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Metro Inn, Walsall, Go to court or settle?
Celpoo123
post Sun, 18 Nov 2018 - 03:31
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Hi everybody.
I have a court date for end of November and I have been emailed by CEL (claimant) that they will settle for £100 right now, else the fee will be much greater on the day if I lose this case.

I paid £255 to have my case set-aside because I had a default judgement against me because CEL/ZZPS/QDR had been sending paperwork to my old address.

I asked for all copies of correspondence when I eventually received the first letter (from ZZPS) at my parents address, over 100 days after the alleged parking incident at Metro Inn took place. ZZPS said that I have received everything and copies will only be provided in the event of litigation.

It has now got to the stage where the claimant and myself have had to submit our Witness Statements and Evidence. I have done this. Since that happened, CEL want to settle before the court hearing. I am not sure what to do.

Here is a link to CEL's WS and evidence:

https://imgv2-1-f.scribdassets.com/img/docu.../1542293697?v=1

Here is my submitted WS (defence further down):

Witness statement:
IN THE COUNTY COURT AT WALSALL

CLAIM No: xxxx

Between
CIVIL ENFORCEMENT LIMITED (Claimant)
-and-
xxxxx (Defendant)

WITNESS STATEMENT

I, xxxx, of xxxxx street, am the Defendant in this matter, and will say as follows:

• I am the registered keeper of the vehicle in question; registration xxxxx.
• I am not asserting that I was the driver of the vehicle on the incident date, xx/xx/2017.
• The very first contact I had from the Claimant was from their debt recovery team, ZZPS, relating to this PCN, on xx/11/2017.
• I have never received any previous documentation from the Claimant – no “Notice to Keeper” letter, and I thus was never able to challenge the Claimant’s claim.
• The first letter from ZZPS stated they wanted £200 because the original PCN was ignored. This is a complete lie. I never received any Notice to Keeper letter, as required within 14 days of an alleged parking offence.
• On xx/11/2017 I emailed ZZPS and requested a copy of all photos and correspondence to be sent to me at my current address. I was informed by ZZPS that all information they hold on their system has been supplied to me in their most recent letter (a letter I had never received). I was also told that Photographic evidence and copies of correspondence sent by their client will only be provided in the event of litigation (see email printout).
• Considering the above I was unable to defend this claim. I thus believe that this case should be struck out, and the Claimant should reimburse costs, as outlined in the Schedule of Costs document.

I believe the facts contained in this Witness Statement are true.
xxxxxx


Here is my submitted Defence:

IN THE COUNTY COURT AT WALSALL
Claim No.: xxxxx
Between
xxxxxxx (Claimant)
-and-
xxxxx (Defendant)
01 November 2018
__________

DEFENCE
__________
The Parking Charge from xxx is an invoice with which I do not agree.
As previously stated to xxxx[claimant] (xx/11/2017), I confirm that at the time of this alleged incident, I was the vehicle’s registered keeper for the purpose of the corresponding definition under Schedule 4 of the Protection of Freedoms Act 2012 (“POFA 2012”).
* In no way is the Defendant declaring himself as the driver of the vehicle. *

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. The Defendant received no ‘Notice to Keeper’ letter. The Claimant then raised their £100 parking charge to £200. It is submitted that this is merely a tactic to extract “double money”, and the Defendant is in any case not liable.
This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

Hospital car parks and residential complex tickets have been especially mentioned.

The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.

http://parliamentlive.tv/event/index/2f038...918?in=12:49:41

3) It is denied that there was a contract made between the Claimant and the driver through signage.
This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free.

3.1)BPA's Code of Practice (18.3) states:

"Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand."
The signs at this site are very inconspicuous. The font size used is too small and impossible to read upon entry in daylight (see exhibit #defence 1).

http://i65.tinypic.com/1zwovg7.jpg

3.2)BPA's Code of Practice (Appendix B) states:

"Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material."
The Car Park is not well lit at night and there is no direct lighting to the signs.
When arriving at the car park in which the alleged incident occurred it is impossible to see and read, let alone understand, the terms and conditions being imposed. Therefore, the driver did not have a fair opportunity to read about any terms and conditions involving this charge.
Relevant images have been requested and denied by the claimant.
3.3) Bearing the above in mind, there was categorically no contract established between the driver and Claimant. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated. Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer. In the absence of any proof of adequate signage that contractually bound the Defendant, there can have been no contract and the Claimant has no case.
4. PCN sent to Defendant is not fully compliant with the Protection of Freedom Act 2012 and therefore no keeper liability can be established:-

Sch 4 Para9(2)(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.

4.1 The Claimant sent the first letter 106 days after the alleged incident took place. This does not comply with the strict wording required by POFA. The vital matter of full compliance was confirmed by parking law expert barrister Henry Greenslade in 2015.

The Defendant has not named the driver, and it cannot be assumed by the Claimant that the Defendant is the driver. After 106 days it is impossible to know who the driver was!
I put the claimant to strict proof that the Defendant is personally liable for this claim.

5. Please view the sign, used at the location: http://i65.tinypic.com/1zwovg7.jpg


I wish to make the following points:
5.1 It is a forbidding sign.
There is no offer to park. Therefore it cannot form the basis of a contract. The offer of parking is only made to permit holders and only permit holders could therefore be bound by any contract.
5.2 This is clear from several cases. In PCM-UK v Bull et all B4GF26K6 [2016], residents were parking on access roads. The signage forbade parking and so no contract was in place. A trespass had occurred, but that meant only the landowner could claim, not the parking company.
5.3 In UKPC v Masterson B4GF26K6[2016] it was also found the signage was forbidding and so the matter was one of trespass. The parking company did not have standing to claim.
5.4 In Horizon Parking v Mr J C5GF17X2 [2016] it was also found the signage was forbidding and so the matter was one of trespass. The parking company did not have standing to claim.

5.5 Lack of Prominence.
If the driver did not see the sign then the sign is not prominent. The charge of £100 is far from prominent.

o The BPA code of Practice Section 18 states that signs must be placed at the entrance to the car park and throughout the car park in a strictly prescribed format. This covers things such as the size of the sign, the size of the text and the text content itself.

o The way it is written suggests the rules are non-negotiable, such as; "you must also have a standard form of entrance sign" and "signs showing your detailed terms and conditions must be at least 450mm x 450mm".

o The Defendant contests the validity of these signs. Not prominent and missed.


6.The Claimants contractual authority to operate in the car park in which the alleged incident occurred has not been proven as required by the Claimants Trade Association's Code of Practice B1.1 which states:

"If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges."

6.1) In order to issue parking charges and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. It is believed Civil Enforcement Limited does not hold a legitimate contract at this car park; it has certainly not been proven.
6.2) There is no copy of the contract provided under the Pre-action Protocol.

As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner. Furthermore, no evidence of such authority has been supplied by the Claimant, and the Claimant is put to strict proof of the same, in the form of an unreacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant. (This has been requested.)
A Managing Agent is not the Landowner.

7. Other Notes:

7.1 The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant’s position that no such breach occurred in this case, because there was no valid contract, and also because the legitimate interest in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

7.2 The Claimant, or their legal representatives, has added an additional sums to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

7.3 For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14.

7.4 In the event the claim progresses, then as an unrepresented litigant in person, the Defendant reserves the right to alter, vary and add to this defence or reply to any further particulars of claim/documents the Claimant may provide.



Statement of Truth
I believe that the facts stated in this Defence are true.


(Defendant) xxxxxx



(Date) xx/xx/xxxx



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post Sun, 18 Nov 2018 - 03:31
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Redivi
post Sun, 18 Nov 2018 - 10:15
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It's not the best of defences but CEL has never been known to turn up for a hearing

The £100 offer is a last ditch attempt to salvage their case and avoid having to repay your £255 fee and other costs if they discontinue the case

I would refuse the offer that would leave you £350+ out of pocket, not a lot worse than losing in the unlikely event of a hearing

This post has been edited by Redivi: Sun, 18 Nov 2018 - 10:16
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Celpoo123
post Mon, 19 Nov 2018 - 01:03
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Thank you Redivi!
You're right. Hadn't seen it your way.
Their costs are £350+ can they expect to get that awarded or would the court limit the charge in some way?
Best wishes
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ford poplar
post Mon, 19 Nov 2018 - 03:19
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Their Court Fee should be the same but their Defence costs, claimable if you lose, could be much higher.
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Celpoo123
post Mon, 19 Nov 2018 - 03:29
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Based on my WS and evidence should I capitulate?
The most frustrating this about this is that they were writing to my old address for months. Then they somehow got hold of my parents address and wrote to me their. I immediately responded to the first letter which wasn't from CEL at all, but from their debt chasing firm, ZZPS.
I informed ZZPS of my current address and they agreed to update the records and send mail their. Next thing I know, I have had a default judgement against me plus a CCJ because, apparently, CEL had been sending more letters to my old address...
This can't be right?!?
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nosferatu1001
post Mon, 19 Nov 2018 - 08:20
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Literally nonona has said you should give in.

No it isnt right, and is why you got a set aside, and hopefully your order says they pay that fee if they discontinue?
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Redivi
post Mon, 19 Nov 2018 - 09:43
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QUOTE (ford poplar @ Mon, 19 Nov 2018 - 03:19) *
Their Court Fee should be the same but their Defence costs, claimable if you lose, could be much higher.

They shouldn't be that much higher - I would expect about £200 max

The worst possible outcome of accepting the offer is therefore - £555

This assumes that the judge allows them to recover all the additional costs.
He might not believe that CEL spent £40 writing to the wrong address and paid ZZPS £60 whether successful or not

You can also argue that CEL should pay the set-aside fee if the claim was issued after you contacted ZZPS
Notice to Agent = Notice to Principal
CEL did not therefore issue the claim to your last known address

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Jlc
post Mon, 19 Nov 2018 - 10:20
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Is it too late to counterclaim? We know they'll discontinue but given it appears they've failed to keep their records updated (as required under dp law) there's definitely an angle to pursue. (The counterclaim prevents them simply walking away)


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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Celpoo123
post Mon, 19 Nov 2018 - 10:43
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I emailed them this morning and said this:
Good morning.
I can see that you had been sending your letters to an address (2
Old adxress) which I had not lived in for 2 years.

Somehow, your debt management firm, ZZPS got hold of my parents address and sent a letter there (106 days days later).

I asked ZZPS to update their records and therefore send all correspondence to me at my current address

This entire mess is unfortunate, and this escalation is very upsetting.

Would you consider accepting £60 as I never received your very first letter, or anything at all from you, in fact.

Sincerely

And CEL's reply at 09.04 was...
We are accepting your offer of £60. Please provide us with a phone number in order for us to call and arrange the payment. Alternatively, you can call our automated payment line on 0115 822 5020, or you can send us a cheque or a postal order to our Liverpool address.

Please respond to the above by no later than Tuesday 20/11/2018, taking into consideration the proximity of the hearing, as we need to inform the court that we ne longer require a hearing, as soon as the payment has been received.





Regards,

Yours faithfully,


Maybe I should give in?

This post has been edited by Celpoo123: Mon, 19 Nov 2018 - 10:48
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Redivi
post Mon, 19 Nov 2018 - 10:57
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What possessed you to send that letter and throw away £315 ?
Your chances in court are now zero

You didn't even say that the offer was Without Prejudice
If you don't pay, CEL can produce it to the court
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Celpoo123
post Mon, 19 Nov 2018 - 11:14
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I am not a legal expert. You said in your first message to me that my defence wasn't very good. The prospect of losing another £300+ doesn't sound at all appealing.
I have not accepted liability. Without prejudice is legal speak. I am not a solicitor.
I have not admitted to being at fault. I just want this problem to disappear.3
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Jlc
post Mon, 19 Nov 2018 - 11:51
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Yes, it's daunting - and they know that. You had some lines to pursue but they are time consuming and there's always risk.

The set aside charge was potentially recoverable as they failed to maintain their records correctly. Unless forced by a court order they won't repay it.

For future reference, always check here before you send letters - knowing they are potentially on the hook themselves to pay you, of course they'll accept anything.


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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nosferatu1001
post Mon, 19 Nov 2018 - 13:15
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You have zero chance at court, down from not bad given CEL dont like to turn up to defended cases

Pay up, accept your mistake, and move on.

Act in haste, repent at leisure
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peodude
post Tue, 20 Nov 2018 - 13:30
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QUOTE (Celpoo123 @ Mon, 19 Nov 2018 - 11:14) *
I am not a legal expert. You said in your first message to me that my defence wasn't very good. The prospect of losing another £300+ doesn't sound at all appealing.
I have not accepted liability. Without prejudice is legal speak. I am not a solicitor.
I have not admitted to being at fault. I just want this problem to disappear.3


Unfortunately your e-mail exchange is a textbook contract, you made an offer, the offer was considered and accepted. They can now print this off, take it to court and say you agreed to pay £60 if you don't pay.
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nosferatu1001
post Tue, 20 Nov 2018 - 14:08
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And indeed, this WILL mae the problem disappear - for £60.
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Redivi
post Tue, 20 Nov 2018 - 14:36
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Plus the £255 he paid for the set-aside
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nosferatu1001
post Tue, 20 Nov 2018 - 14:40
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Oh yeah, but that was gone the instant they didnt get a draft order telling CEL to pay up if they discontinue or stay the claim
CEL would never attend a hearing - they made it to a couple and got spanked recently, and havent turned up since to my knowledge.
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