Civil Enforcement Defence - Electronic Permit

ashjwright

Hi,

I have a week or so left to file my defence for a claim from Civil Enforcement Ltd. The site I got the ticket on is a Youth Housing (YMCA) and you're supposed to get an electronic permit by putting your car reg into a small ipad which then apparently issues you the electronic permit. When you go into the building you also have to sign in manually your name and car reg into a book. Nothing is visibly shown nor explained which process gives you a permit. On the day I got the ticket I definitely signed in the book, however I dont believe the ipad was given to me to enter my car details - either that or I did both but the tablet didn't work properly.

Since I received the county court letter I have been in contact with the site and asked them to check the manual books and write me a letter saying that I was authorised to be there and I did indeed sign in - they say they are happy to help but they don't have any urgency about it and I have been on the phone to them and visited multiple times. Aside from this hopeful letter, I have read previous posts on generic defence against CEL and have written my defence up as a draft.

Could anyone please read through it and tell me if it is okay? Particularly section 1 please.

Thank you very much!!



In the County Court Business Centre
Between:
Civil Enforcement Limited
V
Defendant

I, defendant, deny I am liable to the Claimant for the entirety of the claim for each of the following reasons:

1. There is no clear instruction on how to obtain a permit within the car park, only after the incident was this explained by the landowner and not the claimant.

a. Supposedly when entering the building you are to enter your registration details into an electronic tablet issued by a member of staff – which 'applies' an electronic permit. This was never explained nor were instructions displayed.
b. On the date of the incident the defendant was authorised - by the landowner - to be there as a visitor to a friend who lived on the premises (Youth Housing).

I don't know how to word the above reasons correctly? Does that sound like a defence reason? Any other suggestions on what to put here would be much appreciated!


2. The Claim Form issued on the 31 June 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”.

3. 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 can be 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.

(b) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.

(c) The Schedule of information is sparse of detailed information.

(d) 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. Should I not put this if my first point is speaking about my knowledge of the date of the incident?

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.

4. The Claimant failed to meet the Notice to Keeper obligations of 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. I can not remember if/when the notice to keeper was actually sent to me- if it was within 14 days or not ?

a. 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. They cannot pluck another sum from thin air and bolt that on as well when neither the signs, nor the NTK, nor the permit information mentioned a possible £328.48 for outstanding debt and damages.

5. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs' were incurred

6. 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.

7. 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 by 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.

d) BPA CoP breaches - this distinguishes this case from the Beavis case:
(i) the signs were not compliant in terms of the font size, lighting or positioning.
(ii) the sum pursued exceeds £100.
(iii) 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. 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.

10. The charge is an unenforceable penalty based upon a lack of 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.

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 31 May 2017

(b) Sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.

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 confirm that the above facts and statements are true to the best of my knowledge and recollection.

Signed
Date

Coupon-mad

You need to avoid suggesting who was driving, and you should leave everything from the generic defence in because you have found a robust generic defence that should see this off again - it's tried & tested!

So maybe at the start:

1. Whilst the Particulars are very sparse, I have reviewed the parking 'enforcement' regime at the location mentioned in the claim.

a. There is no clear instruction within the car park about how to obtain a permit or be 'permitted' to park. The signs are very high and with terms buried in small print, contrary to the transparency/fairness requirements of the Consumer Rights Act and contrary to the 'adequate notice' requirement of Schedule 4 of the POFA 2012.

b. When entering the building, despite the lack of clear instructions, it seems from information now obtained from the Landowner, that vehicle registration numbers are intended to be input into an electronic tablet issued by a member of staff. However, this claimant has shown no evidence that this procedure was followed by staff members on that occasion.

c. There is no evidence that this was explained or the electronic tablet offered on the day, and a consumer cannot be held liable for the omission of the third party company in charge of the electronic tablets to draw an obligation to the attention of drivers. This practice is unfair, outside of the control of drivers and is therefore in breach of the Consumer Protection from Unfair Trading Regulations 2008 (as amended in 2014) in that it creates significant imbalance, contrary to the requirements of good faith, to the detriment of consumers (fails the ‘fairness test’).

[STRIKE]d. On the date of the incident the [STRIKE]defendant[/STRIKE] driver was authorised - by the landowner - to be there as a visitor to a friend who lived on the premises (Youth Housing).[/STRIKE]

ashjwright

Thank you so much Coupon-Mad, that's perfect. So I'm gunna go with that and fingers crossed!

Deano1961

I won a battle against CEL recently who had issued proceedings. They withdrew just before the court date. The circumstances involved obtaining a permit using a keypad.

Check out my defence on the thread 'Civil Enforcement Ltd - Defence - GP surgery'

And add a counterclaim. I didn't and should have.

Coupon-mad

Deano you can still issue a claim against them - costs you just £25 up front (a further £25 if it goes to a hearing) and you can add that to your claim. We suspect CEL might fold, like Smart did:

http://parking-prankster.blogspot.co.uk/2016/11/smart-parking-settle-out-of-court-for.html

Worth a punt and you have six years. You can still do this, but as a separate claim:

https://forums.moneysavingexpert.com/discussion/comment/72602715#Comment_72602715

Or, if this was very recently and you would be happy just to recoup costs and a bit more, as they discontinued just prior to a Court date you can try writing (VERY quickly, immediately tomorrow!) to your local court, quoting the claim number and asking for your costs plus a sum to reflect their unreasonable and vexatious claim and conduct:

https://forums.moneysavingexpert.com/discussion/comment/72464463#Comment_72464463

Hat tip to LoadsofChildren123, a legally qualified poster here.

ashjwright

I just received a letter/questionnaire that's titled Notice of Proposed Allocation to the Small Claims Track. It asks if I'd like to settle via mediation service etc. What is your advice on this? And does this mean they are going ahead with their claim?

Regards

Coupon-mad

Always best when you have a claim, to bookmark other CEL threads and share info with others at the same stag, saves us having a Groundhog day of questions!

https://forums.moneysavingexpert.com/discussion/comment/72874335#Comment_72874335

Why not pm that person and compare notes on your similar poker games, and celebrate when (probably) you both win!

Gannet123

Hi,

I too have received a Small Claim Track Letter. Not sure whether to ask for mediation either. Surely CEL aren't going to want that and then drop the case. I'm assuming that I should crack on with my defence regardless as there is evidence here that they should eventually fold.

Coupon-mad

Not sure whether to ask for mediation either.

Revisit the NEWBIES thread post #2, it tell you clear how to complete the DQ, every question, and why NOT to agree to Mediation.

You can't crack on with your defence - you have already done that bit, crack on with the DQ.

Marktheshark

I would inform the people with the book you are involved in a court case and you will be issuing a counter claim as landowners they have ignored an opportunity to mitigate the loss by providing the written records.

Might get their attention.