cel ccj set aside - 14 days to file defence

Mh79

a little background.  got a ccj from cel which has been set aside.  the judge said we then had 14 days to file a defence and send a copy to CEL too.

This is the draft. Are they likely to discontinue (which is what I've been led to believe reading these forums?) What kind of evidence do I need to include?
Circumstances (very briefly)
CCJ found via a credit search in august 2019, granted in july 2019.  Date of alleged offence september 2018.  No paperwork was ever received, due to v5 having incorrect address (due to various reasons). SAR was done asking for the evidence etc from CEL in october 2019 but nothing received. The only thing recevied was an offer to settle and support the set aside after the paperwork as filed and fee paid.  Hearing for the set aside was last friday and the judge asked for a defence to be filed and a copy to CEL to be sent within 14 days.  Brings us to where we are now.  SAR has been sent again today asking for the evidence etc.

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

2. 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 bay at Pheonix Retail Park.

3. 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 form was filed. Following a SAR request in September 2019, I have still not received any evidence from the defendants about the claim. I resubmitted the SAR on 28/02/2020. Defendant has at no time tried to avoid paying for any known debt and the Defendant was not aware of the Default Judgement until he carried out a credit check using “Credit Karma” on 16 August 2019.

4. It is neither admitted nor denied that the Defendant was the driver. It is now 17 months since the material date. The particulars of claim set out no positive case regarding the identity of the driver and are speculative in nature. The claimant is put to strict proof.

5. 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.

6. In order for a company to obtain keeper data from the DVLA via a KADOE contract, they must be a member of an Accredited Trade Associations (ATA). In this case, CEL are member of BPA and must abide by their CoP in order to fulfil the mandatory DVLA contract requirements.

7. The BPA’s Code of Practice (13) states that there are two grace periods: one at the end (of a minimum of 10 minutes) and one at the start (of a minimum of 10 minutes). Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA): “The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket.” “No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.” In the case in question the claimed period of parking of a total of 111 minutes, was not in breach of the terms and conditions. 90 minutes of FREE parking and a total of 20 minutes minimum grace period would permit a minimum stay of 110 minutes. The grace period in this case is required for finding a space, park, locate and read signage, given the failure to make signs visible from all parking spaces (which they are not), read the full terms and conditions and then the time taken to exit from the car park at the end of the parking period. This is therefore a KADOE breach so the Claimants had no reason to request the keepers data thus also being a breach of DPA/GDPR.

8. ANPR camera photos merely show a vehicle arriving and leaving. On inspection of the alleged contract breach, the timings describe the vehicle having been parked from 1015 to 12:06, a duration of 1hr 51minutes. From the information provided by the claimant to the court, we can see that these are in fact the times in which the vehicle arrived and exited respectively, therefore, not the times for which the vehicle was parked.

9. 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 signage is a long distance away from the parking area and a grace-period of less than 10 minutes to locate, assimilate, make a decision and return from the signage is unreasonable. Google Maps also shows 4 different signs relating to parking in the area each appearing to contain differrent information, none of which is readable from a passing vehicle.

10. The Particulars of Claim may state that the Defendant was the registered keeper and/or the driver of the vehicle, which can’t be confirmed, as the Registered Keeper has not received the original PCN or any other documentation relating to the claim other than that provided by the court. 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.

11.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.

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. This is a breach of BPA CoP and therefore a KADOE contract breach. It is also dissimilar to the unusually clear signs in the Beavis case. On inspecting the car park on Google Maps, there appears to be 3 different signs, each containing different information relating to parking terms.

12. The arbitrary addition of a fixed sum purporting to cover 'damages/costs' is also 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.

13. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £190.97 '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.

14. Further, the Beavis case is against this Claim. 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, £100 in this 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.

15. 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.''

15. 1In 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.''

15.2 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...''

15.3 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.''

16. The POFA 2012 and the ATA Code of Practice are against this Claim. 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. As the defendant is yet to receive any PCN or other documentation from the Claimant, in spite of repeated SAR requests for it, research has led me to this conclusion.

17. The Consumer Rights Act 2015 ('the CRA') is against this claim. 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 190% 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.

18. 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.''

M

Mh79

19. 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.

20. 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.

21. 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...''

22. 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. 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.

24. 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.

25. 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.''

26. 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).''

27. 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.''

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.

28. 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.

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.

any help is gratefully appreciated!

nosferatu1001

1) Does thsi relat to an existing thread? If so you MUST post in there, and let this die. No arguments
2) As you will know from reading the NEWBIES thread, you do not submit any documents alongside the defence
3) As you know, your defence MUST be numbered. Noone can give you any feedback without it, as we cant point you to the speciifc para we want. 

Mh79

edited and added the para numbers in, this is a new thread, no previous posts.   Thanks re the evidence question x

nosferatu1001

So rather than us reading a defence, give us a precis of whats happened so far. We have no info and a bare defence is painful. 

Mh79

nosferatu1001 said:

So rather than us reading a defence, give us a precis of whats happened so far. We have no info and a bare defence is painful. 

added to original post. thanks for your help

nosferatu1001

So you literally know nothign about the events at all? Nothing? 

Mh79

Other than the info we got from the ccbc after finding it on the credit file (which is limited) we've got nothing.  It was that long ago we can't remember who was driving or what was going on.  Cel have been unresponsive to the sar we sent (which the judge acknowledged)

Coupon-mad

Try using the new template defence that I wrote instead then - it will work even for a case where few facts are known.

D_P_Dance

IMO the scammer would be mad to put this in front of a judge , the OP is obviously not a pushover.  On what basis was the set aside granted?  Did yo get a refund of the court fee?Have you/can you counter claim, (harassment/data misuse)?

Mh79

Coupon-mad said:

Try using the new template defence that I wrote instead then - it will work even for a case where few facts are known.

Ok. Whereabouts is the template? I can't see it on the newbies thread.

What we got on the letter from the court was:
It is ordered that:
1. The judgement dated 15.7.2019 is set aside.
2. The defendant do send to the court and the claimant it's defence by XX XX Xx

Thanks for your help!