Greenwich High Road Sainsbury's park space County Court Claim

takta1981

Thank you for the help Coupon-mad, and it really is reassuring hearing these comments from you.

I have updated the defence statement after incorporating your comments, please find updated version below. Let me know if this looks good and I will then email my defence to the court.

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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

(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.

12. The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has failed to disclose any cause of action in the Claim Form, which disclosed no particulars of claim that can give rise to a cause of action, or any claim in law at all, against this registered keeper Defendant.

(a) When Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because this Claimant discontinues at Witness Statement stage and never pays the court hearing fee.

(b) It is an unfair burden and a complete waste of time for the Defendant to spend hours on their own Witness Statement against a vexatious litigant who always discontinue and are recorded in the public domain, as being in pursuit of default judgments to use as an aggressive form of debt collection with no intention of paying for a hearing.

(c) Anyone who defends robustly against this Claimant, receives a notice of discontinuance, so the Court is asked to act at an early stage, using its case management powers to prevent this abuse.

(d) The Claimant has 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.

13. The Defendant asks that the court gives consideration to striking out the claim on the Court's own initiative, as having no merit, no particulars of claim, no reasonable prospects of success, and given that the claim is based on an alleged contractual parking charge of £100. The amount claimed on the claim is £324.66 and the Defendant avers that this inflation of the considered amount is a gross abuse of process.


STATEMENT OF TRUTH

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



xxx
XX July 2018

KeithP

When you are happy with the content, your Defence should be filed via email as described here:

1) print your Defence
2) sign it
3) scan the signed document back in and save it as a pdf.
4) send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
5) just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.

Coupon-mad

Defence looks fine and ready to sign, IMHO.

takta1981

Are the arguments about "lit signage" and period of posting a NTK points always valid for the particular Claimant or specific to the situation?

nosferatu1001

Specific.
For example if it arrived within time, you cant really say it didnt arrive in time
If it is day time then signs being lit dont matter.
Fairly obvious, surely?

takta1981

nosferatu1001 wrote: »

Specific.
For example if it arrived within time, you cant really say it didnt arrive in time
If it is day time then signs being lit dont matter.
Fairly obvious, surely?

Thanks:beer:

takta1981

One more question - on the PoC, CEL says 'Claim for monies relating to a Parking Charge for parking in a private car park managed by the Claimant in breach of the terms + conditions. Drivers are allowed to park in accordance with T&Cs of use. ANPR camera's and/or manual patrols are used to monitor vehicles entering & exiting the site'.

Does this mean point 2 (below) on my Defence is invalid - as breach of T&Cs would suggest breach of contract - or does the vagueness of their PoC confirm the point 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. [...]

Coupon-mad

It's fine, leave it, there are more paperwork stages but CEL will fold before the hearing.

nosferatu1001

Just leave it
Dont do more work for CEL than you have to.
It doesnt actually specify the cause of action, still.

takta1981

Hello all,

So the court has sent over the Directions Questionnaire form now requesting to give details regarding settling the claim before appearing to the court.

I have a couple of questions regarding the process.

1. I never received any particulars of claim apart from vague details on claim form. Is this a breach of any kind at this stage?
2. Should I be expecting a DQ from CEL before replying to court or not count on it? Without receiving any DQ from the claimant I am not sure if they will request a paper trial or not hence cannot act accordingly.

Could you please guide me to the correct direction on next steps?

Would really appreciate your help.