Civil Enforcement Limited - Small Claim

unbelievablejeff

Hi.
So I've completed my AoS and deadline for my defence is Wednesday 10th Oct 2018. (Apologies for the late thread but didn't know of the existence of this until Friday!!

Question 1: Is this the correct email to send my defence to: CCBCAQ@Justice.gov.uk
Question 2: Is this the correct address to send my defence to (recorded delivery): County Court Business Centre, 4th Floor St Katharine's House, 21-27 St Katherine's Street, Northampton, NN1 2LH

Summary of my situation:
On the 5th May 2016, I visited the car park in question on two separate occasions.
First occasion I purchased the ticket on arrival, visited to the doctors to make an appointment for later that afternoon and left the car park, CEL are not chasing anything for this.
Second occasion I returned to the car park, but was late for the doctors, not wanting to miss the appointment I went straight in without buying a ticket. Upon leaving the doctors 29 minutes later I realised I needed to pay for my parking so purchased a ticket for an hours parking. I then left the car park about 9 minutes later.
Since then I have had 2 PCN letters from CEL on 28-06-2016 and a follow up on 29-07-2016. I emailed them to explain the situation on 02-08-2016 (without knowing of the existence of this forum) thinking they would accept that i had paid for parking and be reasonable in their actions. (What a mistaka da maka!)

So after reading through as much as I can without becoming confused I believe the following defence is the best to submit, if you think this is the wrong one then please let me know if there is a link to a better one and i will read through:

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

Civil Enforcement Limited (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the vehicle, registration XXXX, of which the Defendant was the registered keeper, was parked on the material date in a marked bay and had purchased a valid parking ticket to be parked in that bay for one hour, and only parked in that bay for less than forty minutes. A copy of the ticket is enclosed.

3. The Particulars of Claim state that the Defendant XXXX;was the registered keeper and/or the driver of the vehicle XXXX;. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

4. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

5. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom.

6. The terms on the Claimant's signage were also displayed in a font which was too small to be read from a passing vehicle, and were in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

(Unsure if I should include this part in red as the signs are no longer there, so I cannot see them or take pictures of what they look(ed) like?)

7. The Claimant is put to strict proof that it has sufficient prorpietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

8. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

9. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Name
Signature
Date

KeithP

Question 1: Is this the correct email to send my defence to: CCBCAQ@Justice.gov.uk

Yes.

When you are happy with the content, your Defence should be filed via email as described 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 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'.
6) Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
7) Wait for your Directions Questionnaire and then re-read post #2 of the NEWBIES thread to find out exactly what to do with it.

Question 2: Is this the correct address to send my defence to (recorded delivery): County Court Business Centre, 4th Floor St Katharine's House, 21-27 St Katherine's Street, Northampton, NN1 2LH

You'll know the answer to that from your Claim Form, but why bother to send a postal copy?


What is the Date of Issue on your Claim Form?

unbelievablejeff

It was dated 7th September 2018

KeithP

unbelievablejeff wrote: »

It was dated 7th September 2018

Yes, you are right - you have until 4pm on Wednesday 10th October to file your Defence.

Please follow the guidance offered in my earlier post.

unbelievablejeff

Will do and thanks Keith. Any advice on the strength/quality of the defence?

Coupon-mad

(Unsure if I should include this part in red as the signs are no longer there, so I cannot see them or take pictures of what they look(ed) like?)

Yes, you MUST as the contract is based on signage and it's for them to prove.

prorpietary

should be

proprietary

This is not relevant to your defence, this is only for cars parked out of bays:

They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom.

This is wrong - a defence attaches NOTHING AT ALL; it's not yet evidence stage:

A copy of the ticket is enclosed.

And you need to beef up the end! No way has CEL only added sixty quid! Search the forum for these words (change to SHOW RESULTS AS POSTS, in your advanced search):

Civil Enforcement abuse of process true

unbelievablejeff

Further updated my defence to the one below. Again all amendments since last comments have been highlighted in red.

Any advice would be greatly appreciated even if its just a 'thats good to go' or 'you should really delete / add this' as i need to submit tomorrow. Thanks in advance and thanks for all the help so far.

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

Civil Enforcement Limited (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Defendant made payment in full of the amount due. Payment for parking was made using the pay and display ticket (PDT) machine.

3. The facts are that the vehicle, registration XXXX, of which the Defendant was the registered keeper, was parked on the material date in a marked bay and had purchased a valid parking ticket to be parked in that bay for one hour, and only parked in that bay for less than forty minutes.

4. The PCN stated the contravention as 'Payment not made in accordance with terms displayed on signage' and this contravention is denied. The Defendant denies liability for the purported parking charge (penalty), not least because it is already common ground that the correct parking charge (tariff) had already been paid and the numbers input identified the vehicle, setting it apart from any other car using the site.

5. The 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 the Defendant understands that the claim relates to a parking charge, he does not know whether the claim is brought 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. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct, beyond the agreement to pay the tariff and identify the car registration number, which the defendant carried out.

6. The Claim Form was not correctly filed 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.

7. The matter of fact here is that payment of the tariff was made by the driver of the vehicle which was captured by Automatic Number Plate Recognition (ANPR). Clearly the Claimant had sufficient information to conclude from their secondary data stream (ANPR) that a payment had been made, yet instead of rectifying their data to match the payment, they obtained the Defendant's personal data from the DVLA.

8. Given the fact that the Claimant did not rectify ANPR data to match with a payment made, an automated PCN was issued. However, parking firms are prohibited from issuing ANPR PCNs without manual checking by human intervention (BPA Code of Practice and AOS rules). It was within the gift and duties of the Claimant to ensure before starting enforcement at any site, that their systems are fit for purpose and the terms are fair, thus avoiding any allegation of error leading to an unfair (not 'agreed') three figure penalty.

9. The Particulars of Claim state that Drivers are allowed to park in accordance with T+Cs of use. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

10. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They merely state that the full and correct registration number should be entered when purchasing a ticket. There is no indication that the ticket should be purchased immediately on arrival or otherwise.

11. The terms on the Claimant's signage were also displayed in a font which was too small to be read from a passing vehicle, and were in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

12. 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, and to pursue payment by means of litigation.

13. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £180.17, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

14. In addition to the original parking charge, for which liability is denied, the Claimant has artificially inflated the value of its claim by adding purported but unsupported damages, admin, debt collector or other costs, which the Defendant submits have not actually been incurred at all. The claim flows from an alleged (already hugely inflated) contractual parking charge of £100 but the sum on the claim form is more than three times this sum. The Defendant avers that this inflation of the considered amount is a gross abuse of process.

15. The Claimant is a serial offender on this regard and must be well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims track. 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.

16. 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, where the sparse cut & paste particulars are embarrassing and give rise to no recognisable claim in law.

17. When Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) or alternatively, for the hearing fee to be ordered to be paid before exchange of documents between the parties, because where a claim from this serial Claimant is robustly defended, this Claimant routinely discontinues after seeing a Defendant's Witness Statement and never pays the court hearing fee.

18. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Name
Signature
Date

unbelievablejeff

So update to the above:

1. Defence Submitted - 10th October 2018
2. Directions Questionnaire (N180) Submitted - 10th December 2018
3. Received Notice of transfer of Proceedings - 4th January 2019
4. Received General Form of Judgment of Order - 16th January 2019. It ordered that;

a. The Particulars of Claim are struck out as failing to comply with CPR 16.4
b. The claimant must file at Court and serve on every other party a further statement of case by 4pm on 30th January 2019. This must:

i. set out a coherent set of facts, which, if true, disclose a legally recognisable claim against the defendant;

ii. have attached a copy of the written agreement on which the claim is based.
c. If the claimant fails to comply with Paragraph (b) of this order the claim stands struck out without any further order of the court and the Defendant is entitled to apply for judgment pursuant to CPR 3.5
d. The Claimant may apply by 4pm on 23rd January 2019 to vary, set aside or stay this order.

5. Received Further Statement of Case from CEL – 31st January 2019
6. Received General Form of Judgment of Order – 8th February 2019. It ordered that;
a. The Defendant shall by 4pm on 27th February 2019 file at Court and send to any Defendant any Defence on which he proposes to rely which shall respond paragraph by paragraph to the Particulars of Claim.

I have a couple of questions re the above.

CEL were ordered to serve their updated statement of case by 4pm on 30th Jan 2019. I only received this on the 31st January 2019. What if anything can I do about this?

They were aslo ordered to attach a copy of the written agreement on which the claim is based. They have not done this save for including a typed section they claim was displayed in the Car Park. (There is no way of checking this as they no longer operate the car park in question). Again what if anything can I do about this?