Got Serious, pay or fight? *Defence Draft Stage*

KeithP

I hope you did the AoS before Tuesday 18th June.

They have one month to respond to a Subject Access Request.

ShakeItOff

I would also suggest popping a SAR into the DVLA too. They have a link on their website.

These cases can and are won. Search this board for "another one bites the dust" (the tagline assigned to successful defendants) to research what others have done before you and what the experiences were like.

Preparation is key. Post your draft defence up when you're ready (suitably redacted, of course!).

Anonimoose

@KeithP yes it was submitted on the 12th and received by them on the 13th. How long does this give me to submit my defence?

@ShakeItOff Pardon my ignorance but what benefit does sending an SAR to DVLA have with it being a private parking company?

Thanks all

Umkomaas

Anonimoose wrote: »

@KeithP yes it was submitted on the 12th and received by them on the 13th. How long does this give me to submit my defence?

KeithP has already given you the information in post #6.

Please read advice given, it saves regulars having to repeat on a very busy board.

Anonimoose

Umkomaas wrote: »

KeithP has already given you the information in post #6.

Please read advice given, it saves regulars having to repeat on a very busy board.

Okay thanks I just wasn't sure if it changed depending on when the AoS was filed.

Anonimoose

Here is where I'm at with my defence draft so far. I do feel like its looking a little bit short but I'm struggling to find what else i can get them on. All comments and critisism greatly appreciated, thanks.

In The County Court

Claim No: XXXXXXX

Between
Civil Enforcement Limited (Claimant)

-and-

XXXXXXX (Defendant)

____________
DEFENCE
____________

In the matter of court claim, xxxxxxx, I am xxxxxx xxxxxx, the Defendant in this matter and the registered keeper of vehicle xxxxxxx. I can be served at the address on the claim form. I deny I am liable for the entirety of the claim on the following grounds:

1.) The Claim Form issued on xxxxx by Civil Enforcement Ltd was not correctly filed under The Practice Direction as it was not signed by a legal person. 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 Claimant's 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. 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.

2.) The alleged breach, according to Civil Enforcement Ltd, is in contravention of terms and conditions; however, the Defendant denies that the Claimant’s signage is capable of creating a legally binding contract.
2.1) The signs in this car park are not at all prominent, and inadequately lit in dark conditions. Furthermore, the wording on the sign is mostly illegible as the signs are displayed in a font that is too small to be read from a passing vehicle, and the sign is placed too high to be illuminated by a cars headlights. The time of the alleged incident was between 21:27 and 23:31 therefore being very dark conditions rendering any unlit signs impossible to see.
2.2) No parking bays or any other suitable markings are painted on the floor, taking this into consideration with the inadequate signage the defendant denies any knowledge of the area being a paid car park.

The Claimant is put to strict proof that their signs meet requirements under their ATA Code of Practice, that their signs comply with requirements under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (CCR) and that any terms are not onerous or fail any test under the Consumer Rights Act 2015.

3.) This case can be distinguished from Parking Eye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr. Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case. The defendant did not see the signs on the date of incident and therefore did not enter a contract. A 'parking charge' can only be binding where that charge was agreed/the bargain made, at the time the contract was formed.

4.) No legitimate interest – no proof has been given that Civil Enforcement have a contract with this land. This distinguishes this case from the Beavis case: This Claimant files serial claims regarding sites where they have lost the contract, known as revenge claims. It is not a legitimate reason to pursue a charge out of proportion with any loss or damages the true landowner could pursue.

5.) The Claim amount far exceeds the total permitted for recovery for a parking charge amount under the Claimant's ATA Code of Practice. 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.

6.) This claim artificially inflates the total charges in a clear attempt at double recovery. The Claimant has not explained how the claim has increased from the original parking notice to £192.85. It is however implied that these costs relate to ‘third party collection agents.’ 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 'costs' to pile on top of any parking charge claim. The Claimant is put to strict proof that it paid any debt recovery agency or legal representative in escalating the matter. If incurred – the Defendant believes this consists of the administration staff of the Claimant performing their normal duties.
civ

7.) In addition to the already artificially inflated penalty, the Claimants have added purported legal costs of £50. Civil Enforcement Ltd have not expended any such sum in this case, given that they have a Legal Team with salaried in-house Solicitors and file tens of thousands of similar 'cut & paste' claims per annum. No genuine legal costs arise, per case, and their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.
7.1) 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 - not any administration cost. Even if the Legal representative’s cost of £50 is genuine, it cannot be recovered in Court as this does not comply with Civil Procedure Rule 27.14.
7.2) If the £50 legal cost to prepare the claim was not incurred, then the Claimant’s statement of truth must be false. Even if a contract had been established it would be void. The Defendant asserts that the Claimant was not acting in “good faith” and that the charges are unlawful, as they are in breach of the Consumer Rights Act 2015, specifically regulation 62(4).

In the event the claim progresses, then as an unrepresented litigant in person, I reserve the right to alter, vary and add to this defence or reply to any further particulars of claim/documents the Claimant may provide.

In light of the reasons above, the Defendant respectfully asks the court to strike out this claim with immediate effect.
I believe the facts contained in this Defence are true.

Name
Signature
Date

Coupon-mad

Re-number it all more simply: 1, 2, 3, etc. and no sub-numbers.

Include the fact that the PDT machines were unlit (they probably were hidden in a dark corner). You don't have to know this for certain, it just adds another hoop to force them to jump through & Prove, and CEL probably won't.

Anonimoose

Coupon-mad wrote: »

Include the fact that the PDT machines were unlit

Now i think of it the one machine i know if is very hidden out the way so much i totally forgot to mention it!

Heres an updated version with a little more added in (red).

In The County Court

Claim No: XXXXXXX

Between
Civil Enforcement Limited (Claimant)

-and-

XXXXXXX (Defendant)

____________
DEFENCE
____________

In the matter of court claim, xxxxxxx, I am xxxxxx xxxxxx, the Defendant in this matter and the registered keeper of vehicle xxxx xxx. I can be served at the address on the claim form. I deny I am liable for the entirety of the claim on the following grounds:

1.) The Claim Form issued on xxxxx by Civil Enforcement Ltd was not correctly filed under The Practice Direction as it was not signed by a legal person. 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 Claimant's 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. 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.

2.) Although ANPR cameras have been used alongside a PDT machine, at no point has the Claimant ever provided any photographic evidence of the alleged offence. The defendant requested a Subject Access Request from the Claimant but is yet to receive such documents.

3.) The alleged breach, according to Civil Enforcement Ltd, is in contravention of terms and conditions; however, the Defendant denies that the Claimant’s signage is capable of creating a legally binding contract. The signs in this car park are not at all prominent, and inadequately lit in dark conditions. Furthermore, the wording on the sign is mostly illegible as the signs are displayed in a font that is too small to be read from a passing vehicle, and the sign is placed too high to be illuminated by a cars headlights. The time of the alleged incident was between 21:27 and 23:31 therefore being very dark conditions rendering any unlit signs impossible to see. No parking bays or any other suitable markings are painted on the floor, and the one known PDT machine is placed out the way in an unlit corner of the grounds the opposite side to where the defendant was parked, totally concealing it from plain sight. Taking this into consideration with the inadequate signage the defendant denies any knowledge of the area being a paid car park.

The Claimant is put to strict proof that their signs meet requirements under their ATA Code of Practice, that their signs comply with requirements under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (CCR) and that any terms are not onerous or fail any test under the Consumer Rights Act 2015.

4.) This case can be distinguished from Parking Eye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr. Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case. The defendant did not see the signs on the date of incident and therefore did not enter a contract. A 'parking charge' can only be binding where that charge was agreed/the bargain made, at the time the contract was formed.

5.) No legitimate interest – no proof has been given that Civil Enforcement have a contract with this land. This distinguishes this case from the Beavis case: This Claimant files serial claims regarding sites where they have lost the contract, known as revenge claims. It is not a legitimate reason to pursue a charge out of proportion with any loss or damages the true landowner could pursue.

6.) The Claim amount far exceeds the total permitted for recovery for a parking charge amount under the Claimant's ATA Code of Practice. 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.

7.) This claim artificially inflates the total charges in a clear attempt at double recovery. The Claimant has not explained how the claim has increased from the original parking notice to £192.85. It is however implied that these costs relate to ‘third party collection agents.’ 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 'costs' to pile on top of any parking charge claim. The Claimant is put to strict proof that it paid any debt recovery agency or legal representative in escalating the matter. If incurred – the Defendant believes this consists of the administration staff of the Claimant performing their normal duties.

8.) In addition to the already artificially inflated penalty, the Claimants have added purported legal costs of £50. Civil Enforcement Ltd have not expended any such sum in this case, given that they have a Legal Team with salaried in-house Solicitors and file tens of thousands of similar 'cut & paste' claims per annum. No genuine legal costs arise, per case, and their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

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 - not any administration cost. Even if the Legal representative’s cost of £50 is genuine, it cannot be recovered in Court as this does not comply with Civil Procedure Rule 27.14.

If the £50 legal cost to prepare the claim was not incurred, then the Claimant’s statement of truth must be false. Even if a contract had been established it would be void. The Defendant asserts that the Claimant was not acting in “good faith” and that the charges are unlawful, as they are in breach of the Consumer Rights Act 2015, specifically regulation 62(4).

In the event the claim progresses, then as an unrepresented litigant in person, I reserve the right to alter, vary and add to this defence or reply to any further particulars of claim/documents the Claimant may provide.

In light of the reasons above, the Defendant respectfully asks the court to strike out this claim with immediate effect.
I believe the facts contained in this Defence are true.

Name
Signature
Date

Le_Kirk

You submit a SAR not request it, it's already a (Subject Access) Request. All your paragraphs need numbering. Can you prove what you state in your point 5 reference serial claims?

Anonimoose

Le_Kirk wrote: »

You submit a SAR not request it, it's already a (Subject Access) Request. All your paragraphs need numbering. Can you prove what you state in your point 5 reference serial claims?

Okay thanks edited the SAR bit. I thought each number had to be a separate point I'm making? i just put the paragraphs to break it up shall I keep the same numbers and merge the paragraphs? I cant prove number 5 I thought this part would just make them prove they owned the land?