Ccj and defence

shortysky

nosferatu1001 said:

Hopw do you know that is all they filed? has the CCBC sent you a copy? 
You of course could try - they were not authorised to email the defence to you, please accept this as my defence - but the CCBC wont accept that so I wouldnt try. 
If you hadnt sent through the claim number, for example, thyere was NO WAY for this to be filed without your knowledge. None. 

I sent him a copy of the first page of the claim form so I’m assuming he used that. And maybe used my log in details and that’s why I couldn’t log in. Either way the court has acknowledged the defence. So the claimant has 28 days to say they wish to proceed. So I’m guessing the courts will get in contact in that time with the claimants answer, on will they proceed or not. It says at the end of the letter. After that period elapses the claim will be stayed? What does this mean? And then they can only apply for the judge to order a lifting on the stay. 

nosferatu1001

Potentially, but you can see why that is foolish now!
The claimant WILL PROCEEED. I dont know why you would think otherwise. They proceed always becausae this stage cost them nothing more, and increases the chance of you just paying up. 
So get on with your WS and exhibits
Stayed - you can work out what that means! it means halted. 
AGain: how do y ou know that is your whole defence? Explain. 

shortysky

nosferatu1001 said:

Potentially, but you can see why that is foolish now!
The claimant WILL PROCEEED. I dont know why you would think otherwise. They proceed always becausae this stage cost them nothing more, and increases the chance of you just paying up. 
So get on with your WS and exhibits
Stayed - you can work out what that means! it means halted. 
AGain: how do y ou know that is your whole defence? Explain. 

He sent me the whole defence, It’s looks similar to the templates on here. If that’s what you mean how do I know it’s my whole defence? 

Redx

Redact it and post a picture of it on here , so no personal information , no names , no VRM details , no reference numbers , hide them with white card , take a picture , post on here

shortysky

Redx said:

Redact it and post a picture of it on here , so no personal information , no names , no VRM details , no reference numbers , hide them with white card , take a picture , post on here

I got it in a email so cant take a picture I can copy and paste it? 

shortysky

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.  

1. it is averred that there was no clear signage in order to form a contract between the claimant and the defendant.  The terms and conditions of the parking offer by the claimant were intelligible and were not in bold and clear type. It cannot be said that a clear offer was made by the claimant in this instance.

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 statutory code of practice being prepared, given that 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 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.   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. 

(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. 

17.   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. 

Redx

Probably based on the coupon mad template

Intelligible should have said unintelligible , or , not intelligible

Apart from that , it's probably not too bad , but you could have done it on here for free , too late now

We could do with you posting a redacted picture of the claim form too

Plus post the location of the private car park or road location that CEL are infesting , too

Lastly , have you emailed a SAR to the DPO at CEL ?? Yes or no ?

Le_Kirk

That is very nearly an exact copy of the template defence written by @Coupon-mad

shortysky

Redx said:

Probably based on the coupon mad template

Intelligible should have said unintelligible , or , not intelligible

Apart from that , it's probably not too bad , but you could have done it on here for free , too late now

We could do with you posting a redacted picture of the claim form too

Plus post the location of the private car park or road location that CEL are infesting , too

Lastly , have you emailed a SAR to the DPO at CEL ?? Yes or no ?

Well that’s good to hear. Yes will do that shortly, can I just add a image as I’m sure it wouldn’t let me last time I tried. The street I parked was on Woodford road in beam hall, Stockport. Was outside pizza express which has now closed down. It’s a little side street that looks council owned. I know there was a dispute about who owned the land there. And the council took all there signage down and private later put theirs up. 

I know was the SAR and DPO mean but I don’t know how I go about doing that? 

I also noticed other people’s letters from CEL had pictures of the car coming and leaving mine didn’t. Don’t know if that matters but was playing on my mind. That I may have not stayed as long as they said. If you google that road and parking fines. You will see lots of people has been took back that it was private. People have also won POPLA appeals here but if left it too late unfortunately. 

shortysky

Le_Kirk said:

That is very nearly an exact copy of the template defence written by @Coupon-mad

I’m not sure if I’m allowed to name the company that helped me with this but I’m assuming all company’s like this use similar things. But they did have good reviews that’s why I went with them. And the cheapest. I is hard to get things like this sorted when you have kids. As when I was trying to do it, it was so stressful and honestly had no idea what I was talking about or meant to be writing.