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Court claim form received
Osprey123
Posts: 1 Newbie
Hi, I’ve been reading the advice on newbie threads on here and have drafted a defence copy ready for your advice. With limited knowledge I feel like I’ve bitten of more than I can chew but am determined to fight this. I appreciate any advice you can give. Thanks for your time.
Claimant. Civil Enforcement Limited
Parking date 6/05/2018
PCN Issue date 9/05/2018
Civil enforcement LTD - ANPR
Court claim form issued 25/2/2019
Claim sum £182.00 plus interest £193.65 with court fees £268.65
I have signed up for MCOL and done the AOS on 9/3/2019
Is it to late to do SAR?
My Defence.
1. The Defendant is the registered keeper of the vehicle in question. 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. 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.
3. The Defendant has been a long term customer and at no time informed of any parking changes via signage or other media from the claimant and landowner. 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.
3.1 The PCN was not received by the defendant until 17 days after PCN issue date.
Unclear terms - unconscionable penalty relying upon a hidden keypad
4. 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. Expecting a driver to somehow realise they need to inform hospitality staff 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'.
4.1. 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.''
4.2. It is contended that the Claimant and the hotel 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.''
4.3 The Manager stated that the staff had no obligation to verbally prompt the customers that come in the rear entrance of the hotel to use the iPad in the front reception for signing in VRN details, and the sign used to indicate this, are far from obvious. One sheet of A4 paper printed in black and white on entrance to front reception and no signage at the time in the hotel bar at the rear of the property where the defendant used the facilities.
5. Upon receiving the claim, the Defendant researched this all too common issue and was advised to complain to the landowner. Unsurprisingly, this was conspicuous by its absence as an option offered by Civil enforcement LTD in their signs or paperwork, prior to commencing proceedings.
5.1 The only route offered 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.
5.2. 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. The British Parking Association ('BPA') Trade Body 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.
6. 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 parked in good faith, 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.
7. 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' and given the lack of transparency about the risk of a charge for failing to do something that the driver never knew was a requirement.
8. 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.
Lack of good faith, fairness or transparency and misleading business practices
9. If a parking firm and hotel 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 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.
10. The Claimant's negligent or deliberately unfair business practice initially caused the unfair PCN to arise. Whilst themselves hoping the Defendant does not discover that Civil enforcement LTD withheld the option of landowner cancellation all along.
10.1. 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.
Inflation of the parking charge and double recovery - an abuse of process
11. In addition to the original penalty, the Claimants have artificially inflated the value of the Claim by adding purported legal costs of £93.65 which have not actually been incurred by the Claimant. With no evidence of how this extra charge has been calculated.
11.1. No figure for additional charges was “agreed” nor could it have formed part of the alleged “contract” because no such indemnity costs were quantified on the signs. Terms cannot be bolted on later with figures plucked out of the air, as if they were incorporated into the small print when they were not. The Defendant has reasonable belief that the Claimant has not incurred £93.65 costs to pursue an alleged £100 debt.
11.2. The Claimant has at no time provided an explanation how the sum of £93.65 has been calculated. The protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.
11.3. The Claimant has sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed (which suggested to the Defendant they would ultimately be calling round like Bailiffs) adding further unexplained charges to the original £100
12. 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. The 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 'costs' to pile on top of any parking charge claim.
13. 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.
14. 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.
Claimant. Civil Enforcement Limited
Parking date 6/05/2018
PCN Issue date 9/05/2018
Civil enforcement LTD - ANPR
Court claim form issued 25/2/2019
Claim sum £182.00 plus interest £193.65 with court fees £268.65
I have signed up for MCOL and done the AOS on 9/3/2019
Is it to late to do SAR?
My Defence.
1. The Defendant is the registered keeper of the vehicle in question. 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. 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.
3. The Defendant has been a long term customer and at no time informed of any parking changes via signage or other media from the claimant and landowner. 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.
3.1 The PCN was not received by the defendant until 17 days after PCN issue date.
Unclear terms - unconscionable penalty relying upon a hidden keypad
4. 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. Expecting a driver to somehow realise they need to inform hospitality staff 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'.
4.1. 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.''
4.2. It is contended that the Claimant and the hotel 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.''
4.3 The Manager stated that the staff had no obligation to verbally prompt the customers that come in the rear entrance of the hotel to use the iPad in the front reception for signing in VRN details, and the sign used to indicate this, are far from obvious. One sheet of A4 paper printed in black and white on entrance to front reception and no signage at the time in the hotel bar at the rear of the property where the defendant used the facilities.
5. Upon receiving the claim, the Defendant researched this all too common issue and was advised to complain to the landowner. Unsurprisingly, this was conspicuous by its absence as an option offered by Civil enforcement LTD in their signs or paperwork, prior to commencing proceedings.
5.1 The only route offered 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.
5.2. 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. The British Parking Association ('BPA') Trade Body 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.
6. 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 parked in good faith, 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.
7. 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' and given the lack of transparency about the risk of a charge for failing to do something that the driver never knew was a requirement.
8. 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.
Lack of good faith, fairness or transparency and misleading business practices
9. If a parking firm and hotel 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 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.
10. The Claimant's negligent or deliberately unfair business practice initially caused the unfair PCN to arise. Whilst themselves hoping the Defendant does not discover that Civil enforcement LTD withheld the option of landowner cancellation all along.
10.1. 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.
Inflation of the parking charge and double recovery - an abuse of process
11. In addition to the original penalty, the Claimants have artificially inflated the value of the Claim by adding purported legal costs of £93.65 which have not actually been incurred by the Claimant. With no evidence of how this extra charge has been calculated.
11.1. No figure for additional charges was “agreed” nor could it have formed part of the alleged “contract” because no such indemnity costs were quantified on the signs. Terms cannot be bolted on later with figures plucked out of the air, as if they were incorporated into the small print when they were not. The Defendant has reasonable belief that the Claimant has not incurred £93.65 costs to pursue an alleged £100 debt.
11.2. The Claimant has at no time provided an explanation how the sum of £93.65 has been calculated. The protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.
11.3. The Claimant has sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed (which suggested to the Defendant they would ultimately be calling round like Bailiffs) adding further unexplained charges to the original £100
12. 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. The 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 'costs' to pile on top of any parking charge claim.
13. 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.
14. 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.
0
Comments
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If no solicitor is involved they cannot claim for legal expenses. They are therefore overclaiming by well over £100.
Get you MP on board. On 18th March 2019 a Bill was enacted to curb the excesses of these private parking companies. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, and persistent offenders denied access. Hopefully life will become impossible for the worst of these scammers.
Until this is done you should still complain to your MP, citing the new legislation.
http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted
Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.You never know how far you can go until you go too far.0 -
With a Claim Issue Date of 25th February, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 1st April 2019 to file your Defence.Court claim form issued 25/2/2019
I have signed up for MCOL and done the AOS on 9/3/2019
That's nearly two weeks away. Loads of time to produce a Defence, and it's good to see that you are not leaving it to the very last minute.
When you are happy with the content, your Defence should be filed via email as suggested here:-
Print your Defence.
- Sign it and date it.
- Scan the signed document back in and save it as a pdf.
- Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
- Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
- Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
- Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
- Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.
No it is not.Is it to late to do SAR?
The response to a SAR is likely to be of more use when writing your Witness Statement than your Defence.0 - Sign it and date it.
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