anybody knows S Wilson, solicitor for Civil Enforcement Ltd?

DoaM

As you've not given us any information pertaining to your issue then it's rather difficult to provide advice, other than ... read the NEWBIES FAQ.

vol69

DoaM said:

As you've not given us any information pertaining to your issue then it's rather difficult to provide advice, other than ... read the NEWBIES FAQ.

I'm writing a small claims court defence against Civil Enforcement.

It's for a PCN at  gp surgery.

KeithP

vol69 said:

I'm writing a small claims court defence against Civil Enforcement.

Ah, so you probably have a County Court Claim Form then?
If so, what is the Issue Date on it?

vol69

KeithP said:

vol69 said:

I'm writing a small claims court defence against Civil Enforcement.

Ah, so you probably have a County Court Claim Form then?
If so, what is the Issue Date on it?

I have to submit the deffence at start of March..

I'm following a post at "PCN at surgery"

KeithP

I have to submit the deffence at start of March..

Is that your answer to my question?
Have you filed an Acknowledgment of Service?

vol69

KeithP said:

I have to submit the deffence at start of March..

Is that your answer to my question?
Have you filed an Acknowledgment of Service?

yup, I have done it on the internet

vol69

The story is that I'm under clinical attention, I visited my gp surgery during working hours, delayed by work obligations and traffic, I got to the surgery, I was addressed immediately into the consultation, and diagnosed for stress the same day I got a fine with a PCN.

It's for ANPR car park, with entry and exit times only.

I have letter for surgery saying that car parking is for patients, but they have to register in receptions..

vol69

Btw, is CEL v McCafferty appeal judgement still valid after Beavis case?

vol69

how does that look? is it consistent? any thing missed? I'm defending as the driver, to use my appointment to the surgery

DEFENCE
________________________________________

1. The Defendant was the registered keeper and driver of vehicle registration number XXXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the vehicle, registration XXXXXX of which the Defendant is the registered keeper, was parked on the material date in a marked bay allocated to Company Civil Enforcement Ltd. at XXXXXXX car park, for a visit to XXXXXX Surgery, XXXXXX Surgery, 2nd Floor, XXXXXXX, XXXXXX,XXXX. The visit to XXXXsurgery was an arranged appointment, and attended during Defendants’ working hours.

3. The Defendant frequently visits outpatients surgeries for clinical attention, which hasn’t been evidenced due to the sensitive nature of the information. In NHS patient car parking principles Guidance is stated “Concessions, including free or reduced charges or caps, should be available for the following groups … frequent outpatient attenders”. (Evidence Outpatient)

4. Mrs XXXXX XXXX, PA to Senior Managment Team & Complaints manager in XXXXX surgery mailed the Defendant after a complaint that “However the downside is that sometimes genuine patients are getting fines.” (Evidence XXXXXX email).

During his consultation the Defendant was diagnosed with a health condition(Evidence diagnosis report).

4.1 The appointment was due on 29th of April, 2019, at 15:30. (Evidence XXXXXX reception)

The Defendant arrived to XXXXXX House car parking with 10 minutes delay, due to work obligations and traffic.

The Defendant arrived in XXXXX surgery reception at 15:42 and sent into consultation at 15:43.

Even if XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

5. Signage in XXXXXX surgery reception (Evidence XXXXXX signage) states that patients have 30 minutes from entering to the car park to obtain a virtual permit. CEL signage doesn’t mention grace periods, at all.

The BPA’s Code of Practice states (13.4) “the Grace Period at the end of the parking period should be a minimum of 10 minutes.”

The time parked at XXXXXX House parking over the 30 minutes allowed without a permit was 4 minutes 36 seconds, therefore within the 10 minutes minimum grace period to exit the car parking.

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 entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

6.1. The Particulars of Claim on the N1 Claim Form refer to “Claim for monies relating to a Parking Charge...in breach of the terms + conditions (T+Cs). Drivers are not allows to park in accordance with T+Cs fo use.”. However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached.

Accordingly, 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.

6.2 PRACTICE DIRECTION 22 – STATEMENTS OF TRUTH not followed, as paragraph 3.9 “The individual who signs a statement of truth must print his full name clearly beneath his signature.” hasn’t been respected by the Claimants representative.

7. 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, especially with no 'grace period' mentioned. They merely state “Permit holders only – if you park without obtaining a permit, you agree to pay £100. These terms apply at all times. Additional costs will be incurred if payment is not made within 28 days”.
The defendant would therefore suggest the sign is a forbidding sign and is only making an offer of parking to permit holders only. If a driver is not authorised to park in the car park due to it being permit holders only then you cannot be offered a contract. The only claim would be for trespass which only the landholder can claim, and only for a nominal sum.

7.1. The signs refer to“Permit holders only/Terms of parking without permission”, and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This is questionable, since if there is no permission, there is no offer, and therefore no contract.

8. In any case, the Claimant is put to strict proof that it had sufficient proprietary interest in the land, or that it had the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation in its own name on the material date. The Claimant appears to be a contractor on an agent/principal basis operating under a bare licence to erect signs and collect monies from the machines, and no doubt, to issue PCNs - but 'on behalf of' the landowner, which would give them no authority or standing.

8.1 The PCN issued by CEL at 02/05/2019 uses as address “XXXXXX, XXXXX STREET, XXXXX, XXXX”, but the XXXXXX Surgery’s address is XXXXXX Surgery, 2nd Floor, XXXXXX XXXXXX, XXXXX, XXXXX. (Evidence PCN, Outpatient, SouthBar St, Strees around XXXXXX)

Due to the discrepancy of addresses of XXXXXX Surgery, and of the one mentioned by the Claimant on the PCN, I require evidence that the correct land is managed by the Claimant, with the land being clearly defined in the contract with the Landlord.

8.2. Even if the Claimant was authorised to issue PCNs in their own right, it is denied that they could do so unfairly in a grace period, disregarding the health services nature of the facilities, and outwith the scope of the BPA CoP. It is denied that the limited landowner contract gave this Claimant the express legal standing to form contracts and litigate in their own name.

9. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because Claimant has no right to issue a PCN within 4 minutes and without a grace period, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

9.1 With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant is fully aware that their claim is reduced to an unrecoverable penalty and must fail.

Unconscionable, punitive 'parking charge' - again, Beavis is distinguished

10. If the 'parking charge' (the first interpretation meaning the car park tariff payable for 8 minutes) was free, then the sum 'owed' is a quantifiable figure. Despite extending parking in a timely manner, the Defendant found the car had already had a predatory PCN applied demanding an extortionate £100 (also described also as the 'parking charge' but clearly being an unrecoverable penalty). This is not the sort of 'complex' issue with a 'compelling' commercial justification that saved the charge in Beavis from the penalty rule.

10.1 Taking the comments of the Supreme Court (and the Court of Appeal in the earlier hearing in Beavis) into account, the 'parking charge' sum owed in this case can, at most, only be a percentage of the £1 per hour tariff. It can only be viewed in terms of a simple damages clause, where the sum allegedly 'owed' in debt is known.

10.2. No complicated manipulations of the penalty rule can apply to a standard contract like this one, with quantified damages, otherwise every trader could massage any £5 bill to suddenly become £500. In Beavis it was held that the claim could not have been pleaded as damages, as that would have failed. It was accepted that £85 was the sum for parking, and that was the 'parking charge' for want of any other monetary consideration in a free car park. It was not pleaded in damages, unlike here, where the sum for parking was a minuscule sum in pence (if unpaid, which it was not) and the Claimant is trying to claim damages of £100, no doubt hoping for a Judge who cannot properly interpret the intricacies of the Beavis case.

11. In addition to the original PCN penalty, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported added 'costs' of £82, which the Defendant submits have not actually been incurred by the Claimant.

11.1. These have been variously described as “administration fee” (in the pre-action exchange of letters) and/or a 'debt collection charge' (not part of any terms on signage and cannot be added, not least because it was never expended). Suddenly in the Particulars there is also a second add-on for purported 'legal representative costs of £50' on top of the vague £60, artificially hiking the sum to £268.01. This would be more than double recovery, being vague and disingenuous and the Defendant is alarmed by this gross abuse of process.

11.2. Not only are such costs not permitted (CPR 27.14) but the Defendant believes that the Claimant has not incurred legal costs. Given the fact that BW Legal boasted in Bagri v BW Legal Ltd of processing 'millions' of claims with an admin team (and only a handful of solicitors), the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste PPS robo-claims at all, on the balance of probabilities.

11.2.1. 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. (Evidence XXXX)

12. Given that it appears that this Claimant's conduct provides for no cause of action, is without merit, and has no real prospect of success, and this is intentional and contumelious, the Claimant's claim must fail and the court is invited to strike it out. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to Civil Procedure Rules 3.4.

12.1. In the alternative, the Court is invited, under the Judge's own discretionary case management powers, to set a preliminary hearing to examine the question of this Claimant's substantial interference with easements, rights and 'primacy of contract' of patients at this site, to put an end to not only this litigation but to send a clear message to the Claimant to case wasting the court's time by bringing genuine patients to court under excuse of a contractual breach that cannot lawfully exist.

I believe the facts contained in this Defence are true.

Name
Signature
Date

Coupon-mad

No it isn't.  That is ancient.

And you don't attach anything to a defence except the attached Skipton Court judgment, as one example of many struck out parking cases, to support the part in your defence where you point out that the Claim is tainted by duplicity of the false added costs.

Please tell us the date of issue of the claim and you will get bespoke advice.