Urgent - CEL Priviate Parking Defence Claim

gaztop7

Hello All, could anyone please look at my defence statement for a PCN made by Civil Enforecement Limited. I need urgent help to ensure this is as detailed as possible:

- On the 9th July 2018 I received notification when applying for a mortgage I had a CCJ
- Found a historical CCJ applied in April 2017 in my absence whereby the PCN letters had been sent to my old address, I had failed to update my rc5 keeper address at the time of the offence
- The PCN was made in a small car park known as 'the hollies' in eastwood nottingham on the 22nd March 2017 for an overstay of 10 minutes (20 minutes total stay time) - the time was 7pm and they have closed circuit TV that has captured by number plate (No pictures or evidence were sighted as these were sent to my old address)
- I did not buy a ticket at the time due to the machine not working, shops from around the area have confirmed that the machine was not working throughout this month
- At the time of realising the offense I set the judgement aside, I now need to file an urgent defence to the claim in the next 7 days.

My understanding is the car park did not have working pay and display machine at the time and that the current prominent signage at the opening of the car park was only applied after my PCN date.

Any help would be massively appreciated

The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success based on the following evidence:
1. The Claim Form issued on April 2017 by Civil Enforcement Limited was not
correctly filed under The Practice Direction as it was not signed by a legal person but signed by “Civil Enforcement Limited (Claimant’s Legal Representative)”.

2. The Particulars of Claim discloses no cause of action. The claimant has not provided particulars to allow the defendant to provide a reasonable defense having not stated clearly within their letters what the charge is for..
3. CEL is not the land-owner and has no capacity to bring the claim unless its contract grants it. In the absence of written authority from the land-holder in accordance with the BPA Code of Practice Para 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.”, has no legal capacity to bring the claim. If the display of signs was sufficient, the BPA would have had no need to include this condition in its Code of Practice.

4. This Claimant has not complied with pre-court protocol. 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
5. 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. The Claim form Particulars did not contain any evidence of contravention or photographs.

(i) Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
(ii) A copy of any contract it is alleged was in place (e.g. copies of signage)
(iii) How any contract was concluded (if by performance, then copies of signage maps in place at the time)
(iv) Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
(v) Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
(vi) If charges over and above the initial charge are being claimed, the basis on which this is being claimed
(vii) If Interest charges are being claimed, the basis on which this is being claimed
Once these Particulars have been filed, the Defendant asks for reasonable time to file another defense.

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 as there was no clear, transparent information about how to obtain a permit either inside or outside the site) 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 permit information mentioned a possible £237 for outstanding debt and damages.

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 (or even admin) costs' were incurred. I deny the Claimant is entitled to any interest whatsoever.
5. In the statement of fact, CEL’s own staff issued the claim and the Legal Representative fee is false.

6. This case can be distinguished from Parking Eye 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. None of this applies in this material case.

a) The Claimant is put to strict proof that 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 (at the time of the offence) incapable of binding the driver into the contract - this distinguishes this case from the Beavis case:
(e) It is believed the signage 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 authorized party using the premises as intended.
(f) 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.
(e)–The following paragraph is taken from the BPA COP
“Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area.”
The PCN was issued at 19:07GMT (In March 2017) in darkness and at that point the surrounding signage was not correctly lit or visible to myself, revisiting the area in darkness confirms that the signs cannot be seen correctly:

(i) the signs at the time of the offense were not compliant with the above BPA clause in terms of the font size, lighting or positioning.
(ii) The clause displayed within the sign that the charges are enforced ‘24 hours a day’ cannot be easily seen either in daytime or in low light (See appendix 1.1) and is extremely small writing on the sign itself. This would have been easily missed at the time of the offense (See Picture 1.1 for evidence)

9. 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.

10. 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.
11. Furthermore the charge was issued in the evening for an over stay of 10 minutes when there was very few other cars parked in the vicinity and all the surrounding businesses were closed at the time, there would have been no commercial loss to these businesses as a result and therefore no justification for such a high fee
12. Finally the only pay and display machine for this car park was reported to be out of service therefore I did not buy a ticket at the time of the offense, this report was backed up by the business owners in the vicinity and by other parking users on the day of the offence. Furthermore it is reported that throughout March and April 2017 the machine was fully out of service for use. Submitted in my defense is the pictures taken of the machine from around this time with the ‘out of order’ message on the digital readout (See Pictures 1.2 to 1.5).

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.

I confirm that the above facts and statements are true to the best of my knowledge and recollection.

bargepole

The most important aspect of the Defence, is a description of what happened on the day to cause the PCN to be issued.

However, that is buried all the way down at paras. 11 and 12 - it should be the first para.