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Civil Enforcment - CEL - Claim Form Recieved - Original notice sent to old address
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To add to this, The parking used to be - go into a shop and enter your details for a permit. But the sign used to say (from memory) no parking allowed without permit with no instructions on how to obtain one. I'll need to somehow see the original Tc&Cs to confirm that though. No idea if they typed in the reg or not. The business is now permenantly closed so can't speak to them.
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They are asking for £100 + 8% interest + £50 legal fees + £35 of court fees = £198.57. And the POC looks like a copy and paste job with some details and signed by some one typing their name. S Wilson.Search the forum for Wilson Wonga-man (with or without the hyphen). Loads of threads to read & learn from.
Are you saying £198.57 is the TOTAL claim and they haven't added £70? If so, you can't use part of the Template Defence about exaggerated costs/fees.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD1 -
Hello and welcome.WarfredOmega said:Recieved the Claim form on the 18/08/23 with an issue date of 16/08/23. Did AOS on the 18/08/23, didn't realise I was supposed to wait 5 days.
What does your MCOL Claim History say about when an Acknowledgment of Service was received?
There will be two lines like...Your acknowledgment of service was submitted on dd/08/2023 at hh:mm:ssFor the moment I'll assume that an Acknowledgment of Service was received on 18th August. Please confirm.
Your acknowledgment of service was received on dd/08/2023 at hh:mm:ssWith a Claim Issue Date of 16th August, and having filed an Acknowledgment of Service on 18th August 21st August, you have until 4pm on Friday 15th September 2023 Monday 18th September 2023 to file your Defence.
That's nearly four 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'.2 -
Yes, the core claim is £100 and the TOTAL is 198.57. Does added legal fees not count as exadurated costs? Since they clearly just copy and paste the POC and no solicitor has signed it by hand? Just looked up wonga man. HAHAHA, that's awsome, can't see anything I can use directly in my defence, but will keep looking and reading.Coupon-mad said:Search the forum for Wilson Wonga-man (with or without the hyphen). Loads of threads to read & learn from.
Are you saying £198.57 is the TOTAL claim and they haven't added £70? If so, you can't use part of the Template Defence about exaggerated costs/fees.
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KeithP said:
Hello and welcome.WarfredOmega said:Recieved the Claim form on the 18/08/23 with an issue date of 16/08/23. Did AOS on the 18/08/23, didn't realise I was supposed to wait 5 days.
What does your MCOL Claim History say about when an Acknowledgment of Service was received?
There will be two lines like...Your acknowledgment of service was submitted on dd/08/2023 at hh:mm:ssFor the moment I'll assume that an Acknowledgment of Service was received on 18th August. Please confirm.
Your acknowledgment of service was received on dd/08/2023 at hh:mm:ssWith a Claim Issue Date of 16th August, and having filed an Acknowledgment of Service on 18th August, you have until 4pm on Friday 15th September 2023 to file your Defence.
That's nearly four 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'.A claim was issued against you on 16/08/2023
Your acknowledgment of service was submitted on 18/08/2023 at 18:29:04
Your acknowledgment of service was received on 21/08/2023 at 01:05:36
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Then you have a few more days to file a Defence than I said earlier.WarfredOmega said:KeithP said:
Hello and welcome.WarfredOmega said:Recieved the Claim form on the 18/08/23 with an issue date of 16/08/23. Did AOS on the 18/08/23, didn't realise I was supposed to wait 5 days.
What does your MCOL Claim History say about when an Acknowledgment of Service was received?
There will be two lines like...Your acknowledgment of service was submitted on dd/08/2023 at hh:mm:ssFor the moment I'll assume that an Acknowledgment of Service was received on 18th August. Please confirm.
Your acknowledgment of service was received on dd/08/2023 at hh:mm:ssWith a Claim Issue Date of 16th August, and having filed an Acknowledgment of Service on 18th August, you have until 4pm on Friday 15th September 2023 to file your Defence.
That's nearly four 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'.A claim was issued against you on 16/08/2023
Your acknowledgment of service was submitted on 18/08/2023 at 18:29:04
Your acknowledgment of service was received on 21/08/2023 at 01:05:36
I have updated my earlier post to reflect this.2 -
Those court fees are all OK so you will have to remove the bits of the template that talk about exaggerated fees.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD1 -
IN THE COUNTY COURT
Claim No.: xxxxx
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 any conduct by the driver was in breach of any term. Further, it is denied that this Claimant (understood to have a bare licence as agents) 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 boilerplate text in the Particulars of Claim ('the POC').
The facts as known to the Defendant:
2. The facts in this defence come from the Defendant's own knowledge and honest belief. Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC is devoid of any detail and even lacks specific breach allegation(s), making it very difficult to respond. However, it is admitted that the Defendant was the registered keeper of the vehicle.
The defendant was not the driver.
4. The claimant has no cause of action against the defendant as no contract implied or otherwise was in force with the defendant.
5. The Claimant is put to strict proof of:
(i). the alleged breach, which is not pleaded in the POC and requires further and better particulars
(ii). a strong 'legitimate interest' extending beyond mere compensation for loss, and
(iii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.The Defendant denies (i), (ii) or (iii) have been met. The charge imposed, in all the circumstances is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.
6. The Defendant avers that this claim is unfair and it is denied that any sum is due, whether in debt, damages, fees or costs.
CPR Breaches
7. The Particulars of Claim ('POC') appear to be in breach of Court Rules & practices (‘CPR’) 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action”.
8. 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.
9. The POC also appears to be in breach of CPR 22 PD 3.9 detailing Who may sign the statement of truth and “3.9 The individual who signs a statement of truth must print his full name clearly beneath his signature.” There is no signature present not full name written.
10. The POC are entirely inadequate, in that they fail to (a) particularise the contractual term(s) relied upon; (b) particularise the specifics of any alleged breach of contract; (c) particularise how the purported and unspecified 'damages' arose and the breakdown of the exaggerated quantum; and (d) have a valid and signed statement of truth.
11. Contrary to all the pre-action protocol and Code of Practice rules, as well as with flagrant disregard to the overriding objective and the CPRs, the Claimant's abject failure to provide any useful information or photographic evidence in pre- and post-action letters and notices - yet filing a spurious claim - is wholly unreasonable, but perhaps not unexpected, given the meritless claim was presumably filed by Scott Wilson 'Head of Legal and Compliance at Creative Car Park Ltd' but previously boasting in their LinkedIn profile of being 'Commercial and Legal Manager' at Wonga.com.
‘Market failure' currently being addressed by UK Government
12. This case is a classic example of funding the 'numbers game' of bulk litigation of weak and/or archive parking cases. MoJ statistics of bulk litigators reveal that there are several hundred thousand parking claims per annum, with some 90% causing default CCJs totalling hundreds of millions of pounds. No checks and balances are likely to have been made to ensure facts, merit or a proper cause of action (given away by the woefully inadequate POC).
13. The Department for Levelling Up, Housing and Communities ('the DLUHC') published a statutory Parking Code of Practice in February 2022, here: https://www.gov.uk/government/publications/private-parking-code-of-practice
The Ministerial Foreword is damning: "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."
14. Despite legal challenges delaying the Code (marked as temporarily withdrawn) it is thankfully 'live' after a draft Impact Assessment (IA) was published on 30th July 2023. The Government's analysis exposes what they say are industry-gleaned facts about supposed 'fees' and the current ‘market failure’. The analysis is found here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf
15. Paragraphs 4.31 and 5.19 state that the parking industry has shown the DLUHC that the true minor cost of what the former calls debt recovery or 'enforcement' ( = pre-action) stage totals a mere £8.42 per case (not per PCN).
16. This Claimant has not incurred costs. A parking charge model already includes what the Supreme Court called an 'automated letter-chain' and it is a model that generates a healthy profit. In Beavis, there were 4 pre-action letters/reminders and the £85 'PCN' was held to more than cover the minor costs of the operation. The DLUHC's IA confirms that the parking charge itself more than covers the minor costs of the letters (NB: the debt collectors do not charge anything in failed collection cases).
17. Whilst the new Code is not retrospective, all non-monetary clauses went unchallenged by the parking industry. The 2022 DLUHC Code will replace the self-serving BPA & IPC Codes, which are not regulation and carry limited weight. In a clear steer for the Courts and for the avoidance of doubt: the DLUHC say they are addressing 'market failure'.
18. The Defendant avers that the DLUHC's analysis now overrides plainly wrong assumptions made by Circuit Judges steered by Counsel in astonishingly weak appeal cases that the parking industry engineered their way: 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 cherry-picked litigant-in-person consumers without the wherewithal to appeal. Incorrect presumptions were made in every case; and there were major evidence discrepancies (e.g. in Wilshaw, where the Judge was also oblivious to the DVLA KADOE requirement for landowner authority). One Judge inexplicably sought out for himself and quoted from the wrong Code of Practice (Percy). In Ward, a few seconds' emergency stop out of the control of the driver was wrongly aligned with the agreed contract in Beavis. Those learned Judges were not in possession of the same level of information as the DLUHC, whose incoming statutory Code of Practice now clarifies such matters as a definition of 'parking' as well as consideration and grace periods and minor matters such as 'keying errors' or 'fluttering tickets/permits' where a PCN should not have been issued at all, or should have been cancelled in the pre-action dispute phase.
19. The Defendant avers that there was no agreement to pay a parking charge, let alone quantified in bold, prominent text. This Claimant failed to erect well-placed, large, lit and readable signs on a par with the yellow & black warnings seen in Beavis, and unlike the signage requirements set out in the DLUHC Code which reflects the already statutory requirement for 'prominence' (Consumer Rights Act 2015 - the 'CRA').
POFA and CRA breaches
20. Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') If seeking keeper/hirer liability - unclear from the POC - the Claimant is put to strict proof of full compliance and liability transferred, 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').
21. Section 71 CRA creates a statutory duty upon Courts to consider the test of fairness whether a party raises it or not. Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3):
22. The CRA introduced new requirements for 'prominence' of both terms and 'consumer notices'. In a parking context, this includes a test of fairness and clarity of 'signs & lines' and all communications intended to be read by consumers. Signage must be prominent (lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.
23. The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying regard to examples 6, 10, 14 & 18 of Schedule 2 and the duties of fair/open dealing and good faith (NB: this does not necessarily mean there has to be a finding of bad faith).
ParkingEye v Beavis is distinguished (lack of legitimate interest/prominence of terms)
24. 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 each be determined on their own facts. That 'unique' case met a commercial justification test and took into account the prominent yellow/black uncluttered signs with £85 in the largest/boldest text. Rather than causing other parking charges to be automatically justified, the Beavis case facts set a high bar that this Claimant has failed to reach.
25. 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 'concealed pitfalls or traps'.
26. 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
(iii) 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, 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).
27. 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 standing or landowner authority, and lack of ADR
28. 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 this Claimant (an agent of a principal) has authority from the landowner to issue charges in this place in their own name. The Claimant is put to strict proof that they have standing to make contracts with drivers and litigate in their own name.
29. The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The DLUHC Code shows that genuine disputes such as this should see PCNs cancelled, had a fair ADR existed. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and reject most disputes: e.g. the IAS upheld appeals in a woeful 4% of decided cases (2020 Annual Report). This consumer blame culture and reliance upon their own 'appeals service' (described by MPs as a kangaroo court and about to be replaced by the Government) should lead Judges to know that a fair appeal was never on offer.
Conclusion
30. The claim is entirely without merit and the POC embarrassing. In view of the CPR breaches, failure of a verified statement of case and it having been entirely within the Claimant's Solicitors' ‘gift’ to properly plead the claim at the outset, the Defendant believes that it is in the public’s interest that claims like this should be struck out.
31. In the matter of costs, the Defendant seeks:
(a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and
(b) a finding of unreasonable conduct by this Claimant, and further costs pursuant to CPR 46.5.
32. Attention is drawn to the (often-seen) distinct 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.
Signature:
Date:
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Coupon-mad said:Those court fees are all OK so you will have to remove the bits of the template that talk about exaggerated fees.
I've ajusted the text to not-include exadurated fees (I think). Would love some feedback. If everything's ok I'll submit it on Monday? During the day.
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Too much information on there for a defence, keep it short, sharp and punchy. Also, if you were not the driver, how do you know so much about the signage? Somewhere it needs to say, research carried out after receiving the PCN or by asking the driver. Keep the narrative for the witness statement (WS) and evidence stage. Just make sure that your main points are there - not the driver and poor signage etc and back it up in the WS. When you repost, just post the paragraphs of the defence template that you have added or amended, we don't need to check the complete template.3
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