ccj for parking fine

Coupon-mad

CEL sometimes discontinue, but nothing like the game played by DCBLegal which comes across as a calculated model of using the court as a cheap form of debt recovery, with the added bonus for DCB Group of being able to then take most cases to their own bailiffs and layer on £200 for unexplained reasons.

Anyway, CEL are more likely to attend a hearing, but cases we see tell us that generally, their paralegals and their evidence are hopeless.

And that defence works for you because the POC are so vague and incoherent that there is a chance of a local Judge striking the claim out.

Don't expect that, but it is worth the wording to try!

I haven't received a claim form yet. So I'm unclear as to what the next steps are.

But you have, because you've had the POC.

That is the basis of claim, so you must now do exactly what your local Judge ordered you to do.  Which is what I explained in my earlier post.

rms22

Thanks, so are paragraphs 2 and 3 ok? 

Coupon-mad

Coupon-mad said:

Show us your paras 2 and 3 that you create to make Johny86's defence your own, and we'll then find a suitable place to put in the Fairlie v Fenton argument used in other Wells defences (because the contract appears to be offered by the Harbour Commissioner and CEL have no standing to sue).

I'd also like to push hard to argue 'wholly unreasonable conduct' to get all your costs awarded and maybe even consider a counterclaim for DPA breach (data misuse) to stop CEL discontinuing and to recoup your £275 that way...

Anyway show us your 2 and 3 paragraph drafts, after you've read the forum's template defence (DO NOT EMAIL ANYTHING TO THE CCBC AS THAT THREAD ADVISES BECAUSE YOU ARE NOT DEALING WITH THAT CLAIM ADMIN CENTRE).

Just reminding us all that there is more for you to add, as this is a Port of Wells case.

And are you up for trying a counterclaim on the basis that this agent appears to have misused your DVLA data by holding themselves out as having standing to sue and using the data for a court claim, when it was old address data, they breached the BPA CoP by failing to check your address and (arguably) they are the wrong Claimant anyway?

Or would you rather forget the fact you are £275 out of pocket and hope that a robust defence makes CEL discontinue?

Now is the time to decide.

2. It is admitted that the Defendant was the registered keeper of the vehicle and driver, but liability is denied.
3. The Defendant submitted a SAR to the claimant on 01/03/2023 to gain information into the alleged breach of terms. As a significant amount of time has passed since the alleged offence, the exact circumstances surrounding the Defendant's visit to the claimant’s site cannot be recalled.  
4. The Defendant avers that the Claimant failed to serve a Notice to Keeper compliant with the Protection of Freedoms Act 2012. Consequently, the claimant cannot transfer liability for this charge to the Defendant as keeper of the vehicle. 

Your intended paragraphs 2 & 3 are fine but they do admit to driving, so that particular paragraph 4 above, about the POFA, is irrelevant.

Maybe that para 4 needs to be this, then a few more paragraphs as shown below (then Johny86's words from his para 5 onwards, obviously re-numbered in your case):


4.  The Defendant has researched the significant signage/contract issues relating to this location, and will take the point that this Claimant is a mere Agent, acting on behalf of their Principal. It is a matter of trite and long-established law that an agent may not sue in its own name in circumstances where the identity of the principal is disclosed, which it is on the sparse signage.  'By Order of the Wells Harbour Commissioners' is written in large lettering at the bottom of the signs, including at the entrance.  Further, the Claimant is on record as trying to prevent, cover up and remove the principal's attempts to add their own signage (the Harbour Commissioners were attempting to reduce the high number of PCNs by clarifying the rules) and evidence of all of this will be provided before the hearing.

5. The supposed contractual sign at this site - from images found online - states that this Claimant's role is to 'enforce', 'monitor' and 'patrol'.  It is clear that their limited function is to facilitate the terms offered by the principal, including 'contact the DVLA' and 'issue PCNs'.  This limited function is confirmed in the Claimant's own Linked In page, where they proclaim 'Civil Enforcement Ltd process and administer Parking Charge Notices (PCN's) on the behalf of UK Small Businesses and Major UK Brands.'

6.  Unlike in the Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67, there is no sentence in the signage that offers or attempts to create a contract between this Claimant and a driver.  A parking management firm could use wording to make themselves personally liable on the contract and they could make a contractual offer themselves by saying 'by parking at this site you, the driver, are entering into a contract with us' (or words to that effect, to make the contract their own) but there is no such wording.  In fact, at no point is a driver told that they are entering into any contractual relationship.

7.  The only licence to park is offered by (and the site is maintained by) the Port of Wells Harbour Commissioners, who are the disclosed principal.  The Defendant avers that this Claimant does not retain nor pay VAT on the tariffs and they have no possessory title in this land.  Fatally to their claim, the Claimant made no offer of a contract at all.  There is no contractual relationship between this Claimant and the Defendant.  An agent may not sue in circumstances where the identity of the principal is disclosed. Therefore, Claimant has no locus standi to bring this claim.

8.  The Claimant is put to strict proof if their position is to the contrary of that stated by this Defendant, who takes the point that the principles established by the authority of Fairlie v Fenton (1870) LR 5 Exch 169 apply. 

rms22

Thank you @Coupon-mad  

As much as I want to reclaim those costs I'd rather have this over and done with, and with a robust defence a discontinuance.

When the DLUHC comes into effect hopefully there will be less people who have to deal with this, and we won't need threads like this to help people understand what they have to do. Until such time, and where needed, hopefully threads like this one can help people who need it. They should also be able to help highlight the unreasonable behaviour of these rogue PPC scammers, so there is that at least. And with your help and that of the other regulars I will do everything I can to make sure that they don't directly make any profit from me by fighting this unfounded claim.

The only thing I have received since the hearing is a General form of judgment or order, Certificate of Satisfaction or Cancellation of Judgment Debt and a page headed CCBC with the PoC. When or how am I supposed to acknowledge service as I've read bargepole's thread 2. You should now Acknowledge Service of the claim, ticking the box that says you will defend in full. Do NOT put anything in the 'Defence and Counterclaim' text box, not even a full stop. By doing this, you have extended the time to submit a defence to 28 days from date of service, which is the date printed on the claim form plus 5 days.

^ But I haven't received anything from CEL since the hearing so haven't received anything which mentions AoS.

Here is what I've drafted for the final defence. 

_________________

DEFENCE

 

1. The parking charges referred to in this claim did not arise from any agreement of terms. The charge and the claim were an unexpected shock. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was a breach of any prominent term, and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the Particulars. 

 

The facts as known to the Defendant: 

2. It is admitted that the Defendant was the registered keeper of the vehicle and driver, but liability is denied.

3. The Defendant submitted a SAR to the claimant on 01/03/2023 to gain information into the alleged breach of terms. As a significant amount of time has passed since the alleged offence, the exact circumstances surrounding the Defendant's visit to the claimant’s site cannot be recalled. 

4.  The Defendant has researched the significant signage/contract issues relating to this location, and will take the point that this Claimant is a mere Agent, acting on behalf of their Principal. It is a matter of trite and long-established law that an agent may not sue in its own name in circumstances where the identity of the principal is disclosed, which it is on the sparse signage.  'By Order of the Wells Harbour Commissioners' is written in large lettering at the bottom of the signs, including at the entrance.  Further, the Claimant is on record as trying to prevent, cover up and remove the principal's attempts to add their own signage (the Harbour Commissioners were attempting to reduce the high number of PCNs by clarifying the rules) and evidence of all of this will be provided before the hearing.

5. The supposed contractual sign at this site - from images found online - states that this Claimant's role is to 'enforce', 'monitor' and 'patrol'.  It is clear that their limited function is to facilitate the terms offered by the principal, including 'contact the DVLA' and 'issue PCNs'.  This limited function is confirmed in the Claimant's own Linked In page, where they proclaim 'Civil Enforcement Ltd process and administer Parking Charge Notices (PCN's) on the behalf of UK Small Businesses and Major UK Brands.'

6.  Unlike in the Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67, there is no sentence in the signage that offers or attempts to create a contract between this Claimant and a driver.  A parking management firm could use wording to make themselves personally liable on the contract and they could make a contractual offer themselves by saying 'by parking at this site you, the driver, are entering into a contract with us' (or words to that effect, to make the contract their own) but there is no such wording.  In fact, at no point is a driver told that they are entering into any contractual relationship.

7.  The only licence to park is offered by (and the site is maintained by) the Port of Wells Harbour Commissioners, who are the disclosed principal.  The Defendant avers that this Claimant does not retain nor pay VAT on the tariffs and they have no possessory title in this land.  Fatally to their claim, the Claimant made no offer of a contract at all.  There is no contractual relationship between this Claimant and the Defendant.  An agent may not sue in circumstances where the identity of the principal is disclosed. Therefore, Claimant has no locus standi to bring this claim.

8.  The Claimant is put to strict proof if their position is to the contrary of that stated by this Defendant, who takes the point that the principles established by the authority of Fairlie v Fenton (1870) LR 5 Exch 169 apply. 

9. The Particulars of Claim ('POC') appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action”. 

10. The Defendant is unable, on the basis of the POC, to understand with certainty what case is being pursued. 

11. The POC are entirely inadequate, in that they fail to particularise (a) the contractual term(s) relied upon; (b) the specifics of any alleged breach of contract; and (c) how the purported and unspecified 'damages' arose and the breakdown of the exaggerated quantum. 

12. The claim has been issued via Money Claims Online and, as a result, is subject to a character limit for the Particulars of Claim section of the Claim Form.  The fact that generic wording appears to have been applied has obstructed any semblance of clarity.  The Defendant trusts that the court will agree that a claim pleaded in such generic terms lacks the required details and requires proper particularisation in a detailed document within 14 days, per 16PD.3 

13. The guidance for completing Money Claims Online confirms this and clearly states: "If you do not have enough space to explain your claim online and you need to serve extra, more detailed particulars on the defendant, tick the box that appears after the statement 'you may also send detailed particulars direct to the defendant.'" 

14. No further particulars have been filed and to the Defendant's knowledge, no application asking the court service for more time to serve and/or relief from sanctions has been filed either. 

15. In view of it having been entirely within the Claimant's Solicitors' gift to properly plead the claim at the outset and the claim being for a sum, well within the small claims limit, such that the Defendant considers it disproportionate and at odds with the overriding objective (in the context of a failure by the Claimant to properly comply with rules and practice directions) for a Judge to throw the erring Claimant a lifeline by ordering further particulars (to which a further defence might be filed, followed by further referral to a Judge for directions and allocation) the court is respectfully invited to strike this claim out. 

16. The facts in this defence come from the Defendant's own knowledge and honest belief.  To pre-empt the usual template responses from this serial litigator: the court process is outside of the Defendant's life experience and they cannot be criticised for adapting some pre-written wording from a reliable advice resource. The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence.  

17. With regard to template statements, the Defendant observes after researching other parking claims, that the Particulars of Claim ('POC') set out a cut-and-paste incoherent statement of case.  Prior to this - and in breach of the pre-action protocol for 'Debt' Claims - no copy of the contract (sign) accompanied any Letter of Claim.  The POC is sparse on facts about the allegation which makes it difficult to respond in depth at this time; however, the claim is unfair, objectionable, generic and inflated.   

18.  This Claimant continues to pursue a hugely disproportionate fixed sum (routinely added per PCN) despite knowing that this is now banned. It is denied that the quantum sought is recoverable (authorities: two well-known ParkingEye cases where modern penalty law rationale was applied).  Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67.  Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment.  Whilst £75 was reasonable, HHJ Hegarty (sitting at the High Court; later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating it to £135 'would appear to be penal'. 

19. This finding is underpinned by the Government, who have now stated that attempts to gild the lily by adding 'debt recovery costs' were 'extorting money'.  The Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a statutory Code of Practice, found here: https://www.gov.uk/government/publications/private-parking-code-of-practice 

20. Adding costs/damages/fees (however described) onto a parking charge is now banned. In a section called 'Escalation of costs' the incoming statutory Code of Practice says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."  
 

21. The Code's Ministerial Foreword is unequivocal about abusive existing cases such as the present claim: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists."  

22. The DLUHC consulted for over two years and considered evidence from a wide range of stakeholders.  Almost a fifth of all respondents to the 2021 Technical Consultation called for false fees to be scrapped altogether; this despite the parking industry flooding both public consultations, some even masquerading as consumers. The DLUHC saw through this and in a published Response, they identified that some respondents were 'parking firms posing as motorists'.  Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt recovery/robo-claim law firms operate on a 'no win, no fee' basis, seeking to inflate the sum of the parking charge, which in itself is already sufficiently enhanced.   

23. This Claimant has not incurred any additional costs (not even for reminder letters) because the (already high) parking charge more than covers what the Supreme Court in Beavis called an automated letter-chain business model that generates a healthy profit. 

24. The driver did not agree to pay a parking charge, let alone unknown costs, which were not quantified in prominent text on signage. It comes too late when purported debt recovery fees are only quantified after the event.  

25. Whilst the new Code and Act is not retrospective, it was enacted due to the failure of the self-serving BPA & IPC Codes of Practice.  The Minister is indisputably talking about existing (not future) cases when declaring that 'recovery' fees were 'designed to extort money'.  A clear steer for the Courts. 

26. This overrides mistakes made in the appeal cases that the parking industry try to rely upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy).  Far from being persuasive, regrettably these one-sided appeals were findings by Circuit Judges who appeared to be inexperienced in the nuances of private parking law and were led in one direction by Counsel for parking firms, and the litigant-in-person consumers lacked the wherewithal to appeal further.  In case this Claimant tries to rely upon those cases, the Defendant avers that significant errors were made.  Evidence was either overlooked (including inconspicuous signage in Wilshaw, where the Judge was also oblivious to the BPA Code of Practice, including rules for surveillance cameras and the DVLA KADOE requirement for landowner authority) or the Judge inexplicably sought out and quoted from the wrong Code altogether (Percy).  In Ward, a few seconds' emergency stop out of the control of the driver was unfairly aligned with the admitted contract in Beavis. Those learned Judges were not in possession of the same level of facts and evidence as the DLUHC, whose Code now clarifies all such matters. 

 

rms22

POFA and CRA breaches 

27. Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a firm may have complied with other POFA requirements (adequate signage, Notice to Keeper wording/dates, and a properly communicated 'relevant contract/relevant obligation').  If seeking keeper/hirer liability - unclear from the POC - the Claimant is put to strict proof of full compliance and liability transferred.  

28. Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the Consumer Rights Act 2015 ('CRA').  The CRA introduced new requirements for 'prominence' of both contract terms and 'consumer notices'.  In a parking context, this includes signage and all notices, letters and other communications intended to be read by the consumer. 

29. Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer.  In the case of a 'PCN', this must have been served to the driver whilst the vehicle was stationary or, at sites remotely monitored by ANPR/CCTV, served to the keeper so that the motorist learns about it quickly. Signage must be prominent, plentiful, well placed and lit, and all terms unambiguous and obligations clear. The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair dealing and good faith.  

 

ParkingEye v Beavis is distinguished (lack of legitimate interest/prominence of terms) 

30. ParkingEye overcame the possibility of their £85 charge being dismissed as punitive, however the Supreme Court clarified that ‘the penalty rule is plainly engaged’ in parking cases, which must be determined on their own facts.  That 'unique' case met a commercial justification test, given the location and clear signs with the parking charge in the largest/boldest text.  Rather than causing other parking charges to be automatically justified, the Beavis case facts (in particular, the brief, conspicuous yellow & black warning signs) set a high bar that this Claimant has failed to reach. 

31. 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 a legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor any 'concealed pitfalls or traps'. 

32.  In the present case, the Claimant has fallen foul of those tests. The Claimant’s small signs have vague/hidden terms and a mix of small font and are considered incapable of binding a driver.  Consequently, it remains the Defendant’s position that no contract to pay an onerous penalty was seen or agreed.  Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of a parking charge, include: 

(i) Spurling v Bradshaw [1956] 1 WLR 461 (‘red hand rule’) and 

(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2, 

both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and 

(ii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where Ms Vine won because it was held that she had not seen the terms by which she would later be bound.  It was unsurprising that she did not see the sign, due to "the absence of any notice on the wall opposite the parking space'' (NB: when parking operator Claimants cite Vine, they often mislead courts by quoting out of context, Roch LJ's words about the Respondent’s losing case, and not from the ratio).   

33. Fairness and clarity of terms and notices are paramount in the statutory Code and this is supported by the BPA & IPC Trade Bodies.  In November 2020's Parking Review, solicitor Will Hurley, CEO of the IPC, 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."  

 
 

Lack of landowner authority evidence and lack of ADR 

34. DVLA data is only supplied to pursue parking charges if there is an agreement flowing from the landholder (ref: KADOE rules).  It is not accepted that the Claimant has adhered to a defined enforcement boundary, grace period or exemptions (whatever the landowner's definitions were) nor that this Claimant has authority from the landowner to issue charges in this specific area.  The Claimant is put to strict proof of all of this, and that they have standing to make contracts with drivers and litigate in their own name, rather than merely acting as agents. 

35.  The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The Appeals Annex in the new Code shows that genuine disputes such as this - even if the facts were narrowed later - would have seen the charge cancelled, had a fair ADR existed.  Whether or not a person engaged with it, the Claimant's consumer blame culture and reliance upon the industry's own 'appeals service' should not sway the court into a belief that a fair ADR was ever on offer. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and would have rejected almost any dispute: e.g. the IAS upheld appeals in a woeful 4% of decided cases (IPC's 2020 Annual Report).   

 
 

Conclusion 
 

36. The claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court's time and that of the Defendant.  

37. With the DLUHC's ban on the false 'costs' there is ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims.  For HMCTS to only disallow those costs in the tiny percentage of cases that reach hearings whilst other claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers who suffer CCJs or pay inflated amounts, in fear of the intimidating pre-action demands. The Defendant believes that it is in the public interest that claims like this should be struck out because knowingly enhanced parking claims like this one cause consumer harm on a grand scale. 
 

38. In the matter of costs, the Defendant asks: 

(a) at the very least, for standard witness costs for attendance at Court, pursuant to CPR 27.14, and 

(b) for a finding of unreasonable conduct by this Claimant, seeking costs pursuant to CPR 46.5.  

39.  Attention is drawn specifically to the (often-seen from this industry) possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not normally apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))."    

 
 

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. 

 

B789

Why on earth would you not want to claim the £275 you paid for the set-aside? All you have to do is add the extra paragraphs @Coupon-mad has already drafted for you above.

rms22

B789 said:

Why on earth would you not want to claim the £275 you paid for the set-aside? All you have to do is add the extra paragraphs @Coupon-mad has already drafted for you above.

Which paragraphs ? 

rms22

I thought that at this stage trying to reclaim the £275 would involve a counter-claim which would involve prolonging all of this when I'd rather have it over and done with.

B789

My bad. I was thinking of something else. However, why would you not want to get your £275 back with the extra satisfaction that it is the claimant who has to pay it to you.

rms22

B789 said:

My bad. I was thinking of something else. However, why would you not want to get your £275 back with the extra satisfaction that it is the claimant who has to pay it to you.

Because all of this is really far out of my comfort zone. It would be satisfying, but I am assuming if I were to counter-claim it would involve lots more paperwork, time off work, stress, worry etc. and if so ultimately it's just not worth it to me as health is of greater value.