Defence vesus a Robo-Claim, is it sufficient?

mistermann

I have compiled a defence vesus a Robo-Claim from Civil Enforcement Limited, I probably have spent too much time on this but I have included it all below.

Is this likely to be sufficient?

Is there anything that should be taken out?

[a few points in square brackets I believe are true but need fact-checking at the site in question.]

In the County Court
Claim Number:
Between
Civil Enforcement Limited (Claimant)
and
<my name> (Defendant)


Defence Statement


Preliminary Matters.

(1). The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A).

No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which states:

"1.1 If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions."

(2). Point 6 of the particulars of claim "The Defendant breached the terms and conditions of the site". However there is nothing which specifies how the terms were breached, so it does not meet the requirements of Practice Direction 16 7.5.
Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a). The Claimants are known to be serial issuers of generic claims similar to this one. HM Courts Service have identified over a thousand similar sparse claims. These claims are made in bulk, and without even a named person on the form, to scare people into paying up rather than because the company has a genuine right to a claim, and therefore are against the public interest.

On the basis of the above, we request the court strike out the claim for want of a cause of action.

The claim "The Defendant breached the terms and conditions of the site" also completely contradicts the earlier claim in point 5 that the driver "accepted, by their conduct, the terms and conditions of parking."

Statement of Defence

I am <my name>, defendant in this matter. It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident. The Defendant denies liability for the entirety of the claim for the following reasons.

(1). The identity of the driver of the vehicle on the date in question is unknown and has not been ascertained.

i). The Claimant did not identify the driver

ii). The Defendant has no liability, as they are the Keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to hold the defendant responsible for the driver’s alleged breach.

iii). The code of practice for BPA registered parking companies clearly states ‘The driver is responsible for paying the parking ticket.‘

(2) This is a speculative serial litigant, issuing a large number of identical draft particulars. The term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

(3) The claimant has not provided enough details in the particulars of claim to file a full defence. The Claimant has not disclosed the alleged car park of the incident as the location has many. Nor have they provided any photographic evidence.

(4) The Claimant does not own the land therefore, there is reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and have no locus standing to bring this case.

i). The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.

ii). The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question.

iii). The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge. This Claimant files serial claims regarding sites where they have lost the contract, which are known as revenge claims and it believed this is one such case. This is not a legitimate reason to pursue a charge out of proportion with any loss or damages that the true landowner could pursue.

(5) It is required that the claimants send a Letter Before Action which complies with the Practice direction on pre-action conduct. None of the letters sent by Civil Enforcement Limited were a Letter Before Action, plus all these letters missed out the following information:

i) A clear summary of facts on which the claim is based.

ii) A list of the relevant documents on which your client intends to rely, unless I am to assume they will be relying on no documents.

This is a breach of the Principles contained in the Solicitors Regulation Authority Handbook version 8, published on 1st October 2013.

(6) The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £60 to £323.03. This appears to be an added cost with apparently no qualification and a blatant attempt at double recovery, which the POFA Schedule 4 specifically disallows. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

The Claim Form states that the claimant has added interest at 8.00% to the total. However the right to do this only applies in business-to-business transactions. A company cannot claim statutory interest if their customer is a consumer and not acting in the course of business. In such scenarios, a company can only claim interest if the contract sets an interest rate. And no evidence of this has been provided.

(7) The signage was inadequate to form a contract with the motorist.

i). The signage on this site is inadequate to form a contract. It is illegible from the driver's seat due to size, [black ink colour on a dark background], and a complete lack of lighting of the sign. (The time alleged by Civil Enforcement Limited was after 8pm in October when it would have been dark).

[ii). The BPA code of practice states: ‘There will be a sign at the entrance to the car park that will explain in the broadest terms that the car park is private land and that it is managed by an AOS operator’. This signage does not exist in any of the car parks at the location.]

iii). In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA.

iv). This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67, 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.

v). 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.

vii) 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.

viii) 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.

(ix) 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.

[(x) Non existent ANPR 'data use' signage – this is a breach of ICO rules and the BPA Code of Practice.]

(xi) It is believed the signage 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.

(xii) 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.

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

xiv) BPA CoP breaches -
(xv) the signs were not compliant in terms of the font size (very small) font colour (black on a dark background), or lighting (they were unlit).

(xvi) the sum pursued exceeds £100.

(xvii) there is / was no compliant landowner contract. 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 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 12th June 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.

(8) The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established. The Defendant denies that the driver would have agreed to pay the original demand to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

(9) The Schedule of Information provided with the Particulars of claim do not claim that 'if you breach this rule then you agree to pay our charge'.

(10) The Claimant has sent threatening and misleading demands. The first letter claimed the debt would be forwarded to a debt recovery agent (clearly designed to suggest to the Defendant they would be calling round like bailiffs). The second letter escalated this with a claim the company could ‘proceed with debt recovery action’, despite them having no legal right to do this. It also claimed that if they issued court proceedings against me them my ability to obtain credit in the future could be affected. It also used a different font with deliberate gaps between letters at a 45 degree angle to look like a rubber stamp had been used, stating ‘FINAL REMINDER BEFORE LEGAL ACTION’. (Five more letters were sent, all of which stated the company ‘may’ take legal action - but there was no Letter Before Action). The third letter contained fake court papers. The next three letters were sent via ZZPS Debt Collectors. The fourth letter contained an illegal extra ‘late payment and debt recovery charges’ of £100. The fifth and sixth letters were identical and sent just three days apart and threatened another illegal increase if this was passed to their solicitors. Their legal requirement to include details of Citizen’s Advice was only mentioned in terms of ‘advice and information on debt and other topics’ and mentioned alongside five other debt advice services. The seventh letter was sent via Wright Hassall Solicitors, and threatened they may ‘pass this matter over to their Litigation Department. This may mean they will look to obtain a County Court Judgement (CCJ). The possible impacts of having a CCJ registered against you are:
Negatively impact your credit rating
Prevent future lending
Affect current employment or future prospects of employment
Enables enforcement action to commence, such as obtaining an Attachment of Earnings, placing a Charge on your property or applying for a Warrant of Execution (instructing a bailiff.)”

This is wilfully misleading. It clearly implies that the solicitors themselves can simply request and obtain a CCJ, which could result in someone losing their job. The reality is very different. A CCJ is something that only a court can apply for, and only if the case goes to court, and only if the defendant loses, and only if the defendant then fails to pay in a fair timescale. Those details were deliberately omitted in an attempt to scare defendants into paying, regardless of the merits of their case.

Wright Hassall Solicitors are real solicitors (unlike Civil Enforcement’s previous ‘solicitors’, who were closed down because they were not solicitors and just the parking company sending a message from a different desk in the same building.) However they have broken a number of rules from the Solicitors' Regulation Authority. Here is the relevant paragraph from their handbook, version 18, 4th section, chapter 11:

Relations with third parties (published 1 November 2016):

The conduct requirements in this area extend beyond professional and business matters. They apply in any circumstances in which you may use your professional title to advance your personal interests.

Acting in the following way(s) may tend to show that you have not achieved these outcomes and therefore not complied with the Principles:

IB(11.7)
taking unfair advantage of an opposing party's lack of legal knowledge where they have not instructed a lawyer;

IB(11.8)
demanding anything for yourself or on behalf of your client, that is not legally recoverable, such as when you are instructed to collect a simple debt, demanding from the debtor the cost of the letter of claim since it cannot be said at that stage that such a cost is legally recoverable;

IB(11.9)
using your professional status or qualification to take unfair advantage of another person in order to advance your personal interests;

[(may cut this part) Chapter 12: Separate businesses

This chapter deals with your obligations when you have links to a separate business that is not authorised by the SRA or another approved regulator.

You can be a manager or employee of a separate business. However, you cannot practise as a solicitor, REL or RFL in a separate business except as permitted by Rule 4 (In-house practice) of the SRA Practice Framework Rules (see also Rules 1-3).

Clients of a separate business will not have the same regulatory protections as clients of an authorised body and it is important that this is clear to clients of the separate business particularly where they are being referred from the authorised body or cases are being divided with the authorised body.]

The letters added further unexplained charges with no evidence of how this extra charge has been calculated. No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs. Terms cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print when they were not.

(11) The company’s illegality (quoted in point 10) made me believe that their claim was not valid. If the company had an honest claim, why would they need to use misleading claims or omit important details?

The wording of the pro forma letters has changed over time as it has been pointed out to Civil Enforcement Limited that their letters contain deliberately misleading falsehoods. However they have merely ‘toned down’ the language used, while still allowing the letters to contain wilfully misleading statements intended.

Therefore not only should this case be dismissed, but all previous payments made by people who received these letters from Civil Enforcement Limited were not made legally and should be refunded (plus interest at 8%).