claim form from court and Im scared now

NervousReck

ok here is my final defence, please can you check give me any feedback before I submit it. Many thanks


[FONT=&quot]In the County Court[/FONT]

[FONT=&quot]Claim Number: xxxxxxx[/FONT]

[FONT=&quot] [/FONT]

[FONT=&quot]Between

Civil Enforcement Ltd

v

Xyour nameX[/FONT]

[FONT=&quot] [/FONT]

[FONT=&quot]DEFENCE[/FONT]

[FONT=&quot]



Background - the driver was an authorised volunteer worker at the onsite business

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 £196.16 'parking charge notice' (PCN) for the lawful conduct described below.

[/FONT]
[FONT=&quot]1.1 [/FONT][FONT=&quot]The Claim Form issued on the 17th July 2019 by Civil Enforcement Ltd was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by “Civil Enforcement Limited” (Claimant’s Legal Representative)”.

[/FONT][FONT=&quot][/FONT]
[FONT=&quot]1.2 [/FONT][FONT=&quot]There was no compliant “Letter before County Court Claim”, under the Practice Direction.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]1.3 The Claimant is known to be a speculative serial litigant, issuing a large number of identical claims with Particulars of Claim so sparse as to be incoherent (as in this case). The Claimant is in fundamental breach of CPR 16.4 and paragraph 3.6 of Practice Direction 16 in failing to provide adequate particulars of the Claim. If the claim is for a breach of contract, no details have been provided about how the driver is alleged to have entered into a contract, or what its terms were (CPR Rule 16.4 and Practice Direction 16, paragraph 7).
[/FONT]
[FONT=&quot]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 volunteer worker at the onsite business.

3. The Defendant has already proved that patronage, and it is the Claimant's own failure, caused by their deliberately obscure terms and failure of equipment 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.


Unclear terms - unconscionable penalty due to failure to provide equipment

4. According to the sparse signs in this car park, it now transpires that to avoid a Parking charge volunteer staff working at the onsite business were expected to know to input their Vehicle Registration Number (VRN) into equipment that had not been provided.

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 failed to alert volunteer staff at the onsite business to an onerous change and unexpected obligation to use equipment that had failed to be provided, 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.''

5. Upon receiving the claim, the Defendant researched this 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. [/FONT]
[FONT=&quot]
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 staff and 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. Both the British Parking Association ('BPA') Trade Body and indeed, Civil Enforcement Ltd themselves 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.


No legitimate interest - the penalty rule remains engaged

6. 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 in these circumstances, and to pursue payment in the court in their own name. Even if they hold such authority, the Claimant is put to strict proof that this authorisation expressly allows litigation against volunteer staff even when the business in fact supports the Defendant in wanting an unfair charge to be cancelled.

7. Even if the Claimant is able to produce such a landowner contract, it is averred that there can be no legitimate interest arguable by the Claimant in this case. When - all too often at this location – Civil Enforcement Ltd unfairly harvest the data of a registered keeper to charge a genuine member of volunteer staff, any commercial justification in the form of landowner support for such unfair ticketing is de facto absent.

7.1. Further, 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.

7.2. This case is fully distinguished in all respects from Parking Eye v Beavis [2015] UKSC 67. That Supreme Court decision sets a high bar for parking firms, not a blanket precedent, and the Beavis case essentially turned on a 'complex' and compelling legitimate interest and very clear notices, where the terms were held not to involve any lack of good faith or 'concealed pitfall or trap'. Completely unlike the instant case.

8. 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 member of volunteer staff to input their VRN into equipment that is not provided, is indisputably a 'concealed pitfall' and cannot be described as a 'relevant obligation'.

9. 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 and BPA Code of Practice breach. The Supreme Court Judges in Beavis held that a Code of Practice is effectively 'regulation' for this blatantly rogue industry, full compliance with which is both mandatory and binding upon any parking operator.

9.1. 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

10. If a parking firm was truly acting in good faith and keeping the interests of staff and consumers at the heart of their thinking, they would concentrate on ensuring firstly, that staff would be supplied with the relevant equipment and secondly, could not miss the fact that, if they did receive an unfair PCN as a genuine member of volunteer staff, they had a right to ask the landowner/Managers to cancel it. Clearly the Claimants interest is purely in misleading and punishing volunteer staff and extracting as much money as possible in three figure penalties, given that this is the only way Civil Enforcement Ltd make any money.

11. The Claimant's negligent or deliberately unfair business practice initially caused the unfair PCN to arise, then the Claimant's silence regarding the simple option of landowner cancellation rights, directly caused these unwarranted proceedings. This Claimant cannot be heard to blame volunteer staff for not trying a futile 'appeal' to them, whilst themselves hoping the Defendant does not discover that Civil Enforcement Ltd withheld the option of landowner cancellation all along.

11.1. By failing to adequately provide the relevant equipment at the onsite business, 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 (this relatively untested legislation was enacted after the final hearing in Beavis and not actively considered in that case). As such, this claim must fail.


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

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. 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.

13. In addition to the original penalty, the Claimants have artificially inflated the value of the Claim by adding purported legal costs of £50, which have not actually been incurred by the Claimant. 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 (shamefully) this firm whose main business is supposed to be parking 'management' as a service provision, files tens of thousands of similar 'cut & paste' robo-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.

14. 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.

15. 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.


Name/signature


Date[/FONT]

NervousReck

can any just confirm the above defence is ok before I send it please

Redx

Read posts 168 & 169 in this thread

https://forums.moneysavingexpert.com/discussion/59977319

Ensure your defence ihas what they are saying in the order they say, removing all waffle, if any

Those 2 posts are the best I have seen yet in explaining what a defence should be

Add the abuse of process paragraphs by coupon mad posted in the post by beamerguy to the bottom about spurious costs too

NervousReck

Thank you Redx, i am getting confused with the initial parking charge of £60 but if not paid it goes to £100 and then not paid £182 inc additional costs and then claim for is £196.16. What is the court cost fee? its confusing me

Le_Kirk

NervousReck wrote: »

Thank you Redx, i am getting confused with the initial parking charge of £60 but if not paid it goes to £100 and then not paid £182 inc additional costs and then claim for is £196.16. What is the court cost fee? its confusing me

The initial parking charge was never £60, it was and is £100, you have just been offered a bribe to pay it early. Additional costs that take to total up to £182 and then £196.16 are what is referred to as an Abuse of Process, typically where the claimant or claimant's solicitor adds £60 for debt collectors fees, admin costs or other such made-up names.

NervousReck

[FONT=&quot]In the County Court[/FONT]

[FONT=&quot]Claim Number: Fxxxxxx[/FONT]

[FONT=&quot] [/FONT]

[FONT=&quot]Between

Civil Enforcement Ltd

v

xxxxxxxx[/FONT]

[FONT=&quot] [/FONT]

[FONT=&quot]DEFENCE[/FONT]

[FONT=&quot]
Background - the driver was an authorised volunteer staff worker at the onsite charity shop business.

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 £182.00 'parking charge notice' (PCN) for the lawful conduct described below.

[/FONT]
[FONT=&quot]1.1 [/FONT][FONT=&quot]The Claim Form issued on the 17th July 2019 by Civil Enforcement Ltd was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by “Civil Enforcement Limited” (Claimant’s Legal Representative)”.

[/FONT][FONT=&quot][/FONT]
[FONT=&quot]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' as the defendant was a volunteer staff worker at the onsite charity shop business.

3. The Defendant has already proved that patronage, and it is the Claimant's own failure of providing the relevant equipment to enable staff members to input their VRN that has given rise to a PCN that was issued from the outset.


Unclear terms - unconscionable penalty due to failure to provide equipment

4. According to the sparse signs in this car park, it now transpires that to avoid a parking charge volunteer staff members working at the onsite charity shop business were expected to know to input their Vehicle Registration Number (VRN) into equipment that had not been provided.

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 failed to alert volunteer staff workers at the onsite charity shop business to an onerous change and unexpected obligation to use equipment that had failed to be provided, 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.''

5. Upon receiving the claim, the Defendant researched this 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. [/FONT]
[FONT=&quot]
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 staff and consumers.


No legitimate interest - the penalty rule remains engaged

6. 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 in these circumstances, and to pursue payment in the court in their own name. Even if they hold such authority, the Claimant is put to strict proof that this authorisation expressly allows litigation against a volunteer staff member in wanting an unfair charge to be cancelled.

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 member of volunteer staff to input their VRN into equipment that was not provided, is indisputably a 'concealed pitfall'.


Lack of good faith, fairness or transparency and misleading business practices

8. If a parking firm was truly acting in good faith and keeping the interests of staff and consumers at the heart of their thinking, they would concentrate on ensuring firstly, that staff members and businesses would be supplied with the relevant equipment in input their VRN and secondly, could not miss the fact that, if they did receive an unfair PCN as a genuine member of volunteer staff, they had a right to ask the landowner/Managers to cancel it. Clearly the Claimants interest is purely in misleading and punishing volunteer staff members and extracting as much money as possible in three figure penalties, given that this is the only way Civil Enforcement Ltd make any money.

9. The Claimant's negligent or deliberately unfair business practice initially caused the unfair PCN to arise, then the Claimant's silence regarding the simple option of landowner cancellation rights, directly caused these unwarranted proceedings. This Claimant cannot be heard to blame volunteer staff for not trying a futile 'appeal' to them, whilst themselves hoping the Defendant does not discover that Civil Enforcement Ltd withheld the option of landowner cancellation all along.

10. By failing to adequately provide the relevant equipment at the onsite charity shop business, 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 (this relatively untested legislation was enacted after the final hearing in Beavis and not actively considered in that case). As such, this claim must fail.


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

11. 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. 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.

12. In addition to the original penalty, the Claimants have artificially inflated the value of the Claim by adding purported legal costs of £96.16, which have not actually been incurred by the Claimant. 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 (shamefully) this firm whose main business is supposed to be parking 'management' as a service provision, files tens of thousands of similar 'cut & paste' robo-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.

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.


Name/signature


Date[/FONT]

DoaM

From scared to GIRFUY in 2 weeks? Brilliant!

NervousReck

DoaM wrote: »

From scared to GIRFUY in 2 weeks? Brilliant!

Thank you DoaM - i think i deserve a cup of tea now! and a few biscuits

Redx

12 and 13 need adding to regarding judges Grand and Taylor, which is the abuse of process, which coupon mad wrote

LeKirk answered your question, the charge was never £60, the signs probably said £100, so it's £100 plus legal fees, usually around £175 in a Parking Eye case which is a good benchmark

The £60 debt collection add-on isn't allowed, but is nothing to do with the bribe of pay us £60 right at the start instead of the full £100 on the signs

nosferatu1001

Are the legal fees really £96.16?
Surely some of that is interest, hence the non-round number?