CEL - County court claim

craigibabi

Hello everybody.
Here is where i am at..
On 9th February 2019 i entered a car park at KFC with my vehicle. A car park i have been in many times without any bother. Up to this point i was aware that we could park here for 90 minutes free parking as this was displayed on the signs. There was not any machines then and there is no machines now. We left 1 hour and 55 minutes later, however i wasn't aware at the time of how late i was until i had my first letter come from Civil enforcement parking and they state that ANPR cameras detected the time of arrival and the time left. They also state the free parking time is 60 minutes, which i thought was odd, and on seeing this i drove back to the car park and the signs had been changed to 60 minutes and there was ANPR cameras that i never noticed before. My wife was adamant that when we initially parked the signs stated 90 mins. She then went into KFC and asked them about the signs and one of the workers said they hadn't been changed long. I feel that this is irrelevant as i overstayed the 90 mins anyway and i don`t remember the dates. I do not remember the date of the first letter, or second or third as i threw them in the bin. I do however remember the change of claimant, zzr i think and some solicitors.
As i read through the forums now i realise i have acted wrongly in doing this. I am hoping now though that i am going down the right track, but i`m not sure if i have a defence at all?
A bit of a timeline starting from where i started taking notice unfortunately:
I have received a letter before action from CEL on the 12th of September. I have received a claim form from CCBC issued on the 30th Oct. I have received a POC from CEL on the 4th Nov. I registered with MCOL and did AOS on the 10th Nov, and this was received the day after.I sent a Subject to access to CEL as advised in the sticky bit.

I am however thinking that through my ignorance of not checking, having got away with this for many years its my fault i overstayed and should have just payed the original amount which i think was 75 quid. The amount claimed now is at £267.45 as stated on the claim form.
Am i wasting everybody's time and just pay this now or not?
Thankyou

KeithP

craigibabi wrote: »

I have received a claim form from CCBC issued on the 30th Oct. I registered with MCOL and did AOS on the 10th Nov.

With a Claim Issue Date of 30th October, and having done the Acknowledgment of Service in a timely manner, you have until 4pm on Monday 2nd December 2019 to file your Defence.

That's nearly three 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.

beamerguy

craigibabi wrote: »

I am however thinking that through my ignorance of not checking, having got away with this for many years its my fault i overstayed and should have just payed the original amount which i think was 75 quid. The amount claimed now is at £267.45 as stated on the claim form.
Am i wasting everybody's time and just pay this now or not?
Thankyou

Of course you don't pay, CEL are just scammers adding on fake fees.

How do they break down the claim. Clearly they are ignorant of what was ruled in the southampton court yesterday that involved BWLEGAL and BRITANNIA PARKING. >>>>> THEY LOST

BWLegal appealed the ruling of Judge Taylor on the 11th Nov 2019 in Southampton court.
The was heard by DJ Grand and present was coupon-mad and the claimant sent a Barrister who failed.
BWLEGAL/BRITANNIA LOST. For the full court report by coupon-mad click this link
https://forums.moneysavingexpert.com/discussion/6006850/bw-legal-portswood-car-park-southampton&page=4 .... POST # 79

ABUSE OF PROCESS
https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

craigibabi

Thanks all for such a quick reply.
After reading what went on in court and coupon-mads involvement its given me a kick to fight back. Even though i know im wrong about initially over staying, its the inflated claim.
Beamerguy... the breakdown on the claim sheet under particulars of claim:
Outstanding debt and damages
DATE - DESCRIPTION - AMOUNT - DUE DATE
09/2/19 Ref9623060262 182.00 09/02/19
Total due 182.00
The claimant claims the sum of 192.45 for outstanding debt and damages including 10.45 interest pursuant to s.69 of the county courts act 1984
Rate 8.00% pa fom dates above to 29/10/19
Same rate to judgement or (sooner) payment
Daily rate to judgement- 0.04
Total debt and interest due- 192.45
I will provide the defendant with separate detailed particulars within 14 days after service of the claim form.

At the bottom of the same form it states,

The claimant believes that the facts stated in this claim form are true and i am duly authorised by the claimant to sign this statement.
Signed S Wilson Civil Enforcement Ltd (claimants legal representative)

The form isnt actually signed though.


Do i wait now to hear back from CEL with the SAR so i can break down the costs, as i dont remember how it got to £182 in the first place?
Thanks again

Coupon-mad

You don't wait, no, clearly you must do the AOS if you have not already (as the NEWBIES thread tells you and shows you in pictures) and then prepare your defence.

craigibabi

Hi coupon-mad.
I have already done my AOS and have until 2nd December to prepare my defence. Is my defence the inflated costs and the small writing on the signs? Other than that what defence do I have??
Thank you

KeithP

craigibabi wrote: »

Hi coupon-mad.
I have already done my AOS and have until 2nd December to prepare my defence. Is my defence the inflated costs and the small writing on the signs? Other than that what defence do I have??
Thank you

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

Read them all and find one that nearly fits your circumstances.
Adjust it so that it matches your situation.

I gave you a link to that thread in my earlier post.

Coupon-mad

And the fact that the recently changed time restriction had not been prominently and transparently displayed:

i drove back to the car park and the signs had been changed to 60 minutes and there was ANPR cameras that i never noticed before

The BPA CoP has a section about new restrictions needing EXTRA signage.

craigibabi

Ok Keith will do. Thanks for your patience and everyone's help.

craigibabi

Sorry about the slight delay in drafting this, ive been busy with my daughter whos been ill and we are in the process of getting the house ready for sale.

Im sure you guys can think of more but this is what ive picked out from previous defences.

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

CIVIL ENFORCEMENT LTD (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. It is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.
3. 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.
4. 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.
5. The Defendant has the reasonable belief that the Claimant has not incurred £60 costs 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.
(Im waiting for them to send me a SAR with all the info that they have previously sent me, as im not sure how they got to the £182.00 before £10.45 interest. Im not sure what actual costs they have added)
6. In summary, the Claimant's particulars disclose no legal basis for the sum claimed, and the Court is invited to dismiss the claim in its entirety.


Im not sure about item 5 as in the POC on the claim form it doesnt break down the 182 damages and outstanding debt, it doesnt break it down on the POC they sent me separately either.


Also on the POC form they sent me separately, it has the statement of truth which is all printed, and it is signed off in a computerised joined up font. Do i need to address this in the defence or is there nothing in this?

Thanks

Coupon-mad

Also on the POC form they sent me separately, it has the statement of truth which is all printed, and it is signed off in a computerised joined up font. Do i need to address this in the defence or is there nothing in this?

That's OK as an electronic signature connected to an MCOL online claim.

Here and in several other threads we've discussed that the sum of £182 makes no sense, and I searched but can't find a thread where they have ever broken it down (not that it matters):

https://forums.moneysavingexpert.com/discussion/comment/75961281#Comment_75961281

I have no idea how they think they can morph £100 PCN into £182, but they can't!

I would change your ending from 5 onwards to this which incorporates the wording we suggest from post #14 of the Abuse of Process thread here:

https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

5. The Defendant has the reasonable belief that the Claimant has not incurred an additional £82 in damages or costs to pursue an alleged £100 debt, for the following reasons:

6. The arbitrary addition of a fixed sum purporting to cover 'damages/costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 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.

7. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £82 'damages/costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, binding case law and two statute laws have the effect that the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.

The Beavis case is against this Claim
8. Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. 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. 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.

8.1. This charge is unconscionable and devoid of any 'legitimate interest', given the facts. To quote from the decision in the Beavis case at Para [108]: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''. Ad at [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''

8.2. In the Beavis case it was said at para [205]: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

8.3. 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...''

8.4. 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.'' and 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.''

The POFA 2012 and the ATA Code of Practice are against this Claim
9. The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') at paras 4(5) and 4(6) 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' (further, 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.

The Consumer Rights Act 2015 ('the CRA') is against this claim
10. Further, the purported added 'costs' are disproportionate, vague and in breach of the CRA 2015, Schedule 2: 'terms that may be unfair'. This claim is a worse abuse of process than most, as this Claimant has arbitrarily added an extra 82% of the parking charge in a disingenuous double recovery attempt that has already been exposed and routinely disallowed by other Courts in England and Wales, where other parking firms add an unrecoverable £60 sum, made up out of thin air. It is atrocious that this is allowed to continue, given the number of victims who pay when they receive the Claimant's exaggerated Letter before Claim, or the claim form, or the thousands who suffer a default judgment.

10.1. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated: ''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 in 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.''

10.2. That decision in Wales was appealed by VCS but the added £60 was still disallowed on 30 Oct 2019, where District Judge Jones-Evans stated that even in cases parking firms win, he never allows the £60 add on, and despite parking firms continuing to include it in their Particulars, most advocates have now stopped pushing for it at hearings. The Judge said that a contract formed by signage is a deemed contract, which the motorist does not have the opportunity to negotiate. That, and the fact that there is no specified sum on the signage, means that the extra £60 cannot possibly be recoverable. He said that the £60 was clearly a penalty, and an abuse of process. The considered sum in that case was reduced to £100 with a full case hearing to follow, but the £60 would not be awarded under any circumstances, and further, he ordered that the Claimant must now produce a statement of how they pleaded claims prior to Beavis, and subsequently.

10.3. In Claim numbers F0DP806M and F0DP201T - BRITANNIA PARKING -v- Mr C and another - less than two weeks later - the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton-Douglas Hughes QC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire.

10.3.1. Cases summarily struck out in that circuit included BPA members using BW Legal's robo-claim model and IPC members using Gladstones' robo-claim model, and the Orders from that court were identical in striking out all such claims without a hearing during a prolonged period in 2019, 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 the Beavis case. 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...''

10.3.2. BW Legal made an application objecting to two 'test' cases that had been struck out by District Judge Taylor against a parking firm for trying to claim for £160 instead of £100 parking charge. This has been repeated conduct in recent years, on the back of the Beavis case, where parking firms have almost unanimously contrived to add £60, or more, on top of the 'parking charge'. Members of both ATAs have even voted to have this imaginary 'damages/debt collection' sum added to their respective two Codes of Practice, to create a veil of legitimacy, no doubt to allow their members to confuse consumers and to enable them to continue to 'get away with it' in several court areas which are still allowing this double recovery.

10.3.3. That N244 application to try to protect this cartel position of all the parking firms using BW Legal, was placed before the area Circuit Judge and a hearing was held on 11th November 2019, with a number of other parking charge cases in that circuit remaining struck out or stayed, pending the outcome.
The Defendants successfully argued on points including a citation of the CRA 2015 and the duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that falls upon the courts, whether a consumer raises the issue or not). All three points below were robustly upheld by District Judge Grand, sitting at the Southampton Court, who agreed that:
(a) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA, due to paras 4(5) and 4(6).
(b) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.
(c) The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the POFA para 9.

10.3.4. At the hearing, the Judge refused their request to appeal. It was successfully argued that the parking firm's consumer notice stood in breach of the CRA 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14. Using the statutory duty upon the Courts to consider the test of fairness and properly apply schedule 2 of the CRA 2015 it was irrelevant whether or not the consumers' defences had raised it before, which they had not.

10.3.5. A transcript will be publicly available shortly. In his summing up, it was noted that District Judge Grand stated: ''When I come to consider whether the striking out of the whole claim is appropriate, that the inclusion of the £60 charge means that the whole claim is tainted by it, the claimant should well know that it is not entitled to the £60. The very fact that they bring a claim in these circumstances seems to me that it is an abuse of process of the court, and in saying that, I observe that with any claim that can be brought before the court that if a party doesn't put in a defence to the claim, default judgments are entered. So, the Claimant, in bringing the claims is, in other cases, aware that if the defendant doesn’t submit a defence, the Claimant is going to get a judgment of a knowingly inflated amount. So I conclude by saying that I dismiss the application to set aside Judge Taylor’s ruling.''

10.4. Consumer notices - such as car park signs - are not excused by the 'core exemption' as set out in the CRA 2015. The CMA Official Government Guidance says: ''2.43 In addition, terms defining the main subject matter and setting the price can only benefit from the main exemption from the fairness test ('the core exemption') if they are transparent (and prominent) – see part 3 of the guidance.'' and at 3.2 ''The Act includes an exemption from the fairness test in Part 2 for terms that deal with the main subject matter of the contract or the adequacy of the price, provided they are transparent and prominent. (This exemption does not extend to consumer notices but businesses are unlikely to wish to use wording that has no legal force to determine 'core' contractual issues).''

10.5. The definition of a consumer notice is given at 1.19 and the test of fairness is expended at 1.20: ''A consumer notice is defined broadly in the Act as a notice that relates to rights or obligations between a trader and a consumer, or a notice which appears to exclude or restrict a trader’s liability to a consumer. It includes an announcement or other communication, whether or not in writing, as long as it is reasonable to assume that it is intended to be seen or heard by a consumer. Consumer notices are often used, for instance, in public places such as shops or car parks as well as online and in documentation that is otherwise contractual in nature. 1.20 Consumer notices are, therefore, subject to control for fairness under the Act even where it could be argued that they do not form part of the contract as a matter of law. Part 2 of the Act covers consumer notices as well as terms, ensuring that, in a broad sense any wording directed by traders to consumers which has an effect comparable to that of a potentially unfair contract term is open to challenge in the same way as such a term. There is no need for technical legal arguments about whether a contract exists and whether, if it does, the wording under consideration forms part of it.''

11. 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, harassing and indeed untrue in terms of the added costs alleged and the statements made.

12. The Defendant is of the view that this Claimant knew or should have known that to claim in excess of £100 for a parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015, and that this conduct constitutes a serious abuse of process, for which relief from sanctions should be refused.

13. If this claim is not struck out for the same reasons as the Judges cited in the multiple Caernarfon and Southampton cases, then liability will be refuted and full costs will be sought by the Defendant at the hearing, such as are allowable pursuant to CPR 27.14.



Statement of Truth:

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


Name

Signature


Date