Getting taken to court by Civil Enforcement

Ttsqre

Hi All
I am being taken to court by CE ltd for what (they claim) was a 16 minute stay.
What happened:
I went to a car park which was 20p per hour to take the kids for a bike ride. Instead of using a parking space, I pulled up by the park to unload the bikes and the children (with a view to parking once disembarkation was complete). One of the bikes had a fault and it took me a few minutes to work out if was not resolvable one. So I reloaded the kids and the bikes and drove off. An additional factor is that just after I exited the car park I realised I had left something on the grass so popped back for it.
Chain of Events:
CE sent me loads of threatening letters. What I objected to was the tone of intimidation, saying things about it affecting my credit rating etc which I know to be stretching the truth, and is clearly deliberately misleading.
I responded once explaining the above and that I was not going to pay. I also asked for evidence that they had not 'double dipped' me.
They rejected this and passed me onto the their debt collectors and solicitors. And here we are, they are claiming £323 including court fees for a 16 minute (max) stay in a car park that is 20p an hour.
In their particulars of claim they cite Vine vs Waltham for accepting the terms on the signs, and of course Beavis for implementing a disincentive.
i have acknowledged the claim and have just over 2 weeks to formulate my defense. Quite simply I would rather go to court and lose than roll over for these people. Their intimidation tactics are a disgrace, let alone the amount of money that are trying to extract from me!
My plan:
I will post a draft of my defense here, but please let me know what other information you need to help me! At the moment I'm thinking I will build my defense around 3 points:
1. The beavis case not relevent here as that was a free carpark so the company had to get revenue from somewhere. My case involves a paid car park.+ in my case the car park is in very low demand and was empty at the time. PLUS If asking for £300+ for a 16 minute stay in a 20p-per-hour carpark is not extravagant and unconscionable then what is!
2. In Jopson vs Home the judge draws a distinction between stopped to unload etc and parking. 100% relevant in my case, esp the bit about "unloading awkward or heavy items"
3. in the BPA Code of conduct, the charge must be "proportionate and commercially justifiable". As explained above, no reasonable person would consider the £100 or £60 or the whole £323 as either proportionate or commercially justifiable.

I will also complain that they still haven't provided any evidence that they haven't double dipped me. Surely they have to provide photos of 2 entrances and 2 exits of my vehicle? (currently they have provided just one entrance and one exit photo)

many thanks for any time you spend reading / replying; truly appreciated!

Coupon-mad

Getting taken to court by Civil Enforcement

No you aren't. You are highly unlikely to see the inside of your local county court. They are going as far as DQ stage at the moment but we've seen no hearings, they've stayed lots of cases (not proceeded) when well defended. If you don't know what DQ stage is, refer to post #2 of the NEWBIES thread for what happens when and how to do it.

Yes to your defence points #1 and #2, but no to #3:

I'm thinking I will build my defense around x points:

1. The beavis case not relevant here as that was a free carpark so the company had to get revenue from somewhere. My case involves a paid car park.+ in my case the car park is in very low demand and was empty at the time. PLUS If asking for £300+ for a 16 minute stay in a 20p-per-hour carpark is not extravagant and unconscionable then what is!
2. In Jopson vs Home the judge draws a distinction between stopped to unload etc and parking. 100% relevant in my case, esp the bit about "unloading awkward or heavy items"

But mainly, just copy one the the ten million (slight exaggeration but not much) other CEL defences on here right now, seeing as they issued a shedload of claims in June. If you already gave away the info as to who was driving the car (ouch, toes shot off!) then you will not be able to use the standard argument that CEL can't hold a registered keeper liable, and can't use the POFA which is a huge shame, but you need to read all the other examples you can find and use the usual stuff, IMHO.

Ttsqre

Thanks for this.
Looking at the other templates I have a couple of Qs (I don't want to include anything in my defense that I don't fully understand)
- what does "no legitimate interest" mean
- should I include the 'do not hold a legitimate contract at this car park'? I know they have an arrangement with the park, but have no idea about the contractual status of this.
- you said No to #3, but I have seen letters in this forum citing BPACoP breaches about being pursued for more than £100. Should I include this?

DoaM

Commercially justifiable went away as a defence point after the Beavis case, which ruled at the Supreme Court (highest court in the land, so it is binding on lower courts) that there are situations where the amount of the PCN is commercially justified and not a penalty.

What you need to do it make it clear that your situation is very different from the Beavis case (your point 1) therefore your point 3 is irrelevant.

Ttsqre

Is anyone able to help me with my 3 questions above?
Also - another one - should I include in my details of why Beavis isn't relevant the "prominent signage" point? CEL claim there is clear signage, I have been back to the car park and this is arguable.I am concerned if the judge decides the signage is adequate this will undermine my case. (I am already including the point that Beavis was a free car park, in my case it was a paid one, and that the car park was empty etc.
thanks!

Umkomaas

Q's and A's

1. Principally, they don't own or have title to the land.

2. Why not? You don't know what is included in any 'agreement', you don't know who signed it, you don't know if the dates of the agreement covered the date of your parking event. If you assert it they need to rebut it with evidence. You pass them the hot potato to handle. If they don't handle it, the court will take it they accept your assertion.

3. The PE v Beavis case at the Supreme Court essentially put paid to that.

4. If you're arguing a signage point, it's essential that you obtain your own photographs as evidence.

Loadsofchildren123

The PPC has not produced any upfront information (as normal Claimants would do in an attempt to settle a genuine claim) then you have no idea if they have a valid contract with the landowner which allows them to operate there and to issue proceedings against motorists.


So you are saying that because of this you are not in a position to deny that there is such a contract.


In these circumstances, what you do in your defence is put the Claimant to strict proof of its right to operate, to issue PCNs and to issue and pursue claims against motorists in its own right, and for it to produce a copy of whatever agreement it has with the landowner.


Eg
Because the Claimant has failed to follow paragraphs 6(a) and (d) of the Practice Direction - Pre-Action Conduct, the Defendant has no idea what authority it claims it has to operate on the land in question, to issue charges to vehicles and to issue and pursue court claims against the drivers/registered keepers of vehicles. The Claimant is put to full proof thereof and for the avoidance of doubt the Defendant requires a full copy of any contract with the landowner or lawful occupier of the land pursuant to which such authority is claimed. In the meantime, the Defendant cannot accept that such authority exists and reserves his position in relation thereto.


Or something like that.

Ttsqre

thanks so much.. really helpful as this is not easy!
Should I include any of the contractual considerations from the AZIZ case?

Loadsofchildren123

What does the Aziz case say - is that the European one that isn't applicable since Beavis?


Back to your defence - the rules say that you must make it clear which aspects of the claim you deny, accept or require them to prove. Make it clear in your defence where you either put them to proof, deny or accept (eg you will accept you are the RK and that you were driving (if you do admit that), you will deny any contract was entered into or that if there was a contract that you breached it, you will put them to proof of their authority to operate, bring proceedings etc.)

Ttsqre

I was referring to:
European Court of Justice in Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5 (Para 69) regarding the Unfair Terms Directive :
With regard to the question of the circumstances in which such an imbalance
arises “contrary to the requirement of good faith”, having regard to the sixteenth recital in the preamble to the directive and as stated in essence by the A.G. in point AG74 of her Opinion, the national court must assess for those purposes whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual contract negotiations.
Looks like it does pre-date Beavis.. but isn't to do with GPEOL

Loadsofchildren123

I think that case is superceded, search for it on the forum, I've definitely seen posts about it.