CPE - Small Claims Court and DQ

joeythepoey

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Hi Guys,

Been lurking here as we received a parking charge last year, and after ignoring it for a while the driver asked me to deal with it.

I really hope you can help me!

The particulars:
-the driver parked at the Goldstone Retail Park on Old Shoreham Road in Hove at the end of September last year. Went to TK Maxx for a few hours to do some pre-christmas browsing and when the driver came out, bumped into a few friends who took the driver for dinner at Nando’s.
The driver ended up overstaying the 3 hour parking limit they apparently have (4.5 hours)
The car park wasn’t full, and I think the driver's only crime is going to Nando’s

-We started getting letters from Civil Parking Enforcement, who wanted to charge £100. Having read some parking ‘advice’ on forums before, we ignored the harassing letters, of which they sent a few. (I won’t be doing that again!)

-This escalated to receiving a letter taking it to a Small Claims Court from ‘Ashley Cohen’, from Civil Enforcement Limited.
The Schedule Of Information is scant; no pictures, just a rundown of their Claim and an outstanding amount of £324.03 including interest and legal fees.
I’m the registered keeper of the vehicle, but was -not- the driver at the time.

-I’m self employed and have been absolutely rammed and stressed to the hilt with work, so not the best time to start fighting a parking company.
As I’ve been lacking time, I had a look through this forum and used a defence that seemed most appropriate, listed below (name of course retracted)

-I filed the defence online and have now received a Directions Questionnaire from the County Court that I need to fill in.
THIS IS THE PART I NEED HELP WITH, as I need to send it off Tuesday 5th of sept latest.
Is there anything particular I need to keep in mind when filling this in?
1) Can I scan it and send it via email, or do I need to do it via post?
2) Do I need to send anything with it? I’ve got pictures of the signage at the retail park?
3) Do I also need to send a copy to Civil Enforcement?
4) What is a reasonably amount to suggest for mediation?
5) Any other advice you can give me to fight this successfully?
6) Is it worth engaging a parking litigation service to fight this?
7) Thanks very much for looking at this and any help you can provide

My defence as mentioned:

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**redacted adres**
14th of July, 2017


In the County Court Business Centre
Claim Number: D2GM***

Between:
Civil Enforcement Limited v **Jo** (**Jo**)

Defence Statement:

I am ******, the Defendant in this matter and registered keeper of vehicle T110***. I currently reside at ***Brighton***

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

1. The Claim Form issued on the 13th of 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”.

2. 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.

g) Defendant was not the driver of the vehicle at the time of the alleged incident, and therefore the Claimant’s case must be against the Defendant as the Registered Keeper of the vehicle.
The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012 (POFA). Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold the Defendant liable under the strict ‘keeper liability’ provisions.

f) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.

g) 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.
The claimant’s wording suggests the Driver was the Keeper, which has not been established.
(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

h) Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

3. 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.

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. 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 £236.00 for outstanding debt and damages.

4. 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. I deny the Claimant is entitled to any interest whatsoever.

5. 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.

6. 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 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.

7. 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.

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 is 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.

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 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.

Signed:





*****

Date:
14th of June, 2017

Umkomaas

The NEWBIES FAQ sticky, post #2 covers all the procedures to follow in relation to a small claim in the county court. Please have a read of it. If after doing so you feel something isn't covered, do come back to this thread.

You need to get the name of the PPC right - its 'Civil Enforcement Ltd'. There's no registered PPC called 'Civil Parking Enforcement', or 'CPE'.

You do know that if this is robustly contested and all the court procedures are followed, CEL will discontinue their claim? But you need to be prepared to go up to the wire and not panic.

joeythepoey

Thanks for your reply Umkomaas,

Yes, I am aware that it's Civil Enforcement, I had an early rise and put Civil Parking in my post, apologies.
I sincerely hope that following procedures and contesting it will work..that having been said, how robust is my initial letter?

I will read sticky post 2 and see if I have any more questions, thanks..

Redx

definitely read post #2 , definitely check the BARGEPOLE instructions and advice and bear in mind only a fool would do anything other than what he has said already in his posts on the matters you brought up

then come back with an amended questionnaire, should you need to do so

and edit post #1 to remove the person who was driving (no ME , MYSELF , I , MY WIFE , MY HUSBAND , HE ,SHE , IT or anything else)

the correct terms are

THE DRIVER

THE KEEPER

and CEL , Civil Enforcement Limited

and read up on ASHLEY COHEN too, plenty of info about that "person"

joeythepoey

Thanks for the replies so far.

I assume the fact that Civil Enforcement have lost the contract as of July this year on the retail park has no bearing on my case?
It does mean their signs are no longer there...

Redx

not really, BUT its an additional factor in your witness statement , especially if you get a witness statement on your behalf from the landholder or M.A. backing your case and asking for the court claim to be cancelled

Umkomaas

how robust is my initial letter?

Initial letter? I thought what you've posted was your defence? Well actually, your wife's defence. Please tell us this has all gone off in the name of your wife?

Unfortunately I don't comment on defences. I came to the forum almost 5 years ago to help posters fight unfair parking charges, not help to defend them in court cases. I have had to draw the line somewhere as the level of input time I devote to the forum in dealing with queries up to, but not including, court cases is inordinate.

If I did any more, the only court case I'd be dealing with would by own case - in the divorce court! Sorry, but this forum has morphed out of all recognition to what its original intent was. If your wife had come here at the very start, I'd have seen her through to a guaranteed positive outcome via POPLA.

There is only a very small number of regulars who do comment on defences, hopefully one will be along soon.

Redx

I am the same as the above poster

I dont comment on actual defences other than any glaringly obvious mistakes or where I can be of positive help within my non-legal abilities (like writing CPE instead of CEL and writing who did what instead of leaving it ambiguous)

you seem to have done ok so far, but post #2 of the NEWBIES sticky thread is an essential read, as are the BARGEPOLE posts

hence why we dont comment on stuff already answered by people who have the knowledge and have written it down like CM and Bargepole

not sure what "letters" are being referred to but defences and claim forms and statements are not "letters" , so try to use correct terminology now that this is a court case (because the MCOL was filed , but not the court filing fee for the next stage as yet)

if you ask questions that are answered in that NEWBIES sticky thread, all you will get are replies redirecting you back to it

Coupon-mad

joeythepoey wrote: »

I assume the fact that Civil Enforcement have lost the contract as of July this year on the retail park has no bearing on my case?

It is worth including and appears as point #8 in the registered keeper's defence. I hope the registered keeper signed this off in their name, not the driver?

You don't need to say where the Defendant lives, but it is interesting to see you are from my general area!

I currently reside at ***Brighton***

the Goldstone

Sob...memories...there are lots of locals who boycott the place now it's a retail park!

-I filed the defence online and have now received a Directions Questionnaire from the County Court that I need to fill in.
THIS IS THE PART I NEED HELP WITH

DQ stage is fully covered in the NEWBIES thread by bargepole in his thread about what happens when and which boxes to tick, and who to send it to. I am suggesting a robust covering letter to encourage CEL to drop it sooner:

https://forums.moneysavingexpert.com/discussion/comment/73059674#Comment_73059674

HTH

joeythepoey

First off, wanted to thank everybody on this thread and Red-x and Coupon Mad in particular for their help!
Secondly; it almost went to court (got court letters that a date was set), but CPE have just sent me a letter that they're fully discontinuing their proceedings! YAY!!!

Now the question is...do I ask for compensation? Happy to leave it where it's at, but at the same time, I'm sure I'd be paying them if I had lost, so will do a search here to see how I can go about this...I did spent a fair bit of time researching and typing letters:)

Thanks again!

Best,

Joe

nosferatu1001

You can try to get the court to entertain a costs application, however its unlikely. You make have a claim to make for DPA or harassment?