'd also like to see that email please, if you can, if they've not marked it confidential.

Have PM'd you a copy of the email.

This is probably a stupid question but what is the relevance of them not managing the car park any more, without knowing the reason their contract was not renewed/terminated?