CEL County Court claim - Defence help

Wilier

Hi all,

I've compiled the following defence based on similar defences I've found on this site.

My defence is based on 6 key points
1. The claimant failed to comply with pre-court protocol including the claim form itself and NTK.
2. We were patrons of the hotel (with evidence to support)
3. Unclear terms and signage to advise drivers of the T&Cs
4. No Legitimate interest on behalf of the landowner (Beavis case)
5. Unfair and misleading business practices (Grace period)
6. Inflated costs (debt collection and Legal)

Any help and/ or comments would be greatly appreciated before I go ahead and submit to the court.

Many thanks

In the County Court Claim Number: xxxxxxx

Between

Civil Enforcement Ltd.

v

XXXXX



DEFENCE

I, the Defendant, was the registered keeper of XXXXX registered vehicle.

I deny that I am liable to the Claimant for the entirety of the claim for each of the following reasons:

1. The Claimant has not complied with correct pre-court protocol:

1.1. The Claim Form issued by Civil Enforcement Limited was not correctly filed under The Practice Direction as it was not signed by a legal individual, but simply signed by “Civil Enforcement Limited”.

1.2 There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.

1.3 This is a speculative serial litigant, known for issuing a large number of identical 'draft particulars'. While the claim offers to "provide the defendant with separate detailed particulars within 14 days of the service of the claim form", no such documents have been received.

1.4. The Particulars of the claim are extremely sparse, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. 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

1.5 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 with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions. Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and ‘relevant contract' fairly and adequately communicated, which there was not) is the sum on the Notice to Keeper.

The Defendant asks that the Claimant is required to file Particulars, which comply with Practice Directions and include at least the following information:
(i) How any contract was concluded (if by performance, then copies of signage maps in place at the time).
(ii) Whether keeper liability is being claimed, and if so, copies of any Notice to Driver / Notice to Keeper.
(iii) Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter.


2. The Defendant was an authorised patron of the onsite business

2.1. The Claim relates to an alleged debt arising from the driver's alleged breach of contract, which is denied. It is further denied that there was any agreement to pay the Claimant a punitive £100 'parking charge notice' (PCN) for the lawful conduct described below.

2.2. 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 patron of the facility.

2.3. The Defendant was a patron of the hotel which owns the car park at the time the alleged offence occurs. The Defendant has written evidence to demonstrate patronage on the date and time of the alleged offence and it is the Claimant's own failure, caused by their deliberately obscure terms and iPad 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. Unclear terms - unconscionable penalty relying upon a hidden keypad

3.1. According to the sparse signs in this car park, it now transpires that to avoid a Parking Charge and despite there being no Pay & Display machines or similar, visitors were expected to know to input their Vehicle Registration Number (VRN). This was far from clearly signed and the purported keypad was nowhere to be seen.

3.2. Prior to the Defendant's visit, Civil Enforcement ltd. had recently placed their signage within the car park creating new terms and conditions for motorists. Their Trade Body Code of Practice 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.''

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

3.4. Upon receiving the claim, the Defendant complained to the hotel manager. Unsurprisingly, this was conspicuous by its absence as an option offered by Civil Enforcement ltd. in their signs or paperwork, prior to commencing proceedings.

3.5. The manager apologised for the incorrect issuance of the PCN and explained that since adopting the parking measures with Civil Enforcement ltd that they have received a number of complaints from patrons who have received similar PCN’s from Civil Enforcement ltd.

3.6. The manager also explained that he could not personally cancel the PCN at that time as “it was now in the process with Civil Enforcement ltd”. However, he did advice that we simply ignore the letters as this is what the hotel owner does as he receives PCN’s from Civil Enforcement ltd. on a weekly basis.

3.7. The only alternative route offered by the hotel management was a supposed 'appeal' to Civil Enforcement ltd. themselves, but the Defendant knew that no offence or mischief had occurred and honestly believed from initial research, that private parking charges and the appeals systems were unlikely to be fairly weighted in favour of consumers.

3.8. This fact was later confirmed in all readings of the Private Parking Code of Practice Bill, from February 2018 to date, where MPs universally condemned the entire industry as operating 'an outrageous scam' typically relying upon hidden, punitive terms that purposely rely on drivers not seeing an unexpected obligation. Both the British Parking Association ('BPA') Trade Body and a number of private parking operators were specifically named and shamed more than once in Parliament and the Bill was introduced purely because the industry is out of control, self-regulation has failed, and in many cases any 'appeal' is futile.


4. No legitimate interest

4.1. 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 in these circumstances, and to pursue payment in the court in their own name. Even if they hold such authority, the Claimant is put to strict proof that this authorisation expressly allows litigation against patrons even when the hotel in fact supports the Defendant in wanting an unfair charge to be cancelled.

4.2. 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 - all too often at this location – Civil Enforcement ltd. unfairly harvest the data of a registered keeper to charge a genuine patron, any commercial justification in the form of landowner support for such unfair ticketing is de facto absent.

4.3. Further, there was no overstay nor any mischief to deter, nor was there any misuse of a valuable parking space by the Defendant, whose car was merely stationary awaiting an occupant who was a patron of the hotel. At the time the vehicle was not in contravention nor causing an obstruction, and was certainly not 'unauthorised'. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant's claim is reduced to an unrecoverable penalty and must fail.

4.4. This case is fully distinguished in all respects from ParkingEye Ltd v Beavis [2015] UKSC 67. That Supreme Court decision sets a high bar for parking firms, not a blanket precedent, and the Beavis case essentially turned on a 'complex' and compelling legitimate interest and very clear notices, where the terms were held not to involve any lack of good faith or 'concealed pitfall or trap'. Completely unlike the instant case.

4.5. In addition, there can be no cause of action in a parking charge case without a 'relevant obligation' and/or 'relevant contract' (the Protection of Freedoms Act 2012, Schedule 4 refers). Expecting a driver to somehow realise they need to input their VRN into an unseen keypad, in what the consumer is confident is an unrestricted free car park for patrons with no visible machines of any description, is indisputably a 'concealed pitfall' and cannot be described as a 'relevant obligation'.

4.6.This Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information' (the ICO Code). This is both a specific breach of Data Protection and BPA Code of Practice. The Supreme Court Judges in Beavis held that a Code of Practice is effectively 'regulation' for this blatantly rogue industry, full compliance with which is both mandatory and binding upon any parking operator.

4.7. The ICO Code applies to all ANPR systems, and states that the private sector is required to follow it, in order to meet its legal obligations as a data processor. Members of the BPA are required to comply fully with the Data Protection Act (DPA) and all ICO rules and guidelines, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land. At this location, the Claimant has failed on all counts and the data gathered about patrons of the site is unconscionable and excessive, given the lack of transparency about the risk of a charge for failing to do something that the driver never knew was a requirement.


5. Lack of good faith, fairness or transparency and misleading business practices

5.1. If a parking firm was truly acting in good faith and keeping the interests of consumers at the heart of their thinking, they would concentrate on ensuring firstly, that patrons could not miss the keypad(s) and secondly, could not miss the fact that, if they did receive an unfair PCN as a genuine customer, they had a right to ask the landowner/Managers to cancel it. Clearly the Claimants interest is purely in misleading and punishing customers and extracting as much money as possible in three figure penalties, given that this is the only way Civil Enforcement ltd. make any money.

5.2. The Claimant's negligent or deliberately unfair business practice initially caused the unfair PCN to arise, then the Claimant's silence regarding the simple option of landowner cancellation rights, directly caused these unwarranted proceedings. This Claimant cannot be heard to blame consumers for not trying a futile 'appeal' to them, whilst themselves hoping the Defendant does not discover that Civil Enforcement ltd. withheld the option of landowner cancellation all along.

5.3. By failing to adequately alert patrons to the keypad, and then withholding from the registered keeper any/all information about the 'user agreement' with the landowner which would have enable an immediate route of cancellation, are 'misleading omissions' of material facts. These are specific breaches of the Consumer Protection from Unfair Trading Regulations 2008 and transgress the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015 (this relatively untested legislation was enacted after the final hearing in Beavis and not actively considered in that case).

5.4 Furthermore, the Claimant fails to uphold the BPA Code of Practice (CoP) which makes it mandatory for operators to allow grace periods at the start and end of parking, before enforcement action can be taken.
The CoP states: “13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go.” and “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.”
For the avoidance of doubt, the second 'grace' period of at least ten minutes (not a maximum, but a minimum) is in addition to the separate, first grace/observation period that must be allowed for the time taken to arrive, find a parking bay, lock the car, and go over to any machine and/or observe the signage terms, before paying for or obtaining a permit. Kelvin Reynolds of the BPA says there is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this: “An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park.
The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket.” “No time limit is specified. This is because it might take one person five minutes, but another person ten minutes depending on various factors, not limited to disability.”
On the occasion of the alleged offence, the driver never left the car. They drove in, stopped in the car park, remained in the vehicle at all times, and then drove back out. They clearly left without accepting any parking contract. Driving into a car park, remaining within the vehicle whilst unaware of the terms of a parking regime due to unclear and misleading signs, then leaving is not evidence of acceptance of any parking contract, nor is it even evidence of parking at all. The total time of 13 minutes recorded from passing the APNR falls within this grace period.

6. Inflation of the parking charge and double recovery - an abuse of process

6.1. This claim inflates the total charges in a clear attempt at double recovery. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable conduct as a gross abuse of process. It was held in the Supreme Court in Beavis (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters. Thus, there can be no legitimate 'costs' to pile on top of any parking charge claim.

6.2. In addition to the original penalty, the Claimant has added unrecoverable sums to the original parking charge. The Defendant challenges the total claimed additional charges of £143.65 and believes that these costs have been artificially created, in-house, using templates and have not complied with protocol and therefore the amounts are unjustified and false. The Defendant puts the Claimant to strict proof that all additional costs were actually incurred by 3rd party debt collection agencies or legal advisors.

6.3. The Defendant believes 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. According to Ladak v DRC Locums UKEAT/0488/13/LA, a Claimant can only recover the direct and provable costs of the time spent by legally qualified staff on actually preparing the claim and/or the cost of obtaining advice for that specific claim, in a legal capacity.

The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed on the basis of 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.

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

NAME



DATE

Wilier

Hi, just bumping this up to see if anyone has any thoughts/ comments on my defence.

I plan to submit this to the county court this week and would be really grateful if the experts on here could cast their eyes over it and provide any feedback before I submit.

Many thanks

ShirlsP

I am very interested to hear feedback on this. I am in the same position with the same company (very similar dates) although I overstayed by 17 minutes and did not use the iPad.

Le_Kirk

Compare your defence to one that was written by Coupon-mad for a similarly missing IPad. If yours covers the same points then it is good to go.

Wilier

Le_Kirk wrote: »

Compare your defence to one that was written by Coupon-mad for a similarly missing IPad. If yours covers the same points then it is good to go.

The majority of it is based on Coupon-mad's previous example regarding a missing/ hidden iPad...as well as some other references from similar defences.

Wilier

Bumping this up again, as I'm keen to gather any thoughts/ feedback before I send it to the court.

Any other comments or is it good to go??

Le_Kirk

Wilier wrote: »

The majority of it is based on Coupon-mad's previous example regarding a missing/ hidden iPad...as well as some other references from similar defences.

In which case, subject to receiving no further comments from any other posters, I would use it.

KeithP

Wilier wrote: »

Any other comments or is it good to go??

Not need to be rushing just yet.

You have until 4pm on Monday 1st April 2019 to file your Defence.

Wilier

Le_Kirk wrote: »

In which case, subject to receiving no further comments from any other posters, I would use it.

Thanks. I'll give it till the end of the week. If no further comments are received then I'll send as is.

Wilier

KeithP wrote: »

Not need to be rushing just yet.

You have until 4pm on Monday 1st April 2019 to file your Defence.

Thanks Keith,

Yes, conscious I have till 1st Apr, however I'm out of the country next week with limited access to internet so looking to submit before I go.