*URGENT HELP* Appealing Parking Charge taken to court

Coupon-mad

I would like to know where the place is, as I can't recall CEL with ANPR at a residential site, it makes no sense.

Is it definitely CEL (Civil Enforcement)?

GiaPetite

How do I find out if Civil Enforcement Ltd hold a legitimate contract at this residential car park?

nosferatu1001

Youve been asked to confirm the exact full legal name of the PPC. Please answer it. Photos etc would be even better

Ask the MA, would be a start.

GiaPetite

Sorry if I sound stupid but I don't know the abbreviations yet. What is PPC and MA? I have photos of the signs and letters but can't post them here as I am a new user.

KeithP

PPC = Private Parking Company

MA = Managing Agent.

Post #5 of the NEWBIES FAQ thread list many abbreviations used here, although I see that MA isn't listed there..

System

As has already been said, have a look at post #2 of the NEWBIES FAQ sticky thread where you will find at least two residential Defences.

Is your case different from the ones shown in post #2 of the NEWBIES FAQ sticky thread. This is the one that everyone is telling you to read.

I am also dyspraxic

I understand that Dyspraxia does not affect your intelligence so it should be within your capabilities.

GiaPetite

Ahh ok, the Private parking company is Civil Enforcement Ltd. Managing Agent I believe is Davtee Company but they are unwilling to help despite telling me that they have no benefit of C.E having their ANPR cameras there and don't profit.

It doesn't affect my intelligence but my processing time is slower so it takes me days to do something which might take you an hour or too and I don't have much time because of preparing for my Gdad's funeral.

GiaPetite

I don't know which is stronger to use, that the driver wasn't bound by a contract because of inadequate signage and they had a right to park as a visitor or that I wasn't the driver, just the registered keeper of the car?

GiaPetite

Hi there, so I copied and pasted some drafts together and changed a bit. I realise its too long, waffly and repetitive but I don't know what I need and don't. A lot of the jargon is confusing me with this. Please can you help edit it. The driver was visiting a resident of a block of flats and was parked in the designated visitor bay. There were no time restrictions or T&C's displayed on the signs. I do have learning difficulties and I am really struggling with this. I have been doing that for literally days now and it's not like i've even written it. This is the extent of how much I struggle.

Thanks in advance:

Statement of Defence
In the County Court Business Centre
Claim Number: ___

Between:
Civil Enforcement Ltd


I am xxx, the defendant in this matter and was the registered keeper of vehicle xxx The claim is denied in its entirety except where explicitly admitted here. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons:

Preliminary

1. The Claim Form issued on the XXX March 2018 by Civil Enforcement Ltd was not correctly filed under The Practice Direction, as a legal person did not sign it. The claim does not have a valid signature and is not a statement of truth. It states that Civil Enforcement Limited as the Claimant!!!8217;s Legal Representative has issued it. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer.

1.1 The Defendant believes the term for such conduct is !!!8216;robo-claims!!!8217; 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

2. This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017) with the express aim of avoiding contested litigation. 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 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 are extremely vague and divulged no cause of action or sufficient detail. The Defendant has no idea what the claim is about, why the charge arose, what the alleged contract was; or anything that could be considered a fair exchange of information.

e. The Particulars of Claim fail to refer to the material terms of any contract and neither complies with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct

Furthermore, the Claim Form Particulars did not contain any evidence of contravention or photographs. Those as well as the Letter before County Court Claim should have been produced, pursuant to paragraph 6 of the Practice Direction Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:

i. Early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute

ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure

iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and;

iv. support the efficient management of proceedings that cannot be avoided

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

g. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

3. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012 (POFA 2012). Such a notice was not served within 14 days of the parking event. The Claimant is therefore unable to hold the defendant liable under the strict keeper liability provisions:

The Claimant did not comply with POFA 2012 and give the registered keeper opportunity, at any point, to identify the driver. A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered no later than 14 days after the vehicle was parked. No ticket was left on the windscreen and no notice to keeper was sent within the 14 days required to comply with POFA 2012 only a speculative invoice entitled Parking Charge Notice was sent. This would exclude the registered keeper being liable for any charges.

Henry Greenslade, lead adjudicator of POPLA in 2015 and an eminent barrister and parking law expert, stated that "However keeper information is obtained, there is no 'reasonable presumption' in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. 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 £XXXXXXXXX for outstanding debt and damages. The additional costs, which the defendant contests have not been incurred, are none of its concern.

Background

It is admitted that at all material times the Defendant was the owner of the vehicle in question.

4) It is denied that any "parking charges!!!8221; as stated on the Particulars of claim are owed and any debt is denied in its entirety.

5) It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking 'parking management'. The Claimant has provided no proof of any such entitlement.

6) It is admitted that a driver of the Defendant!!!8217;s vehicle parked on the material date in a designated visitor space, whilst visiting a resident residing at the private residential property. It is denied that there was any relevant obligation upon the Defendant that can have been breached. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

7. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
7.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
7.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
7.2.1. there was a relevant obligation either by way of a breach of contract, trespass or other tort; and
7.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

8.3. To the extent that the Claimant may seek to allege that any such presumption exists, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

Authority to Park and Primacy of Contract

9. It is denied that the Defendant was in breach of any parking conditions or was not permitted to park, in circumstances where the Lease/Tenancy Agreement does permit the parking of vehicle(s) on this land. The Defendant avers that there was at the very least, a prior and overriding grant of a licence to park, and indeed believes there was an absolute entitlement to park, deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide residents and visitors with the right to park a vehicle on this private land, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or any reference to any !!!8216;undesignated bays.!!!8217;

8. It is not admitted that the Claimant has contractual or other lawful authority to make contracts with residents at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof. Further, and in the alternative, the Defendant avers that the claimant requires the permission of the owner of the relevant land !!!8211; not merely another contractor or site agent not in possession !!!8211; in order to commence proceedings.

9. The Defendant avers that the operator signs cannot:

(i) override the existing rights enjoyed by residents and their visitors, or
(ii) offer parking on more onerous terms than were already granted and agreed in the lease/tenancy Agreement, or
(iii) decide to remove parking bays from use by residents and/or start charging for them.

9.1 Parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

Accordingly it is denied that:

9.2 There was any breach of contract or of any relevant parking terms. The Claimant's claim is wholly misconceived.
9.3. The Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

In the Alternative: Failure to set out clear parking terms - ParkingEye Ltd v Beavis (2015) UKSC 67 distinguished

10) The Defendant relies upon ParkingEye Ltd v Beavis, insofar as the Court were only willing to exempt a parking charge from falling foul of the penalty rule which would normally render it unrecoverable, in the context of a site of commercial value, it being a 'complex' case where the driver was a visitor with no prior licence or rights, and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout. 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. As far as I can ascertain, based upon the very vague particulars of claim, and without having been furnished with the alleged signage, none of this applies in this material case.

10.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate and therefore incapable of binding the driver.

10.1.1. BPA CoP breaches; At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation. The initial sign says "refer to car park signs for T&Cs" however there are no terms and conditions listed on the sign that include information on time restrictions or visitor parking. The signs in the car park only say "********** RESIDENT PERMIT HOLDERS ONLY". See comparison of the sign to the sign in the Beavis judgement. As the driver was parked in a designated visitor bay whilst visiting a resident and owner of the flat, 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"

10.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee!!!8217;s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory. 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; and in addition, the sum pursued exceeds £100

10.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor, as set out in the leading judgment of Denning MR inJ Spurling v Bradshaw [1956] EWCA Civ 3


11. The Claimant is put to strict proof at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs
a. 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



12. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. In fact, the existing rights of residents and their visitors should have been protected.

13. The charge is, accordingly, unconscionable in this context, with ParkingEye v Beavis distinguished.

14. No standing; this distinguishes this case from the Beavis case:
It is believed Civil Enforcement Ltd 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.

15.. 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.

16. 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.

17. The Defendant believes that Civil Enforcement Ltd has artificially inflated this claim. They are claiming legal costs when not only is this not permitted (CPR 27.14) but the Defendant believes that they have not incurred legal costs. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost. The Defendant denies that the Claimant is entitled to any interest whatsoever. The claimant has not explained how the claim has increased from the original parking notice to £XXXXXXXXX. If the Claimant alleges that they claim the cost of its in-house administration, these cannot be recovered - they are staff performing the task that they have been employed for and essential to the Claimant's business plan.

18) It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

19) The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated monetary demands against residents and their visitors, alleging 'debts' for parking at their own homes and in designated visitor spaces, is not something the Courts should be seen to support.

20) The Court is invited to take Judicial Notice of the fact that the Claimant's solicitors, Wright Hassall, is engaged in a course of conduct which involves issuing tens of thousands of totally meritless Claims, which are routinely dismissed by District Judges sitting in this Court, and other County Court hearing centres in all parts of England & Wales. The Court is therefore invited to refer the matter to the Designated Civil Judge, for consideration of the issuing an Extended Civil Restraint Order against the Claimant, pursuant to CPR Practice Direction 3.1(3).

21) The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court give consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

22) If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

23. The Defendant has reasonable belief that the Claimant sent a letter claiming to be a final letter before court action, but then instead sent this to more debt collectors. As such the Claimants have artificially inflated the claim value by claiming to involve further debt collectors, the Defendant puts the Claimant to strict proof that all claimed costs were invoiced and paid

24. Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable expect a registered keeper to be able to recall the potential driver(s) of the car 10 months later. The burden rests with the Claimant to identify the driver, who is the only party potentially liable in cases where a parking firm is unable to rely upon the POFA.

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 XXXXXXX March 2018.

(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

GiaPetite

Can someone please help