Civil Enforcement Ltd & DCBL

[ecalid]

Excellent news! des8

Today I received their witness statement, over 2 weeks early. Plenty of time for me to tear it apart.

They also attempted to settle again, it's looking very much like a discontinuance.

In their list of exhibits they have provided a NTK which is a template which has only half been populated.

This could just be an error when compiling the PDF in which they sent, however in the reminder letter, the digits are filled in.

I have printed it out on various printers and opened it in various applications and the result is the same.

I am going to presume this is the bundle they will use when going to court and hopefully by the time they realise this error, it will be beyond the date of exchange.

I have already drafted some of the WS in response:

Defendant

__________________________________________________ ________________________________


WITNESS STATEMENT OF XXXXXXXX
__________________________________________________ ________________________________



I, XXXXXXXX, of XXXXXXXXX (“the Defendant”), will say as follows:

1. I am a litigant in person, and I am the Defendant in this case; I make this statement in readiness for the hearing scheduled at XXXXXXXXXXXX on or around XXXXXXXXXXX for the claim issued by Civil Enforcement Ltd and/or its representatives (“the Claimant”). I believe the facts stated in this witness statement are true.

1. The Claimant appears to have initiated a claim with regards to an alleged breach of contract regarding parking within the Claimant’s ostensibly controlled land occurring on 23/04/2023.

Issues with the Claimant’s witness statement

1. Attention is brought towards the Claimants witness statement (“the witness statement”), particularly with regards to the exhibits provided.

1. I am deeply troubled by the Claimant’s witness statement; I firstly highlight the Claimant’s statement of truth as provided at the bottom of their witness statement and secondly, I bring to attention the Claimant’s position as Barrister as submitted under paragraph 1.

1. I am confused by the Claimants witness statement as the Claimant appears to be unsure of the terms and positioning of the signage upon which their claim relies.

1. In paragraph 24 of the witness statement, the claimant submits that upon entry to the alleged car park, the notice upon which Drivers are contractually bound, are expressly stated.

1. However, in Exhibit SW3, the signage upon entry to the car park contradicts this submission. Picture 3 of Exhibit SW3 shows that the signage upon entry to the car park does not provide any terms by which a Driver could be bound.

1. Attention is brought to the Bar Standards Board Handbook which contains the barrister’s code of conduct; namely Part 2, Rules C3-C6;
   
   Paragraph .1 of the code provides that:
   
   ‘you must not knowingly or recklessly mislead or attempt to mislead the court;’

1. Attention is brought to the draconian consequences imposed by the court as provided by the Claimant’s own statement of truth.

1. The Claimant goes on to contradict themselves further by submitting in Paragraph 27 the alleged terms set out in Exhibit SW2. However, in Paragraph 28; Exhibit SW4 is said to be a clarification of the terms found in Exhibit SW2. The wording and downward causation of some paragraphs, however, are different.

1. The Claimant continues to transcribe the obsolete terms found in Exhibit SW2, in Paragraph 33.

Authority to collect parking charges on specified land

1. The claimant has failed to demonstrate their legal ability to collect parking charges on the specified land.

1. The claimant has provided a Confirmation of Authority in Exhibit SW1 which the Claimant submits grants authority for them to conduct collection activities on the specified land; however, the Land Controller cannot be identified.

1. The land controller appears to be a limited business and the claimant has failed to provide a Company Registration Number for which the land controller's credentials can be verified. The company's house register does provide some insight into the business; however, the signee cannot be verified as the signee does not appear to hold any legal status within the business.

1. Additionally, the agreement appears to be a unilateral one, with only one party providing a signature.

1. It is my respectful submission that a prudent business or individual would be reasonably forthcoming in their due diligence with all parties concerned so as to avoid the pitfalls of contractual engagement, such as with definitions or exclusion clauses. The Claimant firstly mentions a ‘written agreement’ and then goes on to provide a copy of the Confirmation of Authority.

1. I respectfully ask the Court to make an inference that the Confirmation of Authority as provided in Exhibit SW1 falls short of a legally binding document and is immaterial to the Claimants case and put the Claimant to strict proof to demonstrate their authorisation to conduct collection activities by way of producing a legitimate contract between the Claimant and the land controller.

Non-compliance with Protection of Freedoms Act 2012

1. According to paragraph 32 of the witness statement, a PCN was sent to the registered keeper of the vehicle in question. The letter provided, which is found in Exhibit SW7, does not comply with the Protection of Freedoms Act 2012 (“POFA 2012”)

1. POFA 2012, Schedule 4, Section 8, Subsection (2) provides the legislation upon which the claimant relies; however the notice provided in Exhibit SW7 is contrary to s9(2)(c), (d) and (g) respectively;
   
   ‘9(1) A notice which is to be relied on as a notice to driver for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.
   
   (2)The notice must—

(c) describe the parking charges due from the driver as at the end of
that period, the circumstances in which the requirement to pay
them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made
them payable;

(d) specify the total amount of those parking charges that are unpaid, as at a time which is—

(i) specified in the notice; and

(ii) no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));

(g) inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;’

‘6(1) The second condition is that the creditor (or a person acting for or on behalf of the creditor)—


(a) has given a notice to driver in accordance with paragraph 7,
followed by a notice to keeper in accordance with paragraph 8; or

(b) has given a notice to keeper in accordance with paragraph 9.’

1. In Exhibit SW8 the Claimant appears to have sent to the Defendant a reminder letter, clarifying the alleged parking charges due; it explicitly removes the ability for the Defendant to pay a reduced fee as per Schedule 4, Section 9, Subsection (2)(g) of POFA 2012.

1. The reminder letter states that the alleged contravention occurred on 23/04/2023 and the issue date of the letter was 22/05/2023. This notice was then apparently received approximately 30 days after the alleged contravention.

1. This notice does not however revive the Claimant’s compliance to POFA 2012 as Schedule 4, Section 9, Subsection (4) and (5) provides the Claimant must deliver adequate notice of a parking charge within 14 days of the date of the alleged contravention;

‘(4) The notice must be given by—

(a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or

(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.



(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.’

1. The Claimant has confirmed their obligation to abide by the 'strict conditions’ of POFA 2012 as explicitly stated in Paragraph 37 of their witness statement. Therefore, according to the Claimant’s documentation, adequate notice of a parking charge was not delivered in time to the Defendant.

1. It is my respectful submission that the Claimant has failed to comply with POFA 2012 and I invite the court to exercise their powers in striking out the Claimant’s statement of case.

1. In relation to the Claimant’s assertion in paragraph 32 regarding appealing or responding to the PCN’s provided, it is my respectful submission that the Defendant was under no obligation to respond or appeal due to the non-compliance with POFA 2012.

[des8]

Sorry, but IMO that will not do as a witness statement, which should be your narrative account of what has occurred.

The points you have made are the basis for your questioning of the claimant, where you aim to destroy their argument.

I'll get back tomorrow with a more helpful post (I hope!)

[ecalid]

Sorry, but IMO that will not do as a witness statement, which should be your narrative account of what has occurred.

The points you have made are the basis for your questioning of the claimant, where you aim to destroy their argument.

I'll get back tomorrow with a more helpful post (I hope!)

Thanks des8 you're absolutely right, I went a bit gung ho there.

I recognise the witness statement needs to be an in depth account of my defence. I've done something more of an application for summary judgement here.

I will however keep them as valuable notes for the hearing.

[des8]

I'll let you work on the WS then, before adding my pennyworth

[ecalid]

Good afternoon,

des8

Please see below for both witness statements.

I know there will be some things in mine which people will disagree with, particularly the structure and some arguments, on the face of it they will appear pointless but they are exercises in futility for a reason, the Claimant will not want to disclose sensitive business information into the public eye so this is just another tactic in getting them to discontinue over the prospect of being ordered to disclose the information.

Additionally, I've tried my best to walk the tightrope between being a legally inquisitive individual and a litigant in person.

Also, some of my weaker arguements actually became quite strong in light of their own witness statement, for example the irregularities in the signage and downward causation of particular sentences.

Claimant: https://fastupload.io/2804a7f989898139
Defendant: https://fastupload.io/188f27d5e0ff3446


Recently, there has been a flurry of cases in my local court regarding consideration periods which have been prescribed on the signage, the signage indicates a maximum 5 minute period to pay, whereas the Claimant in my case appears to demand payment upon crossing the boundary of the premises.

This plays very well into my arguements and I have applied for permission to the local court for them to provide me with a transcript which I can use the judge's remarks.

Excel Parking Services vs Peter Barton
Excel Parking Services vs Rosy Hudson
Excel Parking Services vs Garry Kay



For reference, the particulars of claim for my case are below:

Claim for money relating to a Parking Charge for breach of contract terms/conditions(TCs) for parking in private car park (CP) managed by claimant. Drivers may only park pursuant to TCs of use displayed in CP and agreed upon entry/parking. ANPR cameras or manual patrols monitor vehicles entering/exiting the CP and TC breaches. Charges of GBP170.00 claimed.
Violation date: 23/04/2023
Payment due date: 22/05/2023
Time In: 10:30 Time out: 10:48
PCN: **********************
Vehicle reg mark: ********* Car Park:-The hollies

Total due- GBP170.00
Pay: www.ce-service.co.uk or 01158225020
The claimant claims the sum of GBP184.27
for unpaid parking charge inc GBP14.27
Interest under S.69 of the CCA 1984
Rate: 8.00% pa from due date to- 10/05/2024
Same rate to Judgement or sooner payment
at daily rate of- GBP0.04
Total debt and interest due- GBP184.27

[des8]

Sorry, but on down loading the attachments my computer got very upset, telling me the files contained illegal matter.
What was worse I then got stuck with multiple pop up saying my anti virus was our of date, not working etc etc.
have sorted that out, but ain't downloading those attachments!

[ecalid]

Sorry, but on down loading the attachments my computer got very upset, telling me the files contained illegal matter.
What was worse I then got stuck with multiple pop up saying my anti virus was our of date, not working etc etc.
have sorted that out, but ain't downloading those attachments!

Apologies des8

Try this instead: https://uploadnow.io/f/47vDcYm

[des8]

I've had a brief look and think what you have produced is a cross between a Witness Statement (essentially a narrative of what has occurred) and a skeleton argument.
Skeleton arguments are rarely produced for small claims.
As you are a LiP you'll probably get away with it, so I wouldn't bother changing the format.

Regarding the content:
-you should send a copy of the video to the court and defendant, along with a cover letter explaining its relevance to your case.
-I think para 17 smacks of teaching your grandmother to suck eggs1
-re "MARKET" sign .. IMO your leap from the positioning of the sign to an assumption it is a local authority sign is a bit nebulous. Ascertain from the council if it is their market and so brings the land under the relevant land exclusion

You might as well include some paras about their claim for additional costs/recovery charges.
You will obviously need to rehash & renumber them as i have pinched them from a number of earlier defences, not WS

Recovery of Claimant’s costs associated with the Parking Charge

The Defendant denies that the Claimant is entitled to claim the recovery of its costs in respect of the Parking Charge. As described above, there was no adequate signage giving fair and reasonable notice of the parking terms and it is trite law that one cannot incorporate terms and conditions after the fact, without giving reasonable notice beforehand.

1. Further and alternatively, if (which is denied) it is found that reasonable notice was given, the Defendant will say that the term was contrary to the requirement of good faith which causes a significant imbalance under the contract to the detriment of the Defendant. Consequently, the term is unfair and is not binding on the Defendant pursuant to section 62 of the Consumer Rights Act 2015. The Defendant will rely on the following points:
   1. Section 68 of the CRA requires that every term of a consumer contract must be transparent and expressed in a plain and intelligible language. The Defendant contends that the term referring to the charges on the signage was neither transparent nor intelligible in that:
      1. the font size of the term is extremely small making it illegible from a reasonable distance; the term ought to have been presented in a manner which was far more legible considering the amount of blank space available on the sign itself; and
      2. the term refers to ‘charges’ but fails to explain what charges the Claimant is seeking to recover. Accordingly, the term described is vague and ambiguous contrary to the guidance published by the Competition and Markets Authority on unfair contract terms.
      3. Further, the Defendant denies that such sums are recoverable for the following reasons:
         1. The costs sought by the Claimant are based upon a contractual right under the terms of the parking contract. It is well established under the doctrine of privity that a person who is not party to the contract cannot sue or be sued. Any contractual relationship in respect of the parking and the alleged contravention was solely between the Claimant and the driver of the vehicle, not the registered keeper; and
         2. paragraph 4(5) of POFA provides that the maximum amount which may be recovered from the registered keeper is the total amount of the unpaid parking charges specified in the notice to the registered keeper. The unpaid parking charges specified in the notice were £100.

1. It follows that any liability owed by the keeper to the Claimant is several to the driver’s liability and is limited to an amount that does not exceed the unpaid parking charges. The Claimant’s pursuit of these contractual costs is not recoverable and amounts to an abuse of process.

3. In Parking Eye vs Beavis ([2015] UKSC 67. Case ID. UKSC 2015/0116. The S C found the parking charge (£85) was a genuine estimate of the costs of operating the parking scheme including losses suffered by the operator if its terms and conditions were not complied with (see paras 188 and 193 of the judgment).
4. In this claim unspecified costs additional to the parking charge may involve an element of double recovery and is an abuse of process that may taint the entirety of the claim and permit the Court to strike out the claim (CPR3 4 (2) (b))

Sending you a PM

[ecalid]

I've had a brief look and think what you have produced is a cross between a Witness Statement (essentially a narrative of what has occurred) and a skeleton argument.
Skeleton arguments are rarely produced for small claims.
As you are a LiP you'll probably get away with it, so I wouldn't bother changing the format.

Regarding the content:
-you should send a copy of the video to the court and defendant, along with a cover letter explaining its relevance to your case.
-I think para 17 smacks of teaching your grandmother to suck eggs1
-re "MARKET" sign .. IMO your leap from the positioning of the sign to an assumption it is a local authority sign is a bit nebulous. Ascertain from the council if it is their market and so brings the land under the relevant land exclusion

You might as well include some paras about their claim for additional costs/recovery charges.
You will obviously need to rehash & renumber them as i have pinched them from a number of earlier defences, not WS

Recovery of Claimant’s costs associated with the Parking Charge

The Defendant denies that the Claimant is entitled to claim the recovery of its costs in respect of the Parking Charge. As described above, there was no adequate signage giving fair and reasonable notice of the parking terms and it is trite law that one cannot incorporate terms and conditions after the fact, without giving reasonable notice beforehand.

1. Further and alternatively, if (which is denied) it is found that reasonable notice was given, the Defendant will say that the term was contrary to the requirement of good faith which causes a significant imbalance under the contract to the detriment of the Defendant. Consequently, the term is unfair and is not binding on the Defendant pursuant to section 62 of the Consumer Rights Act 2015. The Defendant will rely on the following points:
   1. Section 68 of the CRA requires that every term of a consumer contract must be transparent and expressed in a plain and intelligible language. The Defendant contends that the term referring to the charges on the signage was neither transparent nor intelligible in that:
      1. the font size of the term is extremely small making it illegible from a reasonable distance; the term ought to have been presented in a manner which was far more legible considering the amount of blank space available on the sign itself; and
      2. the term refers to ‘charges’ but fails to explain what charges the Claimant is seeking to recover. Accordingly, the term described is vague and ambiguous contrary to the guidance published by the Competition and Markets Authority on unfair contract terms.
      3. Further, the Defendant denies that such sums are recoverable for the following reasons:
         1. The costs sought by the Claimant are based upon a contractual right under the terms of the parking contract. It is well established under the doctrine of privity that a person who is not party to the contract cannot sue or be sued. Any contractual relationship in respect of the parking and the alleged contravention was solely between the Claimant and the driver of the vehicle, not the registered keeper; and
         2. paragraph 4(5) of POFA provides that the maximum amount which may be recovered from the registered keeper is the total amount of the unpaid parking charges specified in the notice to the registered keeper. The unpaid parking charges specified in the notice were £100.

1. It follows that any liability owed by the keeper to the Claimant is several to the driver’s liability and is limited to an amount that does not exceed the unpaid parking charges. The Claimant’s pursuit of these contractual costs is not recoverable and amounts to an abuse of process.

3. In Parking Eye vs Beavis ([2015] UKSC 67. Case ID. UKSC 2015/0116. The S C found the parking charge (£85) was a genuine estimate of the costs of operating the parking scheme including losses suffered by the operator if its terms and conditions were not complied with (see paras 188 and 193 of the judgment).
4. In this claim unspecified costs additional to the parking charge may involve an element of double recovery and is an abuse of process that may taint the entirety of the claim and permit the Court to strike out the claim (CPR3 4 (2) (b))

Sending you a PM

Thanks des8, as always, your input is most appreciated and I encourage you to continue to pick out any errors and flaws.

Unfortunately, I have already submitted the witness statement as the deadline had passed early last week. The video has been submitted though to both the Claimant and the Court respectively.

I couldn't put in the section about the charges as I chose to argue that the signage appeared to provide two separate offers virtue of the signage being altered after drafting and therefore prejudicing the meeting of the minds; arguing against the charges directly might have inadvertently given acknowledgement of the charges causing the whole argument to fail.

This is something I will have to argue on the fly depending on whether the judge accepts the argument or not.... Fortunately, the Claimant has not accounted for the full £70 of extra charges, they only specify a 'debt recovery fee' of £40 in their paperwork, and they have not provided any paperwork from DCBL.

Regarding the market signage, they may or may not decide there is enough doubt to order the Claimant to disclose full contractual paperwork between the Claimant and property owner which could rebut this argument and simultaneously disclose sensitive business information. This is significantly strengthened though by getting a judge to consider the arbitrary ramifications on a defendant's right to fair trial, a risk appetite which could be easily rectified by ordering the disclosure of such a document by the Claimant and not reversing the burden onto the defendant.

Additionally, IMHO, the Claimant has already lost credibility by submitting the wrong set of terms in their witness statement, which strengthens my 'downward causation' argument of the two sets of terms, after indicating a like-for-like copy of the old ones, even though the structure and downward causation of the terms has now changed. And also submitting the wrong signage upon entrance to the car park which provides no terms to bind a driver to contract. In light of this, Mr Wilson awkwardly announced at the beginning of the witness statement that he was a barrister for the Claimant and has claimed sums virtue of the Chorley principle for services rendered.

Thanks for your PM, as always I do take your advice seriously.

[ecalid]

Well, still no notice of discontinuance.

I've contacted the courts today.

Looks like this will have to be dealt with at court.

Wish me luck!

[des8]

Well good luck for the hearing.
It is not unknown for them to not turn up but please let us know how it goes.

[ecalid]

So, the verdict is in...

The judge ruled in favour of the claimant. And I got the feeling from the very start that the judge was on the claimants side.

Various arguments were put forward and the judge did say that they were strong arguments but a lot of it boiled down to the claimants witness statement, the judge was compelled to take a lot of his evidence on face value due to him being a barrister.

They did reduce the claim value significantly though, from 270 + fees to £210. I did plead double recovery and abuse of process but the judge didn't take note.

They also had to adjourn the hearing because of the wealth of arguements I had and the solicitor had to vacate her next hearing to deal with mine. So the solicitor had to spend 3 hours of her time. So I like to think that it's cost them more than it's cost me. So a win really.

The solicitor attempted to put a costs order in for misconduct (LOL), which seemed a little desperate and the judge denied it.

So I'll pay it up straight away and then hopefully I won't get a CCJ on my record.

[des8]

Sorry to hear the result, but at least you note it is only a pyrrhic victory for the parking company.

As we always warn the small claims track is a bit of a lottery, and you never know what judge you will get.
One case I appeared on, the judge agreed the signage wording Welsh & English differed so the defendant had a sound case, but then found in favour of the claimant!
Some you just can't win

When paying send cheque/postal order to solicitor.
Keep record and keep an eye on your credit record just in case..........

[ecalid]

Hi des8 thanks for that. I'm disappointed but definitely gave as good as they got.

The whole affair was so informal that the solicitor didn't even identify themselves, but I've contacted the court who has confirmed that the claimant had represented themselves.

This is confusing me though as the solicitor did say that they had to be in another hearing???

So who do I make payment to?

[des8]

The solicitor in court will have been instructed by DCB Legal, and could well have been off to another court for another similar case. They are paid a minimal fee (which of course the claimant cannot recover)

At least that is what one told me, when she missed her next appearance because our case took longer than anticipated.
Good for the defendant in that case