CEL CCJ - Successfully Set Aside but 'On condition that ...' So confused - help!

Hill_Hill_Hill

Hi Gurus,

Thank you to everyone on here for all the great help and advice, especially with putting together the newbie thread.

I had a mystery CCJ from a bogus parking fine and followed the NEWBIES thread advice. I expect CEL read these posts so want them to know I will fight their underhand behaviour to the bitter end.

The Judgement reads: 'The judgement against XXXX dated 2018 be and is hereby set aside on conditions that the defendant do file and serve a fully particularised defence setting out in clear terms the basis for denying the claim by (14 days)'

The judge told me I had the burden of proof in the set aside hearing, do I still hold the burden of proof? The court fees were not refunded.

I told the judge I had not received any post from CEL, but they told me all post was correctly served, how can this be?
(I was serving in the military during the time and moved house, all my listed properties were attended by people who forwarded my mail [family, wife etc], I still dont understand where the court sources my address from as the address on the court documents is an old address, but it was posted to my correct address. Also, how can CEL have 'served' me if I have not received any documents from them?!)

The judge told me the supreme court had judged that all parking charges were now perfectly legitimate, how can I defend my case?

Jan 2018 was an extremely long time ago, I would have paid the fine if I received it and want to avoid having a CCJ for professional and personal finance reasons.

Can you help?

Thank you

Timeline below (dates and names redacted):

. a. MAY 19 –
. i. Defendant notified by employer of a default CCJ on credit file CCJ
. ii. Defendant contacted Experian via phone to get more information about the default CCJ as he was unaware of it
. iii. Defendant did a credit search on Experian and also CCJ search on Registry Trust Ltd, both of which contain scant information of default CCJ
. iv. Defendant contacted XXXXX County Court, is given scant details of default order and a premium number to contact Civil Enforcement Ltd.
. v. Defendant promptly called Civil Enforcement Ltd at the premium phone number provided, but gets no further information
. b. MAY 19 –
. i. Defendant files a set-aside appeal at XXXX County Court.
. c JUNE 19 –
. i Defendant pays N244 court fees
. d SEPT 19 –
. i HM Courts & Tribunals Service inform Defendant they have lost original N244 legal documents in transit between XXXX County Court and YYYY County Court
. e SEPT 19 –
. i Defendant submits N244 second time
. f NOV 19 –
. i Judgement set aside on conditions of submission of particularised defence denying the claim


CLAIM FOR MONIES RELATING TO A PARKING CHARGEFOR PARKING IN A PRIVATE CAR PARK MANAGED BY THE CLAIMANT IN BREACH OF THE TERMS + CONDITIONS (T+CS). DRIVERS ARE ALLOWED TO PARK IN ACCORDANCE WITH T+CS OF USE. ANPR CAMERAS AND/OR MANUAL PATROLS ARE USED TO MONITOR VEHICLES ENTERING + EXITING THE SITE.DEBT + DAMAGES CLAIMED THE SUM OF 170.00 VIOLATION DATE: XX/01/2018 TIME IN: 17:22 TIME OUT: 18:37 PCN REF: REFXXXXXX CAR REGISTRATION NO.: XXXXXX CAR PARK:- XXXX ROAD TOTAL DUE- 170.00 (REF:[CEL-website] OR TEL:01158225020)THE CLAIMANT CLAIMS THE SUM OF 179.72 FOR MONIES RELATING TO A PARKING CHARGE PER ABOVEINCLUDING 9.72 INTEREST PURSUANT TO S.69 OF THE COUNTY COURTS ACT 1984 RATE 8.00% PA FROM DATES ABOVE TO- 28/09/18 SAME RATE TO JUDGMENT OR (SOONER) PAYMENT DAILY RATE TO JUDGMENT- 0.04 TOTAL DEBT AND INTEREST DUE- 179.72

Name
XXXXX (Name spelt wrong)
Address
XXXXX (Old Address)
Court name
NORTHAMPTON COUNTY COURT
Case number
XXXXXXX
Amount
277
Confirmed by
Registry Trust Ltd
Date issued
Oct 2018
Type
Judgment
Notes
If you have paid a judgment you should contact the court and make sure they are informed. You may wish to request a Certificate of Satisfaction as proof of the change. We will be told that the judgment is satisfied and we will update our records. For further information please see the Report Guide.

Hill_Hill_Hill

Additionally, a SAR was served to CEL on 19 Nov

Hill_Hill_Hill

Should I provide a Witness Statement, Skeleton Argument and Particularised Defence?

Hill_Hill_Hill

Hi everyone, no response from the forum, is there something wrong with the post?

Coupon-mad

Nope, we are just very busy and no-one saw it!

The judge told me the supreme court had judged that all parking charges were now perfectly legitimate, how can I defend my case?

Which Judge, which court, and he/she cannot have said those exact words.

The Judgement reads: 'The judgement against XXXX dated 2018 be and is hereby set aside on conditions that the defendant do file and serve a fully particularised defence setting out in clear terms the basis for denying the claim by (14 days)'

Should I provide a Witness Statement, Skeleton Argument and Particularised Defence?

I would do all of the above, given the words you think the Judge said, as they don't sound too clued up, given that we win 99% of cases defended.

You need to read other recent CEL cases and copy from them, like here:

https://forums.moneysavingexpert.com/discussion/6068025/civil-enforcement-limited-court-claim

https://forums.moneysavingexpert.com/discussion/comment/76506278#Comment_76506278

What do you know about the parking event?
What do you know about the car park?
Do you reckon you were NOT likely to be the driver, due to being abroad?

All of that needs to go near the start.

The longer stuff towards the end about the added £82 should probably be separated into a skeleton argument page, with these exhibits appended:

- the Caernarfon judgment
- the IOW/Southampton order from the Summer, where DJ Grand summarily struck out several cases for exceeding the £100 which is the most that can be recovered
- the CRA 2015 sch2 with 6, 10 and 14 highlighted
- the CRA 2015 para 71 about the duty of the court to consider FAIRNESS of terms
- the guidance on the CRA which says consumer notices are NEVER exempt from the test of fairness
- the POFA sch 4 with para 9 and the bit about 'adequate notice' highlighted
- the Beavis case quotes 98, 193 and 198 all copied onto a page as evidence
- any evidence that you were not driving

Read CEC16's thread and beamerguy's 'Abuse of Process' thread para 14. The links and explanations about all of the above are there!

Hill_Hill_Hill

Thanks so much for your reply, just had a chance to get back to this.

Very grateful, will assimilate and make next steps.

Thanks again

Hill_Hill_Hill

Working on the defence now, the defence templates I am seeing on the forum all seem to be in response to claims put forward by the claimant (CEL).

Again, thank you.

I cannot refute any claim because I haven't received one. I don't know what I am supposed to be defending against? Is there a way I can access their claim?

I never received a claim, only saw my CCJ via Experian after my employer brought it up with me.
Having posted the N244 and attended my set aside hearing (successfully and which CEL did not attend) I am now being told to submit my defence - but, to what? I am stating that I don't owe them money. Why do I now need to prove that I don't owe them money? Is it worth me just calling them up and asking to make a deal with them as the cash is less important to me than removing the CCJ, which is now set aside although the judge stated 'on condition that [a defence is served - as above]'.

Should my witness statement, skeleton argument and particularised defence simply refute the claim? (Still not confident on the difference between the three). Other people had access and permission to drive my car at the time (from my military base) and I was on duty during the time of the incident, although the exact particulars of that day/week are hazy as it was nearly 2 years ago. The details of my service and the role/activity is sensitive so I really don't want to divulge too much information.

Thank you!

nosferatu1001

Try the CCBC - with a judgement ref you should be able to get them to find it. Be warned, theyre crap when it comes to naswering the phone.

Of course you have to defend it - same as any claim! In a normal claim they make a claim against, you , you submit a defence, then some more docs are exchanged, and a hearing takes place
Youre at step 2 - writing your defence.

Defence - arguments why youre not liable
WS - facts of the events, which show youre not liable. This is NOT THE SAME as a WS for a *set aside* which is only to do with the *judgement* and why the *judgement* should be set aside. The WS for a court hearing is to support the defence and talks about the facts of the *event*that gave raise to the claim, and the events afterwards.
Skellie - a summary of your best arguments, how their claim is crap, etc. Optional in small claims.

So your defence would be along the lines of:

1_ You were the registered keeper however as you were on service in... at the material time you were not in fact the actual keeper of the vehicle, nor were yo uthe driver
2) the actual keeper would be one of X drivers on your military base at ... where the keys wer eleft in possession of ...
3) the driver would be anyone of a number of people, at least Y, who were authorised to use the vehicle fortheir private business.
4) The claimant has never gained the right to claim from me as Registered Keeper of the vehicle, as I was not the Keeper, and they have failed to meet the conditions of POFA to hold the Keeper liable in any event
5) The claimant was not in possession of the land and has no authority to offer contracts to any driver. Without an accepted contract there is no possible claim
6)...

See how much you can write!

DoaM

OP's problem at the moment though is that they don't know in any way at all what was the basis of CEL's claim.

Was it an overstay?
Was it parking outwith the boundaries of a parking space?
Was it parking where parking is not allowed?
Where and When was the alleged parking event?

Without any particulars whatsoever then all the OP can do is throw the kitchen sink at it and try to cover all bases (and make it clear that they are doing so due to no particulars of claim having ever been received from the claimant).

Hill_Hill_Hill

Thankyou all so far - you are unbelievable people, thank you.

Draft 1 below.

CouponM - Amazing, cheers, I'm hesitant to name the court and DJ, but they are recently appointed and was clear to me that she would be overseeing the next steps in the case.
Ref the event, I only know the details I've included in the original post.
Ref the car park, its a KFC carpark amongst a group of other carparks, I have not had the ability to visit it since discovering the CCJ.
Nos - cheers, appreciated and included
Doam - Yes, overstay, thanks

In the County Court at XXXXXX

Claim No.: XXXXXX
Between

CIVIL ENFORCEMENT LTD.
(Claimant)

-v-

XXXXXX
(Defendant)

DEFENCE

I am XXXXXX, of XXXXXX, and the defendant in this matter.

Contents of this Defence include;

• Defence Statement

• Particularised Defence

DEFENCE STATEMENT

Following are the sequence of events, thus –

. a. MAY 19 –
. i. Defendant notified by employer of a default CCJ on credit file
. ii. Defendant contacted Experian via phone to get more information about the default CCJ as he was unaware of it.
. iii. Defendant did a credit search on Experian and also CCJ search on Registry Trust Ltd, both of which contain scant information of default CCJ
. iv. Defendant contacted Northampton County Court, is given scant details of default order and a premium number to contact Civil Enforcement Ltd.
. v. Defendant promptly called Civil Enforcement Ltd at the premium phone number provided, but gets no further information
. b. XXXXXX MAY 19 –
. i. Defendant files a set-aside appeal at Northampton County Court and pays court fees.
. c XXXXXX SEPT 19 –
. i HM Courts & Tribunals Service inform Defendant they have lost original N244 legal documents in transit between XXXXX County Court and XXXXX County Court
. d XXXXXX SEPT 19 –
. i Defendant submits N244 second time
. e XXXXXX NOV 19 –
. i Judgement set aside

1. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge they are true to the best of my information and belief.

2. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Statement in support of my defence as simultaneously filed.

3. I assert that I was the registered keeper of the vehicle in question in this case at the time of the incident. I was not the driver nor the actual keeper. I was working within XXXXXX at the time of the incident. On the balance of probability, the actual keeper would have been one of the >20 members of the XXXXXX I resided, whom had access to the vehicle at the time of the alleged contract. The driver would be any one of a number of people, at least XXXXXX, who was authorised to use the vehicle for their private business. The claimant has never gained the right to claim from me as Registered Keeper of the vehicle, as I was not the Keeper, and they have failed to meet the conditions of POFA to hold the Keeper liable in any event

4. I have not received any documentation from the Claimant at any time until I submitted the N244 and arranged the set-aside hearing, following which they contacted me via post to persuade me to settle on a claim for which I have no details. I then submitted a Royal Mail tracked Subject Access Request to ascertain the reasoning of their claim. This Subject Access Request has been ignored.

5. The Claimant has not provided me with any information about the parking event which was allegedly captured by cameras, the court lost my original defence paperwork in the post, the Claimant did not bother to attend the set aside hearing, the Claimant has ignored my Subject Access Request and now I am defending an alleged contract for which there is no evidence even existed and for which I have no information about, for a wildly inflated figure of £277 for a parking charge. They wrote to me stating theirs costs were in fact £60 and yet still pursue a figure increased by 361%. It is evident this is yet another example, like the cowboy clampers, of a scam company attempting to squeeze money out of members of the public through their ability to use loopholes and industry knowledge to abuse the legal system and exploit positive contributors to society. The recent Supreme Court judgement is absolutely in my favour and cannot be used to sweepingly legitimise these bogus companies undergoing reckless hijacking of the judicial system.

6. The claimant was not in possession of the land and has no authority to offer contracts to any driver. Without an accepted contract there is no possible claim.

7. I also point out to the presiding Judge that the Claimant has not supplied any evidence at all that the alleged contraventions even occurred. ANPR camera photos, were they to be submitted, merely show a vehicle arriving and leaving. All vehicles will have been recorded thus (assuming their VRNs were captured). All vehicles, including those whose drivers paid and displayed.

8. In order to demonstrate that the driver(s) on these occasions failed to pay & display, the Claimant should have evidenced that, of course. Where are the photos of the dashboard showing no P&D ticket displayed? Failing that, as this is an ANPR site, where are the system records showing no payment made on these days? They have not even supplied lists of the VRNs input by drivers on those days, e.g. showing a mismatched payment, wrong VRN or no entry at all that corresponds with this vehicle.

9. Conclusion – no evidence of contravention and the particulars lack any basis for a claim.

10. I am an unrepresented consumer who has never attended the County Court before this case, was not the driver and have no knowledge of the events, dates, or signage terms. I strongly object to this Claimant failing even to bother to attend the set-aside hearing due to the fact they are well aware they have no evidence of any contradiction even taking place.

11. I did not even know the dates they were referring to or how many incidents until I researched the particulars of the CCJ. I wonder how I am supposed to know what I am defending.

12. The Court is invited to dismiss this Claim, and to allow my wasted costs which will be submitted separately and in a timely manner, depending upon whether a hearing takes place. I firmly believe that to pursue me as registered keeper when the Claimant admits they have no such right, and to submit such incoherent particulars lacking evidence is wholly unreasonable and vexatious.

Statement of Truth:

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


XXXXXX

Signature


Date





















 

Hill_Hill_Hill

In the County Court at XXXXXX

Claim No.: XXXXXX
Between

CIVIL ENFORCEMENT LTD.
(Claimant)

-v-

XXXXXX
(Defendant)

PARTICULARISED DEFENCE

Following are the sequence of events, thus –

. a. XXXXXX MAY 19 –
. i. Defendant notified by employer of a default CCJ on credit file CCJ
. ii. Defendant contacted Experian via phone to get more information about the default CCJ as he was unaware of it.
. iii. Defendant did a credit search on Experian and also CCJ search on Registry Trust Ltd, both of which contain scant information of default CCJ
. iv. Defendant contacted Northampton County Court, is given scant details of default order and a premium number to contact Civil Enforcement Ltd.
. v. Defendant promptly called Civil Enforcement Ltd at the premium phone number provided, but gets no further information
. b. XXXXXX MAY 19 –
. i. Defendant files a set-aside appeal at Northampton County Court and pays court fees.
. c XXXXXX SEPT 19 –
. i HM Courts & Tribunals Service inform Defendant they have lost original N244 legal documents in transit between XXXXXX County Court and XXXXXX County Court
. d XXXXXX SEPT 19 –
. i Defendant submits N244 second time
. e XXXXXX NOV 19 –
. i Judgement set aside

1. Sirs & Madams; the Defendant, XXXXXX has served as a British Army XXXXXX for 12 years, XXXXXX and works within XXXXXX constantly located overseas. Defendant has never missed a credit payment and has a strong credit history. Defendant has never had a credit dispute or run-in with the law.

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

3. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from the driver’s alleged breach of contract, when parking on the material date in a marked bay at XXXXXX car park.

4. The Defendant has acted promptly to ascertain the details of the default CCJ and has never received any previous documentation from the Claimant until the N244 papers were submitted and the Claimant contacted him in an attempt to coax him into admittance. Defendant has at no time tried to avoid paying for any known debt and denies he was at the location of the parking event at the alleged time of the incident due to serving on active duty at the time of the incident. Defendant was not aware of the Default Judgement until his employer raised its existence to him after running a background search during a routine XXXXXX check.

5. Defendant regularly left his vehicle at his secure XXXXXX with the keys available for other XXXXXX residing in the XXXXXX to use, on condition of legal compliance, to run local errands. This practice is common place across the country in XXXXXX and allows visiting colleagues from a tight-knit community of XXXXXX, many whom travel on rail warrants, to use the vehicles of deployed personnel for visits to local towns.

6. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

7. The County Courts lost the Defendant’s N244 and enclosed Defence papers in the post as described by COURT STAFF MEMBER of the Civil Section on XXXXXX Sept 2019 in a notification to the Defendant, therefore on the balance of probability they also failed to effectively serve the Defendant notification of the hearing which lead to a Default Judgement. As such, the Defendant has received no notification or evidence of the offence from the Claimant, no notification of the hearing on XXXXXX Oct 18 and having promptly dealt with having the Default Judgement set-aside has had no information of the original Claim for which he is now instructed to submit a Defence.

8. The Defendant is a highly regarded XXXXXX XXXXXX, practiced in attending cases to escort XXXXXX through Court proceedings, it is totally out of character for him to have ignored a court order which he knows would have had long term effects on his financial security.

9. Claimant has failed to provide a response to Subject Access Request sent by the Defendant via recorded delivery in an attempt to withhold the fact they have no basis for the claim.

10. The Claimant has not supplied any evidence at all that the alleged contraventions eve occurred. ANPR camera photos, were they to be submitted, would merely show a vehicle arriving and leaving. All vehicles will have been recorded thus (assuming their VRNs were captured). All vehicles, including those whose drivers paid and displayed.

11. In order to demonstrate that the driver(s) on these occasions failed to pay & display, the Claimant should have evidenced that, of course. Where are the photos of the dashboard showing no P&D ticket displayed? Failing that, as this is an ANPR site, where are the system records showing no payment made on these days? They have not even supplied lists of the VRNs input by drivers on those days, e.g. showing a mismatched payment, wrong VRN or no entry at all that corresponds with this vehicle.

12. On inspection of the alleged contract breach, the timings describe the vehicle having been parked from 17:22 to 18:37, a duration of 1hr 15minutes. When normal grace periods are applied the alleged contravention of the contract does not even occur. On inspection of the carpark using Google Maps the parking machines are a large distance away from the described carpark and a grace-period of less than 10 minutes to locate, assimilate, operate and return from the parking machines is unreasonable.

13. The Particulars of Claim may state that the Defendant was the registered keeper and/or the driver of the vehicle. These assertions would 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, paras. 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.

14. Further and in the alternative, 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. In this case, the Google street view images (taken July 18) show different signage to what is there now. I have asked CEL (in my SAR letter to the data protection officer) when the signs were changed.

15. The terms on the Claimant's signage are 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.

16. Furthermore, no street lighting covers the car park or parking signs and no additional lighting has been installed to aide drivers in seeing these signs. Given that the vehicle allegedly entered the car park at 17:22, after dark it is therefore denied that the Claimant's signage is adequately visible or capable of creating a legally binding contract. The departure time is alleged to be 18:37, 1hr and 15mins later, which means that with reasonable grace period applied no contravention, in the alleged framework, could even have applied. The Claimant is put to strict proof and must explain using drawings and time calculations why the 10-minute grace period on arrival and departure would not apply in this case, particularly in darkness, foul weather and in relation to driver(s) with physical or phycological limitations.

17. 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. The purported added 'costs' are disproportionate, a disingenuous double recovery attempt, vague and in breach of both the CPRs, and the Consumer Rights Act 2015 Schedule 2 'terms that may be unfair'.

18. The Defendant has the reasonable belief that the Claimant has not incurred an additional £217 in damages or costs to pursue an alleged £60 debt, for the following reasons:

19. 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.

20. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £217 '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
21. 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.

21.1. 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.''

21.2. 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.''

21.3. 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...''

21.4. 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
22. 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
23. 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 361% 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.

23.1. 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.''

23.2. 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.

23.3. 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.

23.3.1. 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...''

23.3.2. 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.

23.3.3. 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.

23.3.4. 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.

23.3.5. 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.''

23.4. 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).''

23.5. 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.''

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 vexatious conduct from the outset has been intimidating, misleading, harassing and indeed untrue in terms of the added costs alleged and the statements made.

25. 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.

26. 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.


XXXXXX

Signature


Date

 
In the County Court at XXXXXX

Claim No.: XXXXXX
Between

CIVIL ENFORCEMENT LTD.
(Claimant)

-v-


XXXXXX
(Defendant)

SKELETON ARGUMENT

- the Caernarfon judgment
- the IOW/Southampton order from the Summer, where DJ Grand summarily struck out several cases for exceeding the £100 which is the most that can be recovered
- the CRA 2015 sch2 with 6, 10 and 14 highlighted
- the CRA 2015 para 71 about the duty of the court to consider FAIRNESS of terms
- the guidance on the CRA which says consumer notices are NEVER exempt from the test of fairness
- the POFA sch 4 with para 9 and the bit about 'adequate notice' highlighted
- the Beavis case quotes 98, 193 and 198 all copied onto a page as evidence
- any evidence that you were not driving