Court Claim - CEL - Swanley Park

CrankyTiger

Hi everyone,

I have received a CC form dated 12/04 (will post a dropbox link once MSE unlock my account).  I have completed the AOC and I am now completing the defence (sorry I have left it late - it's due Monday) and would appreciate any help.  I have read the Newbies thread and submitted a SAR to CEL but I have not heard anything back yet (and am not expecting to as they are only due to reply by Wednesday).  I have also recently sent a complaint to Swanley Town Council after reading a thread on here but have not heard anything back yet. 

To date I have not engaged with CEL at any point and have (wrongly) thrown all correspondence they have sent me in the bin and was hoping the charge would just disappear (lesson learnt!)

I received the parking charge as I thought we had paid for a ticket but we must not have pressed confirm on the app.  However after reading on here I am thinking that my primary defence should be that Swanley TC/CEL have not followed correct procedure and used ANPR camera enforcement on council land. In addition to the 20-30 odd paragraphs on the main template this is what I have drafted:  I appreciate any comment or feedback or if this is not an appropriate defence.  

2. It is admitted that the Defendant was the registered keeper of the vehicle, however the Defendant does not know who was driving as the vehicle was accessible to multiple people.  Due to the significant period that has elapsed since, the Defendant is unable to ascertain with certainty who was driving at the relevant time.

3.  The Claimant has not followed due process on behalf of the landowner; Swanley Town Council.  The car park is not private land and therefore a PCN cannot be issued using data from ANPR cameras.  Attention is drawn to Deregulation Act 2015 and the Civil Enforcement of Parking Contraventions (England) General (Amendment No. 2) Regulations 2015 which has prohibited Local Government from using ANPR or CCTV cameras for parking enforcement.  In the case of High Wycombe District Council, the DVLA refused access to their data until the council reverted to pay and display machines and removed ANPR cameras so that they were inline with the correct legislation.   Attention is also drawn to a Local Government Ombudsman ruling in favour of a member of the public that received a PCN at Lullingston County Park, managed by Kent County Council. In the LGO decision, which I have attached, it says: “The Council did not use the correct process to issue a parking penalty to Mr X. This is significant fault. This affects other members of the public too and we therefore find it appropriate to consider any wider injustice”. Furthermore the British Parking Association’s own notice to their members, via their attached guide entitled “ANPR In Local Authority Car Parks”, advised that “So far as off-street parking is concerned, the Secretary of State for Transport wrote to all English local authorities in September 2014 indicating that the Government opinion was that it was unlawful for local authorities to use CCTV/ANPR in public car parks and informed them that DVLA would not supply information in those circumstances. That remains the Government's position”. Robert Goodwill (roads minister) has previously written to council parking managers warning them ANPR car parks are not lawful and that whatever councils say about who runs their car parks, they cannot avoid legal responsibility.

4. Whilst it cannot be confidently ascertained the defendant was driving the vehicle on 19/09/2021, the Defendant has subsequently attended Swanley Park Car Park and noted that enforcement signage was insufficient particularly in the overflow area. The Defendant believes that the Claimants signage within the carpark at the above location does not comply with the AOS CoP. The AOS CoP requires that signage stating terms and conditions “[…] must be conspicuous and legible” (Clause 18.3). Signage within this car park is located at a height of approximately 9ft with the bulk of the terms and conditions in a small font, making them illegible from ground level, especially when still within a vehicle. The signage in the overflow section of the car park is sporadic and easily missed.   

Thanks in advance for any help or guidance.

tetrarch

I remember seeing this about Swanley Park

http://forums.pepipoo.com/index.php?showtopic=141149

Regards

Tet

(Not too far away from you, know SP well)

Le_Kirk

No evidence goes with a defence and that defence is too long and reads more like a witness statement (WS).  Keep it short and punchy; you only need to introduce the argument and then you flesh it out at WS time. Defences are written in the third person; you used one instance of "I" instead of "the defendant".

KeithP

CrankyTiger said:

I have received a CC form dated 12/04... 
I have completed the AOC and I am now completing the defence (sorry I have left it late - it's due Monday)...  

If you filed an Acknowledgment of Service after 14th April, then you are right with your Defence filing deadline.
If however you filed an Acknowledgment of Service on 13th or 14th April, then your Defence filing deadline became 4pm today or 4pm tomorrow respectively.
Your MCOL Claim History will conform the date that an Acknowledgment of Service was filed.

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'.

CrankyTiger

KeithP said:

CrankyTiger said:

I have received a CC form dated 12/04... 
I have completed the AOC and I am now completing the defence (sorry I have left it late - it's due Monday)...  

If you filed an Acknowledgment of Service after 14th April, then you are right with your Defence filing deadline.
If however you filed an Acknowledgment of Service on 13th or 14th April, then your Defence filing deadline became 4pm today or 4pm tomorrow respectively.
Your MCOL Claim History will conform the date that an Acknowledgment of Service was filed.

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'.

Thanks KeithP. Yes I filed the AOS some time after it arrived in the post but I will double check, thanks 👍

Yes I remember reading about emailing the defence before 4pm and getting an acknowledgment response back.

Thanks again for your quick response and guidance

CrankyTiger

Le_Kirk said:

No evidence goes with a defence and that defence is too long and reads more like a witness statement (WS).  Keep it short and punchy; you only need to introduce the argument and then you flesh it out at WS time. Defences are written in the third person; you used one instance of "I" instead of "the defendant".

Ok brilliant thank you for the feedback. Whoops missed that "I", thank you. I will draft a punchy version tonight and repost :⁠-⁠)

CrankyTiger

2. It is admitted that the Defendant was the registered keeper of the vehicle, however the Defendant does not know who was driving as the vehicle was accessible to multiple people.  Due to the significant period that has elapsed since, the Defendant is unable to ascertain with certainty who was driving at the relevant time.

3.  The Claimant has not followed due process on behalf of the landowner; Swanley Town Council.  The car park is not private land and therefore a PCN cannot be issued using DVLA data ascertained from an ANPR camera.  Attention is drawn to Deregulation Act 2015 and the Civil Enforcement of Parking Contraventions (England) General (Amendment No. 2) Regulations 2015 which has prohibited Local Government from using ANPR or CCTV cameras for parking enforcement.

4. Whilst it cannot be confidently ascertained the defendant was driving the vehicle on 19/09/2021, the Defendant has subsequently attended Swanley Park Car Park and noted that enforcement signage was insufficient particularly in the overflow area. The Defendant believes that the Claimants signage within the carpark at the above location does not comply with the AOS CoP. The AOS CoP requires that signage stating terms and conditions “[…] must be conspicuous and legible” (Clause 18.3). Signage within this car park is located at a height of approximately 9ft with the bulk of the terms and conditions in a small font, making them illegible from ground level, especially when still within a vehicle. The signage in the overflow section of the car park is sporadic. 

How does this sound?  Do you think the private/public land argument has any merit?  MSE forum posts in the past seem very confident whereas the pepipoo link that Le_Kirk has posted seems a bit more pessimistic? 

Thanks again everyone for your time - I wish I found this forum earlier, it's great!

Coupon-mad

I think that has merit.  As well as saying this is not 'private land' you also need to say it is not 'relevant land' because it is under statutory control, so there can be no 'keeper liability'.

I would also add a paragraph stating that the Claimant did not serve a notice to keeper that complied with Schedule 4 of the POFA 2012.

And I'd add a paragraph stating the Fairlie v Fenton argument (search the forum to see it used in a defence).  I suspect the entrance sign identifies Swanley Town Council (even just their logo is enough) as the principal? In that case the argument is that CEL are mere agents and have not 'made the contract with the driver their own'.  Applying trite law, the offeror is Swanley Town Council, not this Claimant.

Le_Kirk

CrankyTiger said:

How does this sound?  Do you think the private/public land argument has any merit?  MSE forum posts in the past seem very confident whereas the pepipoo link that Le_Kirk has posted seems a bit more pessimistic? 

 I think you will find that @Le_Kirk has not posted any links!

CrankyTiger

Le_Kirk said:

CrankyTiger said:

How does this sound?  Do you think the private/public land argument has any merit?  MSE forum posts in the past seem very confident whereas the pepipoo link that Le_Kirk has posted seems a bit more pessimistic? 

 I think you will find that @Le_Kirk has not posted any links!

Oh wow, I'm having a 'mare with this ticket haha.  I meant tetrarch. My apologies!

CrankyTiger

My latest draft defence:

2. It is admitted that the Defendant was the registered keeper of the vehicle, however the Defendant does not know who was driving as the vehicle was accessible to multiple people.  Due to the significant period that has elapsed since, the Defendant is unable to ascertain with certainty who was driving at the relevant time.

3.  The Claimant has not followed due process on behalf of the landowner; Swanley Town Council.  The car park is not private or relevant land and therefore a PCN cannot be issued using DVLA data ascertained from an ANPR camera.  Attention is drawn to Deregulation Act 2015 and the Civil Enforcement of Parking Contraventions (England) General (Amendment No. 2) Regulations 2015 which has prohibited Local Government from using ANPR or CCTV cameras for parking enforcement.

4. Swanley Park Car Park is not relevant land because it is under statutory control, so therefore there can be no keeper liability.  Under Schedule 4 of Protection of Freedoms Act (PoFA) 2012, section 1, it states that: “(1) This schedule applies where – (a) The driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land”. Following from this, in section 3, PoFA 2012 states that: “(1) In this schedule “relevant land” means any land (including land above or below ground level) other than - … (b) any land … on which the parking of a vehicle is subject to statutory control”. And that: “(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”.

5. The Defendant contends that the Claimant failed to serve a Notice to Keeper that is compliant with the PoFA 2012. Therefore, the Claimant cannot transfer liability for this charge to the Defendant as the vehicle's keeper. The Defendant requires the Claimant to provide compelling evidence to support their claim, including strict proof that the Defendant was the driver of the vehicle on the relevant dates and times, as well as evidence of compliance with the Protection of Freedoms Act 2012.

6. Whilst it cannot be confidently ascertained the defendant was driving the vehicle on 19/09/2021, the Defendant has subsequently attended Swanley Park Car Park and noted that enforcement signage was insufficient particularly in the overflow area. The Defendant believes that the Claimants signage within the carpark at the above location does not comply with the AOS CoP. The AOS CoP requires that signage stating terms and conditions “[…] must be conspicuous and legible” (Clause 18.3). Signage within this car park is located at a height of approximately 9ft with the bulk of the terms and conditions in a small font, making them illegible from ground level, especially when still within a vehicle. The signage in the overflow section of the car park is sporadic. 

7. The present Claimant has no locus standi to litigate in this matter, and the claim has been issued in the wrong name. The Claimant may be considered to be acting as an agent of the car park owner, however as the identity of the principal is disclosed on the signage, the authorities of Fairlie v Fenton [1870] LR 5 Exch 169, and Montgomerie v United Kingdom Mutual Steamship Association [1891] 1 QB 370, both hold that an agent may not sue in its own name in circumstances where the principal is disclosed.

Big thank you for your feedback @Coupon-mad .  I cannot remember if the Swanley TC logo is on the signs or mentioned at all.  Looking on GoogleMaps it is not on the entrance sign.  I am going to try and visit the car park this weekend to see the signs - if they do not have any reference to Swanley TC I will remove point 7?