Greenwich High Road Sainsbury's park space County Court Claim

takta1981

Hello,

I have come back from holidays to receive a later dated 18th of June for a county court claim on a PCN issued by the Civil Enforcement Ltd (CEL).

I was parked at the parking space in front of Sainsbury's in Greenwich High Road and CEL is claiming that I have overstayed there without paying (I stayed 12 minutes while they say that the first 10 minuted are free). I was not even aware that the parking space was privately owned, as I thought it I had a right to park there as long as I was shopping from the shop.

When the PCN was issued I have appealed to CEL but they rejected the appeal. After that I have not done anything else hoping that this would go away after reading a few threads on multiple forums. All these were in September 2017 and I do not remember any more details regarding the issue. I now received a county court claim for £324.66 (of which £25 is for court filling and £50 for legal expenses) which I find extremely unreasonable. On top of that I might have missed the 14 days deadline to acknowledge the claim as I was away on holidays - I have spoken to the court and they say that today is the deadline and I am trying to sort that out at the moment. I really want to avoid going to a hearing for this as it is too stressful and also time consuming.

I have tried to follow the Newbies thread but I find it difficult as I do not have any legal background or any prior experience in the matter.

Can you please tell me what I should do going forward? I would really appreciate any help.

Le_Kirk

Do your acceptance of service online and that should give you extra time to compile a defence and then read this.

takta1981

Thanks for the reply Le_Krik. Do you think I have a case though? I went through the Newbies sticky thread but it lists many specific cases, I am not sure if they apply in my case. The are is a grace period of 10 minutes which I was unaware and overstayed by 2 minutes.

Umkomaas

Whether you have a case or not will be immaterial if you defend this well as any research here on CEL will tell you that they always discontinue the case before the court hearing.

That's your job now, not to debate whether you have a case or not, but to do plenty of research on 'CEL defence', learn from others, copy a defence (suitably amended to reflect your circumstances), use that and watch CEL melt away. But you must follow each step as advised in the NEWBIES FAQ sticky, post #2 which takes you right through the court process with inputs from legally qualified regulars.

HOW TO USE THE FORUM SEARCH FUNCTION:

Use the Forum Jump button (one near the top and one near bottom of this page) to get back to the forum thread list. Just above the threads, on the right, is a heading along a line, next to forum tools, called 'Search this Forum'. Put your key word(s) in and change the default search from 'Show Threads' to 'Show Posts'.

takta1981

Thank you for the help guys. I have drafted the below based on the claim form template found suggested in the Newbies post #2 under the wording

A Civil Enforcement (CEL) defence (you won't need a new suit for court, they will discontinue):

.

Please let me know if anything else needs to be added.

Do I need to mention any of the specifics of the case, e.g. that I thought the parking space was for customers of the supermarket? I obviously don't have any receipts 10 months later though.

Do I need to mention anything regarding the appeal I have sent to CEL originally that was rejected? As that form was printed and sent by post I don't have the exact letter, I only have a pre-printed draft of what I said. As I thought the case was closed I did not keep any of the paper trail.

Do I need to mention the location that the parking space is, or is that covered in the claim proceeds already?

How and to who do I address the letter?


================================================== ===============================================================

I am XXX, the defendant in this matter and the registered keeper of vehicle XXX.

I deny I am liable for the entirety of the claim on the following grounds:

1. The Claim Form issued on the 18 June 2018 by Civil Enforcement Ltd was not correctly filed under The Practice Direction as it was not signed by a legal person. The claim does not have a valid signature and is not a statement of truth. It states that it has been issued by “Civil Enforcement Limited” as the Claimant’s Legal Representative. 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.

2. This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017) 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 “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. Furthermore, the Claim Form Particulars did not contain any evidence of contravention or photographs. These documents, and 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 “take stock” 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.”

e. 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

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 and when the notice was served, did not fully comply with statutory wording. 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” which was sent outside of the 14 day period, which did not comply with POFA 2012. 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 £324.66 for outstanding debt and damages. The additional costs, which the defendant contests have not been incurred, are none of its concern.

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 costs were incurred.” 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 £324.66. 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.

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. As far as I can ascertain, based upon the very vague particulars of claim and complete lack of evidence and photographs, and without having been furnished with the alleged signage “contract”, none of this applies in this material case.

6. In the absence of any proof of adequate signage contractually bound the Defendant then there can have been no contract and the Claimant has no case

Question: How can inadequate signage be proved though? Is this applicable for every case?

a. 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

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. It is believed the signage was not lit 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
iii. 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
iv. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
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 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.

8. 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.

10. 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

11. 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 18 June 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.


STATEMENT OF TRUTH

I confirm that the contents of this Defence are true to the best of my knowledge and recollection.



xxx
XX March 2018

The_Deep

Have I got this right, they want £324 for two minutes parking. One for the Daily Mail I tythink


This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

Hospital car parks and residential complex tickets have been especially mentioned.

The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas.

Grimble

Go in to Sainsburys with the paperwork and tell them you are going to the media with this if they do not sort it out. Hit their facebook page, twitter.

KeithP

It is most important that you do the Acknowledgement of Service now!

This will give you an extra fourteen days to refine your Defence.

To do the AoS, follow this guidance:

www.dropbox.com/s/xvqu3bask5m0zir/money-claim-online-How-to-Acknowledge.pdf?dl=0

takta1981

Chasing back some of the paperwork I now find that the PCN was received within the 14 days of the incident, at which time I appealed and the rejection came back within a month of the incident date. I did not have any windscreen ticket. The PCN included CCTV timestamped photos of the vehicle entering and exiting the parking space. Does this mean that point 3 cannot be used in the defence? Or is the Notice to Keeper something different than a PCN?

Also can someone please reply to my question regarding the validity of point 6?

takta1981

KeithP wrote: »

It is most important that you do the Acknowledgement of Service now!

This will give you an extra fourteen days to refine your Defence.

To do the AoS, follow this guidance:

I have done this now and the online portal shows that the acknowledgment has been received.

Coupon-mad

takta1981 wrote: »

Chasing back some of the paperwork I now find that the PCN was received within the 14 days of the incident, at which time I appealed and the rejection came back within a month of the incident date. I did not have any windscreen ticket. The PCN included CCTV timestamped photos of the vehicle entering and exiting the parking space. Does this mean that point 3 cannot be used in the defence? Or is the Notice to Keeper something different than a PCN?

Also can someone please reply to my question regarding the validity of point 6?

You are overthinking this. CEL do not use the right words for keeper liability, so the date it was served (PCN/NTK, same thing) is irrelevant.

Everyone here sees CEL discontinue, later on after Witness Statement stage. LOOK:

https://forums.moneysavingexpert.com/discussion/5676209/civil-enforcement-defence-critique-please

Your case will be the same as all the rest with CEL, so no spinning around and flailing pointlessly like that person.

Please see post #2 of the NEWBIES thread for the next stages/forms after defence. No coming back here in August (please) screeching that you have got & don't know what to do with 'this form' or 'that order'...be prepared for each stage! That's why the NEWBIES thread is long, it covers all stages.

Improve the end like this (not point #14, obviously!):

https://forums.moneysavingexpert.com/discussion/comment/74504183#Comment_74504183

You could not ask for an easier court claim to see off, with our help! We want to see you come back only at WS and evidence stage for help, then post in the end, telling us it's discontinued.