parking fine gone to court

Abzg2k19

so i been ignoring letters from civil enforcement ltd since last year October after my father had a appointment at a clinic that the parking is operated by cel. it is a small car park about 10 spaces for parking right next to a pharmacy and dental clinic and upon entering theres a residents parking only sign but if u go to the pharmacy or the clinic they got a iPad there where you can type your reg in for free parking. my father also had a blue badge so thinking he could park free anyway he didn't thought about the parking and never saw the signs and no one in reception told him to type in his reg for free parking. after 2 weeks we received a pcn through the post i had the appointment letter,photocopied it and posted it to them recorded delivery still got receipt to prove but they reject the letter was told to ignore as you sent them a letter so they wont take you to court but they kept sending letters till last month but have sent a county claim form instead now my father was just the driver not the registered keeper my mother is the registered keeper.


I have been reading the newbies forum I have sent a SAR but it was after I got the ccl but haven't received anything back after 2 weeks so I have made a defence and still got the appointment letter but was wondering what u guys think any help will be highly appreciated

Abzg2k19

In the County Court
Claim Number: xxxxxxxx
Between
Civil Enforcement LTD
v
xxxxxxxxxxx
DEFENCE
In the matter of court claim, xxxxxxx, I am xxxxxxx, the defendant in this matter and the registered keeper of vehicle xxxxxx. I can be served at the address on the claim form. I deny I am liable for the entirety of the claim on the following grounds:
Background - the driver was an authorised patron of 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 £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 driver has already proved that patronage, and it is the Claimant's own failure, caused by their deliberately obscure terms and iPad 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.
The Claim Form issued on 23rd September 2019 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.
Unclear terms - unconscionable penalty relying upon a hidden keypad
4.The signage at the enterance of the car park is of a forbidding nature. It is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship. I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.
5. According to the sparse signs in this car park, it now transpires that to avoid a Parking Charge and despite there being no Pay & Display machines or similar, visitors were expected to know to input their Vehicle Registration Number (VRN). This was far from clearly signed and the purported keypad was nowhere to be seen.
6. The Claimant is a serial litigant whose business model is to file large numbers of spurious claims and pressure defendants into paying up by sending letters increasing costs. In a preliminary hearing for a number of cases in Bristol, HHJ Denyer expressed his concern at the way CEL were conducting their cases and described the letters as a disgrace.
7. 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.
8. The alleged breach, according to Civil Enforcement Ltd, is in contravention of terms and conditions. The signs in this car park are not at all prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself. Only one small sign is clearly visible, positioned directly in front of the car park entrance. The words "Residents Parking" are displayed on this sign, but this sign is misleading as although it states terms apply, it doesn't state what those terms are. 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 possible to park and not be able to see any clear signage which complies with BPA requirements. Civil Enforcement Ltd are required to show evidence to the contrary.
9. Upon receiving the claim, the Driver researched this all too common 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. The Receptionist was incensed that these complaints were becoming a daily occurrence, blighting the business and upsetting customers ever since the ill-advised contract began, yet the business was now stuck with it for the time being.
9.1. The only route offered was a supposed 'appeal' to Civil Enforcement LTD themselves, but the Driver 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 consumers.
9.2. 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
10. 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 patrons even when the business in fact supports the Driver in wanting an unfair charge to be cancelled.
11. 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.
11.1. Further, there was no overstay nor any mischief to deter, nor was there any misuse of a valuable parking space by the Driver, 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.
11.2. 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.
12. 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'.
13. 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.
13.1. 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
14. If a parking firm was truly acting in good faith and keeping the interests of consumers at the heart of their thinking, they would concentrate on ensuring firstly, that patrons could not miss the keypad(s) and secondly, could not miss the fact that, if they did receive an unfair PCN as a genuine customer, they had a right to ask the landowner/Managers to cancel it. Clearly the Claimants interest is purely in misleading and punishing customers and extracting as much money as possible in three figure penalties, given that this is the only way Civil Enforcement LTD make any money.
15. 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 consumers for not trying a futile 'appeal' to them, whilst themselves hoping the Driver does not discover that Civil Enforcement LTD withheld the option of landowner cancellation all along.
15.1. 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.
Inflation of the parking charge and double recovery - an abuse of process
16. The Claimant has added unrecoverable sums to the original parking charge. The claim amount far exceeeds the total permitted for recovery for a parking charge amount under the Claimant's ATA Code of Practice. It is believed that the employee who drew up the paperwork is remunerated, and the particulars of claim are templates, so it is simply not credible that £50 legal representative's costs were incurred. The Driver believes that Civil Enforcement Ltd has artificially inflated this claim. The claim was intentionally moved around various debt and collection companies in order to inflate the charge before court action was taken. They are claiming legal costs when not only is this not permitted (CPR 27.14), but the Defendant believes that they have not incurred legal costs. According to Ladak v DRC Locums UKEAT/0488/13/LA, the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost. The Defendant denies that the Claimant is entitled to any interest whatsoever. The claimant has not explained how the claim has increased from the original parking notice to £257. If the Claimant alleges that they claim the cost of its in-house administration, these cannot be recovered - they are staff performing the task that they have been employed for and essential to the Claimant's business plan.
17. 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.
18. 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.
19. 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.
20. 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

KeithP

What is the Issue Date on your County Court Claim Form?

Abzg2k19

The issure date is 23rd September but have filled the aok i think its called so got till this monday

KeithP

Abzg2k19 wrote: »

The issure date is 23rd September but have filled the aok i think its called so got till this monday

Your Defence filing target date is a little adrift.

With a Claim Issue Date of 23rd September, and having done the Acknowledgement of Service, I think that's what you mean, in a timely manner, you have until 4pm on Monday 28th October 2019 to file your Defence.

That's two weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.


When you are happy with the content, your Defence could 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.

1505grandad

"I have been reading the newbies forum I have sent a SAR but it was after I got the ccl but haven't received anything back after 2 weeks so I have made a defence and still got the appointment letter but was wondering what u guys think any help will be highly appreciated"

Who is the registered keeper of the vehicle

Who's name is on the Court docs as the Defendant

Obviously do not state real names - just use "me"/"father" etc

Abzg2k19

The registered keeper is my mother
The county court letters are also addressed to my mother but it was my father that was driving at the time

Abzg2k19

are you sure? i done the acknowledgement of service on 30th September thinking its just gives u extra 14days so total will be 28 days so that be 21st October if I'm not wrong
This is what is says on the mcol
Your acknowledgment of service was received on 30/09/2019 at 01:15:15

KeithP

Abzg2k19 wrote: »

are you sure? i done the acknowledgement of service on 30th September thinking its just gives u extra 14days so total will be 28 days so that be 21st October if I'm not wrong
This is what is says on the mcol
Your acknowledgment of service was received on 30/09/2019 at 01:15:15

Yes, I am sure.

Have a look at page 14 of the Money Claim Online (MCOL) - User Guide, where it says:

How long does the defendant have to respond to my claim?

The court will send out a claim pack to each defendant once the claim has been issued and allows 5 calendar days from the date of issue for the service of the claim. Therefore the 'date of service' is the 5th calendar day after issue.

The defendant has 14 calendar days from the 'date of service' to file a response. If the last day for filing the response falls on a day that the court is not open (i.e. a weekend or public holiday), the court will allow the next full working day for a response. The defendant can extend the time to respond to 28 calendar days by filing an acknowledgment of service (AOS).

With a Claim Issue Date of 23rd September, the Date of Service becomes 28th September. By doing the AoS you extended the Defence filing deadline to 28 days after the Date of Service - 26th October 2019.

As 26th October is a Saturday, you have until 4pm on Monday 28th October 2019 to file your Defence.

1505grandad

"The registered keeper is my mother
The county court letters are also addressed to my mother but it was my father that was driving at the time"

So just to be sure - when you say "I" did AOS, "I" sent SAR, "I" have made a defence - all those are in your mother's name and your name does not appear on anything?

Abzg2k19

That's great to hear i was rushing around for no reason then thinking i got till this Monday wish i posted on here sooner.
So what u think about my defence will it do?
Any advice will be appreciated