CEL 3 year old Ticket and CCBC

MRL170

Good points and noted, I will make sure I adhere to the tried and tested routes. Thank you for the input.

MRL170

Ok have spent some time and I think this is closest to my circumstances so have hopefully amended and added to accordingly:

Coupon-mad

5.1 and 5.2 contradict each other.

Remove all the stuff about data protection, as we have found that gets no airing in court at all.

And remove the signage picture. At defence stage you file no evidence or photos.

MRL170

Thank you will do, does that include removing items 13 & 13.1 or should I leave those in?

Also I am not getting any response from the Dr's Surgery in response to my request for the relevant contact, any suggestions on how to push this or as I can see the practice manager's details on line can I just inform them I will be issuing them with papers to call them?

nosferatu1001

If items 13 and 13.1 are evidence, then you remove them
The defence is, as you willl know from reading POST 2 of the NEWBIES thread, solely a list of documents. Text. Nothign more. No attachments, no photos, nothing

If 13 and 13.1 contradict each other, then obviously rectify it.

Write them a letter, head it "notice of intention to issue witness summons" and do the same on the envelope, for the attention of the person you want to call as a witness. State they wil be called as a witness due to claim XYA by their AGENT and you will require their attendance at court. Please provide a list of dates in the next 6 months where they will be unable to attend.

MRL170

Ok I have made the amendments and hopefully sorted out the order, I have to take my hat off to you all as this wording confuses the heck out of me!

https://1drv.ms/b/s!AhEAfdifsdv7gtclCVvdxtLsxVLccg

Have also found the right practice manager and letter has gone in as above.

MRL170

I have a couple of areas I could do with some direction on please guys?

As said earier the company name then my name is on the claim form, this is a company van so am I going at this the right way?

I would like to add costs and loss of earnings in to the mix is this done at defence level or witness statement?

Coupon-mad

As said earier the company name then my name is on the claim form, this is a company van so am I going at this the right way?

You should be defending it as 'the company' with you signing as an officer of the company if it's yours. Keep the defendant as a commercial entity, which you argue, is not liable.

Can you copy & paste the defence here in a reply, rather than link it? More will see it.

I would like to add costs and loss of earnings in to the mix is this done at defence level or witness statement?

Neither. If you search the NEWBIES thread (Control & F when looking at the entire thread) for costs schedule then you will see that's literally file days before a hearing, as the last thing to do before the day.

MRL170

In the County Court

Claim Number: XXXXXXX

Between

Civil Enforcement Limited Ltd

v

XXXXXXXXXXXX



DEFENCE



Background - the Defendant was an authorised patient at The Doctors Surgery

1. The Defendant is not the registered keeper and driver of the company vehicle in question. The Claim relates to an alleged debt arising from the driver's alleged breach of contract, when parking at the Doctors Surgery car park on XXXXX. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant £100 'parking charge' for the lawful conduct described below.

2. The allegation appears to be that the 'vehicle was not authorised to use the car park' 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 and is no evidence of 'No Authorisation' or not being a patient of The Doctors Surgery.

3. The Defendant has already admitted that he was a patient of the Doctors Surgery, and it is the Claimant's own failure, caused by their deliberately obscure terms and inconspicuous tablet that catches out far too many victims at this location, that has given rise to a 'PCN' that was not properly issued from the outset.

Unclear terms - no agreement to pay a penalty for failure to use the tablet.



4. According to the sparse, unlit signs in this car park, to avoid a Parking Charge, users of the service must either have a permit or register for a permit at reception. It was also apparent that there was no obvious signage within the internal Pharmacy for prescription collections.

4.1. At the time of parking on XXXXXXX the Defendant was a patient of The Doctors Surgery, and the Defendant has a prescription that was collect at this time which as a patient entitles them to free use of the car park in question.

4.2. Prior to the Defendant's visit, Civil Enforcement Limited had only recently placed their signage within the car park creating new terms and conditions for motorists. The BPA Code of Practice v6 which applied in December 2017, states at 18.11: ''Where there is any change in the terms and conditions that materially affects the motorist then you should make these clear on your signage. Where such changes impose liability where none previously existed then you should consider a grace period to allow regular visitors to the site to adjust and familiarise themselves with the changes.''

4.3. It is contended that the Claimant failed to alert regular local visitors to an onerous change and unexpected obligation to use an tablet at the Surgery or risk £100 penalty. The Claimant is put to strict proof, with the bar being set by Denning LJ in J Spurling Ltd v Bradshaw [1956] in the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient.''


Consumer Protection from Unfair Trading Regulations – breach

5. Upon receiving the claim, the Defendant went straight to the Doctors Surgery and had a conversation with the reception, who were unhappy that these complaints were becoming a daily occurrence for her, ever since the enforcement started. The practice receptionist stated that she now has to get her colleagues to verbally prompt the customers that come in because the tablet used for signing in VRN details, and the sign used to indicate this, are 'far from obvious'.

5.1. The Defendant was told for the first time, that if the Practice were in no way responsible for the charges and could not intervene on the patients behalf.

5.2. The only route offered was an 'appeal' to Civil Enforcement Limited themselves, but the Defendant knew he had done nothing wrong as a matter of principle, and honestly believed from research that private parking charges and the appeals systems were unlikely to be fairly weighted in favour of consumers.

5.3. This fact was later confirmed in the second reading of the Private Parking Code of Practice Bill on 2nd February 2018, where more than one MP named and shamed Civil Enforcement Limited and the unanimously damning Hansard quotes include: ''the current system of regulation is hopeless, like putting Dracula in charge of the blood-bank''; ''wilfully misleading; signage is a deliberate act to deceive or mislead''; ''confusing signs are often deliberate, to trap innocent drivers''; ''unreasonable; operating in a disgusting way''; ''appeals service is no guarantee of a fair hearing''; ''outrageous scam''; ''the British Parking Association is as much use as a multi-storey car park in the Gobi desert''; and finally, by way of unanimous conclusion: ''we need to crack down on these rogue companies. They are an absolute disgrace to this country. Ordinary motorists and ordinary residents should not have to put up with this''.

No locus standi
6. In order to issue and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. Civil Enforcement Limited has taken no steps to provide evidence that such authority has been supplied by the Claimant or their legal representatives, and the Claimant is put to strict proof.


No 'legitimate interest' or commercial justification - Beavis is distinguished
7. Even if the Claimant is able to produce such a landowner contract, it is averred that there can be no legitimate interest arguable by the Claimant in this case. When Civil Enforcement Limited, all too often at this location, unfairly ticket a Patient of the The Doctors Surgery, any commercial justification in the form of support by The Doctors Surgery for such unfair ticketing is absent.

7.1. 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. This case is fully distinguished in all respects, from Civil Enforcement Limited Ltd v Beavis [2015] UKSC 67, where the decision turned on a legitimate interest and clear notices.

8. This Claimant has therefore failed to meet its legal obligations and has breached principle 1 (at least) of the DPA, as well as the BPA Code of Practice.

9. The Court's attention will be drawn to the case of Andre Agassi v S Robinson (HM Inspector of Taxes). Whilst not wholly aligned to the issues in this case, it is on all fours with the above point, because of the principle it extols that no one should profit from their unlawful conduct. Paragraph 20 of the Transcript of that case states: ''It is common ground that, whatever costs may be recoverable by a litigant in respect of professional services such as those provided by Tenon to the appellant, they cannot include the cost of any activities which are unlawful''. Paragraph 28 continues - ''...cannot on any view recover the cost of activities performed by Tenon which it was not lawful for them to perform.''

10. Further, in RTA (Business Consultants) Limited v Bracewell [2015] EWHC 630 (QB) (12 March 2015), at paragraph 34 the Judge discusses the relevance of the public law principle going back well over 200 years, that no man should profit from his crime; it is submitted that this is particularly relevant in this action. The Judge cited Lord Mansfield CJ to explain that: ''The principle of public policy is this; ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If [...] the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff.''

11. Even if there was a purported contract between the Claimant and the Defendant, it was illegal at its formation because it was incapable of being created without an illegal act (due to non-compliance with the ICO requirements at the outset, before enforcement started using ANPR systems at this site).

12. Where a contract is illegal when formed, neither party will acquire rights under that contract, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it had never been entered into. As such, the asserted contract cannot be enforced.

12.1. To add weight, the Defendant also cites from ParkingEye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338. Whilst the facts of that case differ, due to the arguments between the two commercial parties, the Judge's comments at paragraph 29 of the Transcript of Somerfield are of importance, where he discussed ParkingEye Ltd misleading letters to consumers, whereby they had committed the tort of deceit. : ''At common law, historically, a distinction has been drawn between cases where the guilty party intended from the time of entering the contract unlawfully and cases where the intention to perform unlawfully was only made subsequently''. Laws LJ, in Somerfield, concluded that ParkingEye Ltd did not set out to deceive consumers before they signed the contract with Somerfield, so the contract was upheld in that case.

12.2. Differently in this case, it is asserted that the Claimant did deliberately or negligently break the DPA. Being a BPA member with access to a wealth of ICO and DVLA-led data compliance information, relevant articles, compliance events and specific parking & DPA related legal advice for members, and given that this Claimant has its own in-house Legal Team and solicitors, it cannot justify nor plead ignorance to excuse their conduct in failing to meet their legal obligations both before enforcement and by way of regular evaluations to avoid just this sort of data abuse.

12.3 At paragraphs 65-74 of the Somerfield transcript, Laws LJ set out three factors which need to be considered in a defence of illegality. The Defendant submits that the key issues in this action are that:

(i) the commission of an illegal wrong being present at the time of entering the contract means that the Claimant will not be able to enforce the contract.

(ii) the illegality is central to the contract and is not merely a minor aspect, thus it should not be held to be too remote so as to render the contract enforceable.

(iii) the nature of the illegality: in this case it was a breach of legal obligations regarding data, and not merely a civil tort as in Somerfield. The gravity of the illegality is therefore far greater.

13. The Defendant avers that a breach of the DPA and failure to comply with ICO rules regarding data captured by ANPR, also transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015 (enacted after the final hearing in Beavis and not considered in that case).

13.1. The excessive, inappropriate and unjustified use of ANPR alongside an inconspicuous tablet system by this claimant is both unfair and lacking in transparency for an average consumer and as such, this claim must fail.

Unconscionable and unrecoverable inflation of the 'parking charge'
14. 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.

14.1. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, Civil Enforcement Limited 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 Claimant to strict proof to the contrary because the in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

15. The added 'legal' cost is in fact an artificially invented figure, which represents a cynical attempt to circumvent the Small Claims costs rules and achieve double recovery. In Beavis, only the parking charge itself (£85) was pursued and the sum was scrutinised by the Supreme Court and held to already include a significant sum in profit; being a pre-set sum dressed up as a fee or charge agreed in contract. This was already significantly over and above the very minimal costs of operating an automated ticketing regime, and it was held that the claim could not have been pleaded as damages, and would have failed.

15.1. Similarly, in Somerfield a £75 parking charge was not held to be a penalty but a sum mentioned in the harassing letters of double that amount, almost certainly would be.

16. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.

I confirm that the facts in this defence are true to the best of my knowledge and belief.


Name/signature

Date

nosferatu1001

"The Defendant is not the registered keeper and driver of the company vehicle in question."

Erm, what?
You were told this shoudl be the COMPANY ENTITY defending, as the company has been named on the claim form
The COMPANY cannot be the driver (assuming it is a real Ltd company and not a trading style of course)
The company was the RK I thought??

CPUTR heading - yet you never explain how the CPUTR applies, or which section applies, and how this provides a defence
5 - none of this is formulated as a defence
A defence is: legal argument why you are not liable; supporting explanation if needed
This is narrative. You could reformulate this to support the INADEQUATE SIGNAGE issue, by stating the surgery has stated that the signage out and inside are inadequate.

7.1 - nope, this was Parking Eye vs Beavis.
8 - how have they breached the DPA? You leap to this conclusion
9 - is your entire basis for ex turpi the DPA breach above? If so you need to actually explain their unlawful conduct!
10 and 11 - ok NOW you say the unlawful activity was the ICO breach , yet you have never mentioned the ICO in your preceeding paragraphs.

12 continues the same vein, and I really dont like it. Youre making a huge case out of them KNOWINGLY and DELIBERATELY breaking the DPA / ICO (whatver you decide on at any one time) yet have no proof of this.

At 13 you now bring in the CRA2015, deaspite never introducing this and not actually quoting from it.

14.1 Do they have in house legal team? I didnt think CEL does. PARKING EYE have an inhouse legal team, didnt think CEL do - they had to let go of Ashley Cohen a long while back, given the banning by the SRA...

Was the claim form signed by a legal rep? DOubt it. SO you instead state that the form was not filed by someone registered nor is the firm registered as having an inhouse team, and the £50 fee is therefore being claimed in an abuse of process; they know they are not entitled to it but are claiming it anyway.