PCN charge

Coupon-mad

Reders17 wrote: »

Yeah I filed that prior to that date.

I'll have a drive through to the car park tomorrow morning and see what's what in terms of signage then I'll post a draft defence in here and go from there.

I wouldn't waste half of tomorrow looking at signs, that can wait and you can't put photos in evidence yet anyway. This is just defence stage and it can be fairly generic.

Simply look at all the other recent CEL defence threads, and copy & adapt their version for yourself. I saw one finalised today and CEL defences are pretty much the same, always about random ANPR captures.

After football we went back to a pub which was close to a club and there was grounds with an entry and exit and a car park set inbetween them, we weren't made aware that it was private parking so weren't particularly looking for signage but there was at least 6 of us that parked there and ultimately got charged.

If it was dark, say so in the defence (read other CEL ones!).

Reders17

Okay I'll leave that for now and focus on getting a better defence put together. I'll go over as many CEL cases as I can in the morning and pick out the most relevant bits. Is it worth mentioning the length of time I was there (35 mins) and that the car park was relatively empty as well, especially if you take away the 6+ cars of ours or is it just a waste of time?

Thanks.

Coupon-mad

Nope, you need to explain that the signs were so bad that no driver out of six cars saw the terms and all were caught out that day (night - in the dark, unlit location?).

Reders17

I'll find out tomorrow the exact number. It was daylight between 4 and 5pm.

Reders17

IN THE COUNTY COURT

CLAIM No: XXXXXXX

BETWEEN:

Civil Enforcement Limited (Claimant)

-and-

XXXXXXX (Defendant)

________________________________________
DEFENCE
________________________________________

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

2. The Claim Form issued on XXXXXX 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.

3. 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.

3.1. The Defendant requires a copy of the contract (the signage terms on the material date) and a full and detailed explanation of the cause of action and on what basis they purport to hold the Defendant liable. The POC alleges that the Defendant was ‘in breach of terms + conditions (T+Cs)’. The generic ‘Claim for monies relating to a Parking Charge for parking in a private carpark managed by the Claimant in breach of the terms + conditions (T+Cs)’ does not constitute sufficient detail about what the Defendant’s claim actually is, indicating a failure to identify a Cause of Action. The Claimant is simply offering a menu of choices and has failed to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the POC do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

4. The Claim is for breach of contract; however, the Defendant denies any contract existed. The wording is mostly illegible as the signs are so small in size and displayed in a font which is too small to be read from a passing vehicle; 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. The Claimant failed to establish a contract with the driver due to inadequate signage around the car park incapable of binding the driver. This distinguishes this case from the Beavis case, Specifically:
a) Poorly worded signs which do not make it clear that charges apply for overstay.
b) Poorly located signage around the car park which are out of the line of sight for a driver.
c) No mention of any debt collection additional charge, which therefore cannot form part of any alleged contract.
d) The signs are that obscure that 7 separate people in 7 cars failed to see that this was a private car park for an establishment that coincides as an entry point to another establishment.

5. The Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

6. The Claimant has failed to comply with the strict requirements of the Protection Of Freedoms Act 2012, schedule 4 (PoFA 2012). The driver of the vehicle has not been identified. The Defendant admits to being the registered keeper of the vehicle on the material date, but there is no evidence of who was driving. As the Claimant has not identified the driver, it cannot be assumed the keeper/driver are one and the same at the time of the supposed contravention (POFA 2012).

7. Costs on the claim - disproportionate and disingenuous

7.1 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.

7.2 Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model..

7.3 The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.

7.4 Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.

7.5 According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

7.6 The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). The Claimant is claiming £182 plus costs to a total of £268.05. This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

7.7 Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Order was identical in striking out both claims without a hearing:
''IT IS ORDERED THAT The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

8. 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.

STATEMENT OF TRUTH

I believe the facts contained in this defence are true.

Name
Signature
Date

Any advice on this, is it too much?

Thanks

Coupon-mad

Yep that'll do the job for this early stage.

Get it signed & submitted if your deadline is tight, and then STICK AROUND and learn and read other defence threads and the 'IMPORTANT - KNOW WHAT HAPPENS WHEN' section of post #2 of the NEWBIES thread.

People who stick around, research, learn and miss no deadlines, almost invariably win.

KeithP

...if your deadline is tight.

Deadline certainly is tight - less than ten minutes. :eek:

Reders17

Thanks Coupon-mad, I'll make sure I'm properly prepared for the next stage.

I just say got it in after technical difficulties with scanning it. I've had a generic reply email to say they've recieved so I'll keep an eye on things and get on top of everything and post updates back here.

Thanks again for the help and advice, much appreciated.