Civil Enforcement Ltd & DCBL

[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]

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

[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]

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]

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.

[ecalid]

I wouldn't be surprised if they discontinue, or just don't pay the fee.
They haven't responded to your defence have they?

Not yet, normally I would expect a letter indicating that my defence has no reasonable prospect of success etc.

But this has usually come from the solicitor acting on behalf; this is the first time I've dealt with a company which has its own 'legal team'.

Also, I think if they had taken the time to look at my defence, it might be thwarted by simply applying to change the POC but they don't seem to have done this. If this happens then I'll sit up in my seat but I think your absolutely right that they will likely discontinue or not pay.

[des8]

I wouldn't be surprised if they discontinue, or just don't pay the fee.
They haven't responded to your defence have they?

[ecalid]

Received the customary without prejudice letter offering to accept a heavily reduced fee of £100.

Letter went straight into the bin.

[ecalid]

Good morning all,

des8

Just a quick update.

Received the N157 today; hearing allocated for some time in Feburary. Claimant must pay fee. etc etc.

They've got till January to pay the fee, I suspect they will just pay it straight away.

Will need to have my WS ready to deliver 28 days before so will make a start on this soon.

[ecalid]

Dear Ecalid, Hello could you please share the transcript Civil Enforcement Ltd v Ming Tak Chan [2023?

Hello. Please see here: https://file.io/86P4nOgQZdty

[Lia_G]

Good afternoon,

I have today been reading a judgement which I downloaded from Scribd.

Civil Enforcement Ltd v Ming Tak Chan [2023]

The gist of the judgement is that the claimant did not comply with CPR 16.4 and Practice Direction 17 para.7.5 by way of failing to include by how the alleged breach had occurred by the respondent. The appellants had applied to strike out the claim on the grounds that there was no reasonable chance of success. Also this was an appeal judgement to be set aside as the respondent did not reply to the claim form, however it was still struck out on the basis that the previous judge had erred in not identifying the CPR failures.

The POC for the respondent in this claim were:



To give context to this, please see below:







The claimant attempted to argue that the requisite details were sent by way of the letter before action, however the Judge did not agree this could be substituted for the POC.

I have the full judgement should you need it.

I'm thinking that I could include this into my defence and then I'd probably wait to see if they respond, if they don't acknowledge it or claim gets stayed I might as well throw in the application to strike it out as the Judge might be less inclined to offer them the opportunity to change the POC to lift the stay.



Let me know your thoughts.

Thanks!

Dear Ecalid, Hello could you please share the transcript Civil Enforcement Ltd v Ming Tak Chan [2023?

[des8]

Thanks for the update.
Mediator should not be siding with either party, but probably thinking that if he/she can persuade you to agree terms it reflects well on his/her abilities.

[ecalid]

Good morning all,

Just a quick update.

Had mediation today, Claimant offered a reduced settlement of £200, I counter offered with £1. Not accepted.

Mediator seemed to be very much on board with the Claimant, almost pushing for me to settle for their offer. No thanks.

[ecalid]

Good morning

Just a quick update.

Mediation appointment pencilled in.

[ecalid]

Hi all, just a quick update to keep you in the loop.

DQ's have been issued on the 15th so I'm just waiting for these to arrive in the post.

DQ's sent today, recorded delivery to both the court and the claimant.

Opted for mediation, but will obviously only accept nothing less than full discontinuance.