CEL claim - stages after CCJ set aside

CliveTreeHorn

In preparation for the hearing (approx 3 weeks time) is there anything I should be focusing on?

I've previously submitted my WS, Defence and schedule of costs. 

Is there any good articles or posts on Farlie Vs Fenton anyone could share?

Coupon-mad

CliveTreeHorn said:

3. The Defendant did park in  Car Park, Denmark Hill, SE5 8RW on date. Initially, the Defendant attempted to purchase a digital parking ticket on the PhoneAndPay app. The app was not working correctly due to presumed technology issues, and would not accept the Defendants usual bank card when attempting to purchase the ticket and crashing. 

4. Therefore, the Defendant setup a second bank card on the app in order to purchase a ticket. A 1p transaction charge was registered, to finalise the setup of the new bank card. However when the Defendant attempted to purchase a digital ticket the app again crashed. 

5. On the car parking site, there is a 'information' booth however this was not open. 

6. As a result the Defendant made the decision to purchase a paper parking ticket from the ticket machine. Due to the time that has elapsed from the date, almost two years, the Defendant does not have a copy of this ticket. 

7. In respect of the Claimants Amended POC which stated 'there were many clear and visible signs in the car park advising drivers of the terms and conditions of use'. On the signs the terms and conditions are written in very small font at the bottom of the sign. There is not a visible sign as you drive into the carpark, and due to the size it would be very challenging to read the terms and conditions from a driver's seat within a car. 

8. Furthermore paragraph 5 of the amended POC states 'a contract was formed between the Claimant and the Defendant' this is refuted. No contract was ever agreed by the Defendant. 

9. Paragraph 5 of the amended POC also states 'the Defendant breached the contract, specifically by failing to obtain an electronic permit'. As stated in paragraph 6 of the defence the Defendant purchased a paper ticket from a ticket machine as what was permitted on the signage in the carpark and is the normal practice. If the purchasing of a paper ticket is not an acceptable method, why do the parking ticket machines exist and the signs detail the method. 

The signs state that the parking terms are offered by a different company: Atlantis FM LTD

10. 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.'

11. 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.

12. 'Atlantis FM LTD' is written at the top of the signs where the disputed terms are stated. Therefore, those terms and the licence to park is made by the principal, Atlantis FM LTD.

13. 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. 

Just be familiar with your defence (the main part is reposted above) and any holes in their evidence: undated signage pics, etc.

CliveTreeHorn

I have received their witness statement. My court date is Thursday, 3rd April. 

The sign they have included in their exhibits has ABC Car Parking Solutions at the top and is dated Sept 2021. My photograph (referred to in my  WS) has Atlantis FM, a different firm. Presumably, the company changed at one point, so I am not sure what the sign displayed at the time of the alleged offence. 

The last exhibit does not list my car registration. I definitely bought a paper ticket. Is the fact that they have not displayed the full data relevant? 

They are claiming £281, but have made an offer to settle at £135. Their signs state (also in my WS) that they can only charge up to £100. 

Does anyone have any advice or insight they can offer to help me please. 

CliveTreeHorn

Whats the best way to share a PDF? 

wetransfer okay ?

CliveTreeHorn

https://www.dropbox.com/scl/fi/332q3fiwgbywzk9nqzrrr/Claimant-WS.pdf?rlkey=371eacer0um2ktsnf01ob1nmc&st=cfugej66&dl=0

The_Loner

CliveTreeHorn said:

I have received their witness statement. My court date is Thursday, 3rd April. 

The sign they have included in their exhibits has ABC Car Parking Solutions at the top and is dated Sept 2021. My photograph (referred to in my  WS) has Atlantis FM, a different firm. Presumably, the company changed at one point, so I am not sure what the sign displayed at the time of the alleged offence. 

The last exhibit does not list my car registration. I definitely bought a paper ticket. Is the fact that they have not displayed the full data relevant? 

They are claiming £281, but have made an offer to settle at £135. Their signs state (also in my WS) that they can only charge up to £100. 

Does anyone have any advice or insight they can offer to help me please. 

Have you had a look at google street view? Sometimes it gives an option of viewing various dates.

Coupon-mad

A massive point is that the signs are in the wrong name.

But before getting into any of this, ask the Judge to read CEL v Chan and CPMS v Akande.

Your Claimant is CEL, so Chan applies: case must be struck out. You must have your costs.

CliveTreeHorn

Coupon-mad said:

A massive point is that the signs are in the wrong name.

But before getting into any if this, ask the Judge to read CEL v Chan and CPMS v Akande.

Your Claimant is CEL, so Chan applies: case must be struck out. You must have your costs.

I have not mentioned either case in my WS, can I (should I?) update and re-send? 

CliveTreeHorn

The_Loner said:

CliveTreeHorn said:

I have received their witness statement. My court date is Thursday, 3rd April. 

The sign they have included in their exhibits has ABC Car Parking Solutions at the top and is dated Sept 2021. My photograph (referred to in my  WS) has Atlantis FM, a different firm. Presumably, the company changed at one point, so I am not sure what the sign displayed at the time of the alleged offence. 

The last exhibit does not list my car registration. I definitely bought a paper ticket. Is the fact that they have not displayed the full data relevant? 

They are claiming £281, but have made an offer to settle at £135. Their signs state (also in my WS) that they can only charge up to £100. 

Does anyone have any advice or insight they can offer to help me please. 

Have you had a look at google street view? Sometimes it gives an option of viewing various dates.

I've checked and it has ABC over a similar dates.

CliveTreeHorn

JerryJ64 said:

Of course the CEL v Chan was not your only defence point. It was just an argument to get the claim thrown out because the claimant did not follow the CPRs and PDs. Unfortunately, your judge was not "persuaded" by that appeal judgment, as was her right.

You must follow all deadlines set by the judges order. Once you receive the amended PoC, you will have to submit a defence as per the defence template but without the preliminary matter of CEL v Chan bit. Normally, after the defence is acknowledged, you will be assigned a hearing date and you will have to submit a WS some time before that date, usually no less than 14 days before or whatever the court orders.

Reading back through my posts, I had Chan Vs CEL in my original WS to get the CCJ removed, but was advised to remove it from this WS.

Can I refer the judge to my previous WS in this hearing ?