Civil Enforcement Ltd claim form from back in summer of 2023

Coupon-mad

Remove 6 (you are way past allocation stage) but bring your para 11 up to replace your 6.

It will flow much better.

Then add to that new paragraph 6 that you saw no parking signs and 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.

Finally:
I see you used the template defence so you had all the stuff about the DLUHC anyway, so I'm going to say remove ALL the verbatim repetition about the Government's draft IA and code because you already had it in defence and the Government has changed, so it's up in the air.

Don't repeat whole chunks that are in your defence. Shorten the WS hugely by removing that stuff!

Add your statement of truth & sign & date it.

Oh! What are your exhibits please? List them so we can check what may have been missed from the a-f list of exhibits suggested in the NEWBIES FAQS thread.

Le_Kirk

Witness statements are written in the third first person so you might want to change your paragraph #3.
Of course they are, don't know why my fingers typed third when my brain said first - I've typed this so many times it becomes automatic!  Thanks for the heads up @LDast
Maybe it's time for a rest for a couple of hours years!

LDast

Le_Kirk said:

Witness statements are written in the third first person so you might want to change your paragraph #3

               

womble94

Coupon-mad said:

Remove 6 (you are way past allocation stage) but bring your para 11 up to replace your 6.

It will flow much better.

Then add to that new paragraph 6 that you saw no parking signs and 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.

Finally:
I see you used the template defence so you had all the stuff about the DLUHC anyway, so I'm going to say remove ALL the verbatim repetition about the Government's draft IA and code because you already had it in defence and the Government has changed, so it's up in the air.

Don't repeat whole chunks that are in your defence. Shorten the WS hugely by removing that stuff!

Add your statement of truth & sign & date it.

Oh! What are your exhibits please? List them so we can check what may have been missed from the a-f list of exhibits suggested in the NEWBIES FAQS thread.

Thanks for this, so it now reads as below: Are there any more chunks I should take out? I was going to take put paragraph 33 but wasn't sure if I needed that in the conclusion?

1. I am xxxx, 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 1-4) 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:

Preliminary matter: The claim should be struck out

3. I would like to draw to the attention of the court that there is now a persuasive Appeal judgment to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims, and the extant PoC seen here are far worse than the one seen on Appeal). The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind. Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction. By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims based in the following persuasive authority.

 

4. Recent persuasive appeal judgments in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4 and Practice Direction Part 16. On the 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The same is true in this case and in view of the Chan judgment and multiple similar judgements, the Court should strike out the claim, using its powers pursuant to CPR 3.4 (See Exhibit 01).

 

5.  The claim has been issued via Money Claims Online and, as a result, is subject to a character limit for the Particulars of Claim section of the Claim Form. The fact that generic wording appears to have been applied has obstructed any semblance of clarity.  The Defendant trusts that the court will agree that a claim pleaded in such generic terms lacks the required details and would have required proper particularisation in a detailed document within 14 days, per 16PD.3.  No such document has been served.

 

Facts and sequence of events

6. The particulars of claim is insufficient, that even the location of where the (unidentified) alleged breach occurred is not identified!  'Bellevue' means nothing to the average person.

I saw no parking signs and 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.

 

7. The facts in this witness statement come from my own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". I am unable, based on the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised, and it is admitted that the I am the registered keeper.

 

8. Date and time of incident Wednesday 1st of June 2022, at approximately 16.00.

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.

 

9. Due to the age of the alleged breach of contract, which is 24 months old, I am unable to recall the exact reason for the PCN(s).

 

10. 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.

 

11. The particulars of claim is insufficient, that even the location of where the (unidentified) alleged breach occurred is not identified!  'Bellevue' means nothing to the average person.

 

12. 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.

13. I, denies (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.

 

Exaggerated Claim and 'market failure' currently examined by the Government

14. The alleged 'core debt' from any parking charge cannot have exceeded £100 (the industry cap set out in the applicable Code of Practice at the time). I have seen no evidence that the added damages/fees are genuine.

15. I say that fees were not paid out or incurred by this Claimant, who is to put strict proof of:

(i) the alleged breach, and

(ii) a breakdown of how they arrived at the enhanced quantum claimed, including how interest has been calculated, which appears to have been applied improperly on the entire inflated sum, as if that figure was immediately overdue on the day of an alleged parking event.

16. This Claimant routinely pursues a disproportionate additional fixed sum (inexplicably added per PCN) despite knowing that the will of Parliament is to ban or substantially reduce the disproportionate 'Debt Fees'. This case is a classic example where the unjust enrichment of exaggerated fees encourages the 'numbers game' of inappropriate and out of control bulk litigation of weak/archive parking cases. No pre-action checks and balances are likely to have been made to ensure facts, merit, position of signs/the vehicle, or a proper cause of action.

17. The Department for Levelling Up, Housing and Communities (the DLUHC) first published its statutory Parking Code of Practice on 7th February 2022, here:

https://www.gov.uk/government/publications/private-parking-code-of-practice

"Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists."

18. Despite legal challenges delaying the Code's implementation (marking it as temporarily 'withdrawn' as shown in the link above) a draft Impact Assessment (IA) to finalise the DLUHC Code was recently published on 30th July 2023, which has exposed some industry-gleaned facts about supposed 'Debt Fees'. This is revealed in the Government's analysis, found here:  https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/fi le/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

19. Paragraphs 4.31 and 5.19 reveal that the parking industry has informed the DLUHC that the true minor cost of what the parking industry likes to call debt recovery or 'enforcement' (pre-action) stage totals a mere £8.42 per recovery case.

20. With that sum in mind, it is clear that the extant claim has been enhanced by an excessive amount, disingenuously added as an extra 'fee'. This is believed to be routinely retained by the litigating legal team and has been claimed in addition to the intended 'legal representatives fees' cap set within the small claims track rules. This conduct has been examined and found - including in a notably detailed judgment by Her Honour Judge Jackson, now a specialist Civil High Court Judge on the Leeds/Bradford circuit - to constitute 'double recovery' and the Defendant takes that position.

21. In support of my contention that the sum sought is unconscionably exaggerated and thus unrecoverable, attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'). Also, ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment. Whilst £75 was reasonable, HHJ Hegarty (decision later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating a parking charge to £135 was not a true reflection of the cost of a template letter and 'would appear to be penal.

22. In addition, pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable. It is also disproportionate and in breach of the Consumer Rights Act 2015 (CRA).

womble94

Do I change 'Defendants signature' to "My signature"?

The Exhibits are - and I've copied the dropbox link as easier to see the exhibits via that link: 

Witness Statement of Defendant.............................................................. 2

Exhibit 01 – Civil Enforcement v Ming Tak Chan & Multiple Judgements document................................................................................................. 8

Exhibit 02 – Excel v Wilkinson Case Transcript.................................... 40

Exhibit 03 – The Beavis case sign for comparison................................. 50

Exhibit 04 – ParkingEye Limited v Beavis             51

https://www.dropbox.com/scl/fi/x1r7nav22cruat3j5gpwf/Witness_Statement.docx?rlkey=9raaip69k034wyn3mhzvu3op4&st=aegz0bmc&dl=0

womble94

Le_Kirk said:

Witness statements are written in the third first person so you might want to change your paragraph #3.
Of course they are, don't know why my fingers typed third when my brain said first - I've typed this so many times it becomes automatic!  Thanks for the heads up @LDast
Maybe it's time for a rest for a couple of hours years!

thanks for pointing this out, I've amended this.

womble94

I've also received in the post today from HM Courts & Tribunals service a telephone mediation appointment. Is this normal? I've just rechecked my directions questionnaire which I sent in January and I ticked no when it asks "do you agree this case being referred to the small claims mediation service.

In the letter it says "where your mediation appointment is mandatory, if you do not attend the appointment the judge will take this into consideration at any court hearing and may issue a penalty.

I'm assuming this is scare tactics? The letter has a few grammar errors in and a lot of # in between certain words 

LDast

If your claim was issued before 22nd May 2024 then the mediation is not mandatory. If so, ring the number provided and tell them that you did not agree to mediation and that they should cancel it.

womble94

LDast said:

If your claim was issued before 22nd May 2024 then the mediation is not mandatory. If so, ring the number provided and tell them that you did not agree to mediation and that they should cancel it.

Yeah was definitely before the 22nd of May 2024, I'll call them tomorrow. Thanks

Coupon-mad

Remove the sentence re the 'date and time of the incident' as that helps them not you.

Every paragraph needs a number.

Surely half the stuff in the middle/end is pretty much repetition of your defence? Crop it out.

Change " The Defendant believes" to the first person in para 3.