Help Please: CEL - Court Claim Defence

MizChief84

Hi, I have now received the court claim from CEL after driver parked on what was once an unrestricted pub carpark. We were in lockdown so the pub and all businesses but one takeaway on the entire street were closed with store lights off. It was pitch black! Driver pulled into the carpark waiting for 17 minutes for my daughter to finish her shift at her new job in said takeaway. Next thing, I get a lovely fine from CEL. I went immediately to the carpark in day light and I could see signs along the far wall about parking and ANPR, then after searching I found the sign at the entrance which is not visible at all from the direction that driver approached the car park. Only the thin edge of the sign can be seen. There are also no lights to illuminate any of the signs or bring attention to the contract that you're apparently entering into. Even my reg couldn't be seen on the front of my car in their own ANPR photos!! I returned again that night and took photos which are attached. 

With this in mind, could I please have feedback on my defence below?



On XX/XX/2021, Civil Enforcement Ltd issued me, the registered keeper of vehicle XXXX XXX, with a parking charge notice relating to an alleged breach of contract on XX/XX/2021. I appealed via their website on the grounds that the speculative invoice was unfairly and wrongly issued as you had made absolutely no attempt to make the driver aware that you wished to form a contract with them on the night of XX/XX/2021. For a contract to be formed, there must be offer, consideration and acceptance. When the driver entered the car park, the entire area was in complete darkness. There was not a single light illuminating any signage within the car park and the signage at the entrance to the car park was also unlit and not visible from the direction of approach dye to its angle.  Only the thin edge can be seen. See photographic evidence A and B. With no effort at all being made by Civil Enforcement Ltd to alert the driver to an offer they wished to make in the pitch black car park, the driver could not have known or indeed have been reasonably expected to have known that any offer existed. Without knowledge, awareness or notification of an offer, there can certainly be no implication made that the driver accepted any offer. It is surely impossible for anyone to accept an offer that they do not know exists.

As evidence of your lack of offer to drivers in XXXXX car park at the time of night and time of year concerned, I included in my appeal two photographs I had taken shortly after receiving your parking charge notice. I attach these again herewith for your reference. The photos were taken at the same time of night as when the driver entered the same car park only a few weeks before. You can clearly see that there are no lights throughout the car park concerned and absolutely no illumination to any of the signage. The photographs of the car park and signage which were taken in broad daylight, provided by Civil Enforcement Ltd also evidences the lack of illumination above or near to the signs. 

Detailed in the Particulars of Claim within Civil Enforcement Ltds Court Claim dated 17/06/2022 it refers to a 'breach of contract terms/conditions'. The driver of the vehicle had not been made aware of any offer of a contract, let alone any terms and conditions. I uphold my previous assertion that the parking charge notice was unfairly and wrongly issued as no such contract existed. No offer was made and therefore the driver had nothing to accept. With neither an offer to consider or an acceptance, a contract cannot have been created. As the registered keeper, I will defend any claim on the partial basis that the signage (see pictures) could not be seen. I am confident the court will see that no contract could have been entered into.

Civil Enforcement Ltds Letter Before County Court Claim refers to the Supreme Court decision in respect of the case of ParkingEye v Beavis. In the judgment of this same case the judges made it clear that the case was considered because the signs in the car park were clear and consistent. It was said that: "ParkingEye has displayed about 20 signs at the entrance to the car park and at frequent intervals throughout it. The signs are large, prominent and legible, so that any reasonable user of the car park would be aware of their existence and nature, and would have a fair opportunity to read them if he or she wished to do so." With this in mind, it would then follow that if this were not the case (e.g. where there is no lighting in the car park so any signs are not prominent or legible at all in the dark), then the opposite would be true and the court would not consider that a reasonable user of the car park should be expected to be aware of their existence and nature. If you are not aware of an offer, you cannot be deemed to have entered into a contract. If you have not entered into a contract, there cannot have been a breach. If there has been no breach, there should be no monies demanded nor owed.

I contend it is wholly unreasonable to rely on unlit signs in an attempt to profit by charging a disproportionate sum where no loss has been caused and where the bays were not full.

KeithP

Hello and Welcome.

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

Have you filed an Acknowledgment of Service?
If so, upon what date did you do so?
Your MCOL Claim History will have the definitive answer to that.

MizChief84

Hi KeithP 

The issue date on my county court claim form is 17th June 2022 and I have filed acknowledgement of service today. 

KeithP

MizChief84 said:

Hi KeithP 

The issue date on my county court claim form is 17th June 2022 and I have filed acknowledgement of service today. 

With a Claim Issue Date of 17th June, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Wednesday 20th July 2022 to file your Defence.

That's three 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.

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'.

Not_A_Hope

You should base your defence on the template in the sticky thread near the top of the forum inserting what happened in your specific case in just a couple of paragraphs. The rest of the defence is written for you. Most of what you have written and the photographic evidence can be saved for the witness statement which needs to be completed later.

All your defence needs to be written in the third person i.e. The defendant, the driver etc not I. Post your paragraphs (not the whole template) for critique

MizChief84

Thanks both. I'll make a start on it this weekend and post again. 

MizChief84

Hi guys. How is the below defence?

1. The driver approached the car park along Helena Road, turning left onto the car park at 21:46pm on 13/03/2021. Due to being in lockdown, only one takeaway on the street was open and as there is no street lighting in or around the car park, it was extremely dark. This is evidenced in the Claimant's own ANPR photographs (photograph evidence A) and further evidenced as the registration on the front of the Keepers car is not legible due to the lack of illumination.

2. The sign situated at the car park entrance states "Permit Holders Only. See car park signs for terms and conditions", is not illuminated and is positioned at such an angle that it is not visible from the direction of approach (photograph evidence . These circumstances make the entrance sign essentially hidden from view. The BPA Code states that signs must be easily seen by drivers as they come into the site. Also, a specific sign must be placed at the entrance to the site that summarises the rules in place and notifies the driver that specific terms and conditions will apply inside. This is not adhered to by the Claimant and the Defendant could not be bound by a contract that cannot be seen, even in optimal conditions without firstly entering the car park.

3. The driver turned right immediately upon entering the car park and stopped facing the road, still unaware of any terms, conditions or contract offer as there are no signs along the road side of the car park (photograph evidence C). Whilst it is evidenced by the Claimant that there are four signs within the car park, these are placed along the far wall, on the opposite side of the car park and again, in complete darkness and not illuminated (photograph evidence D) therefore, the Drivers attention is not brought to the contract offer. The lack of illumination is also evidenced by the Claimant's site photographs which were taken in broad daylight. The BPA suggests putting a sign under a light if that is the only way to allow it to be read.

4.The claim is for breach of contract. However, it is denied any contract existed.
4.1The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been visible.
4.2 The Claimant states, in their Response To Representation that "there are many clear and visible signs displayed" and in their Response To POPLA Appeal, "the car park has sufficient lighting" but this is not agreed. Thus, the necessary elements of offer and acceptance to form a contract were not present. The elements of offer, acceptance and consideration both ways have therefore not been satisfied and so no contract can exist.

5. It is denied that the signs used by the Claimant can have created a fair or transparent contract with a driver in any event. The signs were insufficient in terms of their distribution, wording and visibility due to positioning and lack of illumination hence incapable of binding the driver, which distinguishes this case from the Beavis case.

6.The signage was not lit and any terms were not prominent or legible; this is an unfair contract, not agreed by the Driver and contrary to the Unfair Terms according to the Consumer Rights Act 2015. Terms and conditions are unfair as the Consumer Rights Act requires them to be prominent and legible, therefore the charges cannot be enforced.
7. Further, the charge is an unenforceable unfair contract with reference to The Consumer Rights Act 2015, para 62.4 - requirement of good faith that adequate notice was given to motorists of the ‘terms’. With reference to Schedule 2 Part 1 para 6, the charge is vastly disproportionate to any alleged interest and nothing other than a punitive sanction.

8. The Claimant has also not proved authority of the Landowner to issue parking charge notices - a requirement of the BPA Code of Practice, and Consumer Contracts Regulations 2013 to which Claimant must adhere. Claimant has not provided evidence to demonstrate authority to issue parking charges on this land in the form of a contemporaneous and unredacted copy of contract between the Claimant and the Landowner.

9. It is submitted that the Claimant is merely an agent acting ‘on behalf of’ the Landowner who would be the only proper Claimant. Strict proof is required of a chain of contracts leading from the Landowner to this Claimant, to allow them the right to form contracts and to sue in their name.

10. Unreasonable fine which cannot be justified as no such loss of earnings could have been accrued considering the business was closed due to lockdown measures and, had the business been open, length of stay.

11.The Defendant has the reasonable belief that the Claimant has not incurred the claimed costs to pursue an alleged £100 debt.

12 The claim includes a sum, described as ‘Solicitor’s costs’. The Claimant is known to be a serial litigant, issuing a high volume of similar claims on a weekly basis, using the bulk processing service, generating high income. Given a standard working week, the Claimant’s solicitor can spend no more than a few minutes per claim, hardly justifying the amount claimed.
Since these are fully automated, no intervention is required by a solicitor, and the Claimant is put to strict proof to show how this cost has been incurred. The Claimant maintains case notes for each person who has accessed the case, and it is suggested this would be sufficient. The Claimant cannot rely on Nossen’s Letter Patent (1969) to justify the charge, as this is part of their everyday routine, and no ‘expert services’ are involved. The costs claimed are not valid because it is not incurred by the Claimant, generating over £244,000 in profit in financial ending March 31st 2020.

12.1 The solicitor cost was disputed in the test case of ParkingEye v Beavis and Wardley. HHJ Moloney refused to award the £50. His award was; “JUDGMENT FOR CLAIMANT FOR £85 PLUS ISSUE COSTS”. These were presumably the £25 filing fee and £25 hearing fee.

13.Claimant has not provided proof of who the Driver was at the time, registered keeper of vehicle cannot be held liable.

14.In any case, all costs are due to the cost of enforcement, which was established in ParkingEye v Beavis to be an average of around £18 per ticket issued. These can therefore be mitigated by taking no action. The charge of £100 is primarily intended as a deterrent. It is, therefore, an unenforceable penalty.

The Defendant denies that the Claimant is entitled to the debt as alleged or at all.

Coupon-mad

That's not based on the Template Defence. You only need to edit para 2 and add a facts para 3.

MizChief84

I'm not posting the template on here as advised.

Are you saying I only need to put my facts, parts 1, 2 and 3 of my defence above as my paragraph 3?

Coupon-mad

Yes - because the template defence already more than covers all the other points.

But you need to also edit ' and driver' into the Template para 2 and stop hiding behind phrases like 'the Driver did this'. Unless you were not the driver (which you have not said...so I assume you were?) then the honest position is 'The Defendant did this/that'.

MizChief84

3. The Defendant came to the area to collect her daughter from a shift at a new job in a

takeaway. The Defendant approached the car park along Helena Road, turning left onto the car

park at 21:46pm on 13/03/2021. Due to being in lockdown, only this one takeaway on the street

was open and as there is no street lighting in or around the car park, it was extremely dark.

4. The Defendant did not see any signs at the entrance of or inside the car park and turned right

immediately upon entering the car park, coming to a stop facing the road, still unaware of any

terms, conditions or contract offer as there are no signs along the road side of the car park.

5. The Defendant waited for her daughter to finish work and once she had got in the car, left the

car park by reversing a short distance and turning right toward the exit.