Civil Enforcement LTD - AOS/Defense Stage

Dingo30

Hi all,

I recently received a letter from the Northampton 'business centre" due to claim by Civil Enforcement Limited.

I am looking to defend this case in my local court and would appreciate any advice/assistance regarding this as it seems so overwhelming even after having had studied the forum for what seems like an eternity.

The basics are that the driver parked in a car park which uses ANPR in front of a local council service which requires that one go inside and register one's plate number with the council service. It was past sunset so dark as well as dreary rainy weather. It was also the first time that the driver had used this car park in a long time and during previous occasions there was no charge to park there. The driver stayed for much less than one hour.

The keeper received no correspondence from UNTIL a final notice warning approximately 3 months later from Civil Enforcement and immediately went to the local council service to complain about this. A worker at the reception of the local council service was empathetic and informed the keeper that this happens regularly and that they could provide evidence of the the driver having been present utilizing the council service. Evidence was obtained and an appeal was made with Civil Enforcement. Their website said that the appeal had been lodged and they would respond within 14 days in writing.

As one can imagine, no letter from Civil Enforcement arrived. Calls were made to them to seek assistance and every angle was a dead end. An appeal was attempted with POPLA but without a number from Civil Enforcement this was impossible. Numerous calls were made and emails sent to Civil Enforcement but human communication with them was impossible.

This continued for months until a letter came seeking to settle for a reduced amount, The keeper, looking to save the time of researching and defending this ridiculous claim attempted to call and pay the reduced fee but when the PCN number was input the much higher number was quoted in the system. When the keeper went online to try to pay the reduced amount the same thing; they requested the full amount.

Then a letter arrived to the keeper's address from the Northampton "business centre" and now the AOS is required in addition to an eventual defense. While, I have read through most posts and feel confident in the AOS aspect, I am fearful of making a fatal mistake. Guidance would be a Godsend.

My first question is can it be definitively said that doing the AOS without any information for a defense at this stage is not a problem. As in, I have more time to file the defense once I have sent the AOS off?

Secondly, for arguments sake if I received the paperwork from the "court" and it had a date of December 1st 2019, is it correct that I have 5 days + 14 days to submit the AOS equaling December 20th in this hypothetical?

Dingo30

Umkomaas

Is the car park council owned?

My first question is can it be definitively said that doing the AOS without any information for a defense at this stage is not a problem. As in, I have more time to file the defense once I have sent the AOS off?

Absolutely. And it's defence in the UK.

Secondly, for arguments sake if I received the paperwork from the "court" and it had a date of December 1st 2019, is it correct that I have 5 days + 14 days to submit the AOS equaling December 20th in this hypothetical?

Yes, but there's no advantage to delaying the AOS, other than let the first 5 days go by, then put it in on the 6th day.

Please provide the date of issue shown on the claim and KeithP will confirm all your critical dates and the actions you need to take.

All the processes from the claim form right through to any hearing are detailed in the NEWBIES FAQ sticky, post #2, which you need to be all over from here on in.

Dingo30

Is the car park council owned?

No, the council service said it is privately owned.

And it's defence in the UK.

You got me... LOL... It makes this more daunting to me to deal with as my English is 'wrong'...

Please provide the date of issue shown on the claim and KeithP will confirm all your critical dates and the actions you need to take.

I'd prefer to pm him to keep Civil Enforcement off the scent.

All the processes from the claim form right through to any hearing are detailed in the NEWBIES FAQ sticky, post #2, which you need to be all over from here on in.

Thanks, I've been through it half a dozen times but I feel out of my depth in terms of the defense that would correlate with these particular set of circumstances...

KeithP

Dingo30 wrote: »

I'd prefer to pm him to keep Civil Enforcement off the scent.

He won't accept your PM.

How many claims do you think are issued by the County Court Business Centre every day?
I don't know either, but I bet is it is several hundred, if not more.

Please post the Issue Date from your County Court Claim Form on the open forum like everyone else does.

Dingo30

Please post the Issue Date from your County Court Claim Form

29 Oct 2019

KeithP

Dingo30 wrote: »

29 Oct 2019

With a Claim Issue Date of 29th October, you have until Monday 18th November 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 2nd December 2019 to file your Defence.

That's four 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.

Umkomaas

You got me... LOL... It makes this more daunting to me to deal with as my English is 'wrong'...

Simply compare how I've spelled it and how you have, littered throughout your thread.

We are based in the UK, not the USA!

Dingo30

Having done the AoS

Thank you for that. I've completed the AOS and will try to find a defense that matched my circumstances.

KeithP

Dingo30 wrote: »

Thank you for that. I've completed the AOS and will try to find a defense that matched my circumstances.

There are seventeen examples of Defences linked from post #2 of the NEWBIES thread.

There is a link to the NEWBIES thread in my earlier post.

And once again, there is no letter 's' in the word defence.

Dingo30

Morning,

I hope that someone will have time to check over the defence I compiled. Most parts have come from defences used by others however sections 4.3 and 4.3 have been written by myself in relation to specific aspects of my circumstances and those parts I am most worried about.

Also, I would like to add that I was unable to utilise the POPLA appeal process because CEL never replied to my 'appeal' and thus I never received the details needed to apply for POPLA appeal. I called CEL numerous times as well as emailing them requesting this. Where would it be advisable to add this if at all?

Thanks again,

---

Between

Civil Enforcement Ltd

v

XXXX XXXXXX


DEFENCE

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 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 proof of patronage which was shared with the Claimant during an appeal stage, and it is the Claimant’s own failure, caused by their deliberately obscure terms and iPad (or similar device) that catches out far too many victims at this location, that has given rise to a PCN that was not properly issued from the onset.

Unclear terms - unconscionable penalty relying upon a hidden keypad

4. According to the sparse signs in this car park, it now transpires that to avoid a Parking Charge and despite there being no Pay and 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.

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 regular visitors to an onerous change and unexpected obligation to use an iPad (or similar device), 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.''

4.3. Moreover, the Defendant discovered while gathering evidence to defend this frivolous Claim that the signage is made up of small sized font and devoid of a light source. Considering the alleged ‘offense’ occurred on a dreary evening in early January, well past sunset, the Defendant poses that unlit small size font signage created an unfair and unknown contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in that an inflated sum as compensation by an authorised patron using the premises as intended.

4.4. Due to the problematic and litigious nature or Civil Enforcement LTD a large (approximately 6 foot by 3 foot) banner has been erected in the foyer of the local council service provider informing patrons of their obligation since the date of the ‘offence’. Either the local council service paid for and installed it at their entrance to warn patrons and reduce their need to inform patrons so regularly or Civil Service LTD erected this banner due to pressure from the local council service provider (or another stakeholder) that the signage and instructions directing patrons to the iPad (or similar device) was insufficient when the Defendant incurred the alleged PCN.

5. Upon receiving the ‘final notice’ claim in March, over 60 days past the alleged infraction, the Defendant 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. Staff were incensed that these complaints were becoming a daily occurrence, blighting the local council services and upsetting patrons ever since the ill-advised contract began.

5.1. Staff at the facility stated that they now have to take time out to verbally prompt the customers that come in because the iPad (or similar device) used for signing in VRN details, and the sign used to indicate this, are far from obvious. Furthermore they expressed disgust with the Claimant suing their patrons and driving away people from their local council service.

5.2. 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, that private parking charges and the appeals systems were unlikely to be fairly weighted in favour of consumers. Nonetheless, the Defendant gathered evidence from the local council service facility attended that day and presented it to Civil Enforcement LTD with an appeal. The Defendant never received any notice from Civil Enforcement regarding that although their website informed that a decision would be made within 14 days.

5.3. 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 on hidden, punitive terms that purposely rely on drivers not seeing an unexpected obligation. Both the British Parking Association (‘BPA’) Trade Body as well as numerous companies operating similar to identical operations as Civil Enforcement LTD were 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 is 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 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 patron, 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 be 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 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.

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 Freedom Act 2012, Schedule 4 refers). Expecting a driver to somehow realise they need to input their VPN 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’.

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 both mandatory and binding upon any parking operator.

9.1. The ICO Code applied 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 prerequisite 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 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 patron, they have the right to ask the landowner/managers to cancel it. Clearly the Claimant’s interest is purely in misleading and punishing patrons 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 patrons 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 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 enabled an immediate route of cancelation, 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 charge 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 or 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 Claimant has 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 services provision, files many thousands of similar ‘cut and 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 service.

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 a 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 the Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

Redx

Add the popla issue in your WS , meanwhile complain to the BPA online about it , which you should have done at the time

If adding it to the defence , write a simple paragraph stating that CEL never replied to the initial appeal and therefore failed to provide popla as a means of ADR , thereby wasting the courts time. A complaint has now been raised with the BPA.

A lot of the background story above belongs in the witness statement , the defence should be concise and centre on legal arguments , address the POC , add no landowner authority and abuse of process with double recovery , plus raise the CRA 2015 as part of the abuse section

Save the story for the WS