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Civil Enforcement Ltd Defence Advice
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RJ11
Posts: 11 Forumite
Hi, I have put together a defence (as the keeper) and was hoping someone could check if I need to add/delete anything.
Background
The driver parked in a free car park where it transpires they had started to enforce a maximum 40 minute stay. The driver stayed for just over an hour. The driver did not notice the new signs which are sporadically displayed and the one at the entrance unreadable because as you enter the car park it is fixed to a gate, which when the gate is open, sits at a 90 degree angle to the entrance, so a driver entering the car park would be unable to read it. I (keeper) have received 2 claims for the same offence from County Court Business Centre (Northampton). The claim is for an offence in August 2017 for breach of terms and conditions. Since the initial paperwork came for payment I (keeper) have moved house (March 2018) and so can’t be sure what paperwork never arrived.
I (keeper) don’t know who owns the car park or how to find out so not sure if some of the points many use as a defence applies in my case.
The Claim Form contains the following Particulars of Claim.
“Claim for monies relating to a Parking Charge for parking in a private car park managed by the Claimant in breach of terms + conditions (T+Cs). Drivers are allowed to park in accordance with T+Cs of use. ANPR camers and/or manual patrols are used to monitor vehicles entering + exiting the site. Debt + damages claimed the sum of £***.” Added to this is interest of £**, Court Fees £25 and Legal representatives costs £50”, so the total was over £330.
The Claim forms were not signed by a person, only Legal Enforcement Ltd.
Proposed Defence letter
In the County Court Business Centre, Claim Numbers ******** and ********
Between: Civil Enforcement Ltd v *****
Defence Statement
The defendant admits that he was the registered keeper of the vehicle ******** but denies being the driver on **/**/** and denies that he is liable for the entirety of the claim for each of the following reasons.
The defence should be struck out at this initial stage because:
1. The Claim Form issued on **/**/** by Civil Enforcement Ltd was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by "Civil Enforcement Ltd (Claimant's Legal Representative)".
2. Due to the length of time which has passed since the claim allegedly arose, the defendant has little or no recollection of the day in question. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car over 12 months later. In any case, there is no such obligation in law for a Registered Keeper to name a driver, something which was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that the keeper can only be held liable for POFA Schedule 4 and not by presumption or any other legal argument.
3. The Defendant denies that he can be liable as Registered Keeper of the vehicle because the Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and fully compliant statutory wording, this Claimant is unable to hold the defendant liable as Registered Keeper under the strict ‘keeper liability’ provisions.
Schedule 4 also states that the only sum a keeper can be pursued for is the sum on the Notice to Keeper. The Claimant is not at liberty to pluck another sum from thin air and bolt that on as well when neither the signs, nor Notice to Keeper, nor the information mentioned a possible £330+ for outstanding debts.
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 the £50 ‘legal representative’s costs’ were incurred. The Defendant denies that the Claimant has incurred such costs and puts it to full proof thereof. The defendant also denies the Claimant is entitled to any interest whatsoever.
5. The charges claimed are unrecoverable penalty. This case can be distinguished from ParkingEye v Beavis (2015) in which it was held that the penalty rule was disengaged – that Claim was dependent upon an undenied contract, formed by unusually large 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 was held to be paramount and the Defendant was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. As far as the Defendant can ascertain, based upon the very vague particulars of claim and complete lack of evidence and photographs, and without having been furnished with the alleged signage ‘contract’, none of this applies in this material case.
6. In the absence of any proof of adequate signage that contractually bound the Defendant there can have been no contract and the Claimant has no case, the Defendant puts the Claimant to full proof thereof.
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) Without such consent, 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) BPA Code of Practice breaches – this distinguishes this case from the Beavis case:
(i) the signs were not compliant in terms of font size or positioning.
(ii) the sum pursued exceeds £100.
7. The Claimant has provided no information about what signage was displayed on the land at the relevant time. The Defendant puts the Claimant to full proof thereof and it is his defence that any such signage was inadequate and incapable of forming a contract nor of binding the driver for the following reasons (this again distinguishes this case from the Beavis case):
a) Sporadic and illegible site/entrance signage (restrictions and any charge not prominent nor in large lettering).
b) Non-existent ANPR ‘data usage’ signage.
c) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted.
8. The Claimant has no legal standing to bring this claim – this again distinguishes this case from the Beavis case. The Defendant does not believe that the Claimant is party to a legitimate contract to operate at this car park and it has provided no such evidence. 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.
9. Unless it has contractual authority, the Claimant has no right to pursue this claim. Otherwise, it is a simple trespass claim and only the landowner may pursue such a claim. The Defendant denies that the Claimant is the landowner of the relevant land.
The Defendant denies any liability whatsoever to the Claimant in the matter and asks the Court to strike out any 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.
Thank you in anticipation for any advice.[/
Should I add anything about moving home between the alleged offence date and now (and so might have missed lots of correspondence)?[/
I haven’t included anything about pre-court protocol as I am not sure if they did or didn’t comply.
Background
The driver parked in a free car park where it transpires they had started to enforce a maximum 40 minute stay. The driver stayed for just over an hour. The driver did not notice the new signs which are sporadically displayed and the one at the entrance unreadable because as you enter the car park it is fixed to a gate, which when the gate is open, sits at a 90 degree angle to the entrance, so a driver entering the car park would be unable to read it. I (keeper) have received 2 claims for the same offence from County Court Business Centre (Northampton). The claim is for an offence in August 2017 for breach of terms and conditions. Since the initial paperwork came for payment I (keeper) have moved house (March 2018) and so can’t be sure what paperwork never arrived.
I (keeper) don’t know who owns the car park or how to find out so not sure if some of the points many use as a defence applies in my case.
The Claim Form contains the following Particulars of Claim.
“Claim for monies relating to a Parking Charge for parking in a private car park managed by the Claimant in breach of terms + conditions (T+Cs). Drivers are allowed to park in accordance with T+Cs of use. ANPR camers and/or manual patrols are used to monitor vehicles entering + exiting the site. Debt + damages claimed the sum of £***.” Added to this is interest of £**, Court Fees £25 and Legal representatives costs £50”, so the total was over £330.
The Claim forms were not signed by a person, only Legal Enforcement Ltd.
Proposed Defence letter
In the County Court Business Centre, Claim Numbers ******** and ********
Between: Civil Enforcement Ltd v *****
Defence Statement
The defendant admits that he was the registered keeper of the vehicle ******** but denies being the driver on **/**/** and denies that he is liable for the entirety of the claim for each of the following reasons.
The defence should be struck out at this initial stage because:
1. The Claim Form issued on **/**/** by Civil Enforcement Ltd was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by "Civil Enforcement Ltd (Claimant's Legal Representative)".
2. Due to the length of time which has passed since the claim allegedly arose, the defendant has little or no recollection of the day in question. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car over 12 months later. In any case, there is no such obligation in law for a Registered Keeper to name a driver, something which was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that the keeper can only be held liable for POFA Schedule 4 and not by presumption or any other legal argument.
3. The Defendant denies that he can be liable as Registered Keeper of the vehicle because the Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and fully compliant statutory wording, this Claimant is unable to hold the defendant liable as Registered Keeper under the strict ‘keeper liability’ provisions.
Schedule 4 also states that the only sum a keeper can be pursued for is the sum on the Notice to Keeper. The Claimant is not at liberty to pluck another sum from thin air and bolt that on as well when neither the signs, nor Notice to Keeper, nor the information mentioned a possible £330+ for outstanding debts.
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 the £50 ‘legal representative’s costs’ were incurred. The Defendant denies that the Claimant has incurred such costs and puts it to full proof thereof. The defendant also denies the Claimant is entitled to any interest whatsoever.
5. The charges claimed are unrecoverable penalty. This case can be distinguished from ParkingEye v Beavis (2015) in which it was held that the penalty rule was disengaged – that Claim was dependent upon an undenied contract, formed by unusually large 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 was held to be paramount and the Defendant was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. As far as the Defendant can ascertain, based upon the very vague particulars of claim and complete lack of evidence and photographs, and without having been furnished with the alleged signage ‘contract’, none of this applies in this material case.
6. In the absence of any proof of adequate signage that contractually bound the Defendant there can have been no contract and the Claimant has no case, the Defendant puts the Claimant to full proof thereof.
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) Without such consent, 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) BPA Code of Practice breaches – this distinguishes this case from the Beavis case:
(i) the signs were not compliant in terms of font size or positioning.
(ii) the sum pursued exceeds £100.
7. The Claimant has provided no information about what signage was displayed on the land at the relevant time. The Defendant puts the Claimant to full proof thereof and it is his defence that any such signage was inadequate and incapable of forming a contract nor of binding the driver for the following reasons (this again distinguishes this case from the Beavis case):
a) Sporadic and illegible site/entrance signage (restrictions and any charge not prominent nor in large lettering).
b) Non-existent ANPR ‘data usage’ signage.
c) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted.
8. The Claimant has no legal standing to bring this claim – this again distinguishes this case from the Beavis case. The Defendant does not believe that the Claimant is party to a legitimate contract to operate at this car park and it has provided no such evidence. 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.
9. Unless it has contractual authority, the Claimant has no right to pursue this claim. Otherwise, it is a simple trespass claim and only the landowner may pursue such a claim. The Defendant denies that the Claimant is the landowner of the relevant land.
The Defendant denies any liability whatsoever to the Claimant in the matter and asks the Court to strike out any 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.
Thank you in anticipation for any advice.[/
Should I add anything about moving home between the alleged offence date and now (and so might have missed lots of correspondence)?[/
I haven’t included anything about pre-court protocol as I am not sure if they did or didn’t comply.
0
Comments
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What is the Date of Issue on your Claim Form?0
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Mid October. I have sent back the Acknowledgement of Service so have a while to submit my defence.0
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You might want to separate that wall of text, the regulars here spend a lot of time reading posts and many wont read that.0
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This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.
Parking Eye, CPM, Smart, and another company have already been named and shamed in the house as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week, hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an
M.P. for unprofessional conduct
The problem has become so widespread that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the House of Commons recently
http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41
and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas.You never know how far you can go until you go too far.0 -
Sorry onlyfoolsandparking, I copied it from a word document and its seemed to close up all the gaps. Not sure if I can edit it and space it out better. I will try. Thanks for the heads up about reading walls of text.0
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You might want to read this post:
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Thanks KeithP, I'm learning a lot quickly. Thanks for help, have read so much over the last few days my mind is full.0
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KeithP,
Sorry for being vague with dates, just conscious about putting too much info on a forum. The two claim for the same alleged offence arrived one day apart, the first on Oct 17 and the second on Oct 18. Thanks0
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