CE County Court Claim

Networking

Hi All,

Thank you all for the info and support, I've never posted before but have referred to here many times.
I'd hoped it would never come to this but here we are.

I received a county court claim from Civil Enforcement. This was due to a ticket back in 2017 in a small car park. They had ticket machines and it was an ANPR camera. I did purchase a ticket but it ran over by 24 minutes. I don't have the original letter so this is really just based on my memory.

The issue date of the claim was on the 01/10/18. I've already submitted my AOS and just getting ready to do my defence but i need some advice.

Couple things i need help with are:
I'm not sure whether they are claiming from me as the driver or the keeper. Does it matter at this stage?
And mainly what to use as the basis of my defence?
I know that CE is a BPA member and that they advise a minimum of 10 minutes allowed time after the ticket expires before issuing a ticket. Would that be something that is a basis of the defence or more of an add-on?

The difficulty is that i don't have the original letter so i don't remember exactly how long was overstayed.


Thanks

KeithP

Networking wrote: »

The issue date of the claim was on the 01/10/18. I've already submitted my AOS...

With a Claim Issue Date of 1st October, and having done the AoS in a timely manner, you have until until 4pm on Monday 5th November 2018 to file your Defence.

Still three weeks to produce a perfect Defence, but don't leave it to the very last minute.


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 FAQ sticky thread to find out exactly what to do with it.

nosferatu1001

The POC will likely claim theyre claiming from you in either capacity

CEL fail to comply with POFA
There are DOZENS of CEL defences on here. Have you found them yet?

Send CEL a SAR NOW. Dont ask whether you can. Do it. You will get within 30 days ALL of your documents, which you will use later on.

Networking

Thanks for your input.

I've just had a look at some SARs but i am no longer the registered keeper of the vehicle so how will i prove that i was at the time?

KeithP

CEL already know that you were the Registered Keeper at the time of the parking event - they retrieved your details from the DVLA as RK at that time.

Networking

Right, I just sent out a SAR letter to them.
I will draft my defence tonight and post it here.

Thanks again.

nosferatu1001

POint out you are not the current Keeper but as they have been corresponding to you over this court claim, they already have sufficient proof of identity. If they did not have sufficient proof then they should not have been sending data out...

Networking

Hello all,

Thanks for the help and I've drafted this up so far.
Let me know what you all think and if there's anything i should change/add.


DEFENCE


Background

1. The Defendant was the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at xxxx car park on xx/xx/2017

1.1. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 ‘Parking Charge Notice (PCN)’.

2. The allegation appears to be 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, entering and leaving the car park in question and is not evidence of the registered keeper 'not purchasing the appropriate parking time'. It does not take into account the amount of time taken to enter the car park, find a space in the car park, park in the space, purchase a ticket and put this on the windshield. All of which is extremely difficult in this particular car park due to the very busy, very cramped conditions.


Data Protection concerns

3. The Defendant had no idea about any ANPR surveillance and received no letters after the initial 'PCN' a vague document which gave no indication as to what the alleged breach actually was. No photographic evidence of the terms on signage has been supplied, not even in the postal PCN.

3.1. The Claimant is put to strict proof of any breach and of their decision-making in processing the data and the human intervention in deciding to issue a PCN and why, as well as the reasoning behind trying to collect £100 instead of the few pounds tariff, if it is their case that this sum went unpaid.

4. Under the GDPR, the Claimant is also put to strict proof regarding the reason for such excessive and intrusive data collection via ANPR surveillance cameras at a remote car park where there would likely be no cars unconnected to patrons, no trespass nor 'unauthorised' parking events.

4.1. It is one thing to install PDT machines, but quite another to run a hidden ANPR camera data stream alongside the PDT data stream, and then use one against the other, against the rights and interests of thousands of unsuspecting but circumspect visitors, who are being caught out regularly by this trap.

4.2. Silently collecting VRN data in order to inflate the 'parking charge' from £3.50 to £100 and write (weeks later) to registered keepers at their own homes - whether they were driving or not - is excessive, untimely and intrusive to registered keeper data subjects.

4.3. These concealed restrictions are misleading and excessive and tip the balance so far against visitors that there is an imbalance in the rights and interests of consumers, which is contrary to the listed Prohibitions in the Consumer Protection from Unfair Trading Regulations 2008.

5. Unlike the free car park in Beavis, this Visitor Car Park is a site where the Claimant has machines to take payment of tariffs. Clearly there will be Civil Enforcement staff regularly onsite to empty the money from the machines, who could reasonably enforce parking rules with drivers face to face, whilst managing the car park fairly and ensuring that any PDT machine is clear and obvious to drivers and not a hidden 'pitfall or trap'. The ANPR cameras represent disproportionate and excessive data processing, given the nature of this location, and the Claimant's DPO is put to strict proof of its data risk assessment and compliance with the Information Commissioners Office's ANPR surveillance camera Code of Practice.


Premature claim - no Letter before Claim, and sparse Particulars

6. Due to the sparse details on the 'PCN' (taken to be a scam piece of junk mail, since it did not come from any Authority or the Police and arrived weeks later) and the equally lacking and embarrassing Particulars of Claim (POC) and the complete lack of any Letter before Claim, this Claimant afforded the Defendant no opportunity to take stock, obtain data, copy letters, and images of the contract on signage. There has been no chance to even understand the allegation, let alone discuss or dispute it prior to court action, as should have been the case under the October 2017 pre-action protocol for debt claims.

6.1. The Defendant avers that the claim was premature and the Claimant is put to strict proof of the letters they say were sent and where they were posted to, after the PCN itself, and evidence from their case status data that a Letter before Claim and attachments required under the Protocol, were issued, and when/where they were sent.

7. The Defendant requires a copy of the contract (the signage terms on the material date) and a full and detailed explanation of the cause of action and on what basis they purport to hold the Defendant liable. The POC alleges that the Defendant was 'the registered keeper and/or the driver' of the vehicle, indicating a failure to identify a Cause of Action. The Claimant is simply offering a menu of choices and failed to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the POC do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

8. The Defendant has sent a subject access request (SAR) to the Claimant, for response during October 2018 and no later than the 15th of November 2018, and will expand upon the denial of breach in the witness statement and evidence, once the Defendant has seen the details from the SAR and/or in the event that the Court orders the Claimant to file & serve better particulars.


Denial of contract and denial of any breach, or liability

9. Due to the sparseness of the POC 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 breached any contractual agreement with the Claimant, whether express, implied, or by conduct.

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.

10.1. The Defendant avers that the signage at the site in question is woefully inadequate and extremely confusing. The small sign at the car park entrance it does not state clearly that it is affiliated with Civil Enforcement Ltd, is obscured from view by a tree and placed at a busy street with many people crossing where the entrance to the car park is. All of these combine to make this initial sign easily missed.


10.2. The Civil Enforcement signs within the parking area are equally as hidden and therefore misleading.


10.3. The PCN and POC could mean that the Claimant is suggesting the car overstayed paid for time, or even that a wrong VRN was recorded by the PDT keypad, and it is impossible for the Defendant to be certain about the alleged breach and to make an informed decision about what to say by way of defence, which puts the Defendant in a position of disadvantage.


10.4. Upon receiving this unexpected Claim, the Defendant has researched the site in order to submit a defence. One black, unlit terminal 'box' is placed within the carpark, blocked from view during entry and easily blocked from view by other parked cars. The terminal PDT machine nearest to the entry is faced away from the roadside, towards a building that is entirely unused by patrons visiting. The black terminal PDT machine looks like an unremarkable electrical box or bin, with also has absolutely no distinguishing features or signage on the back and from the roadside, to associate it with parking. There is no 'Have you paid and displayed?' reminders as patrons enter any of the stores or exit the car park.


No standing or authority to form contracts and/or litigate

11. 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 against patrons of the car park.



No 'legitimate interest' or commercial justification - Beavis is distinguished

12. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant is fully aware that their claim is reduced to an unrecoverable penalty and must fail. 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. The driver has not been identified, the PDT machines and signs/terms are not prominent, the VRN data is harvested excessively by two automated but conflicting data systems and the PCN was sent very late with a 'parking charge' that bears no resemblance to the £3.50 'parking charge' tariff, and as such, this case is fully distinguished in all respects, from ParkingEye Ltd v Beavis [2015] UKSC 67, where the decision turned on a legitimate interest and clear notices.

12.1. The Defendant avers that the factually-different Beavis decision confirms the assertion that this charge is unconscionable, given the signage omission at the time and the other facts of this case. To quote from the Supreme Court:

Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.

Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

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.''



Unconscionable, punitive 'parking charge' - again, Beavis is distinguished

13. If the 'parking charge' (the first interpretation meaning the car park tariff) was unpaid, then the sum 'owed' is a quantifiable figure. The sum 'owed' was a small tariff of some £3.50, according to the quite frankly, awful reviews on Parkopedia by other people who had been caught out by the same system by Civil Enforcement Ltd. Had the Defendant been clearly alerted to the sum on the day they would gain in income and avoid any parking issues at all, including all the complaints mounting up online about Civil Enforcement Ltd.

13.1. Instead, this Claimant is operating a punitive unjustified and excessively data-intrusive ANPR system to their own ends, which is not transparent to consumers. A hidden 'parking charge' of £3.50 unexpectedly becomes an extortionate £100 bill several weeks later (described also as the 'parking charge') and yet this is not the sort of 'complex' issue with a 'compelling' commercial justification that saved the charge in Beavis from the penalty rule.

13.2. Taking the comments of the Supreme Court (and the Court of Appeal in the earlier hearing in Beavis) into account, the 'parking charge' sum owed in this case can, at most, only be £3.50 and there was ample opportunity to fairly collect and transparently advertise that sum on site, on the material day.

13.3. At #22, in Beavis, the Supreme Court explored Lord Dunedin's speech in Dunlop: ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was unconscionable or extravagant. [...] The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''

13.3.1. And at #32: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest {of ParkingEye} [...] In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.''

13.4. The Court will be aware that Lord Dunedin's four tests for a penalty include the principle - which went unchallenged in the completely different 'free car park' considerations in the Beavis case - that: ''it will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid''.

14. Even if the court is minded to accept that the terms were clear and prominent, the 'parking charge' tariff was indisputably a 'standard contract', which would be subject to a simple damages clause to enable recovery of the sum that 'ought to have been paid' which was believed to be £3.50 and no more.

14.1. No complicated manipulations of the penalty rule can apply to a standard contract like this one, with quantified damages, otherwise every trader could massage any £3.50 bill to suddenly become £500.

14.2. In Beavis it was held that the claim could not have been pleaded as damages, as that would have failed. It was accepted that £85 was the sum for parking, and that was the 'parking charge' for want of any other monetary consideration in a free car park. It was not pleaded in damages, unlike here, where the sum for parking was just £3.50 and the Claimant is trying to claim damages of £100, no doubt hoping for a Judge who cannot properly interpret the intricacies of the Beavis case.

15. Further, and in support of the view of the unconscionableness of this charge, given this set of facts, the Defendant avers that a breach of the data principles and failure to comply with ICO rules regarding data captured by ANPR, when added to the lack of clear signage, lack of Letter before Claim and sparse POC, transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015.

16. In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported Solicitor's Costs of £50, which I submit have not actually been incurred by the Claimant.

16.1. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, Civil Enforcement Ltd have not expended any such sum in this case. This Claimant has a Legal Team with salaried in-house Solicitors and it files hundreds of similar 'cut & paste' robo-claims per month, not incurring any legal cost per case. I put The Defendant puts the Claimant to strict proof to the contrary, given the fact that their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

17. The Protection of Freedoms Act 2012 (the POFA) 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 (NTK) in this case £100. In the Beavis case, ParkingEye were only able to seek the only stated 'parking charge' sum on their NTK, since there was no quantifiable tariff.

17.1. It is not accepted that the Claimant has fully complied with the strict requirements of the POFA to hold the Defendant liable as registered keeper (and for this they are put to strict proof) and nor is it accepted that £100 can be claimed instead of £3.50 in this case, but either way, the additional sum of £50 on top, appears to be a disingenuous attempt at double recovery.

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.

I believe the facts contained in this Defence are true.


Name

Signature

Date

System

Here is a question for you. How long do you want to be in court?

The court rules are "narrow the issues" but if you wish to insist on each of these points in turn being discussed, press on. Make sure you do your research so you can argue each point in turn as you may be asked searching questions by a judge or the other side.

If on the other hand, this is just a cut and paste job then prepare to be disappointed and poorer.

Networking

This was a copy from one of CMs replies but I've gone through it and adjusted it for my particular case.

Do you have any suggestions on what to take out? I did read through each point and keep it if i thought that it was relevant.

System

Do you have any suggestions on what to take out?

Anything that doesn't narrow the issues.

There are 3 documents you will need to prepare - a defence, a Witness Statement and a Skeleton Argument. The defence is now. The WS and SA in 6 months time. Some of the content (legal arguments) belong in the SA.

In any case, you have to answer the allegation as detailed in the particulars and no more.