CEL ANPR PCN Claimform - didn't input reg - moved address - CAR PARK AT ASM SUPERMARKET 75-83 OLDHAM RD Ashton-under-Lyne OL6 7DF***Claim Struck Out***

[xtonehari]

Hello CAG,

 

1 Date of the infringement 28/08/2021

 

2 Date on the NTK [this must have been received within 14 days from the 'offence' date] First NTK not available 

 

3 Date received Don't Know
 

4 Does the NTK mention schedule 4 of The Protections of Freedoms Act 2012? [Y/N?] Don't know
 

5 Is there any photographic evidence of the event? Yes
 

6 Have you appealed? [Y/N?] post up your appeal] No

 

7 Who is the parking company? Civil Enforcement Ltd, BPA

 

8. Where exactly [carpark name and town] ASM Supermarket, Ashton-Under-Lyme

 

I parked in a supermarket car park on 28/08/2021, did some shopping and left. But, I did not know that I had to enter my car reg inside the supermarket to validate. The parking condition says that it is free for supermarket users.

 

After a few days I received the PCN but I did not take any action. Again, I received various letters from different debt collectors to pay the PCN. I did not take any action.

 

Finally, Civil Enforcement have sent "Letter before Action" and Claim form to fill in and send it back to them. 

 

I have attached all the letters and forms received from CIvil Enforcement. 

Please help. 

 

 

PCN+zzps warning+LOC+CEL warning+Claimform.pdf

[xtonehari]

Which Court have you received the claim from ?  Northants bulk
  
Name of the Claimant : Civil Enforcement Ltd
 
Claimants Solicitors: S Wilson
 
Date of issue – 21/04/2023
 
Date for AOS – Not Yet Completed AOS
 
Date to submit Defence – Not yet Submitted
 
What is the claim for – 

1. Claim for money relating to Parking Charge for breach of contract terms/condition for parking in a private car park (CP) managed by Claimant.

 

2. Drivers may only park pursuant to TCs of use displayed in CP and agree upon entry/parking. APNR cameras or manual patrols monitor vehicles entering/exiting the CP and TC breaches.

 

Charges of GBP 182 claimed. 

Violation Date: 20/08/2021

Payment Due Date: 18/09/2021

Time in: 11:48 Time out: 12:26
PCN: xxxxxxx
Vehicle reg mark: xxxxxxx
Car Park: ASM Supermarket
Total due: GBP 182

 

The Claimant claims the sum of GBP 206.25 for the unpaid parking charge inc GBP 24.25 interest under S.69 of the CCA 1984 Rat: 8.00% pa from due date to 20/04/23 Same rate to Judgement or sooner payment at daily rate of GBP 0.04.

 

Total debt and interest due: GBP 206.25

 
What is the value of the claim?
Amount Claimed: £206.25
court fees: £35
legal rep fees: £50
Total Amount: £291.25

 

..........................

 

The problem is that, I moved address a year ago and since then all the PCN letters are sent to my previous address.

[xtonehari]

Given that I did use the supermarket for shopping and parked in their Car Park and I have a credit card statement showing the amount I spent in the supermarket, on this basis can I request for the claim to withdrawn. 

I shop with that supermarket often and was not aware when they introduced APNR car registration, as such I was not aware to enter the my car reg on the device inside the supermarket.

[xtonehari]

I did try speaking to the Supermarket and requesting them if can ask CEL to cancel the PCN. But the supermarket said if it was within two weeks, they could have asked CEL. Since I requested the supermarket after few months, they said, they cannot ask CEL. 

 

What you suggest please. Shall I acknowledge/respond to the Claim online.

[xtonehari]

Could you post the link to the EVERYTHING Guide you are referring to please. 

 

Sorry, I just found your post No5 has EVERYTHING. Thank you

Edited April 26, 2023 by xtonehari

[xtonehari]

I have submitted the AOS part. Please let me know if you would like to see the summary.

 

I will send the CPR 31.14 Request Letter tomorrow. Is it better to send the letter using Signed/Recorded delivery or Standard First Class post please. 

When should I start the Defence on the MCOL please. 

[xtonehari]

NB, I mentioned about moving address at the bottom of post No4. 

[xtonehari]

Hi Dx, I know I have to respond within 33days from the date on the Claim Letter to start the Defence. Does it make any difference if I start the Defence sooner than wait until nearer to the deadline please. 

[xtonehari]

Hi Dx, I have prepared a draft response to the defence. Please have a look and/or advise how to respond to the defence. 
 

Defence - Dispute Reasons

Q1) Do you dispute the claim because you have already paid it?
No, for other reasons

 

Defence - Defence Particulars
Q2) Please state your defence in a maximum of 122 lines in the box below.

II believe that this Parking Charge was issued unfairly. I am not liable for the amount payable because: There was insufficient signage. There was no significant sign at the entrance of the car park so I wasn’t able to determine what the parking restrictions were/that there were in fact any parking restrictions.

 

As claimed by the Claimant (the Parking Charges for breach of contract terms/conditions for parking in a private car park), there was no breach. The car was parked in the Supermarket's car park and the Supermarket was used to purchase groceries on the day. A credit card statement showing the date (20/08/2021) and amount (£58.78) spent in the Supermarket is available as evidence.

Defence - Counterclaim
Q3) Do you wish to make a counterclaim?:mandatory: NO

 

 

[xtonehari]

This is the Draft Defence. I have taken some from points from Andyorch and few point from other post. 

Please let me know if this good and sufficient.  Thank you
 

The Defendant contends that the particulars of claim are vague and are generic in nature which fails to comply with CPR 16.4. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.
 
1. It is denied that the Defendant ever entered into a contract to breach any terms and conditions of the stated private land.
 
2. As held by the Upper Tax Tribunal in Vehicle Control Services Limited v HMRC [2012] UKUT 129 (TCC), any contract requires offer and acceptance. The Claimant was only contracted to provide car park management services and is not capable of entering into a contract with the Defendant on its own account, as the car park is owned by and the terms of entry set by the landowner.
 
3. It is admitted that Defendant is the recorded keeper of the vehicle XXXXXX. The Claimant is not in a position to state if the Defendant was the driver at the time.
  
4. There are no contractual costs and interest cannot be accrued on a speculative charge.
 
5. Therefore the claimant is put to strict proof to evidence its cause of action and contractual costs and what loss it has suffered. 
 
6. The Claimant is further 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, and to pursue payment by means of litigation.
 
7. The Particulars of Claim is denied in its entirety.  It is denied that the Claimant is entitled to the recovery or any recovery at all.
 

8. Notwithstanding the above on 27/04/2023, the Defendant made a request pursuant to CPR 31.14 for the Claimant to disclose the necessary evidence in support of their claim. To this date the claimant has failed to respond to said request.

[xtonehari]

Ok, I will go with the standard 5 points defence. Please let me know if this is fine. 

 

The Defendant contends that the particulars of claim are vague and generic in nature which fails to comply with CPR 16.4.  The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.
 

1.  The Defendant is the recorded keeper of XXXXXX. 

2.  It is denied that the Defendant entered into a contract with the Claimant.

3.  As held by the Upper Tax Tribunal in Vehicle Control Services Limited v HMRC [2012] UKUT 129 (TCC), any contract requires offer and acceptance.  The Claimant was simply contracted by the landowner to provide car-park management services and is not capable of entering into a contract with the Defendant on its own account, as the car park is owned by and the terms of entry set by the landowner.  Accordingly, it is denied that the Claimant has authority to bring this claim. 

4.  In any case it is denied that the Defendant broke the terms of a contract with the Claimant.

5.  The Particulars of Claim is denied in its entirety.  It is denied that the Claimant is entitled to the relief claimed or any relief at all.

[xtonehari]

Defence has been submitted today.

[xtonehari]

I have received response to my SAR request from Civil Enforcement

The company Civil Enforcement have sent a two page introduction letter (attached) and all the PCN letters and solicitors letters that were sent to me. 

 

SARLetter.pdf

[xtonehari]

Received letter from HM Court acknowledging my defence and to wait for the claimant to reply. 

CourtLetter.pdf

[xtonehari]

Hi,

It has been more than 28 days now, there is no response to my defence. I have not received any letter and I checked online at moneyclaim.gov.uk but there is no correspondence. 

As per the letter from the court, the claimant should respond to my defence within 28days, if the period has elapsed, the claim will stay open and the claimant have to apply to a judge for an order lifting the stay.  

What can be done now please. 

[xtonehari]

Hi L,

Please find the original PCN attached. 

If you need any other details, please let me know. 

Thank you

OriginalPCN.pdf

[xtonehari]

Hi Team,

I have received a Notice of Proposed Allocation to the Small Claims Track from the Court Office today. 

The Letter has total of 9 pages with instructions and a form if I wish to contest. 

Please advise if I have to fill in the Questionnaire on page 6 in the attached file and/or how to proceed going forward. 

Thank you

NoticeofProposedAllocationToTheSmallClaimsTrack.pdf

[xtonehari]

Hi,

I received email today for Meditation service and given an appointment on 12th Oct. 

Important mediation requirements
Please read the following statements - mediation is only available if you can answer yes to all 3:

- I am willing to negotiate on the amount of the claim and I will consider a compromise.
- I have enough information about the claim to enter into negotiations and do not require any further evidence from the other party before starting mediation.
- I’m available for the entire time slot on the date of my appointment.

If you cannot answer yes to all 3 statements, mediation is NOT suitable for your case and you should contact us.

What is the course of action when comes to mediation please. I have to say Yes to all three points above, but on the appointment day, what is the suggestion please.

Thank you...

 

[xtonehari]

Hi DX,

I followed this guide as shown in this link for Mediation response.  Do you suggest I should decline the mediation. 
 

It says,

For completion once a defence has been submitted and the claimant wishes to proceed.

Yes to mediation No if its statute barred or a parking claim.

Yes to Small Claims Track

State your local County Court 

1 witness = yourself

The rest is self explanatory

Run 3 copies..Court/Solicitor/File

[xtonehari]

Hi DX,

Sorry, I was not able to find where you have highlighted. 

"now read the bit ive highlighted again ...carefully!!!!!"

Could you please provide the link. 

[xtonehari]

Okay, got it, where you have highlighted. i.e. Yes to mediation No if its statute barred or a parking claim.

Shall I say I cannot answer Yes to all three statements below for the mediation and cancel the appointment?

- I am willing to negotiate on the amount of the claim and I will consider a compromise.
- I have enough information about the claim to enter into negotiations and do not require any further evidence from the other party before starting mediation.
- I’m available for the entire time slot on the date of my appointment.

What happens when I cancel the mediation service. Will it go back to the court.

[xtonehari]

Hi Dx,

I received the Notice of Allocation to the Small Claims Track (Hearing) letter on 6th Jan.

The hearing is scheduled for 19th Feb 2024. 

Please see the attached letter and let me know what needs to be done. 

Thank you

NoticeOfAllocationSmallClaimTrack-Hearing.pdf

[xtonehari]

Hi FTMDave,

Thanks for your message. I am well aware that I need to write the witness statement and everyday I am thinking about this. 

I was not sure how and what to write. I have taken a witness statement from another case found in this site and modified it. 

Please have a look the Witness Statement below and let me know if this acceptable.  Thank you...

 

Quote

Witness Statement of XXXXX

INTRODUCTION
1.  I, XXXXX am the Defendant in this claim. I represent myself as a lay person, with no formal legal training. Everything in the following statement is true to the best of my knowledge and belief. 
2.  I was the registered keeper of the vehicle: XXXXXX.
3.  In my statement I shall refer to exhibits within the evidence section supplied in this bundle referring to page and reference numbers where appropriate. 

BACKGROUND
4.  The Defendant received the Parking Charge Notice (PCN) dated 27th August 2021 (Exhibit 1). The PCN pertains to an incident on 20th August 2021 when the vehicle was parked at ASM Supermarket, 75-83 Oldham Road, Ashton-Under-Lyme, OL67DF.

The PCN was issued 6 days after the alleged contravention. Notably, the car park was almost empty and used exclusively for purchasing goods from ASM Supermarket.

Upon entering the car park, the driver did not observe any signs indicating parking restrictions and/or any notice/signs specifying that the vehicle registration should be entered at the till during/after the purchase.

On the day of the alleged contravention (20th August 2021), the driver did make a purchase from ASM Supermarket. A credit card statement reflecting this transaction is provided as Exhibit 2. 

LOCUS STANDI
5  There is no Locus Standi.  I do not believe a contract exists with the landowner that gives Civil Enforcement a right to bring claims in their own name, no contract has been produced after my CPR request (Exhibit 3). 

6.  The definition of “Relevant contract” from PoFA 2[1] means a contract, including a contract arising only when the vehicle was parked on the relevant land between the driver and a person who is-
(a) the owner or occupier of the land; or
(b) authorised, under or by virtue of arrangements made by the owner or occupier of the land, to enter into a contract with the driver requiring the payment of parking charges in respect of the parking of the vehicle on the land.
According to Companies Act 2006, Section 44. 
44 Execution of documents
(1)Under the law of England and Wales or Northern Ireland a document is executed by a company—
(a)by the affixing of its common seal, or
(b)by signature in accordance with the following provisions.
(2)A document is validly executed by a company if it is signed on behalf of the company—
(a)by two authorised signatories, or
(b)by a director of the company in the presence of a witness who attests the signature.
(3)The following are “authorised signatories” for the purposes of subsection (2)—
(a)every director of the company, and
(b)in the case of a private company with a secretary or a public company, the secretary (or any joint secretary) of the company.
(4)A document signed in accordance with subsection (2) and expressed, in whatever words, to be executed by the company has the same effect as if executed under the common seal of the company.
(5)In favour of a purchaser a document is deemed to have been duly executed by a company if it purports to be signed in accordance with subsection (2).
A “purchaser” means a purchaser in good faith for valuable consideration and includes a lessee, mortgagee or other person who for valuable consideration acquires an interest in property.
(6)Where a document is to be signed by a person on behalf of more than one company, it is not duly signed by that person for the purposes of this section unless he signs it separately in each capacity.
(7)References in this section to a document being (or purporting to be) signed by a director or secretary are to be read, in a case where that office is held by a firm, as references to its being (or purporting to be) signed by an individual authorised by the firm to sign on its behalf.
(8)This section applies to a document that is (or purports to be) executed by a company in the name of or on behalf of another person whether or not that person is also a company.

NO KEEPER LIABILITY
7.  The PCN does not mention or specify the period of parking at all, only the duration of the stay defined by arrival and departure times. The duration of the stay includes driving to a space, parking, leaving the space, walking to the supermarket, spending time inside the supermarket for purchasing, walking out of the supermarket and is not the same as specifically the period of parking. 
Schedule 4 of the Protection of Freedoms Act 2012 . Under Section 9 [2][a] it states  
(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;

8.  The lack of a Parking Period means that the PCN does not comply with PoFA. and so the charge cannot be transferred from the driver to the keeper. Only the driver is liable.

9.  Schedule 4 of the PoFA, Section 9 [2][f] states: 
f. warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

10.  The Claimant's PCN does not include the words in Section 9 [2][f] ii and therefore cannot transfer liability from the driver to the keeper.

11. The Claimant's Particulars of Claim state that the Claimant is pursuing the driver or the keeper. Given that the Claimant has no evidence who the driver is, the Claimant can pursue the Defendant only as the keeper, but cannot claim the Defendant is the driver as they have absolutely no proof. In this matter, the Defendant puts it to the Claimant to produce strict proof as to who was driving at the time. 

12.  As the Claimant cannot prove who was driving at the time, they can only pursue the Defendant as the keeper as being liable. It has already been ascertained that the keeper is not liable because UKPC have failed to comply with the Act.

ILLEGAL SIGNAGE
13.   At the time of writing the claimant has failed to provide the following, in response to the CPR request from myself, and has provided no Witness Statement with evidence. 

14.  The legal contract between the Claimant and the landowner (which in this case is ASM Supermarket) to provide evidence that there is an agreement in place with landowner with the necessary authority to issue parking charge notices and to pursue payment by means of litigation.

15.  Proof of planning permission granted for signage etc. under the Town and Country Planning Acts 1990 and 2007.  Lack of planning permission is a criminal offence under these Acts and no contract can be formed where criminality is involved. 

16.  Due to the failure to produce the documents in the 14-day duration following my CPR 31.14 Request dated 27/04/2023, or at all, I do not believe the claimant possesses these documents 

DOUBLE RECOVERY
17.   As well as the original £100 parking charge and £85 allowed court/legal costs, the Claimant seeks recovery of an additional £106.25.

18.   PoFA Schedule 4, paragraph 4(5) states that “the maximum sum which may be recovered from the keeper is the amount specified in the notice to keeper”. Which in this case is £100.

19.   Unless the Claimant can clearly demonstrate how these alleged additional costs have been incurred this would appear to be an attempt at double recovery.

20.   Previous parking charge cases have found that the parking charge itself is at a level to include the costs of recovery i.e. Parking Eye Ltd vs Beavis (2015) UKSC 67 which is the authority for recovery of the parking charge itself and no more, since the sum £85 was held to already incorporate the costs of an automated private parking business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages.

21.  It is indisputable that an alleged “parking charge” penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending on the parking firm) covers the costs of all the letters.

22.  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.
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.”

23.   In Claim numbers F0DP806M and F0DP201T, Britannia vs Crosby the courts went further in a landmark judgement in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton-Douglas Hughes GC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire. District Judge Taylor echoed earlier General Judgement 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 judgement in Parking Eye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for a 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.

24.   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.

25.   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).

26.   The Defendant is of the view that the Claimant knew, or should have known, that to claim in excess of £100 for a parking charge on private lands is disallowed under the CPRs, the Beavis case, the PoFA AND THE CRA 2015, and that relief from sanctions should be refused.

CHANGE OF CIRCUMSTANCE
27. During the period when the first PCN dated 27th August 2021 was received and by the date the letter of claim (16/02/2023) was received, the defendant had moved to a new location and changed the address. Due to this change, the defendant was not initially in a position to respond to any claims from the claimant, as all correspondence was being sent to the previous address. 

It is by sheer coincidence the defendant happened to visit the previous address and found the Notice of Proposed Allocation To The Small Claims Track letter. 

It asserts that, had there been no change in the address, the defendant would have responded to the Letter of Claim, and the matter might not have progressed to its current stage.

IN CONCLUSION
28.  I respectfully request that the Court dismiss this claim.

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.

 

[xtonehari]

Hi FTMDave,

Thank you for the revised witness statement. It is accurate and fits to the purpose. 

Shall I go ahead and submit the WS. Does the WS has to be submitted in person or can it be submitted online or by email. 
 

[xtonehari]

I have not received any statement from the claimant. Is it time to send my witness statement or shall I wait.