CEL defence statement draft - Help please

Progression

Hi , everyone i have recently received a County Claim Form from Northampton county court business centre regarding a parking fine at a gym for not using an iPad touch screen even though I recall using it and admitted to being the driver.
My POPLA appeal was rejected , there are no signs which say you are required to sign up to the gym touchscreen neither in or outside the gym, stupidly I did admit to being the driver in an appeal to the POPLA and said I did sign up on the day which CEL say they say they have no record of my car. They only have pictures of me entering and leaving. I have read the newbies and previous posts and just need some help on whether I still have a chance to put together a decent defence or if I should pay? THANKS!

The_Deep

Have you really received a CCJ? Have you been to court, lost the argument, and told by a judge to pay? If not you do not have a CCJ.

Have you read the stickies/FAQs? I suspect not.

KeithP

Have you received a County Court Judgment, or have you perhaps received a County Court Claim Form?

If the latter, can you please tell us the Issue Date on that form?

Progression

Hi, thanks for the quick response, and very sorry I meant I have received a county claim form and want to know whether I should defend , first time posting and I haven't gone into lots of details in the stickies yet as I want to know if I have a case. The date was issued on the 17th July, but did not open until yesterday and I am aware I need to send an AOS if I want to defend the case, do you think the case is defendable even though I have admitted being the driver.

Grateful for any help I can't get. Thanks

Redx

Impossible to say, either you defend or pay, it's make your mind up time

And edit the thread title and remove the word CCJ because you do not have a CCJ, yet

The_Slithy_Tove

If it's CEL you always defend. CEL deliberately inflate their claim by adding all sorts of debt collection costs that they haven't incurred, and the usual legal expenses they can't claim. Is it well in excess of £200?

They can really only claim the original charge of £100 (I assume it was) plus some other costs and court fees, which would come out to another £100 or so.

Therefore you do defend on all the normal points excepting the POFA non-compliance, which doesn't apply as they're suing you as the driver. Your defence will include challenges to all the extra charges. So even if you lose, those challenges ought to be upheld.

Follow precisely the advice in Post #2 of the NEWBIES sticky thread. Do the AoS online, but don't enter anything in the defence. That gives you a further 14 days to do your homework.

The_Deep

Of course yo fight it.

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.

KeithP

Progression wrote: »

The date was issued on the 17th July...

With a Claim Issue Date of 17th July, you have until Monday 5th August to do the Acknowledgement of Service, but there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox file linked from post #2 of the NEWBIES FAQ sticky thread. About ten minutes work - no thinking required.

Having done the AoS, you have until 4pm on Monday 19th August 2019 to file your Defence.

That's nearly four weeks away. Loads of time to produce a perfect Defence, but please don't leave it to the last minute.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

Progression

Yes the charge is now £293.76 well in excess of the original £100 charge, thank for your advice, I am certainly going to defend.

I will divulge into the details of the advice in the NEWBIES sticky thread and hopefully put together a decent draft defence.

Would it be okay to post here once its done for you guys to check over?

Thanks guys!

KeithP

Progression wrote: »

Would it be okay to post here once its done for you guys to check over?

Of course.

On other posts you will have seen that most people do that.

Progression

Hi , everyone i have recently received a County Claim Form from Northampton county court business centre regarding a parking fine at a gym for not using an iPad touch screen even though I recall using it and admitted to being the driver.

My POPLA appeal was rejected , there are no signs which say you are required to sign up to the gym touchscreen neither in or outside the gym and is a back alley set up with no marked parking areas, stupidly I did admit to being the driver in an appeal to the POPLA and said I did sign up on the day which CEL say they say they have no record of my car. They only have pictures of me entering and leaving.

I have filled out AOS and just needed some help regarding my defence. Any and all advice is welcome no matter how harsh.

THANKS everyone!

DEFENCE


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 £100 'parking charge notice' (PCN) for the lawful conduct described below.

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 patron of the facility.

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

4. The Claim Form issued on xx 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” which is the Claimant’s Legal Representative. The claim does not have a valid signature and is not a statement of truth. Practice Direction 22 requires that a statement of case and truth on behalf of a company must be signed by a person holding a senior position and that person or office must state the position held. If the party is legally represented, the legal representative must sign the statement of truth in their own name and not that of their firm or employer.

5. The Claimant has not complied with pre-court protocol (as outlined in the new Pre-Action Protocol for Debt Claims, 1 October 2017) and as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

6. The Particulars of Claim does not state whether the Defendant was the registered keeper and/or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paragraphs 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

7. The alleged breach, according to Civil Enforcement Ltd, is in contravention of terms and conditions. Visitors were expected to input their Vehicle Registration Number into a touchscreen system which was not displayed anywhere on the small sparse signs within the car park. The signs in this car park are not at all prominent, clear or legible from all parking spaces or upon entering the car park and there is insufficient notice of the sum of the parking charge itself. Other signs in this car park are sporadically placed and not clearly visible, especially in the evening when it's dark with no sufficient lighting. It is therefore very much possible to park and not be able to see any clear signage which complies with BPA requirements.

8. Furthermore, it is denied the areas to park are marked clearly as the car park consist of a back alley set up with houses , garages and other vehicles. It is no way clear in which area is designated for parking as they are not marked in anyway nor is this displayed on the inadequate signage.

9. 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.''

10. It is contended that the Claimant failed to alert regular local visitors to an onerous change and unexpected obligation to use an iPad, 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.''

11. 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.

12. . 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 patron, any commercial justification in the form of landowner support for such unfair ticketing is de facto absent.

13. 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.

14. This case is fully distinguished in all respects from ParkingEye Ltd 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.

15. 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 driver to somehow realise they need to input their VRN into an unseen keypad, in what the consumer is confident is an unrestricted free car park for patrons with no visible machines of any description, is indisputably a 'concealed pitfall' and cannot be described as a 'relevant obligation'.

16. 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.

17. 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.

18. By failing to adequately alert patrons to the keypad, 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.

19. 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.

20. 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 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.

21. 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.

22. Many informed Court Court Judges have disallowed all added parking firm 'costs' in County courts, such as these cases, struck out in recent months without a hearing, due solely to the pretence of adding 'damages' blatantly made up out of thin air.

(a) In Claim number F0DP163T on 11th July 2019, District Judge Grand sitting at the County Court at Southampton, struck out a overly inflated (over the £100 maximum Trade Body and POFA 2012 ceiling) parking firm claim without a hearing for that reason.

(b) In Claim number F0DP201T on 10th June 2019, District Judge Taylor 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. These include a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) where the abuse is inherent in the business model.

23. The Defendant has the reasonable belief that the Claimant has not incurred £XXXXXXXXXXX costs due to the aforementioned reasons to pursue an alleged £100 debt.. The Protection of Freedoms Act 2012, in Schedule 4, Para 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, as per the Defendants terms.

24. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no diligence, no scrutiny of details nor even checking for a true cause of action. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed mendacious in terms of the added costs alleged.

25. There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.


26. The Court is invited to make an Order of its own initiative under management powers pursuant to Civil Procedure Rules 3.4., dismissing this claim in its entirety as the claim discloses no cause of action, is without merit and no real prospect to defend 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 repeatedly attempting to claim fanciful costs which they are not entitled to recover.