CEL County Court Claim Defence

ActiveSec

Thank you for you help. Here is my latest defence. Do you think I should include something about Vine vs Waltham Forest which is in their POC. I see it is talked about on another post.


IN THE COUNTY COURT

CLAIM No: XXXXXXXXXX

BETWEEN: CIVIL ENFORCEMENT LTD (Claimant) and XXXXXXXXXX (Defendant)
________________________________________
DEFENCE
________________________________________


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

2. It is admitted that the Defendant company was the registered keeper of the vehicle in question at the time of the alleged incident and that an employee of the Defendant was the driver of the vehicle. However, the driver was not on company business nor in any way acting 'on behalf of' the Defendant company.

2.1. The location is an NHS Car Park and this visit was personal and occurred during a break. The driver was not undertaking work duties, therefore the law of agency cannot apply and thus the Defendant company is not liable for the actions of this driver.

2.2. Absent the law of agency argument, to hold this Defendant liable in law, the Claimant company would have to have fulfilled all requirements of Schedule 4 of the Protection of Freedoms Act 2012 ('the POFA') and this is denied. The following are all denied and the Claimant is put to strict proof:
(a) that 'adequate notice' of the parking charge existed (clear, unambiguous signs) and that a contract was formed, binding the driver who agreed to the £100 charge;
(b) that a 'relevant obligation' or 'relevant contract' existed and a breach of same occurred, with evidence that the driver was 'unauthorised' in some way;
(c) that the wording of their Notice to Keeper (NTK) complied with the POFA in all respects including the entire paragraph 9 and the requirements for making it clear that a company fleet may transfer liability;
(d) that the deadline for a compliant NTK being served, was met.

3. There is a large sign at the entrance of the car park however on the day in question it was obscured by foliage and so was not clear to the driver of the vehicle when entering the car park.

4. Further and in the alternative, it is denied that the claimant's signage within the car park sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom.

5. 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. it is also confusing that the car park is split into two sections each with their own signage.

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, and to pursue payment by means of litigation.

7. 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. The claim includes an additional £70, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

8. Costs on the claim - disproportionate and disingenuous

8.1 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.

9. 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.

10. The standard wording for parking charge/debt recovery contracts is on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process.

11. 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 and are already counted within the parking charge itself and there has been no legal advice or personal involvement by any solicitor in churning out this template claim.

12. 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.

13. Unlike this mendacious and greedy Claimant, ParkingEye themselves took on board the Beavis case outcome and they never add fake costs on top of the parking charge. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters, and all parking firms are very familiar with this case:

13.1 “at para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...”

13.2 “at para 193. ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.”

13.3 “at para 198. ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.”

14. 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.

15. 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.

16. 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). 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.

17. 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 earlier General Judgment or Orders of DJ Grand, who (when sitting at the Newport (IOW) County Court in 2018 and 2019) has struck out several parking firm claims. 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) yet the Orders have been identical in striking out both claims without a hearing, with the Judge stating: ''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...''

18. That is not an isolated judgment striking a parking claim out for repeatedly adding sums they are not entitled to recover. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated:

18.1 ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

19. 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 vexatious conduct from the outset has been intimidating, misleading and indeed untrue in terms of the added costs alleged and the statements made, in trying to justify the unjustifiable.

20. 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.

21. 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.

22. Statement of Truth:

22.1 I believe that the facts stated in this Defence are true.

Name

Signature

Date

KeithP

OK, it is now para 2, but this still need correction...

KeithP wrote: »

In para 3, you have still left the word 'authorised' in the phrase 'the [STRIKE]authorised[/STRIKE] registered keeper'.

There is no such thing as an authorised registered keeper.

Coupon-mad mentioned it, I have now mentioned it twice.

ActiveSec

KeithP wrote: »

OK, it is now para 2, but this still need correction...
There is no such thing as an authorised registered keeper.

Coupon-mad mentioned it, I have now mentioned it twice.

Thank you, I was sure I took that out. I've now edited the post to remove it.

Coupon-mad

Do you think I should include something about Vine vs Waltham Forest which is in their POC. I see it is talked about on another post.

Yes, you should respond to their POC and point out the absurdity of their adducing Vine v Waltham Forest, which in fact...blah blah (you can write the rest of that sentence yourself, once you've searched the forum for Miss Vine and read what's been written umpteen times before...).

ActiveSec

Coupon-mad wrote: »

Yes, you should respond to their POC and point out the absurdity of their adducing Vine v Waltham Forest, which in fact...blah blah (you can write the rest of that sentence yourself, once you've searched the forum for Miss Vine and read what's been written umpteen times before...).

Thank you for all your help I will amend defence to include V v W and send off today.

Do you think it be best to print on our company letterhead or leave on plain paper?

Coupon-mad

I think as you will be scanning it as an email attachment, signed by a director of the company, it may look more robust to put it in company letter head, maybe even just because it may make the scammers think twice.

The only annoying thing for a company defendant is, you don't get the right to choose you home court like an individual D would.

You can put in your home court at DQ stage and/or suggest one half way between you and the Claimant but you might not get it!

ActiveSec

Just received the Notice of Proposed Allocation to the Small Claims Track.

Do you think I should include the driver as a witness? I would prefer not to but will if you think it would improve my chances.

Coupon-mad

No, I say not needed. Better to defend as the company.

ActiveSec

Coupon-mad wrote: »

The only annoying thing for a company defendant is, you don't get the right to choose you home court like an individual D would.

Got a letter saying that they have transferred it to our local court. Happy days!

ActiveSec

I have now received a Notice of Allocation although it says a date will be sent later.

Should I wait for the Claimants WS before writing mine as I have read that some example WS which refer to the claimant WS.