Civil Enforcement Limited - CCJ Obtained - Wrong adress on letter

nosferatu1001

Have you not already sent those in? Show us the court orders 

RINCO

Yes I have but the way interpret the forms is that they need to be sent again referencing this hearing.

Coupon-mad

As it is only 30 minutes this is definitely just the set aside.    You also needed to have shown proof of moving house/not being at the address where the claim was served, and have (in case the Judge asks) a bullet point draft defence to show that you have good prospects of defending the claim.

Read CPR 13 so you know the two possible avenues to get a set aside, and make it your mission to achieve one or both routes.

nosferatu1001

4'is not in any way shape or form ambiguous!

YOU and the claimant  must liaise to agree the documents to be used for the hesring.  That means you just contact them. It tells you what to do if agreement is not reached. 

It's there in black and white.  

RINCO

Ok; Draft defence as below. Lots of similar defences out there for these cowboys and even reference the exact same signage. 

I think it ticks the box of CPR 13 and shows we have a strong defence, I hope so anyway. 

I am going get my friend to email CEL stating the documents that'lll be sent to them. Just waiting on a copy of my friends tenancy agreement which will show date of occupation of new address etc. so another box ticked hopefully. However as for ignoring the letters in the first instance years ago hopefully the judge will have some leniency towards this. 

Ignore the numbering!! for some reason it changes the numbers when paste it in. _______________________________________

DRAFT DEFENCE 

________________________________________

1. The facts are that the vehicle with registration xx which the Defendant was the Registered Keeper was captured on an ANPR camera on 3 separate occasions
1. xxxxxx - xxxxx
2. xxxxxx - (xxxxxx) 
3. xxxxxx - (xxxxxx) 

1. With regard to claim no; xxxxxxx  the ANPR photographs provided by the Claimant do not show the Defendant’s VRN. (Exhibit 1) it is therefore deemed that no proper proof of the contravention being committed has been provided. This claim has been raised without any merit. I invite the court to strike out this claim immediately in its entirety. 

1. In serving the Claim Form on the xxxx xxxxx xxxxx respectively, the Claimant (Civil Enforcement Limited) has not acted in accordance with the Practice Direction for Pre-Action Conduct as the Claim Form was not signed by an individual of legal stature but instead by “Civil Enforcement Limited, (Claimant’s Legal Representative)”.

1. The claimant has stated that the claim is bought for breach of contract, from the defendant failing to comply with the terms and conditions displayed in the Car Park. The claimant has stated that drivers are permitted to park in the car park in accordance with the terms and conditions displayed on signage and these signs constitute an offer by the claimant to enter into a contract with the drivers. However, the claimant has also stated that the signs in the car park state the following: ‘Permit holders only – if you park without obtaining a valid 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.

1. 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.

1. The Claimant failed to meet the Notice to Keeper obligations in accordance with Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold the defendant liable under the strict ‘keeper liability’ provisions (see invalid notice to keeper attached). More specifically, Schedule 4, section 9:5 it states ‘The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended’. Please note the apparent breaches took place on the following dates respectively
1. xxxxxx
2. xxxxxxx - (xxxxxx) - PCN issued (Exhibit 3) 
3. xxxxxxx - (xxxxxx) - PCN issued (Exhibit 4) 
4. xxxxxxx - (xxxxxx) - PCN issued (Exhibit 5)
2. Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and relevant contract' fairly and adequately communicated, which there was not) is the sum on the Notice to Keeper. The claimant can therefore not make up another sum and attempt to file a claim for a new amount when neither the signs, nor the NTK, nor the permit information mentioned the  possible figures of  for outstanding debt and damages respectively.

1. For all claims, the latest particulars to claim sent to both the court applicable and the defendant the claimant has stated an amount claimed is £251.52. This amount differs from the amount stated in the last letter received before the particulars of claim of £140 The defendant would ask the claimant to explain the differences and be explicit in the amount they are claiming

1. The NTK issued across all claims uses an extremely small font size which the defendant is unable to read. It is not clear on the NTK that the defendant was able to inform the claimant of who the driver was if they wish, appeal the PCN, or appeal further through POPLA. These are all requirements of POFA Schedule 4 and the BPA code of practise. Given the font size is so small and arguably unreadable, anything in that paragraph should not be deemed relevant. The defendant would suggest the claimant have deliberately used a small font size to deceive and hide information on the NTK.

1. Furthermore, due to the length of time since the dates of contravention the Defendant has no recollection of the day in question. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car on that day some years later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.

1. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that the £50 as allegedly spent on 'legal representative’s costs' were incurred.

1. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (‘the Beavis case’) of which the claimant relies upon heavily in their generic defence. Here, the central issues concerned:                                 
2.         - a contract that was not denied;                                                                  
3.   - a contract formed by unusually prominent signage forming a clear offer.                                                                                      Furthermore, the judgment was found on the in relation to the case-specific facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.

1. In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case. Therefore: 
1. The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.
2. In the absence of strict proof it is submitted that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant. Further, should there exist an absence of clear proof it is apparent that this constitutes a clear distinction from the aforementioned Beavis case. It was requested in SAR for each claim that details of the signage at the time of contravention should be provided. The claimant declined to provide / could not provide the information. 

1. If the above is found in favour of the Claimant, the following grounds for lack of contract are also submitted:

• Inadequate signs incapable of binding the driver / (i) Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum.
• BPA Code of Practise breaches stated above - this distinguishes this case from the Beavis case:

(i) the signs were not compliant in terms of the font size, lighting or positioning.

(ii) the sum pursued exceeds £100.

(iii) there is / was no compliant landowner contract.

• There ceases to exist any ANPR 'data use' signage, and hence constitutes a breach of ICO rules and the BPA Code of Practice. The claimant has also again failed to provide proof of signage in both particulars to claim. In addition any signage today may not reflect the signage that was in place when the alleged violation occurred. The defendant would again ask the claimant to provide evidence of the signage at the time on the alleged event.
• According to a public statement issued by the BPA 

1. “As with all new technology, there are issues associated with its use: Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.”

     

• At the times of the alleged offence and a supposed contract was entered into (xxxx - xxxxx) (xxxx - xxxxx) ( xxxxx - xxxxx) there would have been no natural light and it is believed any signage in the area was not lit sufficiently and therefore any terms were not transparent or legible; the contract is therefore an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from by an authorised party using the premises as intended.
• No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
• The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.

1. It is further submitted that, distinct from the Beavis case, Civil Enforcement Limited do not hold the legitimate authority to bring an issue in relation to a contravention that occurs on the car park in question. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the principal, the landowner.

1. Civil Enforcement are known for serial claims regarding sites where they have lost the contract, claims which have been become known as ‘revenge claims’ and it is submitted that the claims mentioned prior are such case. This is not a legitimate reason to pursue a charge out of proportion with any loss or damages the true landowner could pursue.

1. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not apply this claim.

The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that above submissions in relation to the Claimant.

I confirm that the above facts and statements are true to the best of my knowledge and recollection.

Umkomaas

Have you used Coupon-mad's template defence from the sticky, it doesn't appear so, given that the Statement of Truth you have used was replaced almost 12 months ago. 

Le_Kirk

As @Umkomaas writes, this looks like an old defence template or you have cribbed it from another poster from some time ago.  Whichever defence template you decide to use, you do not send any evidence with a defence, that goes with the witness statement.  Also beware of falling into the trap of switching between first and third person.  Defences are written in the third person.

RINCO

I have updated the defence to CM's newest October template. Still waiting on the tenancy agreement hopefully I can adda para regarding missing letters. 

 Was using old one from bargepole prior. Bits I've added in bold italic again, ignore the numbering;

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

1. The facts are that the vehicle with registration  which the Defendant was the Registered Keeper was captured on an ANPR camera on 3 separate occasions. It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. 
1. xxxxxx - xxxxx
2. xxxxx - (xxxxxx) 
3. xxxxxx - (xxxxxx)

1. With regard to claim no; xxxxxxx  the ANPR photographs provided by the Claimant do not show the Defendant’s VRN. (Exhibit 1) it is therefore deemed that no proper proof of the contravention being committed has been provided. This claim has been raised without any merit. I invite the court to strike out this claim immediately in its entirety.

1. The claimant has stated that the claim is bought for breach of contract, from the defendant failing to comply with the terms and conditions displayed in the Car Park. The claimant has stated that drivers are permitted to park in the car park in accordance with the terms and conditions displayed on signage and these signs constitute an offer by the claimant to enter into a contract with the drivers. However, the claimant has also stated that the signs in the car park state the following: ‘Permit holders only – if you park without obtaining a valid 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.

1. The Claimant failed to meet the Notice to Keeper obligations in accordance with Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold the defendant liable under the strict ‘keeper liability’ provisions (see invalid notice to keeper attached). More specifically, Schedule 4, section 9:5 it states ‘The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended’. Please note the apparent breaches took place on the following dates respectively
1. xxxxxxx - (xxxxxx) - PCN issued on 1234
2. xxxxxxx - (xxxxxx) - PCN issued  on 1245
3. xxxxxxx - (xxxxxx) - PCN issued on 1234
4. xxxxxxx - (xxxxxx) - PCN issued on 1234

1. The NTK issued across all claims uses an extremely small font size which the defendant is unable to read. It is not clear on the NTK that the defendant was able to inform the claimant of who the driver was if they wish, appeal the PCN, or appeal further through POPLA. These are all requirements of POFA Schedule 4 and the BPA code of practise. Given the font size is so small and arguably unreadable, anything in that paragraph should not be deemed relevant. The defendant would suggest the claimant have deliberately used a small font size to deceive and hide information on the NTK.

1. There ceases to exist any ANPR 'data use' signage, and hence constitutes a breach of ICO rules and the BPA Code of Practice. The claimant has also again failed to provide proof of signage in both particulars to claim. In addition any signage today may not reflect the signage that was in place when the alleged violation occurred. The defendant would again ask the claimant to provide evidence of the signage at the time on the alleged event. According to a public statement issued by the BPA “As with all new technology, there are issues associated with its use: Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.”

1. At the times of the alleged offence and a supposed contract was entered into (xxxx - xxxxx) (xxxx - xxxxx) ( xxxxx - xxxxx) there would have been no natural light and it is believed any signage in the area was not lit sufficiently and therefore any terms were not transparent or legible; the contract is therefore an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from by an authorised party using the premises as intended.

1. The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon.  Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3.  That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71.  The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2.  NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

1. It is denied that the exaggerated sum sought is recoverable.  The Defendant's position is that this moneyclaim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135.  Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper.  At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable.  ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event.

1.  Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of the cost of their standard automated letter-chain.  It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85.  

1. The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties.  It is known that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing.  He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice.  He was not taken by either party to Somerfield in point #5 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed.  It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA’).

1. Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case).  It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land.  There is now also the Parking (Code of Practice) Act 2019 with a new, more robust and statutory Code of Practice being introduced shortly, which evolved because the two Trade Bodies have failed to properly govern this industry.

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

1. Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable.  However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.  
2. Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text.  The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach.

1. Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  

1. The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.

1. The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

1. Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:
1. Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and
2. Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2,
1. both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; 
3. and Vine v London Borough of Waltham Forest: CA 5 Apr 2000
1. where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.  In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio.  To pre-empt that, in fact Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound;

1. Fairness and clarity are paramount in the new statutory CoP being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, observed:  'Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike."   The Defendant's position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

1. In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant.  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

1. In the matter of costs, the Defendant seeks:.   
1. Standard witness costs for attendance at Court, pursuant to CPR 27.14, and
2. That any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance.  The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5

1.  The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim. 

Statement of Truth

I believe that the facts stated in this defence are true.  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Defendant’s signature:

Date:

Coupon-mad

If there are four dates, how are there only three ANPR captures and only three times/dates in brackets in your final bold paragraph?

With regard to claim no; xxxxxxx

If you are saying there is more than one claim, then you need to add the wording about consolidating the two(?) claims, as found when you search the forum for defence consolidate Henderson

RINCO

Coupon-mad said:

If there are four dates, how are there only three ANPR captures and only three times/dates in brackets in your final bold paragraph?

With regard to claim no; xxxxxxx

If you are saying there is more than one claim, then you need to add the wording about consolidating the two(?) claims, as found when you search the forum for defence consolidate Henderson

I assume you are referring to the first paragraph? 

There are 4 separate PCNs however
 1 of those 4  only shows the vehicle entering the car park the exit image is total black there is no image of any vehicle which is why in the second para I have singled that out to be struck off immediately. To make it clear I will mention the 4 PCN / claims in the first paragraph. For the other 3 pcns there are photos of entry and exit 

the 4 claims have been amalgamated into a single set aside hearing they are all printed on the court docs. I quoted Henderson v Henderson in the draft order so is there any need to mention again?