Letter before court - POPLA rejection - Co-op store Civil Enforcement Ltd ANPR capture VRN missing

Umkomaas

No recorded mail to CEL, they use an address of convenience at Exchange Flags Liverpool (mail drop?) where no one will sign fo anything for them, thus proving your letter was never received. They are much more likely being based nearer the Thames than the Mersey (ask yourself why!).

My standard advice is:

Send your letter with a free Certificate of Posting from your Post Office counter as with this, the letter is deemed by law to have been delivered by the second working day after posting.

Do not use (or pay for!) 'Signed For' (previously known as 'Recorded' or 'Registered') or 'Special Delivery' as some PPCs refuse to accept such, then all you have is proof of non-delivery.

Le_Kirk

raysuzuki wrote: »

I will send the email evidence (recorded post) to CEL tomorrow.........

Not sure how you can send e-mail by post unless you mean print it and post it, in which case do not use recorded post or any other signed for service. If you do this, the recipient can just refuse to sign and they have proof it was NOT delivered.

Just First Class post and ask for a FREE certificate of posting at the post office counter. Keep it stapled to a copy of your letter.


ETA Oops, didn't see it had gone over to another page of replies. Anyway it re-enforces what we are all saying to the OP

raysuzuki

Court Claim Update!

After a whole year of receiving the odd sporadic letter from not only CEL but also ZZPS and the QDR Solicitors (all of which have hiked up the original cost claimed and threatened legal action and all were rebuffed by email using the landowner authority argument discussed above), I have finally received a genuine court claim (issue date 30/8).

Note: Turns out what I thought was a real ‘letter before court’ a year ago was simply a threatening letter. However, now I do have a real court claim (County Court Business Centre – Northampton), I didn’t get any ‘letter before court’ beforehand – is that normal / contestable?

I have this morning registered with MCOL and acknowledged the service and I have spent some time reading the threads but can’t find one which exactly mirrors my circumstances.

From what I gather, it’s much better to send the defence by registered post rather than use the restricted text box provided by MCOL. (Is there any email I could use instead?)

Here is my provisional WS for any (much appreciated) comments before I submit. (Is it too wordy towards the end? I am also unsure how to end the statement??)

Many thanks in advance


In the County Court at XXXXX
Claim No. XXXXXXXX
Between
Civil Enforcement Ltd (Claimant)
and
XXXXXXX (Defendant)

---

Witness Statement

---

1. I am XXXXXX of [Address], [Postcode], the Defendant in this matter. I will say as follows:

2. On [DATE], My family and I briefly visited the Co-op in Leiston and parked our vehicle registration no XXXXX in the car park.

3. I noted the signs regarding 4 Free Parking for customers and duly registered my vehicle on one of the electronic devices located at the checkout and witnessed an on-screen confirmation.

4. A week later, I received a Parking Charge Notice (PCN) from Civil Enforcement Ltd (CEL).

5. The PCN was immediately challenged and I submitted proof of purchase at the Co-op store (attached as Exhibit A) and assumed the matter dealt with, having been parked for less than 45 minutes.

6. CEL refused my challenge on the grounds that my vehicle registration number was not on their system. I was then offered an appeal via the POPLA system which I immediately submitted.

7. At the same time, I also complained to the Principle Landowner (East of England Co-op) and was immediately offered an apology and a promise to cancel the PCN from CEL (see email history with the Co-op, which is attached as Exhibit .

8. The email history clearly shows the Principle Landowner instructed CEL to cancel on more than one occasion and having not done so, CEL are in breach of the Principle Landowner’s ‘rights of cancellation’.

9. In subsequent phone calls to senior managers at the Co-op, I have been informed that they instructed Civil Enforcement Ltd on three occasions to cancel the Parking Charge Notice. In not cancelling the PCN as requested by the principal, they are acting outside of their express wishes. As a result, they no longer have authority to operate and are in breach of the BPA code of practice concerning landowner authority, of which compliance is mandatory. (Indeed, due to ongoing issues with Civil Enforcement Ltd, I have also been informed CEL no longer operate the car park in Leiston).

10. Moreover, there was no legitimate business interest in issuing this PCN. Phone conversations with the Co-op, confirmed the introduction of car park management at Leiston was brought about by local residents abusing the free car park (by sometimes leaving their own cars there indefinitely) or by commuters leaving their cars there all day – as a result there is certainly a legitimate business interest in introducing a limit of 4 hours free parking. However, in penalising a genuine customer (proven by banking records) who parks for 45 minutes, goes completely against this legitimate business interest, and as such, and as requested by the Co-op), this PCN should have been cancelled. As a result, the 'ParkingEye v Beavis' case also exposes this charge as unconscionable, with no overriding 'legitimate interest' to save it from offending against the penalty rule.

11. The POPLA appeal was initially rejected because I was unable to provide concrete evidence of registering my vehicle. However, the evidence provided by CEL to POPLA (see report of registered cars – Exhibit C) shows 80 vehicle registrations were made between 12 noon and 2pm on the date in question, yet 5 of these attempts have missing registration numbers. This equates to a failure rate of around 6.25% (either as a result of users mis-registering their vehicles or some kind of device/network failure). Either way this is an unacceptable rate of failure for these devices. I have been informed that CEL were responsible for these devices but have received no confirmation as to how often they are checked and what procedures are in place when device or network failures occur. There also appears to be no link between the APNR camera system located outside in the car park and the devices in-store, meaning that when a device or network fails it does not inform the APNR system of the failure and PCNs are automatically generated.

12. ?

Le_Kirk

If you truly are sending a defence, why have you written a witness statement? Do not send it by registered or any signed for service, use the e-mail in this advice given by KeithP: -

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

1. Print your Defence.
2. Sign it and date it.
3. Scan the signed document back in and save it as a pdf.
4. Send that pdf as an email attachment to [EMAIL="CCBCAQ@Justice.gov.uk"]CCBCAQ@Justice.gov.uk[/EMAIL]
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'.
6. Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
7. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
8. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

If you post the issue date of your claim form, KeithP will post his full advice which will give you dates for deadlines.

raysuzuki

Thanks for the info emailing the defence - sorry think I'm getting confused between writing a 'Defence' and a 'Witness Statement'

If I understand correctly then the defence just summarises the key defence points; 'no landowner authority' / 'no legitimate business interest' etc and the witness statement detailing the sequence of events is sent later once the local court is allocated(?)

I will try drafting the defence tomorrow for comments

Thanks

KeithP

As Le_Kirk suggested, please post the Issue Date from your Claim Form.

Umkomaas

If I'm reading this correctly, and it's 12 months since the substantive thread petered out, I think you need to be submitting a DEFENCE, not a Witness Statement at this stage. The WS should be submitted around 2 weeks prior to the hearing date, and, again, if I'm reading this correctly, is likely to be around 2 months away.

raysuzuki

CLAIM COURT UPDATE - ISSUE DATE 30th August 2019


Hi, hopefully I've now understood the procedure a little better - here is my Defence statement (it has been adapted from a previously submitted case where a touchscreen device was hidden - in my case I entered my reg on a device but their system failed to record it correctly.)

I would gratefully welcome any comments/suggestions before I submit.

Thanks

IN THE COUNTY COURT
CLAIM No: xxxxxxxxxx

BETWEEN:
Civil Enforcement Ltd (Claimant)

-and-

xxxxxxxxxxxx (Defendant)



DEFENCE

Background - the driver was an authorised patron of the onsite business

1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt arising from the driver's alleged breach of contract, which is denied. The terms & conditions of the car park in question were adhered to. (The defendant noted the signs regarding ‘4 Hours Free Parking’ for customers and duly registered the vehicle on one of the electronic devices located at the checkout and witnessed an on-screen confirmation). It is further denied that there has been any agreement to pay the Claimant a punitive £100 'parking charge notice' (PCN) for the lawful conduct described below.

2. The allegation appears to be that the 'vehicle was not authorised to use the car park' based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit and is no evidence of 'No Authorisation' or not being a patron of the facility.

3. The Defendant has already proved that patronage (at the Co-op in Leiston), and it is the Claimant's own failure, caused by faulty parking touchscreen devices located at the checkouts, that has given rise to a PCN that was not properly issued from the outset. Evidence will show that 80 vehicle registrations were made between 12 noon and 2pm on the date in question, yet 5 of these attempts have missing registration numbers. This equates to a failure rate of around 6.25% (either as a result of users mis-registering their vehicles or some kind of device/network failure). Either way, this is an unacceptable rate of failure for these devices. The defendant has been informed that the Claimants were responsible for these devices but has received no confirmation as to how often they are checked and what procedures are in place when device or network failures occur. There also appears to be no link between the APNR camera system located outside in the car park and the devices in-store, meaning that when a device or network fails it does not inform the APNR system of the failure and PCNs are automatically generated.


No authority to operate and breach of the BPA code of practice concerning landowner authority

4. The defendant complained to the Principle Landowner (East of England Co-op) and was immediately offered an apology and a promise to cancel the PCN issued by the Claimants (written evidence will be submitted).
5. The written evidence will show the Principle Landowner instructed the Claimants to cancel the PCN and having not done so, the Claimants are in breach of the Principle Landowner’s ‘rights of cancellation’. Indeed, the claimants were instructed on several occasions to cancel the Parking Charge Notice and in not cancelling the PCN as requested by the Principle Landowner, they are acting outside of their express wishes. As a result, they no longer have authority to operate and are in breach of the BPA code of practice concerning Landowner Authority, of which compliance is mandatory. (Indeed, the defendant has been informed that the Claimants no longer operate the car park in Leiston due to the sheer volume of PCNs incorrectly presented to genuine customers of the Principal Landowner).

No legitimate interest - the penalty rule remains engaged

6. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices in these circumstances, and to pursue payment in the court in their own name. Even if they hold such authority, the Claimant is put to strict proof that this authorisation expressly allows litigation against patrons even when the business in fact supports the Defendant in wanting an unfair charge to be cancelled.

7. Even if the Claimant is able to produce such a landowner contract, it is averred that there can be no legitimate interest arguable by the Claimant in this case. When - all too often at this location – the Claimant unfairly harvests the data of a registered keeper to charge a genuine patron, any commercial justification in the form of landowner support for such unfair ticketing is de facto absent.

8. Further, there was no overstay nor any mischief to deter, nor was there any misuse of a valuable parking space by the Defendant, whose car was parked in good faith, not in contravention nor causing an obstruction, and was certainly not 'unauthorised'. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant's claim is reduced to an unrecoverable penalty and must fail.

9. Phone conversations with the Principal Landowner, confirmed the introduction of car park management at Leiston was brought about by local residents abusing the free car park (by sometimes leaving their own cars there indefinitely or by commuters leaving their cars there all day) – as a result there is certainly a legitimate business interest in introducing a limit of 4 hours free parking. However, in penalising a genuine customer (with proven patronage) who parks for 45 minutes, goes completely against this legitimate business interest, and as such, and as requested by the Principal Landowner), this PCN should have been cancelled. As a result, the 'ParkingEye v Beavis' case also exposes this charge as unconscionable, with no overriding 'legitimate interest' to save it from offending against the penalty rule.

10. Indeed, this case is fully distinguished in all respects from ParkingEye Ltd v Beavis [2015] UKSC 67. That Supreme Court decision sets a high bar for parking firms, not a blanket precedent, and the Beavis case essentially turned on a 'complex' and compelling legitimate interest and very clear notices, where the terms were held not to involve any lack of good faith or 'concealed pitfall or trap'.
11. 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' (the ICO Code). This is both a specific Data Protection and BPA Code of Practice breach. The Supreme Court Judges in Beavis held that a Code of Practice is effectively 'regulation' for this blatantly rogue industry, full compliance with which is both mandatory and binding upon any parking operator.

12. The ICO Code applies to all ANPR systems, and states that the private sector is required to follow it, in order to meet its legal obligations as a data processor. Members of the BPA are required to comply fully with the Data Protection Act (DPA) and all ICO rules and guidelines, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land. At this location, the Claimant has failed on all counts and the data gathered about patrons of the site is unconscionable and excessive.


Inflation of the parking charge and double recovery - an abuse of process

13. This claim inflates the total charges in a clear attempt at double recovery. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable conduct as a gross abuse of process. It was held in the Supreme Court in Beavis (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters. Thus, there can be no 'costs' to pile on top of any parking charge claim.

14. In addition to the original penalty, the Claimants have artificially inflated the value of the Claim by adding purported legal costs of £50, which have not actually been incurred by the Claimant. Civil Enforcement Ltd have not expended any such sum in this case, given that they have a Legal Team with salaried in-house Solicitors and (shamefully) this firm whose main business is supposed to be parking 'management' as a service provision, files tens of thousands of similar 'cut & paste' robo-claims per annum. No genuine legal costs arise, per case, and their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

15. The added 'legal' cost is in fact an artificially invented figure, which represents a cynical attempt to circumvent the Small Claims costs rules and achieve double recovery. According to Ladak v DRC Locums UKEAT/0488/13/LA, a Claimant can only recover the direct and provable costs of the time spent by legally qualified staff on actually preparing the claim and/or the cost of obtaining advice for that specific claim, in a legal capacity.

16. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.

I confirm that the facts in this defence are true to the best of my knowledge and belief.


Name/signature


Date

Le_Kirk

Just a small point on paragraph 6., if the PPC [strike]has now been kicked off[/strike] no longer operate the car park, should your point state: -

The Claimant is put to strict proof that it [strike]has[/strike] had sufficient proprietary interest in the land at the time of the parking event

KeithP

raysuzuki wrote: »

CLAIM COURT UPDATE - ISSUE DATE 30th August 2019

With a Claim Issue Date of 30th August, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Wednesday 2nd October 2019 to file your Defence.

That's over four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

When you are happy with the content, your Defence could be filed via email as described in Le_Kirk's earlier post.