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  • FIRST POST
    • superstitiious
    • By superstitiious 30th Oct 17, 11:18 PM
    • 23Posts
    • 8Thanks
    superstitiious
    CEL Claim Defence
    • #1
    • 30th Oct 17, 11:18 PM
    CEL Claim Defence 30th Oct 17 at 11:18 PM
    Hi all,

    I've been ignoring letters etc from CEL since Jan 2017 regarding an overstay at a carpark which is a retail/GP surgery car park. The driver was not me, and the overstay was by a few minutes. Neither the driver nor myself were aware that the car park had a time limit and having since returned to see signs etc, they are there but hard to see etc.

    I have acknowledged with the court, and will now start writing my defence having read the newbies thread and started this one as suggested. I'd be more than grateful of any support, and editing of the defence as and when I post it.

    Thanks in advance, an apprehensive but hopeful individual,
    Alan.
Page 3
    • superstitiious
    • By superstitiious 31st Dec 18, 2:44 AM
    • 23 Posts
    • 8 Thanks
    superstitiious
    The 11th Hour
    In the County Court at xxxxxxxxxxxxxx
    Claim No.xxxxxxxxxxxx

    Between

    Civil Enforcement Ltd (Claimant)

    and

    xxxxxxxxxxxxxxxx (Defendant)

    -------------------------
    Witness Statement
    -------------------------

    1. I am xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxx, the Defendant in this matter. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief.

    2. I am the registered keeper of the vehicle in question, xxxxxxxxxxxxxxxxxxxxxxx but I am not the main driver of the vehicle as seen on exhibit XXX1: Vehicle Insurance Certificate. I have only driven this car on 5 occasions and these have been long journeys, never to this retail car park.

    3. Exhibit XXX2 shows the my working diary, a SIMS screenshot of the day in question: xxxxxxxxxxxxxxxxxxxxxx, which shows that I was at work between the hours of 8:40am and 1:30pm. I could not have been the driver due to this.

    4. The paragraph numbers mentioned below relate to the Witness Statement filed by the Claimant, Ashley Cohen.

    5. RE #8: The claimant submits that the defendant is the responsible person in charge of the vehicle which has incurred the charges referred to in Mr Cohen’ witness statement.

    6. This is denied and Ashley Cohen was not there and has no knowledge of who was driving on any occasion. However, unlike Mr Cohen, I do have knowledge and attest that I was not the driver.

    7. RE #4 & #6: The claimant submits to have many “clear and visible signs in the car park”. Exhibit 1 & Exhibit 3 are the claimant’s claims that these photographs are a true representation of the signs.

    8. This is denied, not least because the photos are undated and are not a true representation of the signage in place on the day in question.

    9. I have since visited the retail park to review the signage and can attest that they are not clear and visible, and are quite the contrary. The claimant’s exhibit 3 shows a sign that the defendant could not find during their visit. I have taken photos (Exhibit XXX3, XXX4, XXX5 & XXX6) of the signs and it can be noted that they are faded, distorted and are located at least 10 feet off the ground making them very difficult to read and not signs that are prominent with large lettering.

    10. I have captured footage of the journey into the car park (Exhibit XXX7), and it can be seen that it is a difficult entry into a car park where any driver’s attention would be on the road and the blind corner to the right rather than the signs that are on the side of the road. The claimant have a small sign above the chevron seen on the first corner and watching the video at normal pace it is difficult to make out what it says when the driver’s focus is on the road and avoiding any other vehicles approaching as it is a blind bend. It can then be noted that on the next corner there are no obvious visible signs. The 3rd corner shows a 10mph sign which is prominent, taking focus away from the faded sign that the claimant claims to be “clear and visible”.

    11. These inadequate signs are incapable of binding any driver which distinguishes this case from the case of ParkingEye v Beavis [2015] UKSC 67 (the Beavis case). Signage that is sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage – breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract could be formed to pay any clearly stated sum. The terms were not legible, this is an unfair contract, not agreed by any driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as compensation from any authorised party using the premises as intended.

    12. Re #16: The claimant states that the defendant did not respond to any of the notices referred to in Mr Cohen’s WS, nor were the parking charges settled or appealed.

    13. I did not respond to the brightly-coloured alarmist Notices sent to me by the claimant because I believed they were spam (this sort of scam had been exposed on Watchdog & The Jeremy Vine Show on Radio 2). Also, as I was not the driver and these were not offences or fines from an Authority like a Council, there was no reason or obligation upon a registered keeper to ‘appeal’ to what appeared to be junk mail. I have since researched this, hence my knowledge that these are non-POFA PCNs, incapable of holding me liable anyway.

    14. Re #18: The Claimant seeks to apportion blame to a keeper for not responding to their letters and for not naming the driver.

    15. This is not an obligation or a failure on my part; I had no reason to respond and this is supported by my Exhibit XXX8, an extract from the POPLA Annual Report 2015 (Paragraph 3, Page 13).

    16. Barrister and parking law expert Henry Greenslade was the ‘POPLA’ (‘Parking on Private Land Appeals’ independent service offered by the BPA) Lead Adjudicator from 2012 – 2015 and Civil Enforcement Ltd was under that Trade Body at the time of the first mentioned in this claim. I adduce as evidence Mr Greenslade’s opinion in the POPLA Annual Report 2015 which confirms that there is no presumption in law that a keeper was the driver and that keepers do not have any legal obligation whatsoever, to name drivers to private parking companies. No adverse inference can be drawn from my choice not to respond to what appeared to be spam. I refer you to paragraphs 8 and 14 from the claimant’s witness statement which state “The defendant parked his vehicle”.

    17. Re #17: The claimant did not issue correctly the PCN under Schedule 4 or Protection of Freedoms Act (POFA) 2012. As stated in Schedule 4.4(2a), the conditions specified in paragraphs 5,6,11 &12 need to have been met. Schedule 4.12 (1) states that any applicable requirements prescribed under this paragraph were met at the beginning of the period of parking to which the unpaid parking charges relate. Schedule 4.12 (2) states:

    “The appropriate national authority may by regulations made by statutory instrument prescribe requirements as to the display of notices on relevant land where parking charges may be incurred in respect of the parking of vehicles on the land.

    The provision made under sub-paragraph (2) may, in particular, include provision—
    (a)requiring notices of more than one kind to be displayed on any relevant land;
    (b)as to the content or form of any notices required to be displayed; and
    (c)as to the location of any notices required to be displayed.”

    18. I reference paragraph 9 and 10 of this witness statement regarding the signage witnessed at the retail park which are not complicit of the above (paragraph 17).

    19. Re #7: The claimant cites Vine vs Waltham Forest LBC [2002] regarding the presence of notices which are posted.

    20. Even though I was not the driver. I submit that the case of Vine vs Waltham Forest LBC [2002] supports my case and not the claimants.

    21. Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the BPA and IPC Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently and in far larger lettering, with fewer words and more prominent colours.


    I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

    Statement of Truth

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

    Signature
    Date
    • superstitiious
    • By superstitiious 13th Jan 19, 10:30 PM
    • 23 Posts
    • 8 Thanks
    superstitiious
    Hearing tomorrow afternoon.

    Wish me luck!
    • Coupon-mad
    • By Coupon-mad 14th Jan 19, 1:18 AM
    • 65,698 Posts
    • 78,231 Thanks
    Coupon-mad
    Let us know how you get on! Get there half an hour early to get through security and to calm down, drink some water, etc.

    The other side's rep will probably try to collar you in the waiting room. Say no to any invitation to discuss the case/a settlement or to explain what you main points of defence are (his/her problem if he/she doesn't know due to being sent there with no notice!).

    Take your laptop to play the footage you mention, and ask the Usher on arrival if this will be OK, just to be courteous and to be sure it will not be a problem with this Judge.

    Take PROOF that you emailed the Claimant, your WS & evidence including the footage (print out your sent emails & attachment proof, or a read receipt or acknowledgement email if you got one). This is in case the rep pretends the C never was served your evidence and tries to object to it being used.

    Also take a wage slip, or proof of daily earnings, as proof of any lost leave/lost salary or income, and if you win, ask for your costs when the Judge finishes, clear your throat and just ask. Lost leave/salary, travel costs, parking costs(!) and if you feel the Judge is on your side, ask for, say, 15 hours time spent researching the law and preparing as a LiP not used to court, at the LiP rate of £19 per hour.

    You might not get that last bit and it depends if you can convince an on-side Judge that the C has acted wholly unreasonably throughout, such as harassing you with debt letters along the way, not following the pre-action protocols, sending a late WS, trying to spring evidence on you late or pretending that yours was never received when you can prove that's a lie, or whatever.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • superstitiious
    • By superstitiious 14th Jan 19, 7:48 AM
    • 23 Posts
    • 8 Thanks
    superstitiious
    Thank you very much for your words, I've woken up this morning feeling the most nervous I think I ever have. I hadn't thought of taking my laptop so that's a brilliant idea, thank you again!
    • superstitiious
    • By superstitiious 14th Jan 19, 3:06 PM
    • 23 Posts
    • 8 Thanks
    superstitiious
    Sadly I have to report a loss.

    I don't think I'd have got anywhere with this case as the judge was adamant in his opening that he frequents the same car park and has seen the plentiful signs that are there. He also was quite angry that I'd not appealed at the start.

    In summary to anyone reading this that have a PCN - appeal!!!! I'm so annoyed that I didn't, I've learnt a harsh lesson!

    Silver lining - the judge set the amount at £100 plus costs and dismissed that it was £324. Costs were £100, the representative didn't ask for his fees or travel costs etc so it's £200 in total.

    Thank you to those that have helped, I hope I never have to post in the parking threads again!!!

    I now have no idea how to pay this, do I wait for the appropriate mail through the post?
    • Coupon-mad
    • By Coupon-mad 14th Jan 19, 9:08 PM
    • 65,698 Posts
    • 78,231 Thanks
    Coupon-mad
    Awww, no. You need to pay CEL directly, so phone them to pay the £200.

    Such a shame, which court was this? Sounds like the Judge was set in his view. Sorry to hear that, we do very occasionally see a Judge where the D has no chance.

    As you know, you would have likely win at POPLA had you appealed as per the forum advice.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • superstitiious
    • By superstitiious 14th Jan 19, 10:02 PM
    • 23 Posts
    • 8 Thanks
    superstitiious
    Stoke on Trent

    Judge was definitely against me. Told the claimant that he didn't want to hear anything from him and could only speak to counter anything I said.

    Judge described the journey into the car park and commented on ALL the signs that are visible (they're not by a long shot as almost every person I've spoken to about this car park have been fined without realising). As soon as I started talking he interrupted and stopped me by saying it didn't matter what my opinion of the signage was as I wasn't driving. I knew it was a lost cause at this point and was pleased the amount was lowered to £100. The costs I didn't understand, the judge said there was 2 sets of £25 and one for £50 for prepping the hearing. I'm assuming I'm not being fleeced though! Ha!

    If I hadn't have prepared anything and just turned up today I think I'd have the same outcome. Shame but I'm determined to get CEL to change their signage as a result so others don't fall foul.

    Thanks for the post this morning coupon, it helped me focus on the task ahead!

    As for the appeal, I wrongly listened to poor advice to ignore until it was too late. Won't make that mistake again! Thanks again.
    • Coupon-mad
    • By Coupon-mad 15th Jan 19, 6:54 PM
    • 65,698 Posts
    • 78,231 Thanks
    Coupon-mad
    and one for £50 for prepping the hearing. I'm assuming I'm not being fleeced though!
    Well they can claim any genuine £50 solicitors fees but not when they don't use a solicitor, which CEL don't. So that £50 was not recoverable and the Judge was an idiot.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • superstitiious
    • By superstitiious 15th Jan 19, 7:50 PM
    • 23 Posts
    • 8 Thanks
    superstitiious
    Ha, I was thinking worse things yesterday! I'm glad it's over now so once again, thanks for all your help ����
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