Civil Enforcement LTD Court claim

orange21212

Hello everybody and thank you for this forum.
I receive a claim form from Civil enforcement LTD that states:
"Claim for money relating to Parking Charge for breach of contract terms/conditions (TCs) for parking in private car park (CP) managed by Claimant. Drivers may only park pursuant to TCs of use displayed in CP and agreed upon entry/parking. ANPR cameras or manual patrols monitor vehicles entering/exiting the CP and TC breaches. Charges of GBP 182.00 claimed.
Violation date:19/09/2020
Payment due date: 18/10/2020
Time in: 15:32 Time out: 17:48
PCN: REF(numbers)"
Total amount: 280.32

It was issued 20th of August and I went at some point to extend it to 28 days. 
At the moment I am trying to read Newbies thread and Draft a defence, that I should have done long ago, but due to stress in personal life could not get myself to focus and to be honest struggling to to it right now. I am thinking of just paying or forgetting about it. 
At the entrance of the carpark there is a sign Permit holders only and a sign customer permit parking only ( I got the picture if it needed). Been the customer and asked in the cafe if its ok to park there and passed car details, but obviously, that was not enough. No thing was issued on the date, just got PCN in the mail. Contacted the cafe who said that "Maybe someone forgot to do something" but they could not care less and refused to contact parking company, saying that its my problem now. 
My main question is it still something I can do about it? At first I thought just to pay as I got enough problems in my life, but after reading this forum I decided to reconsider and try to do something about it just to make life for these scammers worse. 
If everyone can be so kind and share their thoughts it will be much appreciated. 
I will prepare my defence and will post it here and if someone could go through it it would be really helpful. 
Also will post any updates and every step I did for future reference 

Thank you.

Fruitcake

Use the ready written defence template.
Amend only paragraphs 2 and 3 and post them here for checking.

You need to tell us the date issue date on the claim form and the date you did the AoS. You can get this from MCOL.
Remember, your defence will be sent by email, NOT by using MCOL.
The guide to court in the second post of the NEWBIES tells you how and why.

It is never too late to get a landowner cancellation.

D_P_Dance

Total amount: 280.32

They have added what appears to be an extra unlawful amount for debt collection. Judges have dismissed an entire claim because this. Read this and complain to your MP.

Excel v Wilkinson

At the Bradford County Court, District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) decided to hear a 'test case' a few months ago, where £60 had been added to a parking charge despite Judges up and down the country repeatedly disallowing that sum and warning parking firms not to waste court time with such spurious claims.   That case was Excel v Wilkinson: G4QZ465V, heard in July 2020 and leave to appeal was refused and that route was not pursued.  The Judge concluded that such claims are proceedings with 'an improper collateral purpose'.   This Judge - and others who have since copied her words and struck dozens of cases out in late 2020 and into 2021 - went into significant detail and concluded that parking operators (such as this Claimant) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015.   DJ Hickinbottom has recently struck more cases out in that court area, stating: ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''.

https://www.dropbox.com/s/16qovzulab1szem/G4QZ465V Excel v Wilkinson.pdf?dl=0

KeithP

orange21212 said:

I receive a claim form from Civil enforcement LTD...

It was issued 20th of August and I went at some point to extend it to 28 days. 

You seem to be saying that the Issue Date on your County Court Claim Form is 20th August. Is that right?

"I went at some point to extend it to 28 days" - what exactly does that mean?
Have you filed an Acknowledgment of Service or not? If so, when did you do that?

orange21212

Thank you all very much for the input. I am still Reading newbie thread

A claim was issued against you on 20/08/2021

Your acknowledgment of service was submitted on 03/09/2021 at 07:56:11

Your acknowledgment of service was received on 03/09/2021 at 12:05:24

Coupon-mad

You need to read the Template Defence thread.  Easy as pie, add your facts to para 3.  All done in half an hour, honestly!

KeithP

orange21212 said:

A claim was issued against you on 20/08/2021

Your acknowledgment of service was submitted on 03/09/2021 at 07:56:11

Your acknowledgment of service was received on 03/09/2021 at 12:05:24

With a Claim Issue Date of 20th August, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Wednesday 22nd September 2021 to file your Defence.

That's nearly a week 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.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

orange21212

IN THE COUNTY COURT
Claim No.: <number>
Between
Civil Enforcement Limited
(Claimant) 
- and -  
------------------------
 (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 and also the driver.
3.  The Defendant was a patron of the Vintage Birdcage Cakery. The claim relates to an alleged debt arising from an alleged breach of contract when parking at The Grooms House Stanshaws Court customer car park. The matter was addressed to the staff of the vintage birdcage cakery who advised that no parking permit need to be displayed. Vehicle registration was passed to the staff. Following this was a series of debt collection letters and threats of legal action from solicitors representing the Claimant.
4.  The Particulars of Claim set out an incoherent statement of the 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:
Date:

Hello everyone! Its really been easy to do as you suggested. Looking at similar defence statements on this forum I think that I did extremely poorly, but there is not too much to it to describe to be honest. I went back to the site and made some photographs of the set up. Ca anyone suggest what could I add more to this?

Thre are cameras above the scenery and there was a picture of the car coming and going at whatever time

Coupon-mad

I'd remove this, which adds nothing:

Following this was a series of debt collection letters and threats of legal action from solicitors representing the Claimant.

...and replace that sentence with one that alleges that the Claimant's system, which appears to rely on the retailers recording exempt numberplates for the Claimant, clearly failed on this occasion.  The Defendant took every step expected of him to exempt the vehicle on the material date and the Claimant is put to strict proof of any conduct by the Defendant that could have represented a breach of any relevant contract or obligation.

1505grandad

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

Add "but liability is denied" at the end.

orange21212

2.       It is admitted that the Defendant was the registered keeper of the vehicle in question and also the driver, but liability is denied
3.  The Defendant was a patron of the Vintage Birdcage Cakery. The claim relates to an alleged debt arising from an alleged breach of contract when parking at The Grooms House Stanshaws Court customer car park. The matter was addressed to the staff of the vintage birdcage cakery who advised that no parking permit need to be displayed. Vehicle registration was passed to the staff. The Defendant took every step expected of him to exempt the vehicle on the material date and the Claimant is put to strict proof of any conduct by the Defendant that could have represented a breach of any relevant contract or obligation. Claimant's system, which appears to rely on the retailers recording exempt numberplates for the Claimant, clearly failed on this occasion. 

Thank you everyone for your help. That would be the final version. Will post right now