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  • FIRST POST
    • fineandandy
    • By fineandandy 7th Jul 17, 7:51 PM
    • 20Posts
    • 18Thanks
    fineandandy
    civil enforcement defence critique please
    • #1
    • 7th Jul 17, 7:51 PM
    civil enforcement defence critique please 7th Jul 17 at 7:51 PM
    Hi thanks in advance for any help with this defense statement

    some background detail.
    the car park in question is on a busy high street with one small unbarriered entry that for in and out. The car park caters for a couple of medium supermarkets and a few other smaller shops. cars drive in off the main road and ordinarily queue for a space to become available most of the time. the active parking payment time is up to 18:30. it has just recently gone from attendant monitored to anpr.

    a parking charge notice invoice was sent to keeper as ' payment not made in accordance with terms displayed on signage" car parked from 17:44 to 20:34.

    a payment receipt ticket for the time 18:16 to cut off of 18.34 is in possession and a copy of which was sent to CE via email stating it had been purchased after seeking the correct change from a supermarket.
    The invoice was sent 19days after the alleged contravention by post.

    Iam mainly concerned that the queueing time has not been accounted for as the anpr must pick up as soon as a threshold is crossed. an opinion on this would be helpful.

    Also should i outline the circumstances of how the parking is carried out like above in beginning of the defence?

    My defence is as follows

    In the County Court Business Centre
    Claim Number XXX
    Between:
    Civil Enforcement Limited v XXX

    Defence Statement

    I deny I am liable for the entirety of the claim for each of the following reasons:

    1/ The Claim Form issued on the **** 2017 by Civil Enforcement Limited was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by “Civil Enforcement Limited (Claimant’s Legal Representative)”.

    2/ This Claimant has not complied with pre-court protocol: And as an example as to why this prevents a full defence being filed at this time, a parking charge invoice can only be raised for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

    (a) There was no compliant ‘Letter before County Court Claim’, under the Practice Direction, despite requests for further information.

    (b) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The poorly constructed and mail-merged documents contain very little information. The covering letter merely contains a supposed PCN number with no contravention detail nor photographs.

    (c) The Claim Form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has no idea what the claim is about; why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information. The Claim form Particulars did not contain any evidence of contravention or photographs.

    (d) A ‘Schedule of Information’ sent by the Claimant was sparse of detailed information:
    1. The defendant, who is the registered keeper and not identified as the driver at the alleged time.
    2. The Vehicle Registration Number.
    3. The date and time of the alleged incident.
    4. Car park name.
    5. Outstanding amount and identification of some fees.
    6. A section entitled ‘Summary of terms’ outlines a contradictory tariff rate as per signage and states that the parking charge cut off time is 18;30 even though their charges are outlined elsewhere in the invoice as being up to and including 20:34.

    It also does not detail:
    1. Proof or confirmation of the driver at the time of the alleged incident.
    2. Proof of the actual vehicle located there at the alleged time.
    3. Photographic proof that the car was actually parked.
    4. The vehicle type and colour.
    5. Why the charges may have arisen.

    Despite being offered photographic proof of the existence of a valid ticket that covers parking time up to and beyond the legal charge period stated on the signage. It has still not been made clear to the Defendant why the charge arose, what the alleged contract was; and therefore cannot be considered a fair exchange of information.

    e) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.

    f) Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;

    i. Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge

    ii. A copy of any contract it is alleged was in place (e.g. copies of signage)

    iii. How any contract was concluded (if by performance, then copies of signage maps in place at the time)

    iv. Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper

    v. Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter

    vi. If charges over and above the initial charge are being claimed, the basis on which this is being claimed

    vii. If Interest charges are being claimed, the basis on which this is being claimed

    g) Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence

    3/ The claimant has not issued a legal compliant notice under Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.

    4/ There can be no 'presumption' by the claimant that the keeper was the driver. Henry Greenslade, lead adjudicator of POPLA in 2015 and an eminent barrister and parking law expert stated that “However keeper information is obtained; there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort.”

    Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and ‘relevant contract' fairly and adequately communicated, which there was not , is the sum on the Notice to Keeper. Neither any signage, nor the Notice to Keeper, mentioned a possible £322.74 (inc court fees) for outstanding debt and damages which the claimant is now demanding.

    5/ 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. None of this applies in this material case.

    6/ In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.

    a) The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.

    b) In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.

    c) Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:

    (i) Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum.

    (ii) Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.

    (iii) It is believed the signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from an authorised party using the premises as intended.

    (iv) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.

    (v) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.

    7/ BPA CoP breaches - this distinguishes this case from the Beavis case:
    (a) the signs were not compliant in terms of the font size, lighting or positioning.
    (b) the sum pursued exceeds £100.
    (c) there is/was no compliant landowner contract.

    8/ No standing - this distinguishes this case from the Beavis case:
    It is believed Civil Enforcement do not hold a legitimate contract at this car park. 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.

    9/ No legitimate interest - this distinguishes this case from the Beavis case:
    The Claimant has no legitimate reason to pursue a charge out of proportion with any loss or damages the true landowner could pursue.

    10/ The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.

    11/ The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirms that the penalty rule is still engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.

    12/ The claimant has added unrecoverable sums to the original parking charge. If the ‘Civil Enforcement Limited (Claimant’s Legal Representative)’ is an employee then the Defendant suggests he/she is remunerated and the particulars of claim dated **** 2017 are templates, so it is not credible that £40 ‘legal costs’ were incurred. I deny the Claimant is entitled to any interest whatsoever.

    The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:
    (a) failed to disclose any cause of action in the incorrectly filed Claim Form issued on **** 2017.

    (b) failed to respond to an email (except for an automated email acknowledgement) from the Defendant dated ** **** 2016 appealing the original PCN, requesting further information and details of the their claim.

    (c) failed to provide a POPLA code so that the matter could be referred for their decision (in accordance with BPA AOS Code of Practice 22.12) .
    The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

    I believe the facts contained in this Defence Statement are true.
    *****


    Many thanks for you help with this
    best wishes
Page 1
    • Coupon-mad
    • By Coupon-mad 8th Jul 17, 11:22 PM
    • 50,163 Posts
    • 63,538 Thanks
    Coupon-mad
    • #2
    • 8th Jul 17, 11:22 PM
    • #2
    • 8th Jul 17, 11:22 PM
    I am mainly concerned that the queueing time has not been accounted for as the anpr must pick up as soon as a threshold is crossed. an opinion on this would be helpful.
    Do you mean the queuing time to get change? You are never allowed time to get change, not in any P&D car park, not even a Council one, nor on street at a council machine). ''Going to get change'' is never an appeal point with any PCN, of any type, and should not be used in defence either, IMHO, especially as I think you are saying this took half an hour?

    That's ages...of course a person can't park, go wandering off (even to a shop on site) to get change, then half an hour later, come back and pay. I'm on your side, but the idea that this is OK to do, in any car park, is wrong. It's not OK and this will always get you a PCN.

    Just don't hang your hat on that point about ''getting change'', is all I am saying. I like the point you've made that payment was made for time well past the charging hours and that the terms are ambiguous, that all has legs if they try a hearing.

    Your defence looks good to go. I don't expect CEL to go as far as hearings, in most cases.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • fineandandy
    • By fineandandy 9th Jul 17, 9:40 PM
    • 20 Posts
    • 18 Thanks
    fineandandy
    • #3
    • 9th Jul 17, 9:40 PM
    • #3
    • 9th Jul 17, 9:40 PM
    Thanks for your reply coupon

    No not queueing time to get change but queueing to get a space. you often have to queue up to wait for a space as you cant wait on the street as somebody would just drive in front of you. And you have to enter the car park and then wait for a space to become available before you can park up and leave it.

    do you think i should outline this parking scenario in my defence statement somewhere or wait till hearing stage to bring that up?

    Thanks again
    • Coupon-mad
    • By Coupon-mad 9th Jul 17, 9:49 PM
    • 50,163 Posts
    • 63,538 Thanks
    Coupon-mad
    • #4
    • 9th Jul 17, 9:49 PM
    • #4
    • 9th Jul 17, 9:49 PM
    You need to outline everything in the defence, in short points, so you can use it later.

    Half an hour waiting for a space is quite a long time but was successfully argued in Fistral Dude's case re a busy Newquay tourist car park in Summer:

    http://parking-prankster.blogspot.co.uk/2014/03/waiting-for-space-is-not-parking.html

    Include it all but don't go strong on ''going for change''.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • fineandandy
    • By fineandandy 9th Jul 17, 10:05 PM
    • 20 Posts
    • 18 Thanks
    fineandandy
    • #5
    • 9th Jul 17, 10:05 PM
    • #5
    • 9th Jul 17, 10:05 PM
    ok great thanks for that help and information
    agreed it may be seen as a long time but the queuing and getting change accounts for it.
    And we won't be the only one getting nailed in this way as its how the car park functions

    thank you very much again
    • fineandandy
    • By fineandandy 31st Aug 17, 3:18 PM
    • 20 Posts
    • 18 Thanks
    fineandandy
    • #6
    • 31st Aug 17, 3:18 PM
    • #6
    • 31st Aug 17, 3:18 PM
    Hi i am now at the directions questionnaire stage ready to send a copy to CCCBC and one to the other party and was wondering if there is a correct procedure in sending back a copy to the claimant ? i.e. enclosing a dear sirs covering letter and detailed information about the case or as i would prefer just an envelope with a photocopy of the DQ only
    Any advice please ?
    • Coupon-mad
    • By Coupon-mad 31st Aug 17, 3:24 PM
    • 50,163 Posts
    • 63,538 Thanks
    Coupon-mad
    • #7
    • 31st Aug 17, 3:24 PM
    • #7
    • 31st Aug 17, 3:24 PM
    I would attach a covering letter seizing the change to briefly tell them their case is without merit and they need to discontinue NOW, or you will seek punitive costs if they proceed any further and put you to the trouble of a Witness Statement/evidence and/or hearing.

    You could adapt a letter like this one by bluetoffee1878:

    http://forums.moneysavingexpert.com/showthread.php?p=72966188#post72966188

    That one was AFTER CEL/DEAL had discontinued, but you can certainly set your costs out now as a fair warning, and give them say, 14 days to take up a free 'drop hands offer' (i.e. you offer to claim nothing if they cancel completely within that time).

    We expect CEL to discontinue and waste people's time, so seize on that fact and push for it now.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • fineandandy
    • By fineandandy 31st Aug 17, 3:50 PM
    • 20 Posts
    • 18 Thanks
    fineandandy
    • #8
    • 31st Aug 17, 3:50 PM
    • #8
    • 31st Aug 17, 3:50 PM
    Thanks you very much Coupon mad
    • Coupon-mad
    • By Coupon-mad 31st Aug 17, 3:52 PM
    • 50,163 Posts
    • 63,538 Thanks
    Coupon-mad
    • #9
    • 31st Aug 17, 3:52 PM
    • #9
    • 31st Aug 17, 3:52 PM
    Write it not as a rant, but in the same style as bluetoffee1828.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

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