Defence Help - County Court Claim Form received from Civil Enforcement Limited

WH1234

Hey guys would appreciate some help with my case

Have read the newbies guide etc. Very, very informative, thanks so much to everyone that has taken so much of their time to provide such a quality service. You're the true unsung heroes.

My particular case is now ongoing for little over 3 years. I feel it's a bit different to others because I admitted to being the driver (which I'll explain now), and have spoken to solicitors on one occasion as well with email threads to prove that (I'm sorry). I'll detail this now before pasting defence I've written up below.

I got the ticket when I was admitting my mentally ill sister to hospital because she was having high episodes of activity after my mum passed away. I overstayed the 3 hour limit (didn't know it existed, and have been visiting that hospital for over 10 years). I went on Pilgrimage a few days after admitting my sister leaving her in the capable hands of many family and friends in the healthcare profession. So this meant I didn't see the letter(s) until I returned 4 weeks later. The letter's aren't dated, but the first was of course saying to pay £70, or the £35 prompt payment charge within 14 days, and the second saying I've missed my 14 day window and to now pay the full £70. I emailed the email address provided and told them that I was abroad and provided my ticket etc. as evidence. A few days later I got a letter saying it was reduced back to £35 for me to pay either by phone or cheque. Not owning a chequebook, I contacted the phone line. It was an automated system and the fee wasn't reduced to £35, and stayed at £70. I contacted Civil Enforcement via their website about this. I didn't get any reply, instead a few days later I got a letter saying I've missed my chance to pay £35 again, and need to pay £70. I then tried emailing them, but even then got no reply. Then the typical solicitor letters started (ZZPS and QDR) and the fee kept going up.

I didn't even know Civil Enforcement LTD is a private company, I ignorantly thought it was the council, especially since they own the actual parking lot of a hospital. I tried contacting the council, and they explained that it's a private company. I believe I called QDR because they actually had some contact details on their letter, they told me to email them but they weren't having any of it and reiterated I pay up. They were completely unsympathetic to my circumstances. I called them fraudsters and basically got no more letters or calls until 2 years later (a few months ago).

I googled round a couple years ago, and just saw forums saying to ignore them.

But now of course I got the dodgy looking claim form, and of course upon some research in this forum it all looks legit. They say I owe £334.91.

I've completed my Acknowledgement of Service yesterday and have drafted up my defence.

Please do have a look at it below and let me know if it checks out. I added in the information I've mentioned above. I usually wouldn't play victim like this, but they have legitimately caused undue stress and psychological harm, not to myself but to my mentally ill sister who opened a letter or two from them once she returned a couple months later from being sectioned. A £100 or so fee isn't something to cry about, but it can easily trigger someone with such high anxiety in such a vulnerable time and state. Should I play on this more or is it fine as it as explaining how things happened? Do I even need to add it in? I personally found the whole defence it a bit confusing, so sorry for any mistakes in advance and I'm leaning on your guidance. Do I need to add any dates? Or evidences? Do I speak about myself in the third person or first person? Do I call Civil Enforcement LTD "The Claimant" throughout or was I supposed to change that to their company name?

Also, do I just email this to CCBCAQ@Justice.gov.uk , or use the online MCOL procedure? Or both?

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

Civil Enforcement Limited

- and -  

(xxxx)

____________________

DEFENCE

____________________

 

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.

 

The facts as known to the Defendant:

2.       It is admitted that the Defendant was the registered keeper of the vehicle in question and also the driver.

3.        The Defendant was admitting his mentally ill sister to hospital due to a sever high energy episode following the families mother passing away. The Defendant is familiar with the hospital, having used it for over a decade due to different family’s mental health conditions, and never experienced a parking charge notice (PCN) here before. The car park has a sign on entry stating “FREE PARKING” in block capitals, and “TERMS APPLY” underneath, but the actual terms are not visible. The Defendant did not receive a letter regarding the PCN until returning from abroad 4 weeks later. The letter is not dated to say when they were sent. The Defendant appealed the letter via email to the Claimant explaining he was abroad and could not pay the charge, and requested the charge be brought back down from £70 to £35 and he will pay it. A letter was received thereof that the appeal has been accepted and to pay via telephone service or by cheque. The Defendant attempted make payment via the phone service as he did not own a chequebook, however the automated phone service was not changed to £35 and still requested payment of the full £70. The Defendant wrote via the Claimant’s website regarding this, but received no reply. The Defendant then received a letter from the claimant saying that the parking charge has once again risen to £70 as the reduced charge was not paid. The Defendant then emailed the Claimant regarding this issue, but again received no reply. Following this was a series of debt collection letters and threats of legal action from solicitors representing the Claimant, some of which the Defendants mentally ill sister would open once she returned home from being sectioned, and be in shock upon reading.

4.  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.

5.       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.

6.       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.  

7.  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').

8.  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

9.       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.  

10.       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.

11.   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.  

12.   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.

13.       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.

14.   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:

(i)                 Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

(ii)                Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2,

both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(ii)                 Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

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.

15.   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.

 

16.  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.

 

In the matter of costs, the Defendant seeks:

17.   (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) 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.

18.   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: xxxx

Date: xx/xx/xxxx

KeithP

Hello and welcome.

What is the Issue Date on your County Court Claim Form?

Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.

Coupon-mad

a sever high energy episode

= A severe flare up of frenetic, agitated behaviour?

I would not include anything about wanting to pay £35.  Delete all of that.

Le_Kirk

Also, do I just email this to CCBCAQ@Justice.gov.uk , or use the online MCOL procedure? Or both?

You use the MCOL to submit your AoS (@keithP will be a long to give you some deadlines) but you do NOT put anything in the defence box, not even a full stop and you submit yoru defence via the e-mail address you show.  When posting your defence here for critique you only need to show the changes you made to paragraphs 2 & 3, the rest is standard.

beamerguy

ZZPS, QDR and CEL TOGETHER ?  The perfect combination for them losing.
QDR being an offshoot of the disgraced Wright Hassall solicitors.

Make sure the court knows about the add-on fakery.   By the way, CEL are well known to discontinue just days before.   .   

WH1234

KeithP said:

Hello and welcome.

What is the Issue Date on your County Court Claim Form?

Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.

Issue date is 27 Nov 2020, and I submitted the AoS on 29 Nov 2020 (a Sunday). MCOL says it was received on the 30th. I misunderstood the forum saying to wait 5 days and thought it said to do it asap, my bad. Hope that helps with your query and thank you so much for your speedy reply

WH1234

Coupon-mad said:

a sever high energy episode

= A severe flare up of frenetic, agitated behaviour?

I would not include anything about wanting to pay £35.  Delete all of that.

Yes that's a fairly good description, schizophrenic type behaviour. She's been diagnosed with "Schizoaffective disorder". Should I go into greater detail about what I mean by high energy episode/mention the diagnosis? And I'll get the ordeal with regards to trying to get it down to £35 deleted then. Thank you!

KeithP

WH1234 said:

KeithP said:

Hello and welcome.

What is the Issue Date on your County Court Claim Form?

Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.

Issue date is 27 Nov 2020, and I submitted the AoS on 29 Nov 2020 (a Sunday). MCOL says it was received on the 30th. I misunderstood the forum saying to wait 5 days and thought it said to do it asap, my bad. Hope that helps with your query and thank you so much for your speedy reply

With a Claim Issue Date of 27th November, and having filed an Acknowledgment of Service on 30th November, you have until 4pm on Tuesday 29th December 2020 to file your Defence.

That's four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

WH1234

beamerguy said:

ZZPS, QDR and CEL TOGETHER ?  The perfect combination for them losing.
QDR being an offshoot of the disgraced Wright Hassall solicitors.

Make sure the court knows about the add-on fakery.   By the way, CEL are well known to discontinue just days before.   .   

Many thanks for your reassurance! Can you kindly expand on "add-on fakery"? Is that the chain letters and threats of legal action? Should I go into more detail about it in this defence?

beamerguy

WH1234 said:

beamerguy said:

ZZPS, QDR and CEL TOGETHER ?  The perfect combination for them losing.
QDR being an offshoot of the disgraced Wright Hassall solicitors.

Make sure the court knows about the add-on fakery.   By the way, CEL are well known to discontinue just days before.   .   

Many thanks for your reassurance! Can you kindly expand on "add-on fakery"? Is that the chain letters and threats of legal action? Should I go into more detail about it in this defence?

No doubt the claim has a further £60 plus added, that is the fake

https://forums.moneysavingexpert.com/discussion/6103933/abuse-of-process-thread-part-2/p1?new=1

KeithP

WH1234 said:

beamerguy said:

ZZPS, QDR and CEL TOGETHER ?  The perfect combination for them losing.
QDR being an offshoot of the disgraced Wright Hassall solicitors.

Make sure the court knows about the add-on fakery.   By the way, CEL are well known to discontinue just days before.   .   

Many thanks for your reassurance! Can you kindly expand on "add-on fakery"? Is that the chain letters and threats of legal action? Should I go into more detail about it in this defence?

No need to add that to your Defence. It is already included. See paragraphs 5 - 8.

You really need to understand all of the Defence that you are filing. For example, think about how you would answer this question from the Judge - "What is the point you are trying to make in paragraph 7, Mr WH1234?"