Help with CEL Defence

Joe_bobbs

Thanks KeithP, greatly appreciated. I will send Monday, so if anyone has further any comments re-defence, please let me know.:beer:

KeithP

IamEmanresu wrote: »

@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.

Good idea IamEmanresu. Thanks.

Joe_bobbs

Thanks everyone for the help:beer:, Defence emailed across and auto response received. I'll check MCOL in a few days!

Loadsofchildren123

Joe_bobbs wrote: »

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??It is much stronger to deny something. If you just don't admit being the driver and put them to proof the judge may make an assumption that you were the driver. Don't overthink this, if it wasn't you then deny it.

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?take all of this out from here. This should be a numbered paragraph and should simply say "The Defendant admits that at all relevant times (s)he was the registered keeper of vehicle xxxxxx but was not the driver."

I deny I am liable for the entirety of the claim on the following grounds: Put in third person. ie The Defendant denies...

1. The Claim Form issued on the XXX June 2018 by Civil Enforcement Ltd was not correctly filed under The Practice Direction [which PD?] 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) by explaining the basis of the claim and how it will be evidenced. This prohibits the Defendant from fully understanding the claim and his defence to it - whilst he Defendant understands that the claim relates to a parking charge, he does not know whether the claim is brought for 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. If the claim relates to a contract, 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. is there a Schedule of Information in your claim, or have you lifted this from a precedent somewhere? Probably better to refer to it as the Particulars of Claim (of which any Schedule would form part), not the Schedule of Information.

d. The Defendant 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 Defendant denies that he can be liable as the driver of the vehicle at the relevant time, and denies that he can he be liable as the registered keeper of the vehicle pursuant to Schedule 4 of the Protection of Freedoms Act 2012 ("POFA"). The Defendant avers that the Claimant failed to comply with the strict conditions set out in POFA in relation to the service of a Notice to Keeper. Specifically, the Claimant failed to serve a Notice to Keeper within he 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, it did not meet the requirements of POFA as to its wording fully comply with statutory wording. The Claimant is therefore unable to hold the defendant liable under the strict 'keeper liability' provisions of POFA:

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.

The Defendant avers that there can be no presumption at law that he was driving the vehicle at the relevant time, and denies being the driver. 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. I'd save this last bit for your WS 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. The Defendant denies that the Claimant is able to claim any additional sum and avers that the Claimant has simply plucked the sum sought from thin air and bolted that on as well. To the extent that any contract was formed with the driver, neither the signs, nor the NTK, nor the permit information mentioned a possible £xxx in addition to the charge of £x. 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 in the form of legal fees of £50. The Defendant has not used solicitors, but has processed the claim in-house. It is believed that the employee who drew up the paperwork is remunerated, and the particulars of claim are templates, so it is denied as it is simply not credible that £50 legal representative's costs were incurred. The Defendant believes that the Claimant has artificially inflated this claim. They are claiming legal costs when not only is this not permitted (CPR 27.14) Note: I often see this claim, but there is a rule somewhere (I haven't the time to look it up) which allows a Claimant in a small claim £50 in legal fees, which is why this is always claimed. The point isn't that no Claimant is allowed to claim this £50, it is that this Claimant has not incurred the charge because they don't use lawyers and process and draft their claims in-house). but the Defendant believes that they have not incurred such 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. this is a bit repetitive with the two paras making the same points

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 put abbreviations in full - Approved Operator Scheme - are required to comply fully with the DPA don't assume abbreviations can be understood, but you need to define them like you did with POFA - , 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) don't know where you got all this from, so don't know. I ran the illegality argument, but because of illegal signage, not the DPA

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 don't you mean THE DRIVER????? 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 this is the first time you've mentioned this, your spiel about illegality above all related to DPA breaches..... do you have any evidence they didn't have permission? You can look it up on the council online planning portal.... not sure this is really a defence worth running, the consensus on here is a successful defence based on illegality has never succeeded. I think it succeeded once in a set aside, where the papers were drafted by a barrister (which is where I lifted that part of my defence/Skeleton from).

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 [you need to say why this is relevant: it is in relation to the argument that the charge is an unrecoverable penalty. So you say that "The Defendant avers that the sum sought by the Claimant is an unrecoverable penalty"... then say how the case is distinguished from Beavis, in which it was held that the penalty rule DIDN'T apply] :

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.

Gave up the will to live at para 6.


It starts off well. Then just becomes a jumbled mess!


Can you do this:
Make a list of your defences, in a sensible and logical order, so that each one flows into the next.


So eg:
Pre-amble re breach of Rule 16 and PD 16 (properly particularising the claim), the pre-action Protocol and PD 22.
Then your actual defences:


1. Not the driver.


2. Not liable as RK because:
2.1 POFA not complied with
2.2 even if POFA complied with, no contract was formed between Claimant and driver because:
2.2.1 the signage was inadequate [was it?]
2.3 even if POFA complied with and a contract was formed (which is denied):
2.3.1 there was no planning permission for the signage which is a criminal offence and a C cannot bring a claim relying on a criminal act (in this case the display of signage)
2.3.2 the C has breached the DPA and, again, the C cannot bring a claim relying on a wrongful act (in this case the DPA breaches)


I'm really not sure you need 2.3 at all - see my note above which explains how this has never won that we are aware of, except in one case where it was skilfully argued by a barrister at a set aside hearing (I included it in my defence but I am a lawyer too - I think I lifted it from the documents linked in a Parking Prankster blog).


3. If the other defences fail and it is held that a valid and enforceable contract was entered into, under which D is liable either as driver or RK, the sum sought is an unrecoverable penalty (the case being distinguished from Beavis because:
3.1 no clear signage
3.2 no commercial justification in imposing a time limit on parking to ensure a turnover of visitors to the retail units on the site
3.3 BPA CoP has been breached and it was specifically stated in Beavis that compliance is a pre-requisite to disengaging the penalty rule




You've tied Beavis in with other arguments and I don't fully understand how.



4. The C has added unrecoverable bolted on charges to the sum claimed:
4.1 the £50 legal costs when it handles all claims in-house
4.2 the added-on additional charges which are not mentioned or defined in the signage

Joe_bobbs

B*$$er, just sent the defence and your response has just come through! Guess I'll just need to see what transpires from here!!!
Thanks for response @loadsofchildren, wish I'd seen this before sending!

Loadsofchildren123

I wouldn't worry, it's CEL anyway, they always back out. But I think try and sort it out/set it out logically in your WS.

Joe_bobbs

Received a letter from the court and have phoned to confirm. The judge ordered a response to the defence within a week, otherwise the case would be struck out. No response was received so all good:)
Thanks for the help and advice, another victory against CEL, another happy Joe:)

Easy82

Hi Joe

Was this a letter from your local County Court?

I’ve received a letter today to say it’s been allocated to my local court and ok to await instructions from the judge.

Coupon-mad

Joe_bobbs wrote: »

Received a letter from the court and have phoned to confirm. The judge ordered a response to the defence within a week, otherwise the case would be struck out. No response was received so all good:)
Thanks for the help and advice, another victory against CEL, another happy Joe:)

Yay, another one bites the dust!

:T