help LBCC Defence

10 Days to submit defence
29th Apr 17 at 12:27 PM
#1
I appealed to KFC as I received letter before CCJ from Civil Enforcement Limited.
I had not received anything prior to this and apparently had overstayed back in June 2016 in a 30 minute limit.
I couldn't physically leave as the Drive Thru lane was blocked and it's the only lane in and out of the KFC...
KFC agreed that they've had issues with PCNs and that 30 mins is not enough time and now have new signs in the restaurant and a signing in book so when tickets are issued they can get them overturned.
This has been out in place by the new manager since 2016.
I filed an acknowledgement of service and need to submit my defence I was told by the court by the 10th May.
I now need to put my defence together.
These are the particulars of claim:

1)At all times the claimant managed the car park the address of which is stated .The car park is private property.

2)By way of background the claimant uses ANPR which identify time of arrival and leaving time.
3) There are many visible signs in the car park advising drivers of the terms and conditions of use.These signs constitute an offer by the claimant to enter into a contract with drivers.
4)the key terms are summarised in the attached schedule of information.
5) when the defendant parked their car there they accepted the term and condition of parking .See Vine v Waltham Forest Borough Council.
6) the defendant breached the terms and conditions of the site and is liable to pay the claimant the amounts as set out in the schedule of information.
7)the supreme court judgement in the case of Parking Eye v Beavis has established that it is both legal and justifiable for car park operators to implement a disincentive such as the above so to efficiently manage the car park for the benefit of the users.Our charge is neither extravagant nor unconscionable and falls within British Parking guidelines.
8) Claimant was left with no alternative but to escalate the matter as a result of non payment which further increased the amount owed in accordance with terms of parking.
9) the claimant claims the amount owed plus court and legal fees and interest.

it is then signed or photo copied Ashley Cohen CEL etc

as it happened over 10 months ago I cannot get evidence / witnesses and now the signs in the car park are bigger ... however the signing in book shows that the retailer has many issues with the issuing of PCN.

Do I have to submit a reply to each of these 9 points above in my defence ?
How do I say in legal terms I was physically blocked in by the drive thru and that I was genuinely there on a very busy day when the queues were out the door and even if I was aware of the 30 minute limit it would have been impossible ?
I'd really appreciate help as need to write it as soon as I can ....

Replies

  • LuluGGLuluGG Forumite
    7 Posts
    how do I include in legal speak :
    fact I was blocked in by the queue of cars in Drive thru
    how do I say the retailer agrees 30 minutes is not long enough and has put new signs up inside the restaurant and has a signing in book.
    How do I say that because it happened 10 months ago and I've not been given an opportunity to defend it I cannot get evidence or witness statements to say that the signs that are now up are new .... i.e. post 2016 ?
    Have I left out anything in response to their Particulars of Claim ?
    Do I just upload this now to my online portal and send a hard copy too ?
    many thanks in advance



    In the County Court Business Centre
    Claim Number ****
    Between:!
    Civil Enforcement Limited v ******
    Defence Statement

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

    The Claim Form issued on the April 7th 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)”.

    1/ This Claimant has not complied with pre-court protocol:
    (a) There was no compliant ‘Letter before County Court Claim’, under the Practice Direction, despite the Defendant's requests for this and further information.
    (b) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information. The covering letter merely contains a supposed PCN number with no contravention nor photographs.
    (c) The Claim form Particulars were extremely sparse and divulged no cause of action nor sufficient detail.!It has still not been made clear to the Defendant why the charge arose, what the alleged contract was; and cannot be considered a fair exchange of information.!
    (D)!!The Claim includes a sum of £50, described as ‘Legal Representative’s costs’. Given the Claimant uses a fully automated, bulk processing service, requiring no intervention from a Solicitor often generating up to £50,000 of income they are put to strict proof to show how this cost has been incurred. The Claimant is put to strict proof of all his assertions.!

    2/ The claimant has not issued a 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.!

    3/ 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 as there was no clear, transparent information about how to obtain a permit either inside or outside the site) is the sum on the Notice to Keeper. Neither the signs, nor the Notice to Keeper, mentioned a possible £326.05 for outstanding debt and damages.

    4/ 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.

    5/ Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
    (a) 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.
    (b) Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.; 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 by an authorised party using the premises as intended.
    (d) 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.

    5/ 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.

    6/ 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.

    7/ 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.

    8/ 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 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.

    10/ 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 is remunerated and the particulars of claim dated 7th April 2017 are templates, so it is not credible that £50 legal costs were incurred. I deny the Claimant is entitled to any interest whatsoever. The sheets are photocopied along with the signature.

    11/ The Claimant’s Solicitors are serial abusers of the Court process;!the Claimant is known to be a serial litigant, issuing up to 1,000 similar claims on a weekly basis.

    12/ The Claim is in excess of £300. Without information to the contrary, I believe the original amount for a Parking Charge would have been £100 or less.!!Given the Claimant uses a fully automated, bulk processing service,!I also object to all additional charges associated with this Claim and the Claimant is put to strict proof of all his!assertions.!!

    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 7th April 2017.
    (b) failed to respond to calls and messages from the Defendant dated 13th April 2017 requesting further information and details of the claim and proof that previous correspondence had been sent prior to the Claim Form.


    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.
    In all of the above circumstances, I respectfully ask the Court to dismiss this claim.
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