Hi, I have read the forums and This is my defence. I am nerodiverse so please forgive me if its wron

lost_soul_2023

fisherjim said:

How do they get away with this?

If this is owned by an authority they are prevented by law from using ANPR by The Secretary of State for Transport this was communicated to them in 2014.

ANPR cannot give concessions to Blue Badge holders it catches all.

The Council themselves have even called it a "fine" in their correspondence it cannot be a contractual charge, and a fine.

This is very fishy!! 

Yes, the ground are Owned and operated by Swanley town council.
https://www.kentgardenstrust.org.uk/research-projects/Sevenoaks/Swanley Park.pdf

are the council not allowed to use ANPR?

This info may help myself and others.

Thank you for the usefull post

GrannyKate

There is the BPA Guidance on ANPR in council owned car parks (last updated) 2021 - to be honest it is about as clear as mud.  I couldn't post the link for some reason but it comes up on google using - Local Authority use of fixed ANPR

lost_soul_2023

Thanks, i was reading this pdf, also i see Coupon_MAD post about the ANPR on this site also.

I had to use chat gpt to explain to me what this means, and it appears that the local authority can use either one of these arguments to use ANPR

1. Civil Regime: This regime is associated with the use of powers set out in the Traffic Management Act 2004 (TMA). Under the civil regime, parking enforcement is primarily focused on civil financial penalties, and the document provides information on how ANPR cameras can be used within this framework. It outlines the legal requirements and considerations for using ANPR cameras in civil enforcement areas (C/SEA).

2. Criminalized Regime: In contrast, the criminalized regime is related to areas where parking enforcement is undertaken using powers set out in the Road Traffic Regulation Act 1984 (RTRA). This regime may involve criminal offenses related to parking violations, and the document discusses how ANPR cameras can be used for evidence collection in this context.

GrannyKate

The most commonly found wisdom to be found on internet seems to be 
Local authorities and private parking operators use ANPR systems to monitor vehicles accessing and exiting car parks and parking sites. However, as previously mentioned, it’s important to note that under the Road Traffic Act (RTA) local authorities cannot use ANPR to enforce parking regulations.

Some LA's seem to have persuaded themselves that they can allow an external parking management company to use ANPR for enforcement in LA owned car parks whilst other authorities are clear that they have checked and they cannot do so.  I guess it needs challenging in Court. 

lost_soul_2023

Thanks for the reply, after reading the forums it seems that the LA have got away with this due to either
1)Leasing out the car park to CEL which then makes it relevant land.
2) Making the carpark subject to a  PPO.

I might well be wrong, but that was what i managed to find out.

Coupon-mad

lost_soul_2023 said:

Thank you everybody for your above help and comments.

I will amend as suggested 2 and 3 and shorten my defence.

Thank you all for your help

Shorten it? The defence based on the Template Defence should be over 30 paragraphs.

Don't go copying Rory's defence verbatim.  Some people actually did... I was astonished and disappointed I am having to tell people NOT TO COPY SOMEONE ELSE'S DEFENCE.  His case doesn't suddenly become a template just because I signposted a few people to look at it.

Obviously, don't copy stuff about 'two dates' and 'two thousand pounds' which are about his case only.

Show us your latest full draft, based on your facts and the image of the CEL v Chan case transcript being slotted into the Template Defence.

lost_soul_2023

Sure its here in full, the formatting has been broken

I am confused as to what to add or remove,


I know this needs to go in, but i have no idea if i need to remove or add these to the 2

Also the Rorythoperr defence is this?

2. The Defendant draws to the attention of the allocating Judge that there is now a persuasive Appeal judgment to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims, and the extant PoC seen here are far worse than the one seen on Appeal).  The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind.  Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction.  By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims based in the following persuasive authority.

3. A recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4 and Practice Direction Part 16. On the 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The same is true in this case and in view of the Chan judgment, the Court should strike out the claim, using its powers pursuant to CPR 3.4

IN THE COUNTY COURT
Claim No.: [REDACTED]
Between
Civil Enforcement Limited
(Claimant)
- and -
[REDACTED]
(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 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 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". The Defendant is
unable, on the basis of the POC, to understand with certainty what case, allegation(s) and
what heads of cost are being pursued, making it difficult to respond. However, the vehicle is
recognised, and it is admitted that the Defendant was the registered keeper and driver.
3. [REDACTED] faces the daily challenges of autism, ADHD, and several severe physical
conditions, all of which significantly impact her daily life and her ability to handle stress in her
day-to-day activities. These conditions have taken a toll on her mental health, rendering her
unable to function effectively on most days.
[REDACTED] attempted to contact the claimant using the provided contact details, but her
efforts
were in vain. The only phone number listed on the website is for automatic payments, and
there was no way to leave a message. For someone with [REDACTED] limitations, this lack
of
response posed a significant barrier to effective communication.
[REDACTED] respectfully requests that the court take these factors into account when
assessing
her ability to communicate effectively with the company.
It is crucial to note that [REDACTED] relies on a mobility vehicle and holds a blue badge due
to the
severe impact of her daily struggles. These challenges are integral to understanding her
perspective.
Assisting [REDACTED] in preparing this statement was CHAT-GPT, as she faces difficulties
articulating her thoughts on a regular basis, let alone discussing them with others for
assistance. This reliance on support is essential for her mental well-being.
Factual Account of Events:
Firstly, she wants to inform the court that the incident occurred during the evening of the 26th
of August at 20:35, a time when dusk had settled in.
On the night in question, [REDACTED] initially attempted to enter the dedicated disabled car
park,
as she possessed a blue badge. However, she was informed by an event marshal that the
disabled car park was full, and she would need to use the other car park. [REDACTED]
inquired
about the blue badge, and she was assured that due to the disabled car park being full, she
could park further down in the alternate parking area.
It's important to note that upon further investigation, the first car park, which was at the event
dedicated to disabled parking, had no ANPR operation, nor were there any signs indicating
payments. This arrangement was temporary for the event, and there was no way of paying
at that car park, nor were there any signs mentioning that the car park was under the control
of any company.
She then queued up in a long line of cars to enter the off-road area. It's important to note that
this is an unlit road and at the time of evening was beyond dusk, with no pedestrian paths.
This is mentioned because at the time of the event, there were crowds of people
everywhere, walking along the road and also queuing by the marshal to ensure pedestrian
safety.
This off-road area has a car park on the left and a muddy entrance on the right side, which
doesn't appear to have marked parking spaces; it's just a field.
Before [REDACTED] actually turned into the off-road area, she encountered a marshal. She
immediately explained her situation, clarifying that she had been directed to this car park as
the disabled parking was full. The marshal informed her that this car park was also full and
that she would need to park in a field. He stated that there were no available spaces in the
car park. [REDACTED] inquired about the acceptability of parking with a blue badge, and the
marshal affirmed that it was permissible, considering she had been redirected from the
disabled car park.
It is emphasized that [REDACTED] was never informed on either occasion that blue badge
holders
would be subject to parking fees, nor was she made aware of the necessity to pay for
parking. She would have been willing to pay the fees had she received accurate information.
Upon parking her vehicle, marshals directed [REDACTED] to follow the line of people away
from
incoming cars and away from the main car park area for safety, as cars were still entering
the main parking area. [REDACTED] complied with these safety instructions.
Subsequently, [REDACTED] received a fine from the claimant.
Upon thorough examination of Google Maps, it can be confirmed that there are signs in the
car park. However, this fact is contested due to the inability of [REDACTED] and others to
approach and read these signs, even if they were visible. In the midst of a crowded
environment, [REDACTED], who stands at 5 feet 3 inches, found it impossible to see over
the
crowd and read any signs.
Moreover, the sign located in the field where [REDACTED] parked was obstructed by the
marshals
because, as checked, it is under 5 feet high.
Under normal circumstances, the signs would have been visible. However, due to the
significant crowd and marshal instructions, visibility was severely compromised.
[REDACTED] made an attempt to access the claimant's website to submit a Subject Access
Request to aid her defence, but regrettably, the website lacks any contact details.
In summary:
● [REDACTED] was never informed by any marshal that parking in the car park would
entail
fees for a disabled badge holder. She would have willingly paid the fees if this
information had been communicated accurately. She inquired on both occasions and
received incorrect information.
● The signs within the car park were not visible due to the restricted access caused by
the marshals, who were primarily focused on ensuring pedestrian safety on unlit
roads.
Furthermore, it's essential to highlight that the only means of contacting this company is by
filing a complaint, and such complaints must be submitted in writing.
Additionally, it should be noted that this company is acting on behalf of the Swanley Town
Council, an entity entrusted with the responsibility of providing openness, transparency, and
care in all its dealings. [REDACTED] made the council aware of her disabilities and autism,
yet
there has been no effort on the part of the company or the council to provide
accommodations in communication or accessibility. This includes failing to offer an
opportunity for individuals with autism to engage with the company, provide explanations or
discussions regarding events, marshals, or a clear breakdown of the steps involved.
Moreover, there has been no provision for seeking advice on this matter.
The behaviour exhibited by both the company and the council has been neither acceptable
nor accessible for individuals with autism. The resultant stress, which [REDACTED] has
endured,
could have been prevented had both CEL and Swanley Town Council provided suitable
adjustments. I firmly believe they have a duty to offer accommodations that allow disabled
individuals with autism to comprehensively discuss PCNs, understand the steps involved,
and pursue appeals through various means, including phone calls, emails, and written
correspondence. It is expected that once an individual has left the area, they should have
the opportunity to return and read the sign again, either on foot or by driving to the sign's
location within the car park.
Regrettably, there is currently no support system in place to clarify matters once an
individual with autism has left the scene. No assistance, communication, or effort to help is
provided.
Both the company and the council should establish clear and straightforward methods on
their websites to offer support to individuals with autism.
The company has made no attempts to contact [REDACTED] to make adjustments, placing
her at
a disadvantage compared to others in her inability to communicate effectively.
This court appearance marks the only opportunity [REDACTED] has had to convey her
situation,
and she expresses her deep disappointment that it has come to this.
This statement encompasses the entirety of her case.
A diagram of the road and car park will be provided as an attachment when she is able to
arrange for someone to attend and capture clearer photos.
Timeline of Events:
● The incident occurred on the 26th of August 2022.
● The PCN was issued on the 1st of September 2022.
● [REDACTED] received the letter regarding the PCN on the 6th of September 2022.
● On Tuesday, the 6th of September 2022, at 15:16, [REDACTED] contacted Swanley
Town
Council to raise the issue, and the council provided her with an email address to
send proof of her blue badge. However, once [REDACTED] submitted evidence of
her blue
badge, Swanley council didn't further acknowledge her reply or discuss the matter
further.
● On Saturday, the 28th of January, at 11:44, [REDACTED] received a letter from DCBL
in
relation to the money being owed. She then sent an email to
collections@dcbltd.com,
informing them of her vulnerability and providing reasons behind the parking
problem.
● On the 13th of February 2023, at 10:35, [REDACTED] received an email confirming
that
DCBL accepted her vulnerability but would still not accept her reasons, as she
should
have appealed within 28 days.
● On Sunday, the 8th of October 2023, at 19:13, [REDACTED] sent a Subject Access
Request (SAR) to Swanley Town Council, requesting all information held in regard to
the PCN.
● On the 9th of October 2023, at 11:54, Swanley Town Council replied, stating that they
do not store any information regarding parking fines, and all data is held with Civil
Enforcement.
4. The Claimant will concede that no financial loss has arisen and that in order to impose an
inflated parking charge, as well as proving a term was breached, there must be:
(i). a strong 'legitimate interest' extending beyond mere compensation for loss, and
(Ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires
prominent signs and lines.
5. The Defendant denies (i) or (ii) 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.
Exaggerated Claim and 'market failure' currently being addressed by UK Government
6. The alleged 'core debt' from any parking charge cannot exceed £100 (the industry cap). It
is denied that any 'Debt Fees' or damages were actually paid or incurred.
7. This claim is unfair and inflated and it is denied that any sum is due in debt or damages.
This Claimant routinely pursues an unconscionable fixed sum added per PCN, despite
knowing that the will of Parliament is to ban it.
8. This is a classic example where adding exaggerated fees funds bulk litigation of weak
and/or archive parking cases. No checks and balances are likely to have been made to
ensure facts, merit or a cause of action (given away by the woefully inadequate POC).
9. The Department for Levelling Up, Housing and Communities ('the DLUHC') published a
statutory Parking Code of Practice in February 2022:
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."
10. Despite legal challenges delaying the Code (temporarily withdrawn) it is now 'live' after a
draft Impact Assessment (IA) was published on 30th July 2023. The Government's analysis
is found here:
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_dat
a/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf
11. Paragraphs 4.31 and 5.19 state that the parking industry has shown the DLUHC that the
true minor cost of pre-action stage totals a mere £8.42 per case (not per PCN).
12. This claim has been enhanced by a disproportionate sum, believed to enrich the litigating
legal team. It appears to be double recovery, duplicating the intended 'legal fees' cap set by
small claims track rules.
13. The draft IA shows that the intimidating letter-chains endured by Defendants cost 'eight
times less' than the fixed +£70 per PCN. This causes immense consumer harm in the form
of some half a million wrongly-enhanced CCJs each year, that Judges are powerless to
prevent. MoJ statistics reveal several hundred thousand parking claims per annum, with
c90% causing default CCJs totalling hundreds of millions of pounds. The false fee was
enabled by the self-serving Codes of Practice of the rival parking Trade Bodies who aligned
in 2021 to allow +£70, each led by a Board comprising the parking and debt firms who stood
to gain from it.

lost_soul_2023

14. It is denied that the added damages/fee sought was incurred or is recoverable. Attention
is drawn to paras 98, 100, 193, 198 of Beavis. 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 (decision ratified by the CoA)
held in paras 419-428 that 'admin costs' inflating a PCN to £135 exaggerated the cost of
template letters and 'would appear to be penal'.
15. This Claimant has not incurred costs. A PCN model already includes what the Supreme
Court called an 'automated letter-chain' and it generates a healthy profit. In Beavis, there
were 4 pre-action letters/reminders and £85 was held to more than cover the minor costs of
the operation (NB: debt collectors charge nothing in failed collection cases).
16. Whilst the new Code is not retrospective, all non-monetary clauses went unchallenged. It
will replace the self-serving BPA & IPC Codes, which are not regulation and carry limited
weight. It is surely a clear steer for the Courts that the DLUHC said in 2023 that it is
addressing 'market failure'.
17. At last, the DLUHC's analysis overrides plainly wrong findings by Circuit Judges steered
by Counsel in weak appeal cases that the parking industry steamrollered through. In Vehicle
Control Services v Percy, HHJ Saffman took a diametrically opposed position to that taken
by DJ Hickinbottom, DJ Jackson (as Her Honour Judge Jackson then was), and other
District Judges on the North Eastern Circuit, including DJ Skalskyj-Reynolds and DJ Wright
(Skipton) all of whom have consistently dismissed extortionate added 'fees/damages'.
District Judges deal with private parking claims on a daily basis, whereas cases of this
nature come before Circuit Judges infrequently. The Judgments of HHJ Parkes in Britannia v
Semark-Jullien, and HHJ Simpkiss in One Parking Solution v Wilshaw were flawed. These
supposedly persuasive judgments included a universal failure to consider the court's duty
under s71 of the CRA 2015 and factual errors. In Wilshaw: a badly outdated reliance on
'ticket cases' which allowed poor signage to escape fair scrutiny and a wrong presumption
that landowner authority 'is not required' (DVLA rules make it mandatory). In Percy, HHJ
Saffman made an incorrect assumption about pre-action costs and even sought out the
wrong Code of Practice of his own volition after the hearing, and used it to inform his
judgment.
18. In addition, 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. The Claimant is put to strict proof of POFA compliance if seeking 'keeper
liability'.
19. The Defendant avers that there was no agreement to pay a parking charge or added
'damages' which were not even incurred, let alone quantified in bold, prominent text. This
Claimant's lack of large, readable signs are nothing like the yellow & black warnings seen in
Beavis, nor do they meet the signage requirements in the DLUHC Code which reflects the
already statutory requirement for 'prominence' (Consumer Rights Act 2015 - the 'CRA').
CRA breaches
20. Section 71 CRA creates a statutory duty upon Courts to consider the test of fairness
whether a party raises it or not. Further, claiming costs on an indemnity basis is unfair, per
the Unfair Contract Terms Guidance (CMA37, para 5.14.3):
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_dat
a/file/450440/Unfair_Terms_Main_Guidance.pdf
21. 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 (written or otherwise). Signs must be prominent (lit in hours of
darkness/dusk) and all terms must be unambiguous and contractual obligations clear.
22. 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
23. Unlike in Beavis, the penalty rule remains engaged. The CRA covers disproportionate
sums, which are not exempt from being assessed for fairness because a 'fee' is not the core
price term and neither was it prominently proclaimed on the signs.
24. The Supreme Court held that 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 alleged breach. The intention cannot be to punish a driver, nor to present them
with hidden terms or cumbersome obligations ('concealed pitfalls or traps'). This Claimant
has failed those tests, with small signs, hidden terms and minuscule small print that is
incapable of binding a driver. Court of Appeal authorities about a lack of ‘adequate notice’ of
a parking charge include:
(i) Spurling v Bradshaw [1956] 1 WLR 461 (Lord Denning's ‘red hand rule’) and
(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2,
both leading authorities 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''.
25. Fairness and clarity of terms and notices are paramount in the DLUHC Code and these
clauses are supported by the BPA & IPC. In 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."
Lack of standing or landowner authority, and lack of ADR
26. DVLA data is only supplied 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 to
form contracts at this site in their name. The Claimant is put to strict proof of their standing to
litigate.
27. 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 (ref: 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 satisfy Judges that a fair appeal was
never on offer.
Conclusion
28. There is now evidence to support the view - long held by many District Judges - that
these are knowingly exaggerated claims that are causing consumer harm. The July 2023
DLUHC IA analysis shows that the usual letter-chain costs eight times less than the sum
claimed for it. The claim is entirely without merit and the POC embarrassing. The
Defendant believes that it is in the public interest that poorly pleaded claims like this should
be struck out.
29. 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.
30. 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: 09/10/2023

lost_soul_2023

Coupon-mad

Was this the right defence

Thanks for taking the time to help

Coupon-mad

Your facts are much too long.  Just do it concisely, like the one linked in the Template Defence thread.