CEL in-house claim, Defended

justice_4all

@Coupon-mad thanks for your response.

Just to double-check: my PCN was issued on 17 June 2024, whereas the CMA Open Letter was published on 16 July 2026.
Am I right in assuming I can still rely on it because the CMA was simply clarifying existing consumer rights that were already in law when I parked?

Coupon-mad

Exactly! 🙂

justice_4all

I'm currently drafting my WS, will post here when ready.

Question about exhibits - if referring to a case such as VCS vs edward do I need to exhibit the whole transcript? or just the paragraphs that I want to use?

Also for Excel vs Smith, I've been searching the forum and the web and can't find quotes or a full transcript, so not sure how I would use that as an exhibit? or do I just state refer to [case name] with a summary within the witness statment on not on exhibits page?

Thanks

justice_4all

@Coupon-mad here is my witness statement draft. Would really appreciate any feedback, it is quite long.


IN THE COUNTY COURT (SMALL CLAIMS TRACK) AT XXX

Claim No: XXX

CIVIL ENFORCEMENT LIMITED (Claimant)

V XXX (Defendant)

WITNESS STATEMENT OF XXXXXX

Introduction

1. I am XXX of XXX, the Defendant. I make this statement in support of my defence. The facts are within my own knowledge, except where I say they come from the Claimant's evidence pack ("CEP") or from a document I exhibit. I believe that the facts stated in this witness statement are true.
   
2. I refer to exhibits marked EXHIBIT-1 to EXHIBIT-13, listed at the end of this statement.
   
3. I have read the witness statement of Mr Syed Abbas Ali, Head of Legal and Compliance at the Claimant ("the Claimant's statement"). I note that he says at paragraph 1 that some of his facts come from the Claimant's records and not from his own knowledge. The Claimant emailed me that statement on 29 May 2026 (EXHIBIT-13). It did not send the evidence pack ("CEP") or the bundle of authorities that the statement refers to, and as at the date of this statement I have not received them. I reserve the right to respond to any further evidence the Claimant serves.
   
   The registered keeper, and who was driving
   
4. I admit that I was the registered keeper of vehicle XXX on 17 June 2024.
   
5. I make no statement in this witness statement about who was driving. The Claimant must prove its case and I put it to strict proof.
   
6. A registered keeper is not presumed to have been the driver, and the law imposes no duty on a keeper to say who drove. I rely on a county court appeal decision as persuasive authority. In Vehicle Control Services Ltd v Edward (Teesside Combined Court, April 2023, HHJ Gargan) the judge held that being the registered keeper does not mean that, on the balance of probabilities, a person was driving on a given occasion (paragraph 35.3). He also held that a contrary approach would impose a duty on the keeper to identify the driver or put forward a positive case, and that the court should respect the general freedom from being required to give information absent a legal duty (paragraphs 35.1 and 35.2). The appeal succeeded and the claim was dismissed (paragraph 36). A copy of the transcript is at EXHIBIT-7.
   
7. At paragraphs 8 to 11 of its statement the Claimant says it relies on the Protection of Freedoms Act 2012, Schedule 4 ("POFA") to make a keeper liable, and alternatively on an inference about the driver. Keeper liability arises only if the Claimant strictly complied with Schedule 4, including paragraph 9 (the notice to keeper). The particulars of claim do not say whether I am pursued as the driver or as the registered keeper (CPR 16.4(1)(a)).
   
   The Notice to Keeper
   
8. The only parking charge notice I have seen is dated 25 June 2024 (EXHIBIT-5). It was addressed to XXX , where I did not live at that time (EXHIBIT-6).
   
9. I did not receive it. I first learned of it on 7 July 2024, when the people now living at that address sent me photographs of it (EXHIBIT-5). The notice offered a reduced charge of £60 if paid within 14 days of its date, that is, by about 9 July 2024. When I learned of it only two days of that period remained. I appealed and the appeal did not succeed.
   
10. Schedule 4 requires the notice to keeper to be delivered to a current address for service for the keeper within 14 days beginning the day after the parking ended (paragraph 9(4) and (5)). It also requires the Claimant to have applied to the DVLA for the keeper's details within that period (paragraph 11). The Claimant has not shown when it applied to the DVLA, which address it used, when it posted the notice, or that the address was one the Schedule treats as a current address for service. I put it to strict proof of each, and I say that if it cannot prove them it has not established keeper liability
    
11. In any event, the maximum sum which may be recovered from a keeper under Schedule 4 is the amount specified in the notice to keeper (paragraph 4(5)). The notice specified a parking charge due of £100, reduced to £60 if paid within 14 days of the issue date (EXHIBIT-5). The added £70 cannot therefore be recovered from me as keeper.
    
    No proof of a breach of the 3 hour term
    
12. The Claimant's own ANPR images show the vehicle entering the car park at 11:44:18 and leaving at 15:00:24 on 17 June 2024 (EXHIBIT-1). That is a total time on site of 3 hours 16 minutes 6 seconds. The Claimant's portal rounds this up to "Duration of Stay: 03:17" (EXHIBIT-2).
    
13. The Claimant's statement never states how long the vehicle was parked. At paragraphs 29 and 34 it says only that the vehicle was recorded "arriving and leaving" and was "present on site". At paragraph 6 it describes ANPR as capturing images as a vehicle enters and exits.
    
14. The term on the sign is "3 Hours Maximum Stay" (EXHIBIT-3). An ANPR entry and exit record measures time on site. It does not measure the period for which a vehicle is parked. Time on site includes driving in, finding a bay, and driving to and through the exit, none of which is parking. The Claimant has produced no evidence of how long the vehicle was actually parked and has not explained how it treats the time between entry and parking, and between leaving the bay and leaving the site.
    
15. The Claimant says at paragraph 3 of its statement that it abides by the BPA Code of Practice, and that version 9 applies to charges before 27 June 2024. This charge relates to 17 June 2024. Paragraph 13.3 of version 9 requires a grace period of at least 10 minutes to be added to the end of a parking event, where a limited period of parking is permitted, before a PCN is issued (EXHIBIT-4).
    
16. Even on the Claimant's rounded figure of 3 hours 17 minutes, the Claimant must show that the parking event exceeded 3 hours 10 minutes. It has not done so. I ask the court to find that a breach of the term has not been proved and that the PCN should not have been issued.
    
17. The consideration period. For a parking contract to be formed, a driver must have a reasonable opportunity to understand the terms and decide whether to park. In its letter to the Minister dated 27 April 2026, published on 16 July 2026 (EXHIBIT-9, paragraphs 12 and 13 of the letter), the Competition and Markets Authority ("CMA") said that by default a parking period should not start at the point of entry captured on ANPR, and that where an operator cannot show when the driver accepted the terms (for example, because no timestamped ticket is issued) it should add the full consideration period to the end of the parking period before a PCN is issued. In its open letter to private parking operators dated 16 July 2026 (EXHIBIT-10), the CMA said that the consideration period is a minimum and not a hard cut-off, and expressed concern that operators are treating the parking period as starting when the driver drove in, rather than when the driver decided to park.
    
18. I accept that the CMA's letters are not binding law, that they post-date 17 June 2024, that they concern the Single Code of Practice (in force from 27 June 2024), and that paragraph 13.2 of version 9 says the consideration period in paragraph 13.1 does not apply where a parking event takes place. I rely on them for a point of contract law that does not depend on which code applied: a driver must have a real opportunity to understand the terms before being bound, and compliance with an industry code does not mean compliance with consumer law (EXHIBIT-10, paragraph 13 of the letter). The terms were not displayed at the entrance (paragraph 28 below), and the Claimant has produced no timestamped ticket or other evidence of when any contract was formed.
    
19. On the CMA's approach (EXHIBIT-9, paragraph 17 of the letter and paragraph 19 of its annex), a 3 hour term plus a 5 minute consideration period and a 10 minute grace period runs to 14:59:18. My vehicle left at 15:00:24, 1 minute 6 seconds later (2 minutes on the Claimant's rounded figure). On version 9 alone the allowance is 3 hours 10 minutes. On either basis the Claimant must show that the parking event, as distinct from the time on site, exceeded the allowance, and it has produced no evidence of that. I ask the court to find that a breach has not been proved or, if there is any excess, that it is minimal.
    
    The £70 "debt recovery" charge
    
20. The sign I photographed on 10 May 2026 (EXHIBIT-3) says a parking charge of "up to £100" applies and states only that additional costs and debt recovery charges "may be incurred" if the charge is not received within 28 days. It states no amount. At paragraph 32 of its statement the Claimant quotes the sign as saying such costs "will be incurred", which is not the wording on the sign I photographed. As at the date of this statement the Claimant has produced no photograph of the signage as it was in June 2024. It must prove what the signs said on that date.
    
21. The figure of £70 first appears in the PCN, sent after the alleged breach (EXHIBIT-5; see also the Claimant's statement, paragraph 25(iii)). The PCN says only that debt recovery or proceedings will incur "fees of up to £70 and/or additional costs", which is a ceiling and an open-ended addition, not a sum due. The Claimant claims exactly £70. The sign refers to additional costs but states no sum, and terms that are not brought to a driver's attention before the contract is made cannot be added afterwards: Thornton v Shoe Lane Parking Ltd (Court of Appeal, 1970). The charge also raises issues of fairness and transparency under sections 62 and 71 of the Consumer Rights Act 2015.
    
22. The Claimant must prove that it actually incurred the £70. Its statement gives no breakdown of any such cost. The same sum is claimed on top of the limited costs recoverable on the small claims track, and the Claimant also asks for costs at paragraph 35. I say this is double recovery
    
23. The CMA's open letter to private parking operators of 16 July 2026 (EXHIBIT-10, paragraphs 35 to 43 of the letter) states its concern that operators rely on additional-fee terms that are unclear, unquantified or in small print, and that such terms may not have been incorporated into the contract, or may be unfair under section 62 of the Consumer Rights Act 2015 and not transparent under section 68. It notes that the Code's allowance of up to £70 does not itself make a fee recoverable or any term fair, and that such fees can produce sums beyond what the small claims costs rules allow. The sign in this case says only that such costs "may be incurred" and states no amount. I rely on the CMA's view on that point.
    
    Interest
    
24. The particulars of claim describe the whole £170 as the unpaid parking charge, although the sign states a charge of "up to £100". They claim interest of £25.60 at 8% a year "from due date" to 5 May 2026, at a daily rate of £0.04. Those figures correspond to interest on £170 (about £13.60 a year, or £0.04 a day) running for about 687 days from the date of the alleged breach, 17 June 2024. In other words, interest has been charged on the £70 as well as the £100, from the day of the alleged breach. On the Claimant's own case the £70 can only arise if the charge is unpaid after 28 days, so it cannot have been due on 17 June 2024. The Claimant's statement (paragraph 33) reaches the same total of £195.60 but describes the interest differently, as 8% of £100 from 14 days after the alleged breach. On that basis interest to 5 May 2026 would be about £14.75, not £25.60 (EXHIBIT-8). I ask the court to find that the interest claimed is overstated.
    
    The landowner's authority
    
25. At paragraph 27 the Claimant says only that it holds "a written agreement" with the owner or occupier. I put the Claimant to proof of a complete, unredacted contract in force on 17 June 2024 that authorises it to issue parking charges and to sue in its own name. A witness's assertion is not enough.
    
    Signage
    
26. EXHIBIT-3 is a photograph I took on 10 May 2026 of a sign in the car park. I do not have a photograph of the signage as it was on 17 June 2024. The Claimant must prove what the signs said on that date. The PCN gives the term as "Maximum 3 hours free parking. Thereafter permit holders only" (EXHIBIT-5), which is not the wording on the sign I photographed, which reads "3 Hours Maximum Stay . It states the charge as "up to £100" and the additional costs in smaller print without an amount.
    
27. The Claimant says at paragraph 28 that there were "many clear and visible signs" but has produced no site plan or dated photographs showing where they were on 17 June 2024. It is for the Claimant to prove that the terms were fairly and prominently brought to drivers' attention at the time.
    
28. The sign at the entrance. EXHIBIT-11 is a photograph I took on 13 October 2026 of the sign at the car park entrance as it is now. It says "Maximum Parking Terms Apply" and "See car park signs for terms & conditions", and it states no time limit, no charge and no exception. EXHIBIT-12 is a capture from Google Street View dated March 2023 showing a sign with the same wording near the leisure centre building. I believe it is the same sign, which has since faded. The Claimant must prove what the signage was on 17 June 2024. If the sign was as it is now, a driver entering the car park could not read any of the terms at the entrance and would have to look for other signs inside the site. That bears on the time a driver reasonably needs to understand the terms and decide whether to park (EXHIBIT-10, paragraph 19 and footnote 17 of the letter), and on the Claimant's statement at paragraphs 15 and 16 that the terms are displayed at the entrance.
    
    Particulars of claim
    
29. The particulars of claim give the date, the times in and out (11:44 and 15:00), the name of the car park and a sum of £170, but they do not identify the term said to have been breached. CPR 16.4(1)(a) and Practice Direction 16 require a concise statement of the facts relied on. In Civil Enforcement Ltd v Chan (HHJ Murch, 15 August 2023) a claim was struck out for that reason.
    
    Costs
30. I ask that the Claimant's request for costs at paragraph 35 of its statement be refused beyond what CPR 27.14 permits on the small claims track. I will have to take a day off contracted work to attend the hearing and will lose a day's earnings. If I succeed, I ask the court to order the Claimant to pay my loss of earnings up to the maximum allowed by CPR 27.14(2)(e) and paragraph 7.3 of Practice Direction 27, together with my reasonable travel expenses. If the court finds that the Claimant has behaved unreasonably, I ask for costs under CPR 27.14(2)(g).
    
    Conclusion
31. For the reasons above I ask the court to dismiss the claim. In the alternative, I ask the court to find that the £70 and interest are not recoverable. I reserve the right to serve a short supplementary statement if the Claimant serves further evidence.
    

Statement of truth
I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Coupon-mad

Sorry I'm a seagull on a European Tour right now but someone else might reply.

justice_4all

@Gr1pr @Le_Kirk not sure if you would be able to have a quick look over my above witness statement? any feedback would be a great help. Thanks

ChirpyChicken

It will discontinue

Le_Kirk

If your WS backs up and supports what you submitted in your defence, your narrative is true and accurate and you have added the evidence as suggested by @Coupon-mad in the NEWBIE second post, listed as a) to i), then it looks OK. If you used Chan & Akande in your defence, you should add those judgments to your evidence list - you seem to only refer to Chan. I would give more prominence (move it up the list so the judge reads it early) to your paragraph #29 as surely that is one of your main arguments.

Gr1pr

The named EXHIBITS should have your personal initials and a number, so for Elvis it would be

EAP01 , EAP02 etc

MothballsWallet

https://forums.moneysavingexpert.com/discussion/comment/82105513#Comment_82105513

Sorry, just catching up on the board:

OP, the mediator cost their employer 3 phone calls rather than 1.