CEL Defence prepared

RLC2016

Please could someone offer me some advice on the defence below before I submit it?

I XXXXX XXXX as the Defendant deny any liability whatsoever to the Claimant for all of the following reasons:

1. I totally deny the whole claim firstly because I, as the registered keeper at the time, was not aware of any parking restrictions on the car park in question for reasons which I will outline below.

2. There were inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case. Following a recent visit to the car park in question I can confirm the following;

(a) Non existent Automatic Number Plate Recognition (ANPR) 'data use' signage on entrance to the car park - breach of Information Commissioner’s Office (ICO) rules and the British Parking Association (BPA) Code of Practice.

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

i) The first sign in the car park is on the opposite side of the road therefore any driver entering the car park would need to take their view off the road ahead. This sign was not seen by the driver.

ii) The area where the driver parked in front of the visiting restaurant did not have a sign displayed. There were also no signs along the short walk into the restaurant.

(c) 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 Unfair Terms in Consumer Contracts Regulations (as applicable at the time).

(d) No promise was made by the driver that could constitute consideration because there was no offer neither known nor accepted. No consideration flowed from the Claimant.

3. The Claimant has failed to comply with the pre-action protocol because:

(a) No letter before claim as required under the Practice Direction was ever received.

(b) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'.

(c) The particulars of claim were not received within 14 days as outlined on the county court claim form and photographic evidence was not provided as proof of the overstay.

(d) The claim form is signed by 'Michael Schwartz' who I believe underwent a thorough investigation by the SRA and consequently conditions were imposed on his practicing certificate and he was fined in the sum of £1,000.00 by the Solicitors Regulation Authority (SRA). It is believed he can act as a solicitor only in employment matters, the arrangements for which must be pre-approved by the SRA and I have no evidence that this is the case, nor that he is an employee of the Claimant.

(e) Absent the elements of a contract, there can be no breach of contract.

4. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an un-denied 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 was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a license to park free. None of this applies in this material case.

5. BPA Code of Practice 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.

(d) the charge is not based upon a genuine pre-estimate of loss (a condition at the time).

7. No standing - this distinguishes this case from the Beavis case:

It is believed Civil Enforcement Limited 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.

ii) The claimant has not provided any information in response to the Part 18 to suggest that they have an interest in this land i.e. a contract with the land owner of the car park.

8. No legitimate interest - this distinguishes this case from the Beavis case:

This Claimant files serial claims regarding sites where they have lost the contract, known as revenge claims and it believed this could be one such case. This is not a legitimate reason to pursue a charge out of proportion with any loss or damages the true landowner could pursue.

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.

9. The charge is an unenforceable penalty, neither based upon a genuine pre-estimate of loss nor any commercial justification. The Beavis case confirmed that the penalty rule is certainly 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.

10. The claimant has added unrecoverable sums to the original parking charge. If Mr Schwartz is an employee then the Defendant suggests he is remunerated and the claim/draft claim are templates, so it is not credible that £50 legal costs were incurred. Nor it is believed that a £40 fee was paid to any debt recovery agency so the Claimant is put to strict proof it has. I deny the Claimant is entitled to any interest whatsoever.

11. The claimant has failed to respond to a Part 18 request for further information letter.

i) The driver simply does not know if the alleged overstay is accurate as they were not aware of the terms due to the above and therefore was not keeping time.

12. If the court believes there was a contract (which is denied, due to unlit and inappropriate signage) this is just the sort of 'simple financial contract' identified at the Supreme Court as one with an easily quantifiable loss (the tariff) where any sum pursued for breach must still relate to a genuine pre-estimate of loss.

I as the defendant deny any liability whatsoever to the Claimant in any matter.

I as the defendant invite the Court to use its discretion to make such an order, if not striking out this claim.