Civil Enforcement Witness Statement

micramadness

Hi all,

I received a PCN from CE for what we think was a major keying error.

The initial notice was received after the 14 day statutory period, we appealed, and were unsuccessful but then could not do an additional keying error appeal. I found this forum after submitting my defence which was regrettable, but I have been busy writing my WS which needs to be in by the 17th Feb. This is an amazing resource - thank you.

CE used the POPLA compliant NK, they also submitted a stock Scott Wilson WS.

It is a mix of things I have found here. The latter parts are the bits I am least comfortable with - Costs claimed, CRA, Beavis etc - please do let me know if any of this is now out of date or superfluous to my statement? it is also a lot of what the Scott Wilson witness statement talks about so maybe I should reference that more.

All comments v much appreciated.

Civil Enforcement Limited (Claimant) 
V 
xxxxx (Defendant) 

 Witness Statement of Defendant 

 1. I am NAME (ADDRESS) 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 01-16) within the evidence supplied with this statement, referring to page and reference numbers where appropriate. 

Preliminary matter: Particulars of Claim 

3. The Particulars of Claim fail to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5. In Civil Enforcement Limited v Chan (Ref. E7GM9W44) HHJ Murch held: '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' (see Exhibit 01). Similarly, in Car Park Management Service Ltd v Akande (Ref. K0DP5J30) HHJ Evans held: 'Particulars of Claim have to set out the basic facts upon which a party relies in order to prove his or her claim' (see Exhibit 02). See Exhibit 03 for a series of claims struck out on this basis. 

4. The defendant believes the Claim should be struck out using powers pursuant to CPR 3.4.  The specifics of this case lack clarity, as no explicit statement has been provided to indicate which specific term of the alleged contract was purportedly breached and how. This lack of specificity places me, the Defendant, at a distinct disadvantage, as I find myself in the position of having to mount a defence without a clear understanding of the precise nature of the alleged violation. 

Facts of the case 

5. It is admitted that I was the keeper of vehicle xx01xxx on the 18th December 2024 but I was not the driver. 

Parking Charge Notice / Notice to Keeper 

6. The Parking Charge Notice (PCN) Notice to Keeper issued by the Claimant does not comply with the requirements of Schedule 4 of the Protection of Freedom Act 2012 (PoFA). The PCN was received on 3rd January 2025, 16 days after the incident date and therefore outside the 14-day statutory timeframe under PoFA 9(4)(b) and 9(5) (POFA link). 

 7. Additionally, under 8.1.2 of The Private Parking Sector Single Code of Practice 2024 (Single Code) Note 2 specifies that “... parking operators must retain a record of the date of posting of a notice, not simply of that notice having been generated (e.g. the date that any third-party Mail Consolidator actually put it in the postal system.)”. The PCN offers only an Issue Date. 

 8. The Claimant has not provided any evidence that I (the keeper) was the driver under CPR 16.4(1)(a), the Claimant must clearly state the basis of the claim, but the PoC does not specify whether the defendant is pursued as the driver or the keeper. In the persuasive appellate decisions of Excel Parking Services Ltd v Smith (2017) (see Exhibit 4) and VCS v Edward (2023) (see Exhibit 5), the court held that a Claimant must prove that the Defendant was the driver if PoFA compliance is not met.  

 9. Since the Claimant has failed to identify myself as the driver, and has also failed to comply with PoFA, I cannot be held liable, as the keeper, for this charge.  

10. I appealed the PCN on the grounds that it did not arrive within the statutory 14-day limit, but this was denied with little reference made to the subject of my appeal. However, the fact remains that the notice was received outside the statutory PoFA timescales.  

Payment was made 

11. Payment of £1.70 was made on 18th December 2024 and was processed at 16:09. The vehicle in question was parked for an appointment at 16:00, which was not attended late, suggesting there was a delay in the payment processing system. On the date in question this payment covered a duration of two hours, more than enough for the Claimant’s stated exit time of 16:24. This is shown as highlighted in the Nationwide bank statement submitted for 20th December 2024 as MIPERMIT CHIPPENHAM (See Exhibit 6). Details of the date and time of the transaction have been provided by the bank who also confirmed it has approval code xxxxxxx and can therefore be checked by the Claimant. 

12. Two vehicles were used by the Defendant's family at that time, I therefore assumed the registration for our other vehicle had been used against the payment. This would constitute a Major Keying Error under the BPA Approved Operator Scheme Code of Practice (BPA Code) 17.4B and in such circumstances “It is appreciated that in issuing a PCN in these instances, the operator will have incurred charges including but not limited to the DVLA fee and other processing costs therefore we believe that it is reasonable to seek to recover some of these costs by making a modest charge to the motorist of no more than £20...”. This is also repeated in the Single Code F.3 (a). 

13. The Claimant has responded to a Subject Access Request (SAR) for both vehicle registrations (see Exhibits 5 and 6) to clarify what term was breached and what error may have occurred. For the registration in question (XXXXXX) they did not respond to multiple specific requests in the SAR and have therefore neither confirmed nor denied whether payment was received connected to the registration on the day in question. They have also not supplied a full (or partially redacted) PDT machine record or a full ANPR record as requested (see Exhibit 7). The Claimant did confirm that our other vehicle was not in Stroud Valleys Car Park on 18th December 2025 and no parking charges have been issued (see Exhibit 8). However, they have failed to confirm whether they received any parking payments for that vehicle on that date. This means that we believe either a major or minor keying error was still possible and likely. Again, for the second SAR they have not supplied a full (or partially redacted) full PDT machine record, as requested, which would enable us to establish what happened to our payment. 

14. Without further information from the Claimant on the nature of the term breached and without a list of PDT payments and vehicles for that day I can only continue to assume a major or minor keying error occurred. BPA Code clarifies expected action for a minor keying error in 17.4A as follows “These are minor errors where up to one character has been entered incorrectly, or where the registration has been entered in the wrong order. If a typing error such as this leads to a PCN being issued and the motorist appeals, the PCN must be cancelled at the first stage of appeal.” The Single Code also lists minor keying errors as Exempt Circumstances under F.1 (h). 

15. An appeal on the grounds of a Keying Error was not possible as there is no ability to appeal on new grounds once an initial appeal has been made (see paragraph 9). The rigid automated system available to the defendant to contact Civil Enforcement allowed only one reason for the initial appeal, a POPLA appeal on that initial ground or contact details limited to an automated payment phone line. 

16. Given payment was made for parking, it appears that there are no measures in place to prevent entering a registration in error – for a car that didn’t enter the car park. This is contrary to the BPA Code 17.3 ‘Motorists, car park operators, service providers and equipment manufacturers all have a responsibility in ensuring that obvious and inadvertent errors do not lead to unjustified charges.’ and Single Code 6.3 “Where the terms and conditions require the driver to supply their vehicle registration mark at an on-site machine, by telephone or online, the parking operator must have and follow a documented policy and procedure to avoid issuing or enforcing a parking charge in respect of accidental keying errors. This should include the adoption of technologies that reduce keying errors.” No such technologies are in place at Five Valleys Car Park. 

17. Correspondence with the car park owner on a separate later occasion, when I realised this was possible, followed the intention of the Code “I have sorted this for you and you shouldn't receive a fine for a simple mistake.” (see Exhibit 11). It was only due to timescales, not intent, that the current PCN was unable to be treated in the same manner “This PCN is now at a claim issued stage, which is not in our remit to cancel.” (see Exhibit 12). 

18. Given that payment was made and more than exceeded the parking duration, coupled with requirements on operators regarding errors, I do not believe I have breached the terms and conditions. 

Inadequate signage 

19. The arguments by the Claimant all relate to a contract being entered into by visibility of the signage (their paragraphs 15-21). No exhibits have been submitted to show the signage. 

20. I have observed a lack of clear and visible signage regarding parking regulations. The only signs that are visible at the entrance to the car park, which is otherwise unmarked, give no information whatsoever as to the nature of the Terms and Conditions, merely that Terms and Conditions apply. Specifically the sign does not include clear indication of durations or charges. Even the text which provide additional limited information is very small and not clearly legible from inside a vehicle (see Exhibit 13). This is made more difficult by the extremely tight bend, on a ramp, that must be driven through to enter the car park, undisputedly taking much of the driver's attention (see Exhibit 14). This entrance sign is also not independently lit, as per the Single Code 3.1.2 NOTE 1 “In some circumstances, key information may include the maximum level of the parking charge that can be applied. Where parking is invited in the hours of darkness entrance signs must be visible to approaching drivers and hence may require lighting unless sited where there is sufficient ambient lighting in the vicinity.” and Appendix 1. There is also no legible information regarding personal data as per Single Code 3.1.2 NOTE 2, despite the presence of ANPR cameras. 

21. The only signs which provides information relating to the Terms and Conditions is located off to the right of the entrance, placed high and behind parked cars which makes the very small type illegible as you cannot get very close (see Exhibit 15). This breaches a number of requirements in the Single Code, including 3.1.3 (b)(f), 3.1.4, 3.2.6. The poor placement and legibility of these signs made it extremely difficult for anybody to be aware of or to comply with the parking rules. This is in stark contrast to the highly visible, clear and legible signs seen in ParkingEye v Beavis [2015] UKSC67 (“the Beavis case”). (See Exhibit 16). 

 22. It is noted that these signs are those referenced in paragraph 21 are likely to have been updated, given they use a different payment provider (the payment on the bank statement from 18th December 2024 references MiPermit, but the signs now reference RingGo). Nevertheless, given the absence of evidence submitted by the Claimant, including contemporaneous photos, these are provided for reference. 

Costs claimed 

23. The defendant admits the original PCN was £100, but not £170. The Claimant has added a spurious £70, for “debt recovery costs”, I believe there are no facts or evidence to suggest so. It appears to be duplicating the intended 'legal fees' cap set by 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. The claimant has provided no breakdown or explanation of how this amount was calculated or why it is appropriate. It can only be viewed as a punitive charge designed to penalise the defendant, which is contrary to established legal principles that prohibit excessive and unfair contractual penalties. The claim therefore exceeds the Single Code £100 parking charge maximum. 

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

25. 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: IA link 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. 

26. 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') (bailii link). Also, ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) (bailii link) 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”. 

27. This Claimant has not incurred any additional costs because the full parking charge (after expiry of discount) is already high and more than covers what the Supreme Court called an “automated-letter-chain” business model that generates a healthy profit. In Beavis, there were 4 or 5 letters in total, including pre-action phase reminders. The £85 parking charge was held to cover the “costs of the operation” and the DLUHC’s IA suggests it should still be the case that the parking charge itself more than covers the minor costs of pre-action stage, even if and when the Government reduces the level of parking charges. 

28. 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). 

29. The claimant has added in an “interest rate” which is clearly an attempt to seek more funds from the defendant. 

Consumer Rights Act (2015) breaches 

30. Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the CRA which introduced new requirements for “prominence” of both contract terms and “consumer notices”. In a parking context, this includes a test of fairness and clarity of signage, and all notices, letters and other communications intended to be read by the consumer. 

31. Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer. Signage must be prominent, plentiful, well-placed (and lit in hours of dusk/darkness) and all terms must be unambiguous and contractual obligations clear. 

32. The CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair/open dealing and good faith (NB: this does not necessarily mean that there has to be a finding of bad faith). 

33. Now for the first time, the DLUHC’s draft IA exposes that the template “debt chaser” stage costs less than £9. This shows that HHJ Jackson was right all along in Excel v Wilkinson. (See Exhibit 08.) 

The Beavis case is against this Claim 

34. The Supreme Court clarified that “the penalty rule is plainly engaged” in parking cases, which must be determined on their own facts. That “unique” case met a commercial justification test, given the location and clear signs with the charges in the largest/boldest text. Rather than causing other parking charges to be automatically justified, that case, particularly the brief, conspicuous yellow and black warning signs (see Exhibit 16) – set a high bar that this Claimant has failed to reach. 

 35. Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of a “legitimate interest” in performance extending beyond the prospect of compensation flowing directly from the alleged breach. The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected / cumbersome obligations not “concealed pitfalls or traps”.

36. In the present case, the Claimant has fallen foul of these tests. There is one main issue that renders this parking charge to be purely penal (i.e. no legitimate interest saves it) and thus, it is unenforceable: 

37. Hidden Terms: The £100 penalty clause is positively buried in small print, as seen on the signs in evidence. The purported added (false) “costs” are even more hidden and are also unspecified as a sum. Their (unlawful, due to the CRA Schedule 2 grey list of unfair terms) suggestion is that they can hide a vague sentence within a wordy sign, in the smallest possible print, then add whatever their Trade Body lets them, until the Government bans it. The driver thus has no idea about any risk, nor even how much may be added on top. Court of Appeal authorities which are on all fours with a case involving a lack of “adequate notice” of a charge include: Spurling v Bradshaw [1956] 1 WLR 461 (“red hand rule”) and Thornton v Shoe Lane Parking Ltd. [1970] EWCA Civ2, both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where Ms Vine won because it was held that she had not seen the terms by which she would later be bound, due to “the absence of any notice on the wall opposite the parking space”. 

Claimant’s Failure to Satisfy the Burden of Proof 

38. The claimant, in their Witness Statement, has failed to satisfy the fundamental burden of proof in this matter. Their Statement provides nothing specific regarding the facts of this case and the claimant has not provided adequate evidence to support their claim.  

I BELIEVE THAT THE FACTS STATED IN THIS STATEMENT ARE TRUE. 

Woodstok2000

Paragraph 6: The receipt date is not important, its the posting date which counts. They'll claim the pcn was posted on the date it was issued, and its assumed that you receive it within 2 days of posting, so you need to recalculate based on the date of issue.

micramadness

Hi woodstok2000

They issued it on the 26th December, so two working days is the 30th December. Even if you account for the 26th being a bank holiday, so assume posting was on the 27th this gives the 31st which is 13 days. What about the code note in paragraph 7, that says posted date should be included?

micramadness

Hi,

I have posted my witness statement on its own thread but am struggling to figure out how to actually make the evidence bundle.

My exhibits are a mix of pdf judgements and images of emails and photos, I'm also planning to include a video.

The court has specified that I need to deliver the evidence bundle to their (postal) address and have specified that every page is numbered.

I can print everything and manually number each page but this would not include the video.

I could also merge everything into a pdf and ask if I can email it but I wouldn't be able to add page numbers?

How has everybody else managed it?

Many thanks

Gr1pr

Presumed delivered is 2 business days later, the 31st if it was posted on the 27th, not 2 days later, a court may decide that the intention was that it was delivered within the law, assuming they complied with the other aspects of Pofa2012 ( not Popla )

The onus is then transferred onto the recipient to prove that it was delivered later

Regardless, the statement of truth is completely incorrect, by around 5 years ! Its not current

Study other recent WS within the last 2 years, ones with the correct statement, preferably in house CEL claims

Gr1pr

Some observations ( but I have never had to compile one. )

It should be a pdf, ideally emailed

It needs to be under 50 pages if email is used

Videos should be on a durable medium, such as a dvdr, or possibly a usb stick

Copies go to the lawyers as well as the civil court

Paper bundles can be used, as happened a decade ago

Le_Kirk

Don't start a new thread just to ask a question, the place for questions is on your own thread that is already open. Please report this thread and ask for it to be merged with your other open thread.

https://forums.moneysavingexpert.com/discussion/6654982/civil-enforcement-witness-statement#latest

micramadness

Thanks Le_Kirk, I have reported the thread.

Can anyone advise how to paginate a pdf?

micramadness

I've googled it and looks like I can do that online. Just need to sort the video now.

micramadness

Thanks Gr1pr.

Can I just clarify what you mean by statement of truth? Paragraph 1?

Gr1pr

The statement of truth is the very last sentence, just before your signature and date