CEL 3 year old Ticket and CCBC

MRL170

Thnak you Nosferatu10, I am now thinking maybe I am over complicating my defence here? Should I reconsider and use the one posted by bargepole as below?

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the vehicle, registration XXXX, of which the Defendant is acting on behalf of the registered keeper, was parked on the material date in a marked bay allocated to patients of the surgery, and as a patient is entitled to free parking.

3. The Particulars of Claim state that the Defendant XXXXXX was the registered keeper and/or the driver of the vehicle(s). These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

4. Due to the sparseness of the particulars, 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, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

5. 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. They merely state that vehicles parked here must be authorised and have a permit, there is no mention that any permits should be obtained by using a tablet. Further more no receipt or permit is actually issued via the tablet.
6. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

7. The Claimant is put to strict proof that it has sufficient prorpietary 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.

8. The Protection of Freedoms Act 2012, 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, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

9. 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. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

nosferatu1001

THe one by bargepole ashould be used IF IT SUPPORTS YOU
Im not going to go over it, thats for you to decide. Its your homework.
YOU must understand your defence, as YOU have to be able to explain every element of it in court.

MRL170

nosferatu1001 wrote: »

THe one by bargepole ashould be used IF IT SUPPORTS YOU
Im not going to go over it, thats for you to decide. Its your homework.
YOU must understand your defence, as YOU have to be able to explain every element of it in court.

Sorry I really appreciate your time and expertise and dont mean to mess you about but Its that last sentence that has caught my attention, I have to go with what I can explain and the previous one had me doubting my grasp of everything it entails.

nosferatu1001

Break it down then
Read each bit in isolation, researching terms you dont understand, etc.

MRL170

Ok I am much happier with this version as it relates to everything that is relevant: I hope!

In the County Court

Claim Number:XXXXXXXX

Between

Civil Enforcement Limited Ltd

v

XXXXXXXXX



DEFENCE



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

The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

The facts are that the vehicle, registration XXXXXX, of which the Defendant is acting on behalf of the registered keeper, was parked on the material date in a marked bay allocated to patients of the surgery, and as a patient is entitled to free parking.

1. The Particulars of Claim state that the Defendant XXXXXXXXX was the registered keeper and/or the driver of the vehicle(s). These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

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 Practice.

3. The Defendant has already admitted that he was a patient of the Doctors Practice, 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.

3.1 Due to the sparseness of the particulars, 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, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

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. 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. They merely state that vehicles parked here must be authorised and have a permit, there is no mention that any permits should be obtained by using a tablet. Furthermore, no receipt, email/ SMS confirmation or permit is actually issued via the tablet.

4.1. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

4.2 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.

5. 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.''

5.1. It is contended that the Claimant failed to alert regular local visitors to an onerous change and unexpected obligation to use a 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.''

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
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 Doctors Practice, any commercial justification in the form of support by The Doctors Practice 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 Parkingeye v Beavis [2015] UKSC 67, where the decision turned on a legitimate interest and clear notices.

Unconscionable and unrecoverable inflation of the 'parking charge'
8. In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim, as well as increasing it further by adding purported Solicitor's Costs of £50, which I submit have not actually been incurred by the Claimant.

8.1. 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 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.

9. 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.


10. 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

MRL170

N180 received and filled in ready for posting, The Doctors manger has not responded to any of my letters or email and wont speak to me on the phone, should I still add them as a witness??

KeithP

Return your completed Directions Questionnaire to the CCBC in the same manner and to the same email address that you sent your Defence.

Remind yourself with post #14 above.

Of course, not forgetting to send a copy to the Claimant - address on your Claim Form.

MRL170

I didn't realise I had to send a copy to CEL as well thank you for letting me know.

nosferatu1001

It's written on the form and you're told this in the newbies thread. You have to carefully read all documents.

Have a look into witness summons

Coupon-mad

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

The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

The facts are that the vehicle, registration XXXXXX, of which the Defendant is acting on behalf of the registered keeper, was parked on the material date in a marked bay allocated to patients of the surgery, and as a patient is entitled to free parking.

All of the above need paragraph numbers, from the start.

Your defence looks to cover the bases, very good!