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Help with CEL Defence
Joe_bobbs
Posts: 11 Forumite
Hi all, really impressed by the forum having spent a while trying to research a reasonable defence - you guys seem super helpful and its great to see so many good results. Following my previous post I've filed my acknowledgement of Service and have trawled the forums for successful defence posts. I have made a couple of minor changes, but mostly the same as previous successful defence.
Please let me know if you would make any changes, Court letter was sent towards the end of June, so I believe my defence is due on 22nd of July - so need to send soon.
The car park in question has also been in the local media as many people have been unfairly fined - is it worth mentioning this in my defence or is this just additional unnecessary information?
Many many thanks:)
I am xxx, the defendant in this matter and was 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 xxx 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 £xxx 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 £xxx 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 sufficiently 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.
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 8 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 XXX 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.
Please let me know if you would make any changes, Court letter was sent towards the end of June, so I believe my defence is due on 22nd of July - so need to send soon.
The car park in question has also been in the local media as many people have been unfairly fined - is it worth mentioning this in my defence or is this just additional unnecessary information?
Many many thanks:)
I am xxx, the defendant in this matter and was 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 xxx 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 £xxx 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 £xxx 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 sufficiently 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.
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 8 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 XXX 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.
0
Comments
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The car park in question has also been in the local media as many people have been unfairly fined - is it worth mentioning this in my defence or is this just additional unnecessary information?
personally, I would save that for the evidence and witness statement stage, nearer the court hearing date if it ever gets that far
I also would not be using the F word in any legal documents , because nobody has been "fined" , not even you , this is an invoice from a parivate company - nothing more0 -
Thanks Redx, good point - I would suggest that they are "aggressive" invoices! Any other comments?0
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Getting close to having to send my defence soon and could do with help to stop me over thinking this!!!
Having seen alternative posts, I need to get my defence filed shortly and was impressed by an alternative defence layout as shown below to be amended to suit. However I am concerned that this relies on signage which has some lighting on the main reasonably new sign and an entrance sign with lettering stating:
'[FONT="]Pay and display or pay at machine[/FONT] [FONT="]See car park signs for terms & conditions[/FONT]
[FONT="]Private Land[/FONT]
[FONT="]Site managed using ANPR and manual patrols by CEL'[/FONT]
[FONT="]
[/FONT]
[FONT="]Do you think that either defence is preferable and should the defence focus on more pertinent points than signage first?
[/FONT]
Thank in advance, you guys do an awesome job on here:T
1. I am KXXX EXXX, the Defendant in this matter.
2. As an unrepresented litigant-in-person I seek the Court's permission to amend and supplement this defence as may be required upon disclosure of the claimant's case.
3. For the avoidance of doubt on the relevant date I was the registered keeper of a Suzuki Alto, registered number LXXX UXXX.
4. It is believed that it will be a matter of common ground that the purported debt arose as the result of the issue of a parking charge notice in relation to an alleged breach of the terms and conditions by the driver of the above vehicle when it was parked at XXX Car Park, xx:xx to 19:XX on xx.11.2017.
Rebuttal of Claim
5. The Claim Form issued on the 18th April 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: Civil Enforcement: 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.
6. 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.
7. The Claimant is put to the strictest proof of their assertions.
Defence
The defence will rely principally upon the following points:
8. That the signs erected on site are incapable of forming the basis of a contract and indeed make it clear that that is not the case. Further it is trite law that a term that is forbidding cannot also constitute an offer. It is therefore denied that any contract was formed or was capable of being formed.
9. That the area the Claimant says was within their control wasn't clear as the boundaries were unclear and open to misinterpretation. The BPA Code of Practice says on this point:
B4.1 If vehicles are parked under a contract, you may take parking control and enforcement action only when the contract entitles you to. This includes issuing parking tickets. The contract terms must be included on a sign British Parking Association Code of Practice at each entry point to the site, and on other signs visible throughout the area concerned.
10. Should the claimant rely on the case of ParkingEye v Beavis, the Defendant wishes to point out that there is a test of good faith.
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."
11. Underlining that is Section 18.3 of the BPA Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs that are used to form contracts. It says:
18.3 You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.
12. The Defendant refutes that there were clear and visible signs, with Terms that formed the basis of a contact and which met the specifications above.
13. Section 7 of the British Parking Association Code of Practice outlines to operators some of the common law principles of operating on someone else's land as a licensee. One such item is written authority - a written contract - to be there. It defines the elements of this written authority as follows:
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all the aspects of the management and enforcement of the site that you are responsible for.
In particular, it must say that the landowner requires you to keep to the Code of Practice and that either you have the authority to pursue outstanding parking charges, through the courts if necessary or that you have the authority to pursue outstanding parking charges and, with their permission, through the courts if necessary.
7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.
7.3 The written authorisation must also set out:
a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined.
b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation.
c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) who has the responsibility for putting up and maintaining signs.
e) the definition of the services provided by each party to the agreement.
14. This Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information'. This Code confirms that it applies to ANPR systems, and that the private sector is required to follow this code to meet its legal obligations as a data processor. Members of the British Parking Association AOS are required to comply fully with the DPA, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land. The Claimant's failures to comply include, but are not limited to:
a) Lack of an initial privacy impact assessment, and
b) Lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle, and
c) Failure to regularly evaluate whether it was necessary and proportionate to continue using ANPR at all times/days across the site, as opposed to a less privacy-intrusive method of parking enforcement (such as 'light touch' enforcement only at busy times, or manning the car park with a warden in order to consider the needs of genuine shoppers and taking into account the prevailing conditions at the site on any given day), and
d) Failure to prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR system and how the data would be used, and
e) Lack of the 'Privacy Notice' required to deliver mandatory information about an individual's right of subject access, under the Data Protection Act (DPA). At no point has the Defendant been advised how to apply for a Subject Access Request, what that is, nor informed of the legal right to obtain all relevant data held, and
15.1. This Claimant has therefore failed to meet its legal obligations under the DPA.
15.2. In a similar instance of DPA failure when using ANPR cameras without full DPA compliance - confirmed on this Claimant's Trade Body website in a 2013 article urging its members to comply - Hertfordshire Constabulary was issued with an enforcement notice. The force were ordered to stop processing people's information via ANPR until they could comply. The Information Commissioner ruled that the collection of the information was unlawful; breaching principle one of the DPA.
16. The Court's attention will be drawn to the case of Andre Agassi v S Robinson (HM Inspector of Taxes). Whilst not wholly aligned to the issues in this case, it is on all fours with the above point, because of the principle it extols that no one should profit from their unlawful conduct. Paragraph 20 of the Transcript of that case states: ''It is common ground that, whatever costs may be recoverable by a litigant in respect of professional services such as those provided by Tenon to the appellant, they cannot include the cost of any activities which are unlawful''. Paragraph 28 continues - ''...cannot on any view recover the cost of activities performed by Tenon which it was not lawful for them to perform.''
17.1. Further, in RTA (Business Consultants) Limited v Bracewell [2015] EWHC 630 (QB) (12 March 2015), at paragraph 34 the Judge discusses the relevance of the public law principle going back well over 200 years, that no man should profit from his crime; it is submitted that this is particularly relevant in this action. The Judge cited Lord Mansfield CJ to explain that: ''The principle of public policy is this; ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If [...] the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff.''
17.2. Even if there was a purported contract between the unidentified driver and the Claimant, it was illegal at its formation because it was incapable of being created without an illegal act (the failure to comply with points #16 i - v above, as part of the legal obligations that must be communicated up front and/or undertaken by a consumer-facing service provider, some of which were required even before commencing any use of ANPR at all).
17.3. Where a contract is illegal when formed, neither party will acquire rights under that contract, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it had never been entered into. As such, the asserted contract cannot be enforced.
17.4. In this case it was not lawful for the Claimant to process any data using ANPR camera systems upon which it relied for the entire ticketing regime, due to its failure to meet its specific legal obligations as a data processor of ANPR information. The collection of the information was unlawful; breaching principle one of the DPA.
17.5. To add weight, the Defendant also cites from ParkingEye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338, which concerns an alleged illegal contract involving a similar BPA member parking firm. Whilst the facts of that case are not relevant, the Judge's comments at paragraph 29 of the Transcript of the Somerfield case are of importance: ''At common law, historically, a distinction has been drawn between cases where the guilty party intended from the time of entering the contract unlawfully and cases where the intention to perform unlawfully was only made subsequently''. As has already been stated, in this case the problem arose at (and before) the formation of the alleged contract and was not in relation to any subsequent act. Laws LJ, in Somerfield, concluded that ParkingEye did not have an intention, when creating that contract, to deliberately break the law so the contract was upheld. Differently in this case, it is asserted that the Claimant did deliberately or negligently break the DPA and as it was a BPA member with access to a wealth of DPA compliance information, articles and legal advice, and being a signatory to the KADOE contract with the DVLA, the Claimant cannot be excused from, nor justify, their conduct in failing to meet their legal obligations.
17.6. At paragraphs 65-74 of the Somerfield transcript, Laws LJ set out three factors which need to be considered in a defence of illegality. The Defendant submits that the key issues in this action are that:
(a) the commission of an illegal wrong being present at the time of entering the contract means that the Claimant will not be able to enforce the contract.
(b) the illegality is central to the contract and is not merely a minor aspect, thus it should not be held to be too remote so as to render the contract enforceable.
(c) the nature of the illegality: in this case it was a breach of legal obligations regarding data, and not merely a civil tort as in Somerfield. The gravity of the illegality is therefore far greater.
17.7. It should be noted that the issue of breach of the DPA also transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015, which was enacted after the final hearing in Beavis. This charge and use of ANPR by this claimant is both unfair and not transparent and can be fully distinguished from Beavis, where none of the issues in the Defendant's points 16 and 17 above were argued.
18. In the alternative, the attention of the court is drawn to para. 4(5) Schedule 4 Protection of Freedoms Act 2012 which sets out that the maximum amount recoverable from the registered keeper, where the keeper liability provisions have been properly invoked (which is expressly denied in this case) is that amount specified in the Notice to Keeper (whether issued in accordance with paras 8(2)c; 8(2)d, 9(2)c or 9(2)d of the Act).
19. The Claimant is attempting to claim additional charges such as solicitors, court fee and legal costs of £75 The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have indeed been incurred. Furthermore, legal costs cannot be recovered in the Small Claims Court and should be struck out as unrecoverable.
20. 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.
21. When Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because where a claim is robustly defended, this Claimant routinely discontinues at Witness Statement stage and never pays the court hearing fee.
22. 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 or attending a hearing.
23. Given that in 2017 and 2018 it has been observed in the public domain - and hopefully by the Courts, who cannot have missed the fact - anyone who defends robustly against this Claimant receives a notice of discontinuance, the Court is asked to act at an early stage, using its case management powers to prevent this abuse.
24. 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 £248.52 and the Defendant avers that this inflation of the considered amount is a gross abuse of process.
This statement is true to the best of my knowledge and belief.
Signed __________XX_XX_________
Dated 19-07-20180 -
What is the date of issue on your claim form?0
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Write your defence in the THIRD PERSON. So no "I deny", "I did x" but "the Defendant denies" and "the Defendant did xxx"
Take out paragraph 1. You don't need to say you're the Defendant .
You also need to make clear what you deny, accept or do not admit.
If you deny you are expected to make out your denial in your WS.
If you accept, the C does not have to prove whatever you accept.
If you don't admit, the C has to prove it.
Eg you either deny or do not admit to being the driver. You admit that you are the RK. You deny that a contract was formed between driver and Claimant. etc.Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.0 -
Thanks Loadsofchildren, I have been torn between 2 defences, and hope that the following is better:)
Need to send this tomorrow, so any help greatly appreciated.
Should I still concentrate more on ensuring everything is denied or not admitted? I was not the driver of the vehicle, but surely would be easier to put the onus on CEL to prove that I was??
Revised defence below:
I (am) XXX(, the defendant in this matter and) was the registered keeper of vehicle XXX. - SHOULD I TAKE OUT BRACKETED TEXT?
I deny I am liable for the entirety of the claim on the following grounds:
1. The Claim Form issued on the XXX 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 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 £xxx 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 £xxx 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 Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information'. This Code confirms that it applies to ANPR systems, and that the private sector is required to follow this code to meet its legal obligations as a data processor. Members of the British Parking Association AOS are required to comply fully with the DPA, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land. The Claimant's failures to comply include, but are not limited to:
a) Lack of an initial privacy impact assessment, and
b) Lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle, and
c) Failure to regularly evaluate whether it was necessary and proportionate to continue using ANPR at all times/days across the site, as opposed to a less privacy-intrusive method of parking enforcement (such as 'light touch' enforcement only at busy times, or manning the car park with a warden in order to consider the needs of genuine shoppers and taking into account the prevailing conditions at the site on any given day), and
d) Failure to prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR system and how the data would be used, and
e) Lack of the 'Privacy Notice' required to deliver mandatory information about an individual's right of subject access, under the Data Protection Act (DPA). At no point has the Defendant been advised how to apply for a Subject Access Request, what that is, nor informed of the legal right to obtain all relevant data held, and
6.1. This Claimant has therefore failed to meet its legal obligations under the DPA.
6.2. In a similar instance of DPA failure when using ANPR cameras without full DPA compliance - confirmed on this Claimant's Trade Body website in a 2013 article urging its members to comply - Hertfordshire Constabulary was issued with an enforcement notice. The force were ordered to stop processing people's information via ANPR until they could comply. The Information Commissioner ruled that the collection of the information was unlawful; breaching principle one of the DPA.
7. The Court's attention will be drawn to the case of Andre Agassi v S Robinson (HM Inspector of Taxes). Whilst not wholly aligned to the issues in this case, it is on all fours with the above point, because of the principle it extols that no one should profit from their unlawful conduct. Paragraph 20 of the Transcript of that case states: ''It is common ground that, whatever costs may be recoverable by a litigant in respect of professional services such as those provided by Tenon to the appellant, they cannot include the cost of any activities which are unlawful''. Paragraph 28 continues - ''...cannot on any view recover the cost of activities performed by Tenon which it was not lawful for them to perform.''
8.1. Further, in RTA (Business Consultants) Limited v Bracewell [2015] EWHC 630 (QB) (12 March 2015), at paragraph 34 the Judge discusses the relevance of the public law principle going back well over 200 years, that no man should profit from his crime; it is submitted that this is particularly relevant in this action. The Judge cited Lord Mansfield CJ to explain that: ''The principle of public policy is this; ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If [...] the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff.''
8.2. Even if there was a purported contract between the unidentified driver and the Claimant, it was illegal at its formation because it was incapable of being created without an illegal act (the failure to comply with points #5 a - e above, as part of the legal obligations that must be communicated up front and/or undertaken by a consumer-facing service provider, some of which were required even before commencing any use of ANPR at all).
8.3. Where a contract is illegal when formed, neither party will acquire rights under that contract, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it had never been entered into. As such, the asserted contract cannot be enforced.
8.4. In this case it was not lawful for the Claimant to process any data using ANPR camera systems upon which it relied for the entire ticketing regime, due to its failure to meet its specific legal obligations as a data processor of ANPR information. The collection of the information was unlawful; breaching principle one of the DPA.
8.5. To add weight, the Defendant also cites from ParkingEye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338, which concerns an alleged illegal contract involving a similar BPA member parking firm. Whilst the facts of that case are not relevant, the Judge's comments at paragraph 29 of the Transcript of the Somerfield case are of importance: ''At common law, historically, a distinction has been drawn between cases where the guilty party intended from the time of entering the contract unlawfully and cases where the intention to perform unlawfully was only made subsequently''. As has already been stated, in this case the problem arose at (and before) the formation of the alleged contract and was not in relation to any subsequent act. Laws LJ, in Somerfield, concluded that ParkingEye did not have an intention, when creating that contract, to deliberately break the law so the contract was upheld. Differently in this case, it is asserted that the Claimant did deliberately or negligently break the DPA and as it was a BPA member with access to a wealth of DPA compliance information, articles and legal advice, and being a signatory to the KADOE contract with the DVLA, the Claimant cannot be excused from, nor justify, their conduct in failing to meet their legal obligations.
8.6. At paragraphs 65-74 of the Somerfield transcript, Laws LJ set out three factors which need to be considered in a defence of illegality. The Defendant submits that the key issues in this action are that:
(a) the commission of an illegal wrong being present at the time of entering the contract means that the Claimant will not be able to enforce the contract.
(b) the illegality is central to the contract and is not merely a minor aspect, thus it should not be held to be too remote so as to render the contract enforceable.
(c) the nature of the illegality: in this case it was a breach of legal obligations regarding data, and not merely a civil tort as in Somerfield. The gravity of the illegality is therefore far greater.
8.7. It should be noted that the issue of breach of the DPA also transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015, which was enacted after the final hearing in Beavis. This charge and use of ANPR by this claimant is both unfair and not transparent and can be fully distinguished from Beavis, where none of the issues in the Defendant's points 7 and 8 above were argued. (IS THIS CORRECT REFERENCE - SEEMED WRONG ON ORIGINAL)
9. 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 sufficiently 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.
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 8 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 13 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.
STATEMENT OF TRUTH
I confirm that the contents of this Defence are true to the best of my knowledge and recollection.0 -
Hi Keith, apologies I missed your post. The claim form is for the19th of June, so I believe that the defence is due on July 22nd. I will struggle to print over the weekend, so only really have tomorrow to tidy up and print!0
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Hi Keith, apologies I missed your post. The claim form is for the19th of June, so I believe that the defence is due on July 22nd. I will struggle to print over the weekend, so only really have tomorrow to tidy up and print!
Almost right.
As 22nd July is a Sunday, you have until 4pm on Monday 23rd July 2018 to file your Defence.
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'.0 -
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'.
@KiethP
Given the number of errors at MCOL perhaps you need to add other items
6) Log into MCOL after a few days to see if the Claim is marked "defended". If not chase MCOL until it is.
7) Wait for the Directions Questionnaire and come back here.This is a system account and does not represent a real person. To contact the Forum Team email forumteam@moneysavingexpert.com0
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