Civil Enforcement Ltd claim form from back in summer of 2023

1505grandad

As it is up to the claimant to prove their claim you have missed out the important point in C-m's advice:-

" 'put them to strict proof' that your parking time was not paid for."

Coupon-mad

womble94 said:

Amended

7. On the date of the alleged parking event, I stopped to buy some food shopping. I ensured that my vehicle was parked for the shortest duration necessary to complete this task. I paid for parking, any minutes on arrival and upon leaving do not count and fell within reasonable grace periods.

Which is still not the wording I wrote for you.

womble94

Coupon-mad said:

womble94 said:

Amended

7. On the date of the alleged parking event, I stopped to buy some food shopping. I ensured that my vehicle was parked for the shortest duration necessary to complete this task. I paid for parking, any minutes on arrival and upon leaving do not count and fell within reasonable grace periods.

Which is still not the wording I wrote for you.

it wasn't clear to me that I was copying everything you wrote and putting it in my WS. However, I have since copied what you wrote - please see below, it doesn't look right personally. Can you confirm this is ok?!

7. On the date of the alleged parking event, I stopped to buy some food shopping. I ensured that my vehicle was parked for the shortest duration necessary to complete this task. I paid for parking, any minutes on arrival and upon leaving do not count and fell within reasonable grace periods. 'Put them to strict proof' that your parking time was not paid for. Even if the Judge is not persuaded by that, it is a fact that the signs were so faded that anything about a £100 risk was illegible anyway. No contract formed to pay £100 parking charge.

Coupon-mad

How about some more info to push this point? Do attach an extra exhibit if you have proof of paying.

7.  On the date of the alleged parking event, I stopped to buy some food shopping. Contrary to the vague alleged breach in the POC, I paid for my parking time (see exhibit x).  A few minutes on arrival and upon leaving do not count and would fall within reasonable grace periods, especially in a car park where after finding a space, one must first take a reasonable time to pay.

8.  In the Court of Appeal case of National Car Parks Limited vs The Commissioner for HMRC (2019) A3/2017/2435 Lord Justice Newey states that ‘the precise figure was settled when the customer inserted her pound coin and 50p piece into the machine and then elected to press the green button rather than cancelling the transaction. The best analysis would seem to be that the contract was brought into being when the green button was pressed.’

9.  Therefore, the contract in a pay and display ticket machine car park cannot possibly begin upon driving in, not least because at that point the driver has no idea whether the tariff is 50p or £50 until they stand in front of the machine and faded signs to read and become aware of the payment options and decide whether to accept the offered terms.  It is my position that the offered terms did not include a £100 option.

10.  This position is also reflected by the planned statutory regime which the new Government is set to finalise this year.  The temporarily withdrawn, but about to be revived statutory Code of Practice includes clauses that were not objected to by the parking industry's 2022 Judicial Review blocking tactics. In the early definitions, the DLUHC (now MHCLG) state (my bold): 

"2.24 parking period:  the length of time that a vehicle has been parked, i.e. left stationary otherwise than in the course of driving, after any relevant consideration period has expired (excluding instances where the driver has stopped to enable passengers to leave or enter the vehicle).  This is not the period between a vehicle being recorded as entering and departing controlled land."

11.  This position has also been publicly reiterated by the Claimant's own Trade Body, the British Parking Association. Kelvin Reynolds, BPA Director of Corporate Affairs explains:
https://www.britishparking.co.uk/News/good-car-parking-practice-includes-grace-periods 
For the observation period (on arrival)  “No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.” and “In the instance of a PCN being issued while a ticket is being purchased, the operator has clearly not given the motorist sufficient time to read the signs and comply as per the operator’s own rules.”  

12.  I pride myself on making every attempt to follow parking rules and would never not pay to park, where payment is required.  There was no requirement seen in any terms at or near the machine to 'pay within 5 minutes or risk £100 penalty' or similar.  I put the Claimants to strict proof' that my 'parking period' was not paid for. Even if the court is not persuaded by this point, it is a fact that the signs were so faded that anything about a £100 risk was illegible anyway (see Exhibit x). No contract was formed to pay £100 parking charge, let alone an inflated £170.

Coupon-mad

Darn, the link to the BPA article no longer works unless someone can find it using the Wayback machine?

womble94

Coupon-mad said:

How about some more info to push this point? Do attach an extra exhibit if you have proof of paying.

7.  On the date of the alleged parking event, I stopped to buy some food shopping. Contrary to the vague alleged breach in the POC, I paid for my parking time (see exhibit x).  A few minutes on arrival and upon leaving do not count and would fall within reasonable grace periods, especially in a car park where after finding a space, one must first take a reasonable time to pay.

8.  In the Court of Appeal case of National Car Parks Limited vs The Commissioner for HMRC (2019) A3/2017/2435 Lord Justice Newey states that ‘the precise figure was settled when the customer inserted her pound coin and 50p piece into the machine and then elected to press the green button rather than cancelling the transaction. The best analysis would seem to be that the contract was brought into being when the green button was pressed.’

9.  Therefore, the contract in a pay and display ticket machine car park cannot possibly begin upon driving in, not least because at that point the driver has no idea whether the tariff is 50p or £50 until they stand in front of the machine and faded signs to read and become aware of the payment options and decide whether to accept the offered terms.  It is my position that the offered terms did not include a £100 option.

10.  This position is also reflected by the planned statutory regime which the new Government is set to finalise this year.  The temporarily withdrawn, but about to be revived statutory Code of Practice includes clauses that were not objected to by the parking industry's 2022 Judicial Review blocking tactics. In the early definitions, the DLUHC (now MHCLG) state (my bold): 

"2.24 parking period:  the length of time that a vehicle has been parked, i.e. left stationary otherwise than in the course of driving, after any relevant consideration period has expired (excluding instances where the driver has stopped to enable passengers to leave or enter the vehicle).  This is not the period between a vehicle being recorded as entering and departing controlled land."

11.  This position has also been publicly reiterated by the Claimant's own Trade Body, the British Parking Association. Kelvin Reynolds, BPA Director of Corporate Affairs explains:
https://www.britishparking.co.uk/News/good-car-parking-practice-includes-grace-periods 
For the observation period (on arrival)  “No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.” and “In the instance of a PCN being issued while a ticket is being purchased, the operator has clearly not given the motorist sufficient time to read the signs and comply as per the operator’s own rules.”  

12.  I pride myself on making every attempt to follow parking rules and would never not pay to park, where payment is required.  There was no requirement seen in any terms at or near the machine to 'pay within 5 minutes or risk £100 penalty' or similar.  I put the Claimants to strict proof' that my 'parking period' was not paid for. Even if the court is not persuaded by this point, it is a fact that the signs were so faded that anything about a £100 risk was illegible anyway (see Exhibit x). No contract was formed to pay £100 parking charge, let alone an inflated £170.

Thanks for this. I've managed to get a screenshot of the transaction made through my bank which I'll include in the exhibit.

womble94

Am I taking out the reference to CPM v Akande which I had as my para 8, or put it as para 13?

Coupon-mad

Move everything down & renumber.

1505grandad

Any help?:-

https://web.archive.org/web/20180718080651/http://www.britishparking.co.uk/News/good-car-parking-practice-includes-grace-periods

womble94

Coupon-mad said:

Move everything down & renumber.

now looks like:

7.  On the date of the alleged parking event, I stopped to buy some food shopping. Contrary to the vague alleged breach in the POC, I paid for my parking time (See Exhibit 02).  A few minutes on arrival and upon leaving do not count and would fall within reasonable grace periods, especially in a car park where after finding a space, one must first take a reasonable time to pay.

8.  In the Court of Appeal case of National Car Parks Limited vs The Commissioner for HMRC (2019) A3/2017/2435 Lord Justice Newey states that ‘the precise figure was settled when the customer inserted her pound coin and 50p piece into the machine and then elected to press the green button rather than cancelling the transaction. The best analysis would seem to be that the contract was brought into being when the green button was pressed.’

9.  Therefore, the contract in a pay and display ticket machine car park cannot possibly begin upon driving in, not least because at that point the driver has no idea whether the tariff is 50p or £50 until they stand in front of the machine and faded signs to read and become aware of the payment options and decide whether to accept the offered terms.  It is my position that the offered terms did not include a £100 option.

10.  This position is also reflected by the planned statutory regime which the new Government is set to finalise this year.  The temporarily withdrawn, but about to be revived statutory Code of Practice includes clauses that were not objected to by the parking industry's 2022 Judicial Review blocking tactics. In the early definitions, the DLUHC (now MHCLG) state (my bold): 

"2.24 parking period:  the length of time that a vehicle has been parked, i.e. left stationary otherwise than in the course of driving, after any relevant consideration period has expired (excluding instances where the driver has stopped to enable passengers to leave or enter the vehicle).  This is not the period between a vehicle being recorded as entering and departing controlled land."

11.  This position has also been publicly reiterated by the Claimant's own Trade Body, the British Parking Association. Kelvin Reynolds, BPA Director of Corporate Affairs explains:
https://web.archive.org/web/20180718080651/http://www.britishparking.co.uk/News/good-car-parking-practice-includes-grace-periods
For the observation period (on arrival)  “No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.” and “In the instance of a PCN being issued while a ticket is being purchased, the operator has clearly not given the motorist sufficient time to read the signs and comply as per the operator’s own rules.”  

 

12.  I pride myself on making every attempt to follow parking rules and would never not pay to park, where payment is required.  There was no requirement seen in any terms at or near the machine to 'pay within 5 minutes or risk £100 penalty' or similar.  I put the Claimants to strict proof' that my 'parking period' was not paid for. Even if the court is not persuaded by this point, it is a fact that the signs were so faded that anything about a £100 risk was illegible anyway (see Exhibit x). No contract was formed to pay £100 parking charge, let alone an inflated £170.

 

 

13. Due to the lack of signs/copy of the alleged contract, woefully inadequate pleaded case and the age of the alleged breach, which is over two years ago, I am unable to recall the exact reason for the PCN. I don't even know what it is that I am accused of, and this claim is surely not compliant with Part 16 and is a serial abuse of the MCOL system, as held by HHJ Murch at Luton Court (and more recently confirmed in another similar appeal judgment at Manchester Court, by Her Honour Judge Evans in Car Park Management Services v Akande) (See Exhibit 01). 

 

14. The parking sign I saw was not clear and I certainly did not agree to pay £100.  Let alone the inflated sum of £170 which is unexplained and cannot have been the PCN sum. Any such terms or penalty warnings were either not there, not prominently displayed and/or buried on some unintelligible sign in minuscule text, incapable of binding a driver. The Claimant is put to strict proof of their alleged contract, if the case is not struck out due to the Chan appeal case which was about the exact same POC and same Claimant.

 

15. Faded parking sign: I would like to draw the attention to the poor condition of the sign, where the Terms & Conditions section has faded and lost all meaning. (See Exhibit 03)

 

16. There is a further matter negating any cause of action, namely a likely defective Notice to Keeper (NTK) and incorrect 'payment due date' in the POC.  This point relies on Schedule 4 paragraph 8 or 9 of the Protection of Freedoms Act 2012 (the POFA) and the Defendant will raise various issues, including probable non-compliant NTK wording and an apparently incorrect statement in the POC regarding what appears to be the alleged date of keeper liability ('payment due date - 30th June 2022').  This has the object or effect of these pleadings attempting to allege keeper liability wrongfully, and/or earlier than the law would allow, even for a case with a compliant NTK. The Claimant's POC has unreasonably shortened the statutory 28 day period by several days or even weeks, which has had the additional unreasonable effect of backdating interest incorrectly.  Even if posted 1st class on Weds 1st June 2022 (the same day as the alleged event, which it cannot have been) a NTK would be deemed served on Tuesday 7th June 2022 as there were bank holidays on the 2nd & 3rd of June.  Adding the POFA's statutory 28 days starting with the day after service of the NTK, the soonest that the 'right to recover from the keeper' might exist would have been six days later than this Claimant states in their POC.  In fact, it would have been even later in July 2022 because it would have been impossible for a postal NTK (which I do not hold - the Claimant is put to strict proof) to have been dated/posted the same day as the parking event. Further, the generic POC omits whether or not a windscreen PCN was served first; a vital detail which affects liability dates by at least a month and would have clarified whether the Claimant seeks to rely on POFA paragraph 8 or paragraph 9.  I, (and court) is reduced to guesswork.

 

17. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

(i). a strong 'legitimate interest' extending beyond mere compensation for loss, and

(ii). 'Adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.

18. I, deny (i) or (ii) have been met. The charge imposed, in all the circumstances, is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.