CEL ANPR PCN PAPLOC now claimform - Morrisons, Butterfly Walk Car Park Denmark Hill Camberwell, London SE5 8RW***Claim Dismissed***

[FTMDave]

That is an excellent first draft.  In fact it would probably immediately scupper CEL.

However, if it can be improved, why not?

But that will have to wait for the weekend, work and then football dominate the day at this end

[FTMDave]

OK, I've had a go below.  I've moved loads of stuff about so that the legal arguments flow smoothly.

I've cut out quite of lot that to me is irrelevant to the claim.  It's of no importance if ABC Facilities Management Limited changed offices.  The important bit is that they are shown as running the car park, not CEL.

How you paid/Appendix A isn't needed, nor is the list of letters/Appendix B.  All you need from all of that is your payment receipt.

Keep it simple for the judge.

Additions in red.

Suggestions of further stuff to do in blue.

 

Witness Statement for Defendant

Case: Civil Enforcement Limited v XXXXXXXXXXXXXXX

Claim Number: XXXXXXXXXXXX

Heard at: Dartford County Court, Home Gardens, Dartford, Kent DA1 1DX

Date: Thursday 4th April 2024

Witness: XXXXXXXXXXXXXXXXXXX

Address: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

Date: 19 February 2024

1 SEQUENCE OF EVENTS

1. The vehicle in question utilised the Morrisons Car Park on Butterfly Walk, Denmark Hill on
Saturday 24th April 2021. A ticket was purchased for parking. Appendix A.

2. A parking charge notice (PCN) dated 4th May 2021 was issued by Civil Enforcement Limited (CEL) and was received by
the Defendant, sometime after this date.

3. The PCN was contested by the Defendant but CEL rejected the appeal in a letter dated 11th
May 2021.

4. Numerous letters were issued by the Claimant to the Defendant either directly or via a debt
collection agency between July 2021 and November 2021. A Letter before Claim was issued on 7th July 2022 by CEL, followed by a claim form.

2 INSUFFICIENT SIGNAGE

1.  The Claimant relies on signage to form a contract with the Defendant.

1. The photographs taken in May 2021 of the Car Park area show that the name of the company managing the car park is ABC Facilities Management Limited, 58A Burdett Road, SS1 2TN. This is not the Claimant.  These are
shown Appendix C .

2.  The name Star Park is displayed on the payment machine.  Again, this is not the Claimant.

5. All the signs point to a different company running the car park, not CEL.

6. It should be noted that the single sign says that ‘Refunds of £2.00 can be obtained at
Morrisons when spending £10 in store by presenting your ticket receipt at the till’. This
transaction was done by the Defendant on this day and is noted in the receipt obtained.

1. The signage can be very important as it should comply with Schedule 4 of the Protection of Freedoms Act 2012 and with the British Parking Association (the Claimant's trade association) Code of
Practice. It does not. The entrance sign does not list the Terms & Conditionss so is only an offer to treat, it
does not offer a contract. There is nothing on the sign that mentions the car park is BPA
approved. That is a breach of their Code of Practice. Appendix D.

3. This is the BPA Code of Conduct relating to signage
"19.7 You should display the BPA’s AOS logos at all sites. This will help the public to see that
you are a legitimate operator, and show that the site is run properly".

2. Once inside the car park motorists are faced with three different companies' signage -none of
them are by CEL.  The Defendant cannot see that CEL can lawfully issue PCNs in this
car park when the Terms and Conditions of the companies who have their signage in the car
park need vetting or approval from the DVLA or BPA. Again none of the
signs are marked with the BPA approval sign just like the entrance sign.

Which is the third company?

Why the DVLA?

3.  Admittedly there is mention of the Claimant in the very last lines of the smallest of small print which no motorist is ever going to read even if they could see it with an electron microscope.  These words are insufficient to form a contract with the Claimant, especially given the prominence of ABC Facilities Management Limited on the same sign.

3 NO LOCUS STANDI

1. A letter was issued by the Defendant on 15th November 2022 to CEL which included a CPR
31.14 request. The Defendant had not received a reply to this request. Appendix C.

2.  The request included to see a copy of a contract between the Claimant and the landowner which authorises the Claimant to bring claims under the own name.

2. The defendant believes that CEL do not have a contract with the landlord to enter claims in
their own name as they never produced one after the CPR request and, as explained above, the signage refers to
completely different companies.

4 PCN

1.  The Claimant's PCN does not even state what the driver has done wrong and de facto makes it impossible to successfully appeal.  It states "Payment not made in accordance with terms displayed on signage".

2.  There is no mention of what these mysterious terms are.  Has the driver paid for the wrong class of vehicle?  Has the driver paid but inserted an incorrect registration number?  Has the driver paid but parked in an incorrect area of the car park?  The Defendant is left guessing.

3.  The Defendant certainly paid.

5 ILLEGAL SIGNAGE

6. The CPR request also requested to view planning permission for the signs.  CEL have not produced proof of planning permission after the CPR request.  Town and Country Planning Act 1990 istates that advertisement consent is mandatory for all business and signs that permit trade, etc. The Claimant is in breach of this Act and therefore operating illegally.  Lack of planning permission is a criminal offence and no contract can be formed where criminality is concerned.

Have you checked on the local council's portal if they have PP?

6 DOUBLE RECOVERY

1. The Claimant has artificially inflated their claim for a £100 invoice to £170. This is simply a
poor attempt to circumvent the legal costs cap at small claims.

2. Since 2019, many County Courts have considered claims in excess of £100 to be an abuse of
process leading to them being struck out ab initio.

3. An example, in the Caernarfon Court in VCS v Davies, case No. FTQZ4W28 on 4th September
2019, District Judge Jones-Evans stated “Upon it being recorded that District Judge Jones-
Evans has over a very significant period of time warned advocates (...) in many cases of this
nature before this court that their claim for £60 is unenforceable in law and is an abuse of
process and is nothing more than a poor attempt to go behind the decision of the Supreme
Court V Beavis which inter alia decided that a figure of £160 as a global sum claimed in this
case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable
in law and if the practise continued, he would treat all cases as a claim for £160 and
therefore a penalty and unenforceable in law it is hereby declared (...) the claim is struck out
and declared to be wholly without merit and an abuse of process.”

4. In Claim Nos. F0DP806M and F0DP201T, District Judge Taylor echoed earlier General
Judgment or Orders of District Judge Grand, stating ''It is ordered that the claim is struck out
as an abuse of process. The claim contains a substantial charge additional to the parking
charge which it is alleged the Defendant contracted to pay. This additional charge is not
recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to
the judgment in Parking Eye v Beavis. It is an abuse of process from the Claimant to issue a
knowingly inflated claim for an additional sum which it is not entitled to recover. This order
has been made by the court of its own initiative without a hearing pursuant to CPR Rule
3.3(4) of the Civil Procedure Rules 1998...''

5. The addition of costs not previously specified on signage are also in breach of the Consumer
Rights Act 2015, Schedule 2, specifically paras 6, 10 and 14.

6. It is the Defendant’s position that the Claimant in this case has knowingly submitted inflated
costs and thus the entire claim should be similarly struck out in accordance with Civil
Procedure Rule 3.3(4).

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.

Edited February 24 by FTMDave
Extra info added

[FTMDave]

13 hours ago, lookinforinfo said:

A few minutes over time can be argued away but over 38 minutes is not easy to explain . Is there a reason why you were so much longer than the time you expected?

IIRC the OP made a mistake about how long they had paid for.

13 hours ago, lookinforinfo said:

the PCN does nor comply with the protection of Freedoms Act 2012 since it does not specify the parking period. Obviously the ANPR cameras only record the entry and departure times of vehicles but have no clue how long it takes for motorists  to find a parking spot and then drive into it being careful to park between the lines and then later leave the parking spot and drive to the exit.

An excellent point which needs to go in the WS.

Plus we have just had a persuasive judgement on that point ...

... except that the person on CAG dealing with the case, who is friendly & cooperative, was doing so on behalf of a mate who is too bone idle even to give us the case number, even after us & his mate won the case for him/her.  I've just PM'd the OP about this.

[StoryBoard]

I have checked through the Southwark Planning Portal for Butterfly Walk Shopping Centre (55 results, some Morrisons related, others for other retail units on the same site) from 1987 to present day and there is nothing there to signify planning permission for the photographed car park signs.

The only one signage application granted in 2009 was

09/AP/1221 | Erection of 2 freestanding non-illuminated car park signs facing Daneville Road. | Butterfly Walk Shopping Centre Denmark Hill London SE5 8RW (southwark.gov.uk)

which was on the entrance to the supermarket site car park area but is not relevant to the car park signs.

Other than store signage to change from Somerfield to Morrisons, nothing else was noted. 

[FTMDave]

Good news!

So you can add it to the ILLEGAL SIGNAGE section of the WS.

[StoryBoard]

Evening All

I've updated the WS based on the advice given.

Omitted a lot of the appendices and replaced with other evidence accordingly.

Hopefully picked all your comments up, please read through to ensure this is the case.

Updated the section numbering and added figure captions within the appendices.

I've omitted the section on pay machine transaction and the time taken to actually get this process undertaken, as suggested.

 I've included the CEL response letter within this post as I'm not sure if the 38 minutes needs to be explained in the WS as that section (App A) has now been removed from this latest version.

There are still some items outstanding (red and green text) but I've tried to incorporate all your helpful comments into this latest version.

Many thanks for your assistance.

Can the minor elements be reviewed and comments provided on how best to cover these?

 

Witness statement 03_03_24.pdf CEL response letter 15_08_22.pdf

 

As a aside I did some research on CEL under Companies House and by using other internet searches.

Found another contact address directly for the named person who is a director but that is not relevant to the WS submission or case.

I also don't think it is sensible to list any of this on this forum, but it is interesting to see the background to who these people are.

 

[dx100uk]

if its in the public domain..then go ahead

dx

[FTMDave]

I'll have a good read through tomorrow evening.

As dx says, anything in the public domain ...

Two things.  No WS from CEL yet, right?

By coincidence I had a quick look through your thread last night while half asleep.  I see there's nothing about Keeper Liability in the WS.  To avoid another half-asleep search ... did you out yourself as the driver when you appealed?

[StoryBoard]

I did name myself as driver when I appealed. As it was entered online, I do not have copies of this.

This was before I found this forum.

No WS from CEL received.

[FTMDave]

OK, that explains why there is no section on keeper liability in the WS.  Thought so.

Will have a good read through your WS this evening when I knock off work.

[FTMDave]

That is great work.

Well done.

In 2.6 & 2.7 I think you need to show the relevant section of the CoP as an exhibit.  Just that section, not the whole CoP.

In 2.8 change "three different companies' signage - none of them are by CEL" to "two different companies' signage - neither of them are by CEL". Cut out reference to the DVLA.

I don't think you need 5.3.

I also wouldn't include their letter about the overstay.  Don't do their work for them.  Just leave it that you paid and their PCN didn't point out what you did wrong.

[dx100uk]

well if CEL does not produce proof of your appeal this in their WS....

[StoryBoard]

Response to post #164

1. Under 2.6 with regard to Schedule 4 of PoFA (which is Appendix C of CoP) I wasn't sure which section should be screenshot into the document? I've assumed '(3) For the purposes of sub-paragraph (2) "adequate notice" means notice given by......' and including the rest of section (3).

Does this screenshot add to the WS argument? Does it need to be there....?

2. Under 2.7 I've made amendments as suggested. I have referenced the V8 BPA CoP document valid at the time of the PCN (and inserted a screenshot of clause 19.7). Assume this is correct? (The latest version V9 of the CoP has the same clause and wording).

BPA Approved Operator Code of Practice 2012 Version 8, January 2020   This version will be referred to in relation to any issues of non-compliance taking place up to but not including 1st February 2024.

3. I wasn't including the overstay letter in the WS, just highlighting this to the CAG team. I won't include or reference.

4. I'm still chasing up that case number which I assume would be referenced in 4.2 if found?

I'll post up WS shortly.

 

After spending 31 minutes on hold then being cut off, then another call of 43 minutes to the Court Manager (0300 1235577), I have obtained the case number for the other recent case cited about the length of stay.

K4GF167G

Unfortunately they would not disclose any other information to me, nor who the Judge was or anything to do with the case. They did ask me who I was and how I was related to the case. I explained that I wanted to use the case reference in a witness statement.

Can I have some words to include in my WS should this be referenced. We have Court, Claimant name, Defendant name and the date of hearing. I do not know how to find out details of the outcome but assume we have people on here who can assist if required, should further information be required. 

Assume this helps. 

[FTMDave]

Great detective work!

I'm at work now but will help with this late this evening when I knock off.

[FTMDave]

So, I see you're preparing a section on NO KEEPER LIABILITY.  As part of that simply include two paragraphs.

01.  The Protection of Freedoms Act 2012, Schedule 4, section 9(2)(a) states that the keeper must be supplied with:
“ (1) A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
(2) The notice must
(a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.”

The notice did not specify the period of parking.  Instead it specified the times the vehicle entered and left the car park, which is not the same as the period of parking.  It is simple common sense that the period of parking was shorter.

02.  In the persuasive case K4GF167G heard on 5 January 2024 at Horsham county court, Premier Park Ltd v Mr XXXXX, the judge dismissed the case specifically on this very point that the notice had not included the period of parking.

[lookinforinfo]

The only problem is of course that you outed yourself as the driver which negates the keeper liability argument. The keeper is not liable so only the driver is. 

However even though the car park is small there is a minimum of a 5 minute Consideration period to read the T&Cs as well as a minimum of 10 minutes grace period on leaving. So can you find a further 10 minutes or so to get you to roundabout 38 minutes. 

For instance did you have any children with you or disabled people. Was the road blocked with traffic [difficult as there would have to be other cars who would also have overstayed then] Illness? Long queue in the store and not enough staff at the checkouts? etc

 

[FTMDave]

Sorry, please ignore my last post.  I had forgotten that you outed yourself as the driver.  Thanks LFI for the reminder.

[StoryBoard]

Thanks for the comments. I'm trying to piece what else I need to add to the WS (and what not to).

Should I be looking to:

1. Add the K4GF167G case comment paragraph (from post #168) under the PCN section of the WS regarding the period of parking.

2. The time difference stamped from entering to leaving indicates 1hr 48 mins (the claimant states that I paid for 70 minutes in their letter, which assume covers the 10min grace period they have allocated (post #159)). There is clearly no 70 minutes on the pay sign.

3. I did have issues in paying for the ticket, registering my number plate and then obtaining cash to pay for the parking (there was no means of using debit card to pay). This was included in the first appendices created that I omitted which can explain to show the excess time. Do I put this sequence of events back in (and include indicative periods of time)?

 

Finally, the Trial Fee should have been paid by the Claimant by 4pm on 7th March. Can I easily check if this was done? There is nothing listed on the MCOL website?

[StoryBoard]

Update: After spending another 43 minutes being held on the Court Manager telephone answering system, they confirmed that the Trial Fee was paid on 5th March and the Court has not yet received the Defendants WS. 

[dx100uk]

you mean claimants witness statement

 

[StoryBoard]

Yes, sorry Claimants defence.

[AndyOrch]

32 minutes ago, StoryBoard said:

Yes, sorry Claimants defence.

Statement 

[dx100uk]

a claimant does not make a defence... they are not the defendant...

 

[FTMDave]

Look - apologies.

When we won the persuasive judgement about POFA my thoughts were
   - at last we have a persuasive judgement
   - StoryBoard is going to court soon
   - StoryBoard can use  the persuasive judgement.

It completely slipped my mind - again - that you had outed yourself as the driver so POFA is neither here nor there in your case.

Sorry, all your time on the phone was wasted as you can't use the judgement.  FTMDave holds hands up.

As a tiny justification we are all volunteers here and it's hard to remember every detail of every case, I just presumed like most users you hadn't appealed and hadn't outed yourself as the driver.

[StoryBoard]

No problem FTM. As you can see I'm making mistakes also. But better doing it here than in a submitted WS.

The good thing is at least I've hopefully contributed to someone else's statement by getting the case number for CAG where it could be relevant. I'll upload the latest WS, knowing that some sections now need to be removed. I'd appreciate a check through so that these sections can be removed. Thanks.

I've added Appendix E on potential timings. I wasn't timing but have tried to show the sequence and potential durations whether this should be left in to support the case. Or removed as this is only to the best of my knowledge. 

 

Witness statement 12_03_24.pdf