CEL defence

Padre_Long

Hi all

On XXXX I attended County Court and successfully had a CCJ set aside. I had not seen this forum beforehand. I wish I had as I may have had the case killed dead there and then. Instead I now have to submit a defence and look forward to another day off work in court.

Apparently I had parked at a supermarket car park with ANPR technology and overstayed the free period. I had never received any paperwork relating to a PCN - it had all been sent to an address at which I wasn’t resident. I only found out about it when I found a CCJ on my credit file.

The claimant is Civil Enforcement Ltd.

The Court noted that there was a 12 month delay between CEL searching DVLA records and the issue of proceedings. I had moved house during that period.

CEL did not turn up to court but sent a letter. The judge was sympathetic and agreed to set aside the CCJ.

The judge ordered that:

1. The default judgement be set aside
2. The Claimant shall file at Court and serve on the Defendant amended particulars of claim giving sufficient details regarding the parking charge
3. The Defendant shall file at Court and serve on the Claimant a fully pleaded defence.

I have today received CELs amended particulars of claim. This is the first piece of paperwork I have ever received from them. As follows:

I XXX XXX of Civil Enforcement Limited, Horton House, Exchange Flags, Liverpool, L2 3PF (the Claimant) am duly authorised by the Claimant and make this statement in support of the claim brought against XXX XXX (the Defendant)

1. The violation occurred at XXX and at all material times the car park was managed by the Claimant

2. The claim is brought for breach of contract, which arose when the Defendant failed to comply with the terms and conditions displayed in the Car Park. Drivers are permitted to park in the Car Park in accordance with the terms and conditions displayed on signage. These signs constitute an offer by the Claimant to enter into a contract with the drivers.

3. The Claimant uses Automatic Number Plate Recognition technology at the entrance and exit of the car park. This identifies the date and time of arrival and departure of vehicles from the car park. The Claimant’s ANPR cameras recorded the Defendant’s vehicle, registration number XxX entering the car park on XxX at XXx and departing on the same date at XXX

4. Signs in the car park clearly state the following:

“3 hours free customer parking, no return within 1 hour - if you exceed the free parking allowance, you agree to pay our charge. To deter abuse of this car park, these terms apply at all times. Additional costs will be incurred if payment is not received within 28 days”

5. When the Defendant parked their vehicle in the Car Park they accepted, by their conduct, the Opertor’s pricing structure. The Defendant was allowed to remain in the Car Park in consideration for agreeing to pay £100 (reduced to £60 if paid within 14 days) to the Claimant. Consequently a contract was formed between the Claimant and Defendant. The Defendabt breached the contract, specifically, by exceeding the maximum free stay allowance by 21 minutes.

The amount claimed (not including fixed costs on issuing the claim) is broken down as follows:

£100 parking charge notice
£XX Administrative costs
£XX Debt recovery costs
£18.81 accrued interest from date of violation to date claim issued, claimed under s.69 of the County Courts Act 1994 at the rate of 8% per annum

Statement of truth
I believe that the facts stated in this Reply to the Order are true.

Signed: xxx (no job title alongside his name)


I have been trawling through these threads and have tied myself in knots over how to set out my defence. I can’t seem to find a similar situation to mine and am worried about taking good points from other people’s successful defences which may not be appropriate.

Can anyone please point me at a similar defence that they have seen on this site? It’d be very much appreciated! I’d really like to get this done and dusted and out of mind

Le_Kirk

If you go to the NEWBIE sticky and read post # 2, you will find 17 prewritten defences, choose the most apt one of those and adapt it to suit your circumstances.

The_Deep

You might be able to kill this of as they are hugely overclaiming on three counts, including interest.

Read this

https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

Nine times out of ten these tickets are scams so complain to your MP.

Parliament is well aware of the MO of these private parking companies, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. 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, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but 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.

How how long was the alleged overstay, was it within grace periods? What about the set aside fee?

beamerguy

The amount claimed (not including fixed costs on issuing the claim) is broken down as follows:

£100 parking charge notice
£40 Administrative costs
£96 Debt recovery costs
£18.81 accrued interest

OH BOY, CEL must think the court is stupid. What an amazing Abuse of Process ??

£40 for admin costs ??? What admin costs do they think they can mug a judge with ?

£96 for debt recovery. If they used DRP, they operate a no win no fee policy for the PPC. The court will not allow such rubbish

READ ABOUT WHAT THE COURTS THINK OF SUCH ABUSE
https://forums.moneysavingexpert.com/discussion/comment/75929156#Comment_75929156
Use this (changing amounts ) your added abuse of process is an amazing £136. You need to get the judge to pop his eyes out for such a scam attempt

Additional costs will be incurred if payment is not received within 28 days”
Really, are they to be found in the tiny small print ??

And then there is the case of CEL signing their claim, saying it is statement of truth?

The judge needs to see about abuse of process and "statement of truth" before anything else

With such abuse, it seems like CEL are doing one of their revenge attacks on you because your CCJ was set aside.
They did revenge attacks on the Co-op

Padre_Long

OK, so I have cobbled together a draft defence based on one found in the Newbies thread with some additions from other CEL defences. I'm not sure that it flows very nicely and would really appreciate some feedback please?

I have no idea whether CEL correctly filed the Claim form or whether they complied with pre-court protocol or met the Notice to Keeper obligations, because I never received any documentation until yesterday, which I have replicated in my initial post. Therefore I have removed those elements from my defence. Please tell me if that is incorrect?

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

CIVIL ENFORCEMENT LIMITED (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

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

2. 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. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They give no definition of the terms ‘our charge’ nor ‘additional charge’.

4. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position 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 In any event, this would constitute an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from an authorised party using the premises as intended

5. 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, and to pursue payment by means of litigation. The Claimant is not the landowner of the car park. This means that the Claimant, as a matter of law, will have no locus standi to litigate in their own name. As a third-party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. Furthermore, any such claim should be made in the name of the landowner. The Claimant is put to strict proof their ability to issue and pursue charges at this location and that they have a valid contract in their name with the Landowner to instigate any legal action. I clarify that this should be an actual copy of a contemporaneous contract with the landowner showing a clear chain of authority and not just a document that claims a contract/agreement exists.

6. The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs. In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.

7. In paragraph 5 of the Amended Particulars of Claim, the Claimant has made the accusation that the Defendant was Driver of the vehicle in question at the time of the alleged parking offence without offering any evidence to prove this. The Defendant accepts being the registered Keeper of the vehicle, but cannot reasonably be expected to confirm or deny being the Driver on the date in question (XXXX) as it is now approximately 3 years and 3 months ago. No photographic evidence, such as copies of the APNR photographs, has been presented by the Claimant. The vehicle could have been driven by other family members or friends with fully comprehensive insurance at the time in question.

8. There has been some question regarding whether private firms using ANPR synchronise the camera clock at the entrance with the timer at the exit. Some have been shown by Google Location to be several minutes out, suggesting an overstay with flawed evidence. The Claimant is put to strict proof that the ANPR clocks were synchronised, not just their own word that they were. The BPA do not 'audit' ANPR systems and have no capacity to check the workings so the Claimant must show other evidence of the timings they claim, not just some figures overlaid on a photo image.

9. 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 (which has not been seen by the Defendant), but appears from the Amended Particulars of Claim in this case to be £100. The claim includes an additional £XXX which appears to be an attempt at double recovery.

10. It is implied that a portion of these additional costs relate to ‘Debt Recovery Costs.’ 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.

11. With regard to ‘Administrative costs’, 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.

12. The cost on the claim are disproportionate and disingenuous. 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.

13. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant, not least due to the abuse of process in attempting to claim fanciful costs which they are not entitled to recover

14. In the event that Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) or alternatively, for the hearing fee to be ordered to be paid before exchange of documents between the parties, because where a claim from this serial Claimant is robustly defended, this Claimant routinely discontinues after seeing a Defendant's Witness Statement and never pays the court hearing fee

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

Name
Signature
Date

beamerguy

With regards to the Abuse of process, you need to include what others courts have said which give more power if the judge then reads this case. Show the cases as seen here

https://forums.moneysavingexpert.com/discussion/comment/75929156#Comment_75929156

and ..... see coupon-mad's post #14

It seems to me that CEL are trying to include costs from their previous claim which has since been set aside.

Therefore, CEL must start again from scratch

Padre_Long

OK thanks - I'll check that out and include more detail

Padre_Long

Now updated:

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

CIVIL ENFORCEMENT LIMITED (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

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

2. 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. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They give no definition of the terms ‘our charge’ nor ‘additional charge’.

4. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position 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 In any event, this would constitute an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from an authorised party using the premises as intended

5. 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, and to pursue payment by means of litigation. The Claimant is not the landowner of the car park. This means that the Claimant, as a matter of law, will have no locus standi to litigate in their own name. As a third-party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. Furthermore, any such claim should be made in the name of the landowner.

The Claimant is put to strict proof their ability to issue and pursue charges at this location and that they have a valid contract in their name with the Landowner to instigate any legal action. I clarify that this should be an actual copy of a contemporaneous contract with the landowner showing a clear chain of authority and not just a document that claims a contract/agreement exists.

6. The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs. In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.

7. In paragraph 5 of the Amended Particulars of Claim, the Claimant has made the accusation that the Defendant was Driver of the vehicle in question at the time of the alleged parking offence without offering any evidence to prove this. The Defendant accepts being the registered Keeper of the vehicle, but cannot reasonably be expected to confirm or deny being the Driver on the date in question (XXXX) it is now approximately 3 years and 3 months ago. No photographic evidence, such as copies of the APNR photographs, has been presented by the Claimant. The vehicle could have been driven by other family members or friends with fully comprehensive insurance at the time in question.

8. The Defendant puts the Claimant to strict proof that it issued a compliant notice under Schedule 4 of the Protection of Freedoms Act 2012. No such Notice has been received by the Defendant.

Henry Greenslade, lead adjudicator of POPLA in 2015 and an eminent barrister and parking law expert stated that "However keeper information is obtained, there is no reasonable presumption in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort."

9. There has been some question regarding whether private firms using ANPR synchronise the camera clock at the entrance with the timer at the exit. Some have been shown by Google Location to be several minutes out, suggesting an overstay with flawed evidence. The Claimant is put to strict proof that the ANPR clocks were synchronised, not just their own word that they were. The BPA do not 'audit' ANPR systems and have no capacity to check the workings so the Claimant must show other evidence of the timings they claim, not just some figures overlaid on a photo image.

10. 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 (which has not been seen by the Defendant), but appears from the Amended Particulars of Claim in this case to be £100. The claim includes an additional £XXX which appears to be an attempt at double recovery.

11. It is implied that a portion of these additional costs relate to ‘Debt Recovery Costs.’ It was held in the Supreme Court in ParkingEye v 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.

12. With regard to ‘Administrative costs’, 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.

13. 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...'

14. The costs on the claim are disproportionate and disingenuous. 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.

15. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant, not least due to the abuse of process in attempting to claim fanciful costs which they are not entitled to recover

16. In the event that Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) or alternatively, for the hearing fee to be ordered to be paid before exchange of documents between the parties, because where a claim from this serial Claimant is robustly defended, this Claimant routinely discontinues after seeing a Defendant's Witness Statement and never pays the court hearing fee

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

Name
Signature
Date

beamerguy

I like it, see what others say

Le_Kirk

You have some paragraph numbers missing and in your paragraph between 5 & 6 you have used "I" instead of "the defendant." I think your paragraph between 8 & 9 should be moved up to be above 8 as it relates to the keeper/driver situation and would flow better. I think that in your para 13, you should make it clear that the section beginning "IT IS ORDERED ......." you should make it clear it is a quote from the DJ (either Taylor or Grand) because at the moment it looks like a direction to the court!

Padre_Long

Noted. Will do that. Thanks!