Civil Enforcement. Inadequate Signs. Court Order Defence Help

Margatron

KeithP said:

Margatron said:

KeithP said:

Hello and welcome.

Do you really have a summons?
I suspect you may have a County Court Claim Form and if that's so then please tell us the Issue Date on it.

I followed the advice on the NEWBIES thread and registered with acknowledgment of service which was sent as defence in full.

I think that means the OP signed up to MCOL and Acknowledged Service of the Claim choosing the option to 'defend the claim in full'.
Is that correct @Margatron?

Margatron said:

KeithP said:

Hello and welcome.

Do you really have a summons?
I suspect you may have a County Court Claim Form and if that's so then please tell us the Issue Date on it.

The claim is dated 20th December.

I am going to assume that an Acknowledgment of Service was filed sometime after 23rd December and before 4pm on Monday 9th January. Please confirm that. Your MCOL Claim History will have the definitive answer.

With a Claim Issue Date of 20th December, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 23rd January 2023 to file your Defence.

That's over 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'.

Correct to both of the above.
That is good to know regarding the additional time. I had assumed 17th Jan but guess that didn’t include the additional 5 days.
I will follow the steps to form a defence in the Newbie section and would like to post for critique please.
Thank you for the assistance to this point.

As a side note, after losing the Popla appeal I took the matter to the BPA and forwarded the evidence I had including the email and photographs outlining that all compliant signage was removed as it was “unsightly” i.e visible! They simply rejected my complaint.
In the case of this particular car park, it’s not the case of one or two correctly sized signs in hard to read places, there are literally no compliant signs what so ever. A4 pieces of paper behind church window glass some 8ft off the ground, which I literally had to search for after receiving the initial ticket through the post. Having read the information Civil enforcement sent to Popla, they included photographs and a “map” of where the previously compliant signage was located. Which both my photographs (frustratingly not dated) and the then later  information from Wiltshire Council proved no longer exist, and were removed some months prior to my using the car park. It turns out the car park is free to use for patrons, one simply has to enter the church or club to enter reg details. Given both the church and the club are closed more often than open, surely this means one couldn’t fulfill the “contractual obligation” even if the signage had been in place and read?
Civil Enforcement must be making thousands of pounds from this one car park alone. 

Win or lose surely there is a way to have this stopped? I know about the funding of Popla and the BPA but they cannot be above the law surely?

Mouse007

Where is the church? and on what device did you take the photos?

KeithP

Margatron said:

It turns out the car park is free to use for patrons, one simply has to enter the church or club to enter reg details. Given both the church and the club are closed more often than open, surely this means one couldn’t fulfill the “contractual obligation” even if the signage had been in place and read?

Doesn't that simply mean that the car park is not available for anyone to park in when the 'church or club' are closed?

fisherjim

Margatron said:

Which both my photographs (frustratingly not dated)

If your photos were taken on a phone the date and exact time are contained in each photos data file easily accessed after opening each photo.

Margatron

Good evening.

I have read the Newbie sections, and as helpful as it was with responding initially to the acknowledgment of service re county court claim I still have many questions:

Is my initial defence as simple as the below. I assume at this stage I do not issue photographic images, emails etc? Assume this is to follow if the claimant takes me to court?

Am I to issue my response via email to the email listed in then Newbie section?

Should I include generic claims regarding proportion of fine etc.

Sorry for what I imagine to be tedious questions, but both my partner an I am struggling to understand what we should and shouldn't do with such a vast pool of information.

Claim No. details etc…..

I am disappointed that this has had to come to court as in my lay view this should have been easily resolved before. Unfortunately, the process provided by POPLA seems geared to the experienced user rather than to assist the first-time user as I am.

We visited the churchyard parking for 16 minutes on 15/11/2020 and on our approach to the carpark and in parking we saw only one sign being a notice that read “No parking patrons only” We looked for a sign of the sort one would expect to see in a car park to see what the relevant carpark restrictions might be. There were no such signs in the carpark. As we were intending to take our lockdown daily exercise walk around the church to view the architecture, we believed we satisfied the ‘patron’ requirements of being a visitor to the church grounds.

On receiving the Civil Enforcement Parking Notice from the Mount Pleasant Centre, we returned to the carpark and consequently made an appeal to POPLA. We were shocked to subsequently see photographs that Civil Enforcement Ltd provided of signage that does not accord with our memory of a total lack of signage. On further investigation we learned that the signage had been removed prior to our visit, after a local petition to remove it because it was ‘unsightly’ for the conservation area in which the church is situated.  POPLA rejected our appeal due to accusations that our photographs were taken in such a way that they avoided the signage that were in place, when in reality, we hadn’t seen signage to take photographs of and therefore couldn’t have take photographs to avoid signage that didn’t exist. For these following points we can provide both photographic and documentary evidence.

The photographs of the signage provided by Civil Enforcement depicted signage that was no longer in place on 15/11/2020

This is confirmed by photographs we took on the occasion of our revisit on 09/04/2021 and provided to POPLA but unfortunately, we did not understand the images had to be dated digitally on the photograph itself.

However, an email correspondence with Daniel Tyrrell (Planning Enforcement Officer) from Wiltshire Council confirms that Civil Enforcement Ltd. were obliged to remove the signage as depicted in their photographs and this work had been completed by the date on which we parked.

We have now taken an extensive set of photographs of the carpark including photographs of each location identified on the plan of the carpark, as supplied by Civil Enforcement Ltd, as having a sign. These show the signs identified by Civil Enforcement Ltd are either non-existent or fall far below the standards required by the regulations outlined within section 18 of the British Parking Association code practice and I quote:

 

“18.3 Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm”

 

British Parking Association are the trade organisation to which Civil Enforcement Ltd. is a member and through whom, by obedience to their rules, Civil Enforcement Ltd. has legal access to driver data from the DVLA.

In summary I believe the Mount Pleasant Centre Car Park in Bradford on Avon has no clear signage to explain what the relevant parking restrictions are and this means no contract can be formed with the landowner or car park operator and the tickets are issued illegally. Civil Enforcement Ltd. have conducted this matter in a vexatious, bullying manner that is inappropriate for an organisation to deal with a member of the public and against the expectations of their regulatory body.

KeithP

Have you not read any other Defences?

Coupon-mad

Is my initial defence as simple as the below?

No, absolutely not.  Sorry, that isn't a defence.

You need to re-read the NEWBIES thread as you've completely overlooked the Template Defence which also answers your other questions.

Margatron

Coupon-mad said:

Is my initial defence as simple as the below?

No, absolutely not.  Sorry, that isn't a defence.

You need to re-read the NEWBIES thread as you've completely overlooked the Template Defence which also answers your other questions.

Got it. Apologies I have been struggling to navigate the NEWBIES section but can see everything now!

Margatron

KeithP said:

Have you not read any other Defences?

Coupon-mad said:

Is my initial defence as simple as the below?

No, absolutely not.  Sorry, that isn't a defence.

You need to re-read the NEWBIES thread as you've completely overlooked the Template Defence which also answers your other questions.

Good evening both,

Again apologies for my confusion Navigating the NEWBIE section.

I would very much appreciate feedback from the forum on the below. Having printed the template and reading others I have related the below to my case.

Many thanks in advance.

IN THE COUNTY COURT

Claim No.:  xxxxxx

Between

Civil Enforcement Ltd.

(Claimant) 

- and -  

Defendant’s name from N1

 (Defendant)

_________________

DEFENCE

 

1. The parking charges referred to in this claim did not arise from any agreement of terms. The charge and the claim was 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 and driver of the vehicle in question.

3. The Defendant visited the Mount Pleasant Centre Car Park, parking for 16 minutes on 15/11/2020.

4. The Defendant parked in good faith having observed no signage outlining terms of any contract with the Claimant.

5. The Defendant carried out further investigation having received a Parking Charge Notice (issue date 26/11/2020); It has been proven all bar one compliant sign as outlined within the British Parking Association “The BPA” code of Practice had been removed by order of Wiltshire Council “Some time between 11th August 2020 and the 3rd September 2020”. The Defendant has both written and Photographic evidence provided by Wiltshire Council proving the alleged compliant and visible signage had been removed prior to the defendant using the car park on the 15/11/2020. The one remaining sign as outlined in the photographic evidence provided by Wiltshire Council did not provide any terms and conditions, stating; “See Car Park Signs for Terms and Conditions”.

6. As point 5 above; After an appeal to POPLA was submitted by the defendant, it was found the evidence provided by the Claimant depicting alleged “compliant signage” within the Mount Pleasant Centre Car Park in photographs dated 2020/03/05, is incorrect/false and therefore misleading/coercing the process of appeal.

7. 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. 

8. 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.  

9.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'.

10. 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

11. 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." 

12. 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." 

13. 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.  

14. 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.

15. 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. 

16. 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.

17. 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.

 

POFA and CRA breaches

18. 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. 

19. 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.

20. 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. 

 

 

Margatron

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

21. 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.

22. 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'.

23.  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).  

24. 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

25. 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.

26.  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

27. 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. 

28. 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.

 

29. 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. 

30.  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.

Defendant’s signature:

Date: