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County court defence
DaKerr
Posts: 12 Forumite
Hi, I have posted this on my initial thread as well as here, as I want to have as much advice as possible. This is what I have. Please let me know what you think and any suggestions.
Defence
Claim Number:
Issue date: 1/10/2018
BETWEEN:
Civil Enforcement LTD (Claimant)
vs
[NAME] (Defendant)
___________________________________________________________________________
I am [NAME] of [ADDRESS], [POSTCODE], defendant in this matter.
I am XXX, the Defendant in this matter and the registered keeper of vehicle XXX. I currently reside at XXX.
The ‘Particulars of Claim’ are as follows:
“Claim for monies relating to a Parking Charge for parking in a private car park managed by the Claimant in breach of the terms + conditions (T+Cs). Drivers are allowed to park in accordance with T+Cs of use. ANPR cameras and/or manual patrols are used to monitor vehicles entering + exiting the site. Debt + damages claimed the sum of 236.00
Violation date: 15/06/2017
Time in: 17:21 Time out: 17:43
PCN ref: Ref3802052877
Car registration no.:xxxxxxx Car park:-
Ibis Wellingborough
Total due- 236.00
The Claimant claims the sum of 260.31 for mponies relating to a parking charge per above including 24.31 interest pursuant to S.69 of the County Courts Act 1984
Rate 8.00% pa from the dates above to- 28/09/18
Same rate to Judgement or (sooner) payment
Daily rate to Judgement- 0.05
Total debt and interest due- 260.31”
I deny I am liable to the Claimant for the entirety of the claim, or for the court fee or Legal representative’s costs on the following grounds:
1. The defendant did not exceed a reasonable grace period.
a).Under the BPA Codes of Practice, it states:
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go.
i). In the draft Particulars of Claim sent to the defendant previously, under point 5, the Claimant claims that “When the Defendant parked their vehicle (on the date and time as set out in the attached schedule of information) in the car park they accepted, by their conduct the terms and conditions of parking.” Firstly, the time recorded by the claimant is 17:21 from an ANPR camera at the entrance of the car park, not from when the defendant “parked their vehicle.” The time the defendant’s vehicle was parked was later than 17:21. Additionally to this point, the defendant argues:
ii). With regard to the unspecified Grace Period before the parking period begins, as described in Paragraph 13.2, it is "reasonable" to expect that this "reasonable" Grace Period should include the time it takes to a) enter the car park, b) find a parking space, c) park the car, d) find the nearest car park sign, e) fully read and understand the terms and conditions before deciding whether to stay or go.
iii). As the ANPR cameras were at the entrance to the car park, it is argued that this grace period did not start until the defendant had found a car parking space, parked, found the car park sign and fully read and understood the terms and conditions.
iv). On entering the car park, it was unfair to expect the defendant to fully read and understand any terms and conditions. While driving a car, the sign on entering the car park and other signs in the car park did not clearly and visibly state what the terms and conditions of parking in the car park were. One would have to be standing very close to the signs to read the terms and conditions, which could not be read while driving into the car park, especially when concentrating on driving safely, avoiding any other cars, following proper driving laws and rules and avoiding pedestrians. This was also while driving a vulnerable care leaver, whom the defendant owed a duty of care to, to his temporary homeless accommodation. The defendant had to make sure the care leaver was being driven safely and had to comfort and reassure him due to him being homeless.
v). Using points 1a i-iv above, the defendant argues that he should have had a reasonable grace period to decide whether to stay or go from the car park under the BPA Codes of Practice 13.2, including the time it would have taken to find a car parking space, parked the car, found the car park sign and fully read and understood the terms and conditions, meaning that the period of time the defendant was actually parked in the car park was much later than 17:21, the time recorded by the ANPR camera at the entrance of the car park.
b). Under the BPA Codes of Practice, it also states:
13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.
i). The defendant argues that he should have had a reasonable period to leave the car park as a grace period after having entered the car park proper, found a parking space, parked the car, found a sign, fully read and understood the terms and conditions and carried out what is presumably a normal activity in the car park of a hotel, of dropping a customer off and helping with their belongings, as described above in 13.4 of the BPA Codes of Practice.
ii). The time stated that the defendant left the car park was 17:43. This was recorded from an ANPR camera at the exit of the car park. Any contract was only for parking in the car park, not including the time it took to exit the space safely and then exiting the car park. The defendant argues that any contract ended once the defendant had left the parking space, meaning any contract ended earlier than 17:43.
iii). The defendant argues that after having a reasonable grace period to decide whether to stay or go from the car park under the BPA Codes of Practice 13.2, including the time it would have taken to find a car parking space, parked the car, found the car park sign and fully read and understood the terms and conditions, and due to any contract ending as soon as the defendant left the car parking space, the time of any contract starting and ending were not 17:21 and 17:43 respectively. The time spent parked and then leaving the car parking space was far less. Due to any contract only being applicable for this period, it is argued the defendant only stayed in the car park for a short, reasonable period of time and a reasonable grace period should have applied.
iv). The defendant should have had a minimum of 10 minutes grace period once parked, not a maximum of 10 minutes, and that this period should be reasonable under 13.4. The defendant was advising and supporting a homeless care leaver in the car in the car park, before the care leaver went into the hotel where the car park was in order to legitimately use the facilities of the hotel through being temporarily housed there and this being paid for by the council. The time spent in the car park once parked were spent advising and supporting a homeless care leaver, helping him with his belongings and leaving the car parking space and car park itself safely around other traffic and pedestrians. The defendant argues that he spent a reasonable time in the car park using it for one of it’s proper use, namely to take someone to legitimately use the hotel’s facilities.
Even if it was accepted that the defendant was over a 10 minute grace period, which it is not, the defendant wishes it to be noted that 13.4 states a “minimum” of 10 minutes grace period should be granted, not a maximum. Due to the fact that the defendant was using the facilities for their proper purpose (using the car park to take a customer to the hotel), and, due to the nature of the use of time in the car park (supporting and advising a homeless care leaver using the hotel facilities), even if the defendant did stay past the minimum grace period, it is asked of the court that the minimum grace period of 10 minutes should not apply, and consideration should be given to why the defendant was in the car park and the reason for any minimal stay after the minimum 10 minute grace period and that the stay in the car park was reasonable under 13.4.
2. The Claim Form issued by Civil Enforcement Limited was not correctly filed under The Practice Direction as it was not signed by a legal person. 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.
3. The claim includes a sum of £50, described as “Legal representative’s costs.” The Claimant is known to be a serial litigant, issuing many similar claims on a regular basis, using a bulk processing service, generating lots of income. Given a standard working week, the claimant’s legal representative can spend no more than a few minutes per claim, hardly justifying the £50. Since these are fully automated, no intervention is required by a solicitor, and the Claimant is put to strict proof to show how this cost has been incurred. The Claimant should maintain case notes for each person who has accessed the case, and it is suggested this would be sufficient. The Claimant cannot rely on Nossen’s Letter Patent (1969) to justify the charge, as this is part of their everyday routine, and no ‘expert services’ are involved. The £50 is not valid because it is not incurred by the claimant.
Additionally, as this is already included as part of the costs of the claimant, factored into the parking charge, this is essentially double charging.
The defendant therefore puts the claimant strictly to proof, by way of timesheets or otherwise, that work was done by the claimant’s expert legal staff to the value of £50.
The £50 solicitor cost was disputed in the test case of ParkingEye v Beavis and Wardley. HHJ Moloney refused to award the £50. His award was; “JUDGMENT FOR CLAIMANT FOR £85 PLUS ISSUE COSTS”. These were presumably the £25 filing fee and £25 hearing fee.
The £50 was also struck out by DJ Sparrow on 19 August 2015 in ParkingEye v Mrs S, claim number B9FC508F.
4. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case).
That case was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location of the car park 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. This case can be distinguished by the following:
a). Signs were not clear and visible.
i). Any signs, including the one on entering the car park were not clear and visible in advising drivers of the terms and conditions of use. They merely state “permit holders only,” in any writing that could be said to be legible, and one would need to be fairly close to read even this. The terms and conditions were not legible from any distance, without having to get out of the car and walking very close to them, therefore the signage was not clear and visible with regards to “advising drivers of the terms and conditions,”, as stated in point 3 of the draft Particulars of Claim and distinguishing the current case from the Beavis case. This is especially the case for customers being driven to the hotel by another person, as was the case here, where it is unlikely the driver will feel he has entered into a contract for just taking someone to a hotel, parking, spending a brief amount of time with them and helping them with their belongings, which is surely normal in the day to day business of a hotel with a car park. It seems to go against the business model of the hotel that they would want to deter customers from entering the car park to to take paying customers to use the facilities.
ii). Any signs were not clear about anyone entering the car park. The signs states that “Hotel guests and visitors must register for a permit,” it says nothing about drivers dropping people off at the hotel. It is submitted that the defendant was neither a guest nor a visitor to the hotel, he was merely taking someone to the hotel, which is surely a part of the hotel’s normal business (people being dropped off at the hotel) and any signs were not clear in stating that drivers taking people to the hotel must register for a permit.
b). There was no breach of contract.
i). The defendant argues that he spent a reasonable amount of time in the car park after having entered the car park proper, found a parking space and parked the car, having had to spend time with a customer who he was taking to legitimately use the hotel facilities in the process of the defendant’s work, who was a homeless care leaver, needing support, advice and guidance, and having to spend time helping the care leaver with his belongings and leaving the parking space and car park safely. It is suggested that it is reasonable for the defendant to spend time in the car park doing the above in the normal course of use of a hotel car park and this did not breach any contract.
ii). The defendant was not in a contract with the claimant, as the signage states that“Hotel guests and visitors must register for a permit.” The defendant was neither a guest nor a visitor to the hotel, merely taking someone to the hotel, spending a reasonable amount of time in the car park doing this, especially due to the nature of why the defendant was there.
c). Even if there was a breach of contract, which is denied, it was frustrated by events outside the control of the defendant, namely that the defendant had to spend time supporting and advising a homeless care leaver. This means that any time spent in the car park for a legitimate use (using the car park to take a customer to use the hotel facilities) had to be slightly longer than just dropping a customer off.
d).The social justification in the Beavis case was because the car park was in a town centre near to retail outlets and a railway station and so might be abused by commuters who stayed all day. Additionally it was alleged that retailers would suffer if motorists stayed longer than allowed, and other motorists would not be able to find a space when they wanted to shop. Civil Enforcement Limited have not established any social justification in this particular case.The defendant was using the car park for it’s legitimate use, spending a reasonable amount of time taking a customer to use the hotel facilities and the defendant did not stay any longer than was necessary.
The defendant would also like the court to consider whether finding for the claimant would be in the public interest. Firstly in that the defendant would suggest that the hotel would not want to deter people spending time in the car park for the legitimate use of taking people to use the hotel facilities, which could cause the business to lose customers and affect their business. The defendant also suggests it is not in the public interest to find for the claimant due to the nature and reasons why the defendant spent time in the car park, namely supporting and advising a homeless care leaver.
e). No standing - this distinguishes this case from the Beavis case:
The claim form states that the land is ‘managed by the Claimant.”. They are therefore acting as agents of the landowner. It is believed Civil Enforcement 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.
f). 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.
Defence
Claim Number:
Issue date: 1/10/2018
BETWEEN:
Civil Enforcement LTD (Claimant)
vs
[NAME] (Defendant)
___________________________________________________________________________
I am [NAME] of [ADDRESS], [POSTCODE], defendant in this matter.
I am XXX, the Defendant in this matter and the registered keeper of vehicle XXX. I currently reside at XXX.
The ‘Particulars of Claim’ are as follows:
“Claim for monies relating to a Parking Charge for parking in a private car park managed by the Claimant in breach of the terms + conditions (T+Cs). Drivers are allowed to park in accordance with T+Cs of use. ANPR cameras and/or manual patrols are used to monitor vehicles entering + exiting the site. Debt + damages claimed the sum of 236.00
Violation date: 15/06/2017
Time in: 17:21 Time out: 17:43
PCN ref: Ref3802052877
Car registration no.:xxxxxxx Car park:-
Ibis Wellingborough
Total due- 236.00
The Claimant claims the sum of 260.31 for mponies relating to a parking charge per above including 24.31 interest pursuant to S.69 of the County Courts Act 1984
Rate 8.00% pa from the dates above to- 28/09/18
Same rate to Judgement or (sooner) payment
Daily rate to Judgement- 0.05
Total debt and interest due- 260.31”
I deny I am liable to the Claimant for the entirety of the claim, or for the court fee or Legal representative’s costs on the following grounds:
1. The defendant did not exceed a reasonable grace period.
a).Under the BPA Codes of Practice, it states:
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go.
i). In the draft Particulars of Claim sent to the defendant previously, under point 5, the Claimant claims that “When the Defendant parked their vehicle (on the date and time as set out in the attached schedule of information) in the car park they accepted, by their conduct the terms and conditions of parking.” Firstly, the time recorded by the claimant is 17:21 from an ANPR camera at the entrance of the car park, not from when the defendant “parked their vehicle.” The time the defendant’s vehicle was parked was later than 17:21. Additionally to this point, the defendant argues:
ii). With regard to the unspecified Grace Period before the parking period begins, as described in Paragraph 13.2, it is "reasonable" to expect that this "reasonable" Grace Period should include the time it takes to a) enter the car park, b) find a parking space, c) park the car, d) find the nearest car park sign, e) fully read and understand the terms and conditions before deciding whether to stay or go.
iii). As the ANPR cameras were at the entrance to the car park, it is argued that this grace period did not start until the defendant had found a car parking space, parked, found the car park sign and fully read and understood the terms and conditions.
iv). On entering the car park, it was unfair to expect the defendant to fully read and understand any terms and conditions. While driving a car, the sign on entering the car park and other signs in the car park did not clearly and visibly state what the terms and conditions of parking in the car park were. One would have to be standing very close to the signs to read the terms and conditions, which could not be read while driving into the car park, especially when concentrating on driving safely, avoiding any other cars, following proper driving laws and rules and avoiding pedestrians. This was also while driving a vulnerable care leaver, whom the defendant owed a duty of care to, to his temporary homeless accommodation. The defendant had to make sure the care leaver was being driven safely and had to comfort and reassure him due to him being homeless.
v). Using points 1a i-iv above, the defendant argues that he should have had a reasonable grace period to decide whether to stay or go from the car park under the BPA Codes of Practice 13.2, including the time it would have taken to find a car parking space, parked the car, found the car park sign and fully read and understood the terms and conditions, meaning that the period of time the defendant was actually parked in the car park was much later than 17:21, the time recorded by the ANPR camera at the entrance of the car park.
b). Under the BPA Codes of Practice, it also states:
13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.
i). The defendant argues that he should have had a reasonable period to leave the car park as a grace period after having entered the car park proper, found a parking space, parked the car, found a sign, fully read and understood the terms and conditions and carried out what is presumably a normal activity in the car park of a hotel, of dropping a customer off and helping with their belongings, as described above in 13.4 of the BPA Codes of Practice.
ii). The time stated that the defendant left the car park was 17:43. This was recorded from an ANPR camera at the exit of the car park. Any contract was only for parking in the car park, not including the time it took to exit the space safely and then exiting the car park. The defendant argues that any contract ended once the defendant had left the parking space, meaning any contract ended earlier than 17:43.
iii). The defendant argues that after having a reasonable grace period to decide whether to stay or go from the car park under the BPA Codes of Practice 13.2, including the time it would have taken to find a car parking space, parked the car, found the car park sign and fully read and understood the terms and conditions, and due to any contract ending as soon as the defendant left the car parking space, the time of any contract starting and ending were not 17:21 and 17:43 respectively. The time spent parked and then leaving the car parking space was far less. Due to any contract only being applicable for this period, it is argued the defendant only stayed in the car park for a short, reasonable period of time and a reasonable grace period should have applied.
iv). The defendant should have had a minimum of 10 minutes grace period once parked, not a maximum of 10 minutes, and that this period should be reasonable under 13.4. The defendant was advising and supporting a homeless care leaver in the car in the car park, before the care leaver went into the hotel where the car park was in order to legitimately use the facilities of the hotel through being temporarily housed there and this being paid for by the council. The time spent in the car park once parked were spent advising and supporting a homeless care leaver, helping him with his belongings and leaving the car parking space and car park itself safely around other traffic and pedestrians. The defendant argues that he spent a reasonable time in the car park using it for one of it’s proper use, namely to take someone to legitimately use the hotel’s facilities.
Even if it was accepted that the defendant was over a 10 minute grace period, which it is not, the defendant wishes it to be noted that 13.4 states a “minimum” of 10 minutes grace period should be granted, not a maximum. Due to the fact that the defendant was using the facilities for their proper purpose (using the car park to take a customer to the hotel), and, due to the nature of the use of time in the car park (supporting and advising a homeless care leaver using the hotel facilities), even if the defendant did stay past the minimum grace period, it is asked of the court that the minimum grace period of 10 minutes should not apply, and consideration should be given to why the defendant was in the car park and the reason for any minimal stay after the minimum 10 minute grace period and that the stay in the car park was reasonable under 13.4.
2. The Claim Form issued by Civil Enforcement Limited was not correctly filed under The Practice Direction as it was not signed by a legal person. 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.
3. The claim includes a sum of £50, described as “Legal representative’s costs.” The Claimant is known to be a serial litigant, issuing many similar claims on a regular basis, using a bulk processing service, generating lots of income. Given a standard working week, the claimant’s legal representative can spend no more than a few minutes per claim, hardly justifying the £50. Since these are fully automated, no intervention is required by a solicitor, and the Claimant is put to strict proof to show how this cost has been incurred. The Claimant should maintain case notes for each person who has accessed the case, and it is suggested this would be sufficient. The Claimant cannot rely on Nossen’s Letter Patent (1969) to justify the charge, as this is part of their everyday routine, and no ‘expert services’ are involved. The £50 is not valid because it is not incurred by the claimant.
Additionally, as this is already included as part of the costs of the claimant, factored into the parking charge, this is essentially double charging.
The defendant therefore puts the claimant strictly to proof, by way of timesheets or otherwise, that work was done by the claimant’s expert legal staff to the value of £50.
The £50 solicitor cost was disputed in the test case of ParkingEye v Beavis and Wardley. HHJ Moloney refused to award the £50. His award was; “JUDGMENT FOR CLAIMANT FOR £85 PLUS ISSUE COSTS”. These were presumably the £25 filing fee and £25 hearing fee.
The £50 was also struck out by DJ Sparrow on 19 August 2015 in ParkingEye v Mrs S, claim number B9FC508F.
4. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case).
That case was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location of the car park 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. This case can be distinguished by the following:
a). Signs were not clear and visible.
i). Any signs, including the one on entering the car park were not clear and visible in advising drivers of the terms and conditions of use. They merely state “permit holders only,” in any writing that could be said to be legible, and one would need to be fairly close to read even this. The terms and conditions were not legible from any distance, without having to get out of the car and walking very close to them, therefore the signage was not clear and visible with regards to “advising drivers of the terms and conditions,”, as stated in point 3 of the draft Particulars of Claim and distinguishing the current case from the Beavis case. This is especially the case for customers being driven to the hotel by another person, as was the case here, where it is unlikely the driver will feel he has entered into a contract for just taking someone to a hotel, parking, spending a brief amount of time with them and helping them with their belongings, which is surely normal in the day to day business of a hotel with a car park. It seems to go against the business model of the hotel that they would want to deter customers from entering the car park to to take paying customers to use the facilities.
ii). Any signs were not clear about anyone entering the car park. The signs states that “Hotel guests and visitors must register for a permit,” it says nothing about drivers dropping people off at the hotel. It is submitted that the defendant was neither a guest nor a visitor to the hotel, he was merely taking someone to the hotel, which is surely a part of the hotel’s normal business (people being dropped off at the hotel) and any signs were not clear in stating that drivers taking people to the hotel must register for a permit.
b). There was no breach of contract.
i). The defendant argues that he spent a reasonable amount of time in the car park after having entered the car park proper, found a parking space and parked the car, having had to spend time with a customer who he was taking to legitimately use the hotel facilities in the process of the defendant’s work, who was a homeless care leaver, needing support, advice and guidance, and having to spend time helping the care leaver with his belongings and leaving the parking space and car park safely. It is suggested that it is reasonable for the defendant to spend time in the car park doing the above in the normal course of use of a hotel car park and this did not breach any contract.
ii). The defendant was not in a contract with the claimant, as the signage states that“Hotel guests and visitors must register for a permit.” The defendant was neither a guest nor a visitor to the hotel, merely taking someone to the hotel, spending a reasonable amount of time in the car park doing this, especially due to the nature of why the defendant was there.
c). Even if there was a breach of contract, which is denied, it was frustrated by events outside the control of the defendant, namely that the defendant had to spend time supporting and advising a homeless care leaver. This means that any time spent in the car park for a legitimate use (using the car park to take a customer to use the hotel facilities) had to be slightly longer than just dropping a customer off.
d).The social justification in the Beavis case was because the car park was in a town centre near to retail outlets and a railway station and so might be abused by commuters who stayed all day. Additionally it was alleged that retailers would suffer if motorists stayed longer than allowed, and other motorists would not be able to find a space when they wanted to shop. Civil Enforcement Limited have not established any social justification in this particular case.The defendant was using the car park for it’s legitimate use, spending a reasonable amount of time taking a customer to use the hotel facilities and the defendant did not stay any longer than was necessary.
The defendant would also like the court to consider whether finding for the claimant would be in the public interest. Firstly in that the defendant would suggest that the hotel would not want to deter people spending time in the car park for the legitimate use of taking people to use the hotel facilities, which could cause the business to lose customers and affect their business. The defendant also suggests it is not in the public interest to find for the claimant due to the nature and reasons why the defendant spent time in the car park, namely supporting and advising a homeless care leaver.
e). No standing - this distinguishes this case from the Beavis case:
The claim form states that the land is ‘managed by the Claimant.”. They are therefore acting as agents of the landowner. It is believed Civil Enforcement 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.
f). 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.
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Comments
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Please replace the text in your post above with something like:
Duplicate thread - please ignore
I have replied on your existing thread.
One incident = one thread.0 -
How do I replace with that. Having to do all this on my phone as IP address banned for some reason.0
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dont think it can be done on a phone, needs a laptop preferably
perhaps pm crabman and ask him to do it ?
or better still, get crabman to delete the duplicate thread completelly0 -
...IP address banned for some reason.
This post will explain that:
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