CE Enforcement fine - now asking for £140

System

My cousin phoned the company and authorised my car to park there which i thought was fine at the time.

As long as that is in there, then it is fine. There are all sorts of unnecessary arguments in there as all the judge wants is the fact the car was authorised. It was but there was a human error that the CEL system couldn't identify which a human at CEL should of, and stopped wasting the court's time.

CEL will be on the sticky end of this one, not the defendant.

Steo18

Thank you for your advice.
Fingers crossed! Any advice on what I should take out?

Steo18

Bump ********

Steo18

Bump again *****

KeithP

You seem to have two paragraphs numbered '3'.

The first para 3 can be deleted. There is no need to repeat the Claimant's Particulars of Claim.

Steo18

Thanks Keith I will remove that. Is there anything else you can think of that I need to add?

Steo18

[FONT=&quot]IN THE COUNTY COURT[/FONT][FONT=&quot] [/FONT][FONT=&quot]

[/FONT]

[FONT=&quot]CLAIM No: ******[/FONT][FONT=&quot][/FONT]

[FONT=&quot] [/FONT][FONT=&quot]
BETWEEN:

[/FONT]

[FONT=&quot]Civil Enforcement Limited (Claimant)[/FONT][FONT=&quot] [/FONT][FONT=&quot]

-and-

******************* (Defendant) [/FONT]

[FONT=&quot] [/FONT][FONT=&quot]

[/FONT]

[FONT=&quot]DEFENCE[/FONT][FONT=&quot] [/FONT]

[FONT=&quot] [/FONT][FONT=&quot]

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. It is admitted that the Defendant was the registered keeper and driver of the vehicle in question at the time of the alleged incident.

2. It is believed that it will be a matter of common ground that claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle **** *** when it was parked at *****

2.1. The PCN stated the contravention as 'Authorised vehicles only' and this contravention is denied. The Defendant denies liability for the purported parking charge (penalty), not least because it is already common ground that the correct process had been followed to authorise defendant's vehicle to park at the location. Permission was gained from a resident of **** (family member) who completed the process to authorise defendant’s vehicle to park on the land by phoning the number required and inputting defendants registration number.

2.2. In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach.[/FONT]

3. It is denied that:
a. A contract was formed as no signage could be seen due to poor lighting at night and no signage around the parking space where the defendant parked;
b. There was any agreement to pay a further penalty parking charge;
c. That there were Terms and Conditions prominently displayed around the site which prominently displayed the £100 penalty.
d. in addition to the parking charge there was an agreement to pay additional and unspecified additional sums;
e. the claimant in fact expended the claimed additional sums;
f. The claimant company fully complied with their obligations within the International Parking Community Code of Practice.

5. It is further denied that the Defendant is liable for the purported debt.
Primary defence - telephone call was made to authorise vehicle, but the system hid a concealed pitfall or trap


[FONT=&quot]4. [/FONT]The Defendant made all reasonable efforts to make payment for parking by using an approved authorising channel. Authorisation for parking was made via telephone by a family member – resident of *****[FONT=&quot]

4.1. Authorising by phone for parking is indisputably a 'distance contract' - a remote telephone transaction involving the exchange of more than one message/text - and under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, such a contract requires certain information to be supplied in advance. The supplied used by the Claimant failed to comply with the statute and this directly led to the system failure regarding the VRN data.

4.2. The Defendant’s family member followed the telephone systems instructions exactly as voiced on the call. The phone channel did not indicate any failure to input an incorrect index matching with ANPR and it was assumed the vehicle had been authorised to park as the required procedure was followed.

4.3. The service makes no provision to print a ticket to display, or a receipt so that a driver could check the details in a tangible format. The Defendant reasonably expected that the authorisation was made appropriately.

4.4. It was only when a PCN arrived in the post, that the Defendant knew (too late) of what appeared to be a minor data problem caused by the Claimant's system itself. The automated phone call failed to acknowledge the correct registration of the defendant's vehicle matching up with the ANPR system in place.

4.5. The DPA states that personal data is 'inaccurate' if it is incorrect or misleading as to any matter of fact. The matter of fact here is that authorisation was obtained by the driver of the vehicle which was captured by ANPR, and for which the Claimant duly obtained the Defendant's personal data from the DVLA.

4.5.1. Given the fact that the ANPR data did not match with a VRN provided via telephone, an automated PCN was issued. However, it was within the gift of the Claimant to ensure before starting enforcement at any site, that their systems are fit for purpose, such that when a phone call is made to authorise a vehicle, if it does not link up with the ANPR entries then this issue to be raised to the caller to avoid any possible human error/system malfunctions.

4.6. A PCN in these circumstances is completely foreseeable by a professional parking firm, and it is averred that this punitive charge relies upon the Claimant's own data being wrong at the outset, and going unnoticed by a driver. [/FONT]
[FONT=&quot] [/FONT][FONT=&quot]

5. The Defendant pointed out the data processing/storage error, as soon as the automatic PCN arrived. The Defendant sent a written appeal explaining that there has been an error on the system with the number plate obtained via telephone call – two letters, but the defendant made every effort to comply with the terms and conditions. [/FONT]
[FONT=&quot] [/FONT][FONT=&quot]
5.1. Thus, given the Defendant's appeal and the ANPR camera secondary data stream, which proved which car of the two, was actually in this car park, the Claimant knew about the error and was afforded ample opportunity to rectify the inaccurate data held by their system. At all times, from the ANPR image, the Claimant knew the correct VRN, and their two data streams (ANPR and telephone system) conflict, and this data inaccuracy could have been easily rectified at no cost.


No agreement on the penalty and no contract formed by conduct

6. The claim appears to be based upon damages for breach of contract. However, it is denied any contract existed. Accordingly, it is denied that the Defendant breached any contractual terms, whether express, implied, or by conduct.

6.1. It is clear that no conduct by the Defendant caused the penalty to arise and a professional parking firm could not reasonably lay any blame with the Defendant, for their own agent's data storage presumption and negligence. The charge offends against the reasonable and statutory expectations of trader/consumer relations requiring 'open dealing' and the doctrine of good faith.

6.2. Further, the Claimant will no doubt hope to convince the court that a 'relevant contract' existed and was breached. As this would be a consumer contract, it must be 'fair' and 'transparent' as set out in the Consumer Rights Act 2015, and must also be a valid and enforceable ('distance') telephone contract that is not unconscionable, given the facts of the case. The Defendant avers that this punitive charge fails in all respects.

6.2.2. And the Claimant would have the court believe that a 'relevant obligation' existed, which under the Protection of Freedoms Act 2012 (setting out the will of Parliament for parking tickets issued on private land, even if a Claimant is not relying upon that Act) is defined as ''an obligation arising under the terms of a relevant contract''.

6.2.3. The Defendant avers that there was no such obligation or burden that could fairly and squarely fall at the feet of the Defendant that day, and that such an imbalance in consumer rights and interests certainly falls under Part 2 'Prohibitions' of the Consumer Protection from Unfair Trading Regulations 2008.

7. The Claimant may also try to rely upon the completely different Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67. However, the Defendant avers that decision confirms the assertion that this charge is unconscionable, given the facts. To quote from the decision in Beavis:[/FONT]

Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.

Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

No standing or landowner authority

8. Further and in the alternative, the Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices under defined parameters (including when caused by failure of their own data processing/excessive storage) and to form/offer contracts in their own name, and to pursue payment by means of litigation.

No legitimate interest or commercial justification


9. The Defendant avers that this is a significant and all-too-common issue requiring investigation by the Information Commissioner's Office (ICO) and to this end, a formal complaint has now been lodged about the untimely, excessive and disproportionate storage of the Defendant's personal data (and VRNs are personal data, according to the ICO) which has resulted in such a significant imbalance in the Defendant's consumer rights.

9.1. The penalty represents neither a necessary deterrent, nor an understandable ingredient of a scheme serving legitimate interests, and the Beavis case is distinguished.

10. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Name **********
Signature ********
Date *****
[FONT=&quot][/FONT]

Steo18

Anything else anyone can see before I send it off or do you think that would be ok?

Steo18

Bump.......

Coupon-mad

Try this, below.

I removed some things that made no sense or were repetition, and CEL are not in the IPC.

Steo18 wrote: »

[FONT=&quot]IN THE COUNTY COURT[/FONT][FONT=&quot] [/FONT][FONT=&quot]

[/FONT]

[FONT=&quot]CLAIM No: ******[/FONT][FONT=&quot][/FONT]

[FONT=&quot] [/FONT][FONT=&quot]
BETWEEN:

[/FONT]

[FONT=&quot]Civil Enforcement Limited (Claimant)[/FONT][FONT=&quot] [/FONT][FONT=&quot]

-and-

******************* (Defendant) [/FONT]

[FONT=&quot] [/FONT][FONT=&quot]

[/FONT]

[FONT=&quot]DEFENCE[/FONT][FONT=&quot] [/FONT]

[FONT=&quot] [/FONT][FONT=&quot]

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. It is admitted that the Defendant was the registered keeper and driver of the vehicle in question at the time of the alleged incident.

2.1. It is believed that it will be a matter of common ground that claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle **** *** when it was parked at *****

2.2. The PCN stated the contravention as 'Authorised vehicles only' and this contravention is denied. The Defendant denies liability for the purported parking charge (penalty), not least because it is already common ground that the correct process had been followed to authorise defendant's vehicle to park at the location. Permission was gained from a resident of **** (family member) who completed the process to authorise defendant’s vehicle to park on the land by phoning the number required and inputting defendants registration number.

2.3. In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach.[/FONT]

[STRIKE]3. It is denied that:
a. A contract was formed as no signage could be seen due to poor lighting at night and no signage around the parking space where the defendant parked;
b. There was any agreement to pay a further penalty parking charge;
c. That there were Terms and Conditions prominently displayed around the site which prominently displayed the £100 penalty.
d. in addition to the parking charge there was an agreement to pay additional and unspecified additional sums;
e. the claimant in fact expended the claimed additional sums;
f. The claimant company fully complied with their obligations within the International Parking Community Code of Practice.

5. It is further denied that the Defendant is liable for the purported debt. [/STRIKE]

3. It is denied that the vehicle was not 'authorised'. The Claimant is pursuing a punitive charge as punishment for their own phone system failing to record the VRN properly. After being contacted due to the PCN's abject failure to explain the allegation, the Claimant changed their story from 'unauthorised parking' to suggesting that the first two letters of the VRN were incorrectly stated on the telephone. The Claimant is placing the blame for this minor data error on the Defendant's relative who made the call in good faith.

3.1. The Defendant has no idea whether this was human error in relaying the wrong information, or a system error in recording it. However, the Claimant at all times had the correct VRN in their database, due to their ANPR images, and was clearly content to use what they knew to be the correct data, in order to obtain the Defendant's data from the DVLA.

3.2. It is averred that the 'fair and open dealing' approach, in compliance with the Consumer Rights Act 2015, would have been to instead use the correct data from ANPR images to overwrite the close-match inaccurate data (from the phone call) and for no PCN to be issued at all, since a parking charge cannot be raised purely to punish a driver.

Primary defence - telephone call was made to authorise vehicle, but the system hid a concealed pitfall or trap

[FONT=&quot]4. [/FONT]The Defendant made all reasonable efforts to make payment for parking by using an approved authorising channel. Authorisation for parking was made via telephone by a family member – resident of *****[FONT=&quot]

4.1. Authorising by phone for parking is indisputably a 'distance contract' - a remote telephone transaction involving the exchange of more than one message/text - and under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, such a contract requires certain information to be supplied in advance. The [STRIKE]supplied[/STRIKE] system used by the Claimant failed to comply with the statute and this directly led to the system failure regarding the VRN data.

4.2. The Defendant’s family member followed the telephone systems instructions exactly as voiced on the call. The phone channel did not indicate any failure to input an incorrect index matching with ANPR and it was [STRIKE]assumed[/STRIKE] the Defendant's honest belief that the vehicle had been authorised to park as the required procedure was followed.

4.3. The service makes no provision to print a ticket to display, or a receipt so that a driver could check the details in a tangible format. The Defendant reasonably expected that the authorisation was made appropriately.

4.4. It was only when a PCN arrived in the post, that the Defendant knew (too late) of what appeared to be a minor data problem caused by the Claimant's system itself. [STRIKE]The automated phone call failed to acknowledge the correct registration of the defendant's vehicle matching up with the ANPR system in place.[/STRIKE]

4.5. The Data Protection Act ('DPA') states that personal data is 'inaccurate' if it is incorrect or misleading as to any matter of fact. The matter of fact here, is that the vehicle was indeed 'authorised' and the Claimant had more than sufficient data streams to know this fact, and the inaccurate data (howsoever gathered) should never have been used against the interests of the consumer, and should have been rectified in accordance with Article 16 of the General Data Protection Regulation (GDPR) under the data subject's right to rectification.

[STRIKE]authorisation was obtained by the driver of the vehicle which was captured by ANPR, and for which the Claimant duly obtained the Defendant's personal data from the DVLA.[/STRIKE]

[STRIKE]4.5.1. Given the fact that the ANPR data did not match with a VRN provided via telephone, an automated PCN was issued. However, it was within the gift of the Claimant to ensure before starting enforcement at any site, that their systems are fit for purpose, such that when a phone call is made to authorise a vehicle, if it does not link up with the ANPR entries then this issue to be raised to the caller to avoid any possible human error/system malfunctions. [/STRIKE]

[STRIKE]4.6. A PCN in these circumstances is completely foreseeable by a professional parking firm, and it is averred that this punitive charge relies upon the Claimant's own data being wrong at the outset, and going unnoticed by a driver.[/STRIKE] [/FONT]
[FONT=&quot] [/FONT][FONT=&quot]

5. The Defendant pointed out the data processing/storage error, as soon as the automatic PCN arrived. [STRIKE]The Defendant sent a written appeal explaining that there has been an error on the system with the number plate obtained via telephone call – two letters, but the defendant made every effort to comply with the terms and conditions.[/STRIKE] [/FONT]
[FONT=&quot] [/FONT][FONT=&quot]
5.1. Thus, given the Defendant's appeal and the ANPR camera secondary data stream, which proved which car [STRIKE]of the two,[/STRIKE] was actually in this car park, the Claimant knew about the error and was afforded ample opportunity to rectify the inaccurate data held by their system. At all times, from the ANPR image, the Claimant knew the correct VRN, and their two data streams (ANPR and telephone system) conflict, and this data inaccuracy could have been easily rectified at no cost.


No agreement on the penalty and no contract formed by conduct

6. The claim appears to be based upon damages for breach of contract. However, it is denied any contract existed to pay £100 for authorised parking, which at this location is free for residents and their visitors. Accordingly, it is denied that the Defendant breached any contractual terms, whether express, implied, or by conduct.

6.1. It is clear that no conduct by the Defendant caused the penalty to arise and a professional parking firm could not reasonably lay any blame with the Defendant. [STRIKE]for their own agent's data storage presumption and negligence[/STRIKE]. The charge offends against the reasonable and statutory expectations of trader/consumer relations requiring 'open dealing' and the doctrine of good faith.

6.2. Further, the Claimant will no doubt hope to convince the court that a 'relevant contract' existed and was breached. As this would be a consumer contract, it must be 'fair' and 'transparent' as set out in the Consumer Rights Act 2015, and must also be a valid and enforceable ('distance') telephone contract that is not unconscionable, given the facts of the case. The Defendant avers that this punitive charge fails in all respects.

[STRIKE]6.2.2. And the Claimant would have the court believe that a 'relevant obligation' existed, which under the Protection of Freedoms Act 2012 (setting out the will of Parliament for parking tickets issued on private land, even if a Claimant is not relying upon that Act) is defined as ''an obligation arising under the terms of a relevant contract''.[/STRIKE]

[STRIKE]6.2.3.[/STRIKE] 6.3. The Defendant avers that there was no such obligation or burden that could fairly and squarely fall at the feet of the Defendant that day, and that such an imbalance in consumer rights and interests certainly falls under Part 2 'Prohibitions' of the Consumer Protection from Unfair Trading Regulations 2008.

7. The Claimant may also try to rely upon the completely different Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67. However, the Defendant avers that decision confirms the assertion that this charge is unconscionable, given the facts. To quote from the decision in Beavis:[/FONT]

Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.

Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

No standing or landowner authority

8. Further and in the alternative, the Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices under defined parameters (including when caused by failure of their own data processing [STRIKE]/excessive storage[/STRIKE]) and to form/offer contracts in their own name, and to pursue payment by means of litigation.

No legitimate interest or commercial justification

9. [STRIKE]The Defendant avers that this is a significant and all-too-common issue requiring investigation by the Information Commissioner's Office (ICO) and to this end, a formal complaint has now been lodged about the untimely, excessive and disproportionate storage of the Defendant's personal data (and VRNs are personal data, according to the ICO) which has resulted in such a significant imbalance in the Defendant's consumer rights. [/STRIKE]

[STRIKE]9.1. [/STRIKE] The penalty represents neither a necessary deterrent, nor an understandable ingredient of a scheme serving legitimate interests, and the Beavis case is distinguished.

10. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Name **********
Signature ********
Date *****
[FONT=&quot][/FONT]