Civil Enforcement - "On Claim for Debt"

Justme2020

Also, isn’t there a maximum amount they are allowed to claim and I was sure they weren’t allowed to try and claim legal fees? They’re asking for 8% interest. I wish my bank gave me that

nosferatu1001

It matters if you use POFA but they know who trhe driver is. 
If they can do so, then being an admitted driver in para 2, for example, is easier than trying to make them prove something they can already prove...

Yes, you know what that is: The PCN amount, plus 
- filing fee TO THE COURT
- filing fee TO THEIR SOLICITOR -max £50
- hearing fee
8% interest can only apply from the correct time, and yes of course 8% is allowed. official court rate

Justme2020

nosferatu1001 said:

It matters if you use POFA but they know who trhe driver is. 
If they can do so, then being an admitted driver in para 2, for example, is easier than trying to make them prove something they can already prove...

Yes, you know what that is: The PCN amount, plus 
- filing fee TO THE COURT
- filing fee TO THEIR SOLICITOR -max £50
- hearing fee
8% interest can only apply from the correct time, and yes of course 8% is allowed. official court rate

Thanks. No hearing fee yet. 

I’m really surprised they’re allowed to push for that much (and this is me being naive im sure) bearing in mind there’s no actual ‘loss’ and that I had paid for an hour, not the 3 they say I should have paid for.

Justme2020

I've had a crack at my Defence, using the template listed and adding some info to (2). There's a photo of the ticket machine which I have pasted into the Word document, and I'll try to attach here too. I'd really appreciate any guidance, thank you!

***

IN THE COUNTY COURT

Claim No.: xxx

Between

Civil Enforcement Limited

(Claimant) 

- and -  

xxx                                                                                  

 (Defendant)

____________________

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 but liability is denied. The Defendant is the lessee of the vehicle.

3. The Defendant arrived at these premises on a dark evening and observed the label on the Parking Ticket machine which suggested that a fee is only due until 19:00. See photo taken of Parking Ticket machine below. 

The Defendant, at approximately 18:00, paid a sum of £1.50 for 1hr of parking to cover through the allotted period of 19:00. It was then some weeks later, when communication was received from Civil Enforcement Limited claiming a vast sum of money for an alleged overstay in the premises. The fee claimed is in no way proportionate to any loss or damages which the Claimant alleges to have suffered.

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.

8a. The Claimant and their affiliated & appointed agencies sent several letters pertaining to be from regulated Debt Collection Agencies, choosing to use untruths and scare tactics alleging that if ‘debts’ were not paid forthwith, they were legally allowed to appoint bailiffs to collect these sums and that should these sums not be paid, they would be allowed to enforce a County Court Judgment against the Defendant. This is factually incorrect, and the language contained in said letters is simply used to threaten and bully vulnerable citizens into paying exorbitant penalties. It should be noted that as part of the Subject Access Request sent to the Claimant, several documents are missing, namely those sent from their appointed Debt Collection Agencies referencing the above which were explicitly requested.

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:

Date:

 

Coupon-mad

You don't add evidence or images to a defence.  You are not at that stage yet and the NEWBIES thread tells you when that comes (later).

Redx

Plus we only want to see the paragraphs you have changed , not the whole Defence
It is your homework that needs checking , not coupon mads

You can state that exhibits will be provided to the court and claimant before the hearing along with your WS

But as coupon mad says , no evidence is submitted with the Defence , or links , it's text only

KeithP

It is not clear from paras 2 or 3 whether the Defendant was the driver or not.

To me, that looks to be inviting the question from Court "were you the driver"?

1505grandad

" It is admitted that the Defendant was the registered keeper of the vehicle..................."

"The Defendant is the lessee of the vehicle"

I think that you are not the REGISTERED keeper.

Redx

As above , you are definitely not the registered keeper , because your name is not on the V5C and you are not registered on the vehicle with the DVLA

You are keeper and lessee , definitely , your hire document or leasing contract says so

You either are the driver as well , or , were merely a passenger , an occupant of the vehicle only , because you paid for a ticket so we're present

You may be all four entities for example

So 2 needs a rewrite

Bear in mind the obvious question from the judge or claimant in court

Mr justme2020 , were you the Driver ? Yes or no , a truthful honest answer is required

KeithP

You told us on 11th January that you couldn't remember whether the driver's details were made known to CEL.

Remember all that stuff you received on 28th January as a result of making a Subject Access Request?
Look back through that to see if the driver's details were revealed in your appeal(s).

If the driver's details are unknown to CEL then, especially with a leased vehicle, there is an even greater chance of winning a court case.