Court Action - Civil Enforcement Limited (CEL) parking with 'No Permit'

Shadowfax1000

Hi I'm just starting a new thread on here to widen the help net out.
I'm working on my defense and will post some outline details to help everyone understand where I'm at ...

KeithP

Have you received a County Court Claim Form?
If so, please tell us the Issue Date on it?

And by the way... there is no letter 's' in the word Defence.

Shadowfax1000

Ok sorry so Issue date - 22 April
Acknowledgement of Service date - 7 May (15 days in)
Background PCN form CEL Sept/19 claiming as Reg Keeper I was liable for parking without valid permit in a Permit Only carpark at the back of a school. I visited the site which I do vaguely know and it was clear that the signage is very poor, unlit and hard to see certainly in the evening which was when the PCN is timed. I didn't appeal via POPLA as I didn't do it in time but I did appeal direct to CEL. I sent the photo's of the site showing no lighting and other valid desputes. Made it clear continually that I will not make any payment to them unless a court rules it, then and only then.

(Because I strongly feel that yes you can't park anywhere that's wrong but these people are just the next wave of clampers that would threaten you with their bully boys, now they have been forced to find dodgy lawyers to team up with and if you pay you both justify their existance, ie. they think you deserve it, and you fund their continuation. I can handle it and easily pay it but when I just look at the comments/reviews when you google CEL it shows you have to stand up to them. Phew!! ha)     

So this is a first draft of the Defence:

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 unable to identify the driver of the vehicle at the time as the photographic evidence which was eventually made available does not show the driver.  

 

3.     The Defendant was first made aware of the allegation by receiving a ‘Parking Charge Notice’, dated X/X/19. Shortly afterwards the Defendant visited the site in question at the same time in the evening as stated in this ‘Parking Charge Notice’, XXXpm, and the Defendant was shocked that the signage installed by Claimant was not clear and conspicuous or in any way illuminated. The Defendant gathered photographic evidence to demonstrate these facts which required a flash to be in anyway visible due to the lack of natural light. These photos were sent to the Claimant to make them aware of this failure to comply with their Code of Conduct.   

 

3.    The Defendants feels that their attempts to clarify this matter have been severely hampered by the Claimants inability to respond to the Defendants disputes to this claim and have instead chosen to ensue a barrage of harassment with numerous threatening letters referring to a ‘debt recovery’ that in the Defendants opinion has never existed. It is the Defendants opinion that the Claimants has hoped that by using these such threats that they would extort payment from the Defendant through fear rather than by actual lawful means. The Defendant cannot be held liable due to the Claimant not complying with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012, Schedule 4.     

 

4.  The signage in the car park is of a ‘forbidding’ nature. It is limited to cars displaying a valid permit only and therefore the terms and conditions cannot apply to vehicles without a permit as the signage does not offer an invitation to park on certain terms. The terms are therefore forbidding and thus there could never have been a contractual relationship between the Claimant and the Defendant. I refer you to the following case law:

(i) PCM-UK v Bull et all B4GF26K6 [2016],

(ii) UKPC v Masterson B4GF26K6 [2016],

(iii) Horizon Parking v Mr J C5GF17X2 [2016],

where in all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would therefore be a matter for the landowner i.e. not the Claimant.

 

5.    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.

 

2.        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.

 

3.        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.  

 

4.   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').

 

9.  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

5.        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.  

 

6.        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.

 

7.    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. 

 

8.    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:

 

 

Note: I have been getting advice on Pepioo as well so hopefully I haven't messed anything up along the way too much

1/ Just to be clear how long have I got to email this out, is it by 25th May 4pm? BTW I will do my best to get it in before then because of potential IT issues etc.
2/ I only email it out, nothing more needs to be done on the moneyclaims website for the Defence stage?
 

KeithP

Shadowfax1000 said:

Ok sorry so Issue date - 22 April
Acknowledgement of Service date - 7 May (15 days in)

1/ Just to be clear how long have I got to email this out, is it by 25th May 4pm? BTW I will do my best to get it in before then because of potential IT issues etc.
2/ I only email it out, nothing more needs to be done on the moneyclaims website for the Defence stage? 

You are right with your Defence filing target date, but there might be something useful here...

With a Claim Issue Date of 22nd April, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Tuesday 25th May 2021 to file your Defence.

That's over two weeks away. Plenty of time to produce a Defence and it is good to see you are not leaving 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.

No, nothing more needs to be done on MCOL.

Coupon-mad

(Because I strongly feel that yes you can't park anywhere that's wrong but these people are just the next wave of clampers that would threaten you with their bully boys, now they have been forced to find dodgy lawyers to team up with and if you pay you both justify their existance, ie. they think you deserve it, and you fund their continuation. I can handle it and easily pay it but when I just look at the comments/reviews when you google CEL it shows you have to stand up to them. Phew!! ha)    

We agree with that.  It's why we are here helping people and it's why the Government is stepping in. 

When clamping was banned, the industry kept the tactic of unlit and poor signage that had worked so well for clampers for all those years and moved on to aggressive ticketing. That is due to change, we all know that and you are preaching to the converted:

https://www.gov.uk/government/consultations/parking-code-enforcement-framework/outcome/parking-code-enforcement-framework-consultation-response

But you are describing 'fly parking'.  We do not condone that for one minute and encourage you to stop parking like that.  Don't park on closed premises or round the back of schools, pubs or shops in the evening.  You can park on street for nothing at night.

Shadowfax1000

But you are describing 'fly parking'.  We do not condone that for one minute and encourage you to stop parking like that.  Don't park on closed premises or round the back of schools, pubs or shops in the evening.  You can park on street for nothing at night.

Oh yes totally I agree, to try and be clearer the area in question is a road down the side of a school, which I only know to actrually be a school after this PCN. It basically looks like a road but it ends and turns into a pathway and there are parking areas. In daylight it is much easier to understand but in the evening when the parking area is empty it's not so easy, which is why there needs to be the correct level of illuminated signage, that only seems fair regardless of some of the other issues with CEL ect.

Cheers KeithP yes I have seen the info in the link excellent! Sorry to feel the need to double check some things but you guys know a lot more about this stuff than the vast majority of us will ever do

Umkomaas

Your paragraph numbering is askew. 

Le_Kirk

Shortly afterwards the Defendant visited the site in question at the same time in the evening as stated in this ‘Parking Charge Notice’, XXXpm, and the Defendant was shocked that the signage installed by Claimant was not clear and conspicuous or nor in any way illuminated.

One small change above.  Do not put anything on the MCOL site in the defence box - not even a full stop - just do it as advised by @KeithP and use the e-mail address.

Shadowfax1000

Your paragraph numbering is askew. 

Ah yes true, sorry I hate that when you can't see the forest for the trees. It started auto-numbering but then I hand numbered, I 

will definitely check them before sending the final revision.

One small change above.  Do not put anything on the MCOL site in the defence box - not even a full stop - just do it as advised by @KeithP and use the e-mail address.

Ok cheers, yes I understand. It's such a weird way of doing things really, a form they send, you don't use, a portal you partially use, then you just email direct. I can understand the reasoning behind choosing the best method for each stage though, all good.

Redx

Shadowfax1000 said:

Your paragraph numbering is askew. 

Ah yes true, sorry I hate that when you can't see the forest for the trees. It started auto-numbering but then I hand numbered, I 

will definitely check them before sending the final revision.

One small change above.  Do not put anything on the MCOL site in the defence box - not even a full stop - just do it as advised by @KeithP and use the e-mail address.

Ok cheers, yes I understand. It's such a weird way of doing things really, a form they send, you don't use, a portal you partially use, then you just email direct. I can understand the reasoning behind choosing the best method for each stage though, all good.

The Portal system is not designed for parking claims , in fact parking has nothing to do with it , plus many government I T systems are way behind the times and always have glitches and problems

The paperwork methods are old school harking back to 1973 but the covid19 pandemic has forced many processes online , including changing your V5C details etc , plus many of the court hearings have moved online , as have GP consultations too

Working from home has also changed the process , due to less staff in offices , like my son for example. It's move with the times but always assume that government departments are behind the times

Shadowfax1000

This is an updated Defence - 

2nd DRAFT

IN THE COUNTY COURT
Claim No.: XXXXXX
Between
Civil Enforcement Limited
(Claimant)
- and -
XXXXX
(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 unable to identify the driver of the vehicle at the time as the photographic evidence showed very little information, and nothing of the driver. The alleged incident was an unremarked day to the Defendant, who’s first knowledge of this matter was almost two weeks after the alleged incident via a letter from the Claimant.
 
3.   The Defendant was first made aware of the allegation via the Claimants ‘Parking Charge Notice’, dated XX/XX/19, on XX/XX/19. This referred to an alleged offence of parking in a ‘Permit Holders Only’ car park. The Defendant visited the site and determined that the Claimants signage cannot be read in the hours of darkness, which is when the alleged breach occurred. The Claimant was promptly made aware of the inability of their signs to be read in darkness by a letter, however the Claimant vexatiously rejected the appeal with a generic rejection, not addressing their breach of the code of practice that the Supreme Court found "effectively binding"
 
4.    The Defendants feels that their attempts to clarify this matter have been severely hampered by the Claimants inability to respond to the Defendants disputes to this claim and have instead chosen to ensue a barrage of harassment with numerous threatening letters referring to a ‘debt recovery’ that in the Defendants opinion has never existed. It is the Defendants opinion that the Claimants has hoped that by using these such threats that they would extort payment from the Defendant through fear rather than by actual lawful means. The Defendant cannot be held liable due to the Claimant not complying with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012, Schedule 4.     
 
5.  The signage in the car park is of a ‘forbidding’ nature. It is limited to cars displaying a valid permit only and therefore the terms and conditions cannot apply to vehicles without a permit as the signage does not offer an invitation to park on certain terms. The terms are therefore forbidding and thus there could never have been a contractual relationship between the Claimant and the Defendant. I refer you to the following case law:
(i) PCM-UK v Bull et all B4GF26K6 [2016],
(ii) UKPC v Masterson B4GF26K6 [2016],
(iii) Horizon Parking v Mr J C5GF17X2 [2016],
where in all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would therefore be a matter for the landowner i.e. not the Claimant.
6. ...........
7...........
as template
 

Hopefully this is nearing completion, I'd really appreciate it if you could check this over.
Many, many thanks for all the time and effort you put into this, it's amazing btw