CEL Claim Form Defence.

Redx

you use legal arguments, not your "story"

that is why we told you to start with the concise DEFENCE (no S) by member BARGEPOLE , so you look at one and adapt it according to the POC

your defence should rebut the claim , your WS (the time to tell any story) comes much later in the process

your paperwork is from the CCBC in Northampton, NOT from the court in Northamton (different address and different postcode) - the CCBC is a government office, not a court (like the DVLA in Swansea)

Coupon-mad

We've already said:

most people can use bargepole's concise template defence from the NEWBIES thread, and add in a point or two about the facts of the case/contravention/why they are not liable.

And a point about no landowner authority as seen in other defences.

I challenge you to tell us why bargepole's concise defence - with a paragraph about the facts, like you see on EVERY other defence thread (and I suggest you click on and read at least twenty before replying!) - is unsuitable for your case.

Headache88

Hi again, thanks to you all for all your input, we've tried to take it all in and have written up a new draft defence using arguments and previous drafts from other claims, and the defences on post #2 in Newbies like suggested, and we're hoping this is a bit closer to what we'd need to be able to win this, I'll post it now and any feedback is greatly appreciated., thanks.

Headache88

IN THE COUNTY COURT

CLAIM No: XXX

BETWEEN:

Civil Enforcement Limted (Claimant)

-and-

XXX (Defendant)

________________________________________
DEFENCE
________________________________________

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

2. The Claim Form issued on 15th April 2019 by Civil Enforcement Limited was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by “Civil Enforcement Limited”. The claim does not have a valid signature and is not a statement of truth. It states that it has been issued by Civil Enforcement Limited, as the Claimants Legal Representative. Practice Direct 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer. CLAIM FORM SIGNED CEL (CLAIMANTS LEGAL REP)

3.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 £82, for which no calculation or explanation is given,

4. The Terms and conditions to park in the Wells-next-to-sea Quay were not clearly displayed on entrance to the car park including having to buy a ticket within 10 minutes of entry. You would have to stop park up and go to the pay machine to see the terms and conditions as they are not displayed on entrance to the car park. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

5. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorization from the landowner to issue parking charge notices, and to pursue payment by means of litigation.


I believe the facts contained in this Defence are true.

Name
Signature
Date

Coupon-mad

Why didn't you simply search the forum for CEL Wells and read all the other threads to learn about the issues, like this one, giving the fact this is byelaws land (important then that you do not admit who was driving!):

https://forums.moneysavingexpert.com/showpost.php?p=75549998&postcount=9



Try this - much longer but specific to your case and the location at Wells-Next-the-Sea:

IN THE COUNTY COURT

CLAIM No: XXXXXXXX

BETWEEN:

Civil Enforcement Limited (Claimant)

-and-

your name (Defendant)

DEFENCE

1. The Defendant is the registered keeper of the vehicle stated in the Particulars of Claim ('POC'). The Defendant denies that liability has passed to them as registered keeper under the applicable law, and for this and the reasons stated below, the Defendant denies that this Claimant is entitled to relief in the sum claimed, or at all, from either a driver or a registered keeper.

2. The claim was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by ''Civil Enforcement Limited''. The claim does not have a valid signature and is not a statement of truth. It states that it has been issued by Civil Enforcement Limited, as the Claimants Legal Representative. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. Despite being a serial litigator with its own in-house litigation department, this Claimant is in clear breach and it is averred their POC should be struck out without any relief from sanctions, due to the claim being unsupported by any facts or details giving rise to any claim in law, nor even a signature to confirm the purported statement of truth.

3. The facts are that the driver paid the correct tariff of £1 for the time on site, as soon as reasonably practicable on the material date. The Claimant appears to be relying upon unreasonably short time limitations imposing an unknown obligation to make payment at the pay & display ticket ('PDT') machine within minutes of arrival, despite the fact this is a very busy Harbour site and the regime was new. Paying patrons who had to queue, or get change, or set up a telephone app before they could use the new machines, read the Claimant's new terms and pay, were caught out in droves in 2018, reporting unsolicited demands generated by post weeks later, penalising them and trying to hold the registered keeper liable, despite the paid-for parking period being fully covered by the £1 tariff. By the time victims heard about the 'fine' in most reported cases, the PDT had been thrown away when clearing out the car after the Harbour trip. This case is one such case, and the PDT is long since discarded, given the Defendant knew nothing about the alleged parking charge for months.

4. This Claimant had recently installed cameras at this location where none previously existed. This will be evidenced by an article from the Wells Harbour Commissioners - only discovered when researching this defence - giving advance notice of this Claimant's new installation of ANPR cameras in Summer 2018. The article makes no mention of any set time limit to pay and display within ten minutes, and no such strict grace period previously existed when the site had PDT machines only. The article describes the intention of the scheme to be punitive, stating ''car park users failing to purchase a valid ticket will incur the risk of a penalty fine of £100''.

4.1. The driver in this case did not 'fail to purchase a valid ticket' and this Claimant's PDT machine records must be produced in evidence in order to properly inform the court of the facts.

5. This case is fully distinguished in all respects from ParkingEye Ltd v Beavis [2015] UKSC 67 (the Beavis case) not least because 'penalty fines' are not recoverable by private companies and Lord Dunedin's four tests for a penalty remain engaged, due to the facts of this case. The Supreme Court decision in the Beavis case sets a high bar for parking firms, not a blanket precedent, and the facts in Beavis essentially turned on a 'complex' commercial justification and very clear notices, where the terms were held not to involve any lack of good faith or 'concealed pitfall or trap' and where there was a legitimate interest supporting a parking charge for overstayers at a free retail site. Completely unlike the instant case.

6. The ANPR cameras and signs were intended to create new terms and conditions for motorists. The British Parking Association Code of Practice ('the BPA CoP') 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.'' Not only were there no additional GDPR-compliant signs informing motorists how the camera data would be used against them, but there were no clear signs telling drivers that payment at the machine now had to be made within ten minutes and the driver was unaware of this and paid in good faith for the time parked.

7. It is, therefore, denied that the Claimant's signage was capable of creating a legally binding contract. It is denied that there was any contravention of a prominently displayed 'relevant obligation' or that there was any agreement by the driver to pay the Claimant a punitive £100 parking charge over and above the advertised tariff paid. The Claimant is put to strict proof of their compliance with their Trade Body's strict rules set for 'mandatory' signage and for new/changed restrictions in the BPA CoP. This is a code which the Supreme Court held was not just guidance but effectively 'regulatory' and that access to DVLA registered keeper data depends upon full compliance.

8. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary and lawful authorisation from the landowner to issue parking charge notices at this Harbour location, and specifically, that this agent is lawfully authorised to pursue payment from a registered keeper via a small claim.

9. This point is vital for the Claimant to evidence, and it will not be enough merely to produce a contract from the Wells Harbour Commissioners because the legal position is that registered keepers cannot be held liable for parking charges at this Port. Liability cannot pass, because this is not 'relevant land' under Schedule 4 of the Protection of Freedoms Act 2012 ('the POFA') which says at paragraph 3(1)(c):

''In this Schedule ''relevant land'' means any land (including land above or below ground level) other than [...] any land [...] on which the parking of a vehicle is subject to statutory control. 3(3) For the purposes of sub-paragraph (1)(c) the parking of a vehicle on land is ''subject to statutory control'' if any statutory provision imposes a liability (whether criminal or civil, and whether in the form of a fee or charge or a penalty of any kind) in respect of the parking on that land of vehicles generally or of vehicles of a description that includes the vehicle in question. [...] ''statutory provision'' means any provision (apart from this Schedule) contained in - (a) any Act (including a local or private Act), whenever passed; or (b) any subordinate legislation, whenever made, and for this purpose ''subordinate legislation'' means an Order in Council or any order, regulations, byelaws or other legislative instrument.''

10. There are byelaws in place at http://www.legislation.gov.uk/uksi/1994/1440/made thus this location is not ''relevant land" under the POFA definition, and therefore parking matters incurring a charge or 'penalty fine' can only be pursued by the Harbour Master through the magistrates court. This is outside of the jurisdiction of any private parking company using the small claims track. This view is further supported by the Department for Transport's 2012 Guidance about this section of the POFA, at
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/9155/guidance-unpaid-parking-charges.pdf

There, the DFT clarify the question at 4: ''On what type of land does Schedule 4 apply? 4.1 The provisions in Schedule 4 are intended to apply only on private land in England and Wales. Public highways are excluded as well as any parking places on public land which are either provided or controlled by a local authority (or other government body). Any land which already has statutory controls in relation to the parking of vehicles (such as byelaws applying to airports, ports and some railway station car parks) is also excluded.''

11. Further and in the alternative, even if the Claimant demonstrates that this land is not within the Harbour byelaws map, in any case the Claimant failed to serve a POFA compliant Notice to Keeper ('NTK') within the mandatory deadline required for keeper liability to apply. The document was sent late, and was sent to an old incorrect address for the registered keeper. Moreover, the wording failed to comply with the POFA at 9(2)f and the registered keeper Defendant was not warned within the required time that they could be liable for this parking charge. Given that no parking charge notice was placed on the car windscreen either, it is the Defendant's case that there was no parking charge that could be deemed as 'properly given' under the POFA or indeed under the BPA Code of Practice, to hold either a driver or a keeper liable.

12. Further, 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 Data Protection breach and yet again, this regime flouts the requirements of the BPA CoP and the Claimant can have no excuse for such breaches.

13. 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 GDPR 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 who have made valid payment for their vehicles to cover the full time on site (a fact known to this Claimant before the postal NTK was even issued) is unconscionable and excessive, given the lack of transparency about the risk of a 'penalty fine' charge for the time taken to queue to pay or to set up a phone app, or find the right change.


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

14. In addition to the original penalty, the Claimants have artificially inflated the value of the Claim by adding purported admin/legal costs or 'damages' which have not actually been incurred by the Claimant, given that they have an in-house Litigation Team. No genuine legal costs arise, per case and this 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.

15. CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will – (a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and (b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.''

16. Whilst quantified costs can be considered on a standard basis, this Claimant's costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred any added costs and cannot plead a case in damages at all. Any debt collection letters were either sent by a third party which offers a 'no collection, no fee' service, or were a standard feature of a low cost business model. The Beavis case is the authority for recovery of the parking charge itself and no more, since that sum is, by definition, already hugely inflated for profit, not loss, and the Judges held that a parking firm not in possession cannot plead their case in damages, as none exist.

17. The Claimant cannot reasonably recover an additional three figure sum in damages or costs to pursue an alleged £100 debt. The POFA states that the maximum sum that may be recovered from a registered keeper is the charge stated on a compliant NTK, and only if all requirements of Schedule 4 are met. This is not the case in this claim, in any respect, and there was no breach of any 'relevant obligation' or 'relevant contract' at all.

18. 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 believe the facts contained in this Defence are true.


Name


Signature


Date