Popla appeal unsuccessful...Civil Enforcement

Amended draft witness statement:



In the XXXXXXXX County Court at
Claim No. XXXXXXXX
Between
Civil Enforcement Ltd (Claimant)
and
XXXXXXXXX (Defendant)

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Witness Statement

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My defence is repeated.

1. I am XXXXXXXX of XXXXXXXXXXXX, the Defendant in this matter. I assert that I am not liable to the claimant for the sum claimed, or any amount at all, for the following reasons:

2. On XXXXXXXX, I parked my vehicle, registration number XXXXXXX, in the car park at XXXXXXXXXX. I made payment in full of the amount due. Payment for parking was made using the pay and display ticket (PDT) machine and a ticket was obtained. Exhibit 1 parking ticket obtained showing amount paid.

2.1. I complied with my understanding of the requirement to enter the vehicle number, given that many car parks require only the numbers to identify a case to match a payment. There was nothing displayed on the signage to say that charges would be made for failing to enter the entire registration number.

2.2 The sign doesn’t actually stipulate a full registration number to be entered so as I paid the full amount due and the Claimant had sufficient details to allow them to check that, then they should have rectified their data to match the payment. Whilst it may not have been unreasonable to issue the ticket, this should have gone away pre-issue, once payment was clarified. Indeed, that is the purpose of the protocol to resolve simple points like that without the need to involve the Court. The Claimant pressing on with this is both disproportionate and arguably unreasonable. Exhibit 2 copy of sign.

2.3 The payment channel did not indicate any failure to make payment, nor prompt a driver to also enter letters as well as the vehicle numbers and a ticket was provided so the defendant concludes that the contract de facto granted a parking session based on the numbers only.

3. I received a parking charge notice (PCN) some weeks later from the claimant by post and I did not know at this point why it had been issued as payment had been made in full and a ticket displayed. The PCN failed to set out the reasons for the parking charge. Exhibit 3 PCN received.

4. I appealed to POPLA and was then informed that the reason for the issue of the
PCN was that I had entered only the ‘numbers’ from the vehicle registration number (VRN). I was provided with a list of 32 VRN payments from that site alone. Exhibit 4 list received.

4.1. Three drivers had made the same error and one had entered only the letters from the VRN. Thus 10% of paying patrons had interpreted the signs to mean a partial number or set of letters was enough to identify their vehicle. The VRN list also appears to have been tampered with. There are obvious deletions or alterations of more than one entry, with an inexplicable and highly unlikely two-two and a half hours missing. This echoes the altered VRN list (alleged to be fraudulent/contempt of court) in the recent case in the public domain, where Excel Parking Services Ltd were reportedly held to have tampered with a VRN list from a PDT machine which they produced as ‘evidence’. This alteration horrified a Skipton Court Judge who ordered punitive costs on the indemnity basis, and later in 2018 the facts were restated in the order by HHJ Gosnell declining Excels appeal (ref: Excel v Ambler, case no. E1DP2061).

5. The fact that payment had been made would have been captured by ANPR and the claimant had enough information to conclude from their secondary data stream ANPR)
that an oversight (human error) had been made, yet instead of rectifying their data to match the payment, they contacted DVLA to obtain my personal details. Parking firms are also prohibited from issuing ANPR PCNs without manual checking by human intervention (BPA Code of Practice and AOS rules).

5.1 Given that I had appealed and the ANPR camera system, which proved which single car with the age identifier ‘52’ was actually in this car park, the Claimant knew about the error and had ample opportunity to rectify the inaccurate data held by one of their two conflicting data systems.

5.2 At all times, from the ANPR image, the Claimant knew the correct VRN and it is averred that the PCN cannot have been properly or fairly checked before it was issued, since there was nothing to deter and no legitimate interest in merely penalising a consumer.

6. Between 5th July 2016 and 24th August 2018 I received several letters from the claimant and debt collectors acting on behalf of the claimant, asking for payment to be made, or court proceedings would be issued I responded to some of those letters disputing the debt and asking for a fully compliant letter before action to be sent. At no time did the Claimant try to resolve the matter. Exhibit 4 copy correspondence received.

7. On 4th October 2018 I received a Copy of a claim form which had been issued by the claimant.

7.1 The claim appears to be based upon damages for breach of contract. However, it is denied that any contract existed beyond the agreement to pay the tariff and identify the car ‘number’. Accordingly it is denied that I breached any contractual terms, whether express, implied or by conduct.

7.2 The charge offends against the reasonable and statutory expectations of trader/consumer relations requiring ‘ open dealing’ and the doctrine of good faith. There was a complete lack of any fair warning on the screen: “are you sure, have you entered your full VRN? A penalty of £100 applies if inaccurate or incomplete number plates are entered here”. In fact, the signature images shown to POPLA ( which did not include any images of the instructions at the PDT machine) do not even show – anywhere a sum of £100 to be paid. If it is there it is positively hidden, buried in small print; only the £1 and £5 alternative tariffs could possibly be deemed ‘agreed’ and understood.

7.3 I maintain that there was no relevant contract or obligation or burden that could fairly and squarely fall at my feet that day, and that such an imbalance in consumer rights and interests certainly falls under Part 2 ‘Prohibitions’ of the Consumer Protection from Unfair Trading Regulations 2008.




To quote from the decisions during the course of the court process in Beavis:

8. The Claimant may try to rely upon the completely different Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67. However, the Defendant avers that decision confirms the assertion that this charge is unconscionable, given the fact that the innocent conduct of the Defendant caused no issues to other drivers, took up no valuable parking space that the driver was not entitled to use, and the sum for parking was in fact, paid. So there was no disincentive or deterrent excuse, no compelling legitimate interest to save this charge from the penalty rule, which the Supreme Judges stated, starts as 'engaged' in all parking charge cases.

9. At the Court of Appeal (these findings were not overturned):
Para 46: ''The terms of use of the car park need, therefore, to provide a disincentive to drivers which will make them tend to comply with the two hour limit. That is afforded by the parking charge of £85. It would not be afforded by a system of imposing a rate per hour according to the time overstayed...''

Para 47: ''...When the court is considering an ordinary financial or commercial contract, then it is understandable that the law [...] should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.” ''

9.1 At the Supreme Court:

At para #22, the Supreme Court explored Lord Dunedin's speech inDunlop: ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was unconscionable or extravagant. [...] The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''

Para 32: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest {of ParkingEye} [...] In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.''

Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.

Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''


Authorities other than Beavis, better apply to the instant case

10. . It is the Defendant's case that the correct authorities in a PDT machine car parking case are not Beavis at all, but instead, due to the above quoted precedent findings, Kemble v Farren is the correct authority regarding this sort of of unrecoverable penalty, as well as:

10.1 Spurling v Bradshaw [1956] 1 WLR 461 where Denning LJ held that a person will not be bound by terms of a contract of which he has not received reasonable notice: ''I quite agree that the more unreasonable a clause is, the greater the notice which must be given of it. Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it, before the notice could be held to be sufficient'', and

10.2 Jolley v Carmel Ltd [2000] 2 –EGLR -154, where it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach, and

10.3 Thornton v Shoe Lane Parking Ltd [1971] QB 163, where it was held that the machine itself constituted the offer. The acceptance was by putting the money into the machine. The ticket was dispensed after the acceptance took place; therefore another unknown/hidden clause that the driver learned about too late, was not incorporated into the contract.

No standing or landowner authority

11. Further and in the alternative, the Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices under defined and to form/offer contracts in their own name, and to pursue payment by means of litigation.

No legitimate interest or commercial justification

12. It is my case that there can be no legitimate interest or commercial justification in pursuing paying patrons for a hundredfold penalty, for the ordinary and reasonable conduct explained in this witness statement.

12.1 The penalty represents neither a necessary deterrent, nor an understandable ingredient of a scheme serving legitimate interests, and the Beavis case is distinguished.

Unconscionable sum claimed - double recovery - abuse of process

13. In addition to the original parking charge, for which liability is denied, the Claimant has artificially inflated the value of its claim by adding purported but unsupported damages, admin, debt collector or other costs, which I submit have not actually been incurred at all. The claim flows from an alleged (already hugely inflated) contractual parking charge of £100 but the sum on the claim form is more than three times this sum. I aver that this inflation of the considered amount is a gross abuse of process.

13.1 The Claimant is a serial offender on this regard and must be well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims track. According to Ladak v DRC LocumsUKEAT/0488/13/LA the Claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost.

14. I deny any liability whatsoever to the Claimant in any matter and ask the Court to note that the Claimant has failed to disclose any cause of action in the Claim Form, where the sparse cut & paste particulars are embarrassing and give rise to no recognisable claim in law.

15. I invite the Court to dismiss this Claim in its entirety, and to award my costs of attendance at the hearing, permissible under Civil Procedure Rule 27.14.

I believe the facts stated in this Witness Statement are true.

I would be grateful if you could confirm whether any further amendments need to be made - thanks



In the XXXXXXXX Court at
Claim No. XXXXXXXX
Between
XXXXXXXX (Claimant)
and
XXXXXXXX(Defendant)

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Witness Statement

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My defence is repeated.

1. I am XXXXXXXX,of XXXXXXXX, the Defendant in this matter. I assert that I am not liable to the claimant for the sum claimed, or any amount at all, for the following reasons:

2. On XXXXXXXX, I parked my vehicle, registration number XXXXXXXX, in the car park at XXXXXXXX. I made payment in full of the amount due. Payment for parking was made using the pay and display ticket (PDT) machine and a ticket was obtained. Exhibit 1 parking ticket obtained showing amount paid.

2.1. I complied with my understanding of the requirement to enter the vehicle number, given that many car parks require only the numbers to identify a case to match a payment. There was nothing displayed on the signage to say that charges would be made for failing to enter the entire registration number.

2.2 The sign doesn’t actually stipulate a full registration number to be entered so as I paid the full amount due and the Claimant had sufficient details to allow them to check that, then they should have rectified their data to match the payment. Whilst it may not have been unreasonable to issue the ticket, this should have gone away pre-issue, once payment was clarified. Indeed, that is the purpose of the protocol to resolve simple points like that without the need to involve the Court. The Claimant pressing on with this is both disproportionate and arguably unreasonable. Exhibit 2 copy of sign.

2.3 The payment channel did not indicate any failure to make payment, nor prompt a driver to also enter letters as well as the vehicle numbers and a ticket was provided so the defendant concludes that the contract de facto granted a parking session based on the numbers only.

3. I received a parking charge notice (PCN) some weeks later from the claimant by post and I did not know at this point why it had been issued as payment had been made in full and a ticket displayed. The PCN failed to set out the reasons for the parking charge. Exhibit 3 PCN received.

4. I appealed to POPLA and was then informed that the reason for the issue of the
PCN was that I had entered only the ‘numbers’ from the vehicle registration number (VRN). I was provided with a list of 32 VRN payments from that site alone. Exhibit 4 list received.

4.1. Three drivers had made the same error and one had entered only the letters from the VRN. Thus 10% of paying patrons had interpreted the signs to mean a partial number or set of letters was enough to identify their vehicle. The VRN list also appears to have been tampered with. There are obvious deletions or alterations of more than one entry, with an inexplicable and highly unlikely two-two and a half hours missing. This echoes the altered VRN list (alleged to be fraudulent/contempt of court) in the recent case in the public domain, where Excel Parking Services Ltd were reportedly held to have tampered with a VRN list from a PDT machine which they produced as ‘evidence’. This alteration horrified a Skipton Court Judge who ordered punitive costs on the indemnity basis, and later in 2018 the facts were restated in the order by HHJ Gosnell declining Excels appeal (ref: Excel v Ambler, case no. E1DP2061).

5. The fact that payment had been made would have been captured by ANPR and the claimant had enough information to conclude from their secondary data stream ANPR)
that an oversight (human error) had been made, yet instead of rectifying their data to match the payment, they contacted DVLA to obtain my personal details. Parking firms are also prohibited from issuing ANPR PCNs without manual checking by human intervention (BPA Code of Practice and AOS rules).

5.1 Given that I had appealed and the ANPR camera system, which proved which single car with the age identifier ‘52’ was actually in this car park, the Claimant knew about the error and had ample opportunity to rectify the inaccurate data held by one of their two conflicting data systems.

5.2 At all times, from the ANPR image, the Claimant knew the correct VRN and it is averred that the PCN cannot have been properly or fairly checked before it was issued, since there was nothing to deter and no legitimate interest in merely penalising a consumer.

6. Between 5th July 2016 and 24th August 2018 I received several letters from the claimant and debt collectors acting on behalf of the claimant, asking for payment to be made, or court proceedings would be issued I responded to some of those letters disputing the debt and asking for a fully compliant letter before action to be sent. At no time did the Claimant try to resolve the matter. Exhibit 5 copy correspondence received.

7. On 4th October 2018 I received a Copy of a claim form which had been issued by the claimant.

7.1 The claim appears to be based upon damages for breach of contract. However, it is denied that any contract existed beyond the agreement to pay the tariff and identify the car ‘number’. Accordingly it is denied that I breached any contractual terms, whether express, implied or by conduct.

7.2 The charge offends against the reasonable and statutory expectations of trader/consumer relations requiring ‘ open dealing’ and the doctrine of good faith. There was a complete lack of any fair warning on the screen: “are you sure, have you entered your full VRN? A penalty of £100 applies if inaccurate or incomplete number plates are entered here”. In fact, the signature images shown to POPLA ( which did not include any images of the instructions at the PDT machine) do not even show – anywhere a sum of £100 to be paid. If it is there it is positively hidden, buried in small print; only the £1 and £5 alternative tariffs could possibly be deemed ‘agreed’ and understood.

7.3 I maintain that there was no relevant contract or obligation or burden that could fairly and squarely fall at my feet that day, and that such an imbalance in consumer rights and interests certainly falls under Part 2 ‘Prohibitions’ of the Consumer Protection from Unfair Trading Regulations 2008.


No standing or landowner authority

8. Further and in the alternative, the Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices under defined and to form/offer contracts in their own name, and to pursue payment by means of litigation.

No legitimate interest or commercial justification

9. It is my case that there can be no legitimate interest or commercial justification in pursuing paying patrons for a hundredfold penalty, for the ordinary and reasonable conduct explained in this witness statement.

9.1 The penalty represents neither a necessary deterrent, nor an understandable ingredient of a scheme serving legitimate interests, and the Beavis case is distinguished.

Unconscionable sum claimed - double recovery - abuse of process

10. In addition to the original parking charge, for which liability is denied, the Claimant has artificially inflated the value of its claim by adding purported but unsupported damages, admin, debt collector or other costs, which I submit have not actually been incurred at all. The claim flows from an alleged (already hugely inflated) contractual parking charge of £100 but the sum on the claim form is more than three times this sum. I aver that this inflation of the considered amount is a gross abuse of process.

10.1 The Claimant is a serial offender on this regard and must be well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims track. According to Ladak v DRC LocumsUKEAT/0488/13/LA the Claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost.

11. I deny any liability whatsoever to the Claimant in any matter and ask the Court to note that the Claimant has failed to disclose any cause of action in the Claim Form, where the sparse cut & paste particulars are embarrassing and give rise to no recognisable claim in law.

12. I invite the Court to dismiss this Claim in its entirety, and to award my costs of attendance at the hearing, permissible under Civil Procedure Rule 27.14.

I believe the facts stated in this Witness Statement are true.




‘Skeleton argument – penalising a driver for a minor keying error is unfair , unconscionable, in breach of the Consumer Rights Act 2015 and the Beavis case is fully distinguished’.


1.The Claimant may try to rely upon the completely different Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67. However, the Defendant avers that decision confirms the assertion that this charge is unconscionable, given the fact that the innocent conduct of the Defendant caused no issues to other drivers, took up no valuable parking space that the driver was not entitled to use, and the sum for parking was in fact, paid. So there was no disincentive or deterrent excuse, no compelling legitimate interest to save this charge from the penalty rule, which the Supreme Judges stated, starts as 'engaged' in all parking charge cases.

2. At the Court of Appeal (these findings were not overturned):
Para 46: ''The terms of use of the car park need, therefore, to provide a disincentive to drivers which will make them tend to comply with the two hour limit. That is afforded by the parking charge of £85. It would not be afforded by a system of imposing a rate per hour according to the time overstayed...''

Para 47: ''...When the court is considering an ordinary financial or commercial contract, then it is understandable that the law [...] should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.” ''

2.1 At the Supreme Court:

At para #22, the Supreme Court explored Lord Dunedin's speech inDunlop: ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was unconscionable or extravagant. [...] The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''

Para 32: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest {of ParkingEye} [...] In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.''

Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.

Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''


Authorities other than Beavis, better apply to the instant case

3. It is the Defendant's case that the correct authorities in a PDT machine car parking case are not Beavis at all, but instead, due to the above quoted precedent findings, Kemble v Farren is the correct authority regarding this sort of of unrecoverable penalty, as well as:

3.1 Spurling v Bradshaw [1956] 1 WLR 461 where Denning LJ held that a person will not be bound by terms of a contract of which he has not received reasonable notice: ''I quite agree that the more unreasonable a clause is, the greater the notice which must be given of it. Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it, before the notice could be held to be sufficient'', and

3.2 Jolley v Carmel Ltd [2000] 2 –EGLR -154, where it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach, and

3.3 Thornton v Shoe Lane Parking Ltd [1971] QB 163, where it was held that the machine itself constituted the offer. The acceptance was by putting the money into the machine. The ticket was dispensed after the acceptance took place; therefore another unknown/hidden clause that the driver learned about too late, was not incorporated into the contract.


4. The recent BPA and IPC Trade Body directions to parking firms, telling them that they are expected to put the motorist at the heart of their thinking and not to pursue minor keying oversights (given that the ANPR data tells the parking firm which car a payment relates to. Exhibit 6 pages 6&7 “simple keying errors”. Exhibit 7 The Fairness Test Consumer Rights Act 2015.

Thank you so much for your help!

Can you confirm that it is ok for me to attend Court with my
daughter and act as lay rep which presumably means I
can speak on her behalf?

Also do I need copies of the case notes mentioned throughout in precedent
cases?

Thanks again for your help...much appreciated.

I almost wish I had advised my daughter (step daughter actually) to pay the ticket when it was issued even though it goes against everything I believe in. i can understand why people do just pay up as there are so many hoops to jump through which my step daughter would have found difficult, if not impossible, to negotiate on her own (even with your help). And of course this is what the rogue enforcement companies rely on and why it is so easy for them to rip people off. Are we any nearer to the law being changed to stop these proceedings going so far in these circumstances?