CEL claim - stages after CCJ set aside

CliveTreeHorn

They are claiming I didn't buy a ticket. Would a SAR show up all tickets registered to my plate and therefore is it worth doing ? 

Is the defence meant to be shorter summary compared to the witness statement which will come later ? 

Coupon-mad

No SAR.

The Template Defence isn't short.

CliveTreeHorn

Hi All,

Please see draft below. I have left in para.s 2 and 3 but i dont think they apply as i have been sent the amended POC - can anyone please confirm?

IN THE COUNTY COURT

Claim No.:  xxxxxx

Between

Civil Enforcement Limited

(Claimant) 

- and -  

Defendant named on claim

 (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') and the amended Particulars of Claim.

Preliminary matter: The claim should be struck out

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(1)(e) and Practice Direction Part 16.7.5. 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 (transcript below) the Court should strike out the claim, using its powers pursuant to CPR 3.4. 

The facts known to the Defendant:

4. 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.

5. The Defendant did park in CARPARK NAME on DATE. Initially, the Defendant attempted to purchase a digital parking ticket on the PhoneAndPay app. The app was not working correctly due to presumed technology issues, and would not accept the Defendants usual bank card when attempting to purchase the ticket and crashing. 

6. Therefore, the Defendant setup a second bank card on the app in order to purchase a ticket. A 1p transaction charge was registered, as evidenced in Appendix 1, to finalise the set up of the new bank card. However when the Defendant attempted to purchase a digital ticket the app again crashed. 

7. On the car parking site, there is a 'information' booth however this was not open. 

8. As a result the Defendant made the decision to purchase a paper parking ticket from the ticket machine. Due to the time that has elapsed from the date, almost two years, the Defendant does not have a copy of this ticket. 

9. In respect of the Claimants Amended POC which the stated 'there were many clear and visible signs in the car park advising drivers of the terms and conditions of use' there is a total of two signs. On both signs the terms and conditions are written in very small font at the bottom of the sign. There is not a visible sign as you driving into the carpark, and due to the size it would be very challenging to read the terms and conditions from a drivers seat within a car. 

10. Furthermore paragraph 5 of the amended POC states 'a contract was formed between the Claimant and the Defendant' this is refuted. No contract was ever agreed by the Defendant. 

11. Paragraph 5 of the amended POC also states 'the Defendant breached the contract, specifically by failing to obtain an electronic permit'. As stated in paragraph 8 the Defendant purchased a paper ticket from a ticket machine as what was permitted on the signage in the carpark and is the normal practice. If the purchasing of a paper ticket is not an acceptable method, why do the parking ticket machines exist and the signs detail the method. 

12. In response to paragraph 6 no letters, PCNs, PCN reminders or any other correspondence from CEL was received prior to a CCJ being entered against the Defendant without their knowledge. CEL was not using the Defendants correct postal address, even though the Defendant was there to be found, as evidenced by a letter received from DCBL, after the CCJ was ordered, by a company instructed by CEL. 

13. Indeed in the Defendant's Witness Statement for the N244 application, in which the CCJ was successfully set aside, it was requested that all previous correspondence from CEL be provided to the Defendant. To date CEL have not provided this. 

THE BRITISH PARKING ASSOCIATION APPROVED OPERATOR CODE WAS NOT FOLLOWED

14. British Parking Association (BPA) Approved Operator Code of Practice which requires a soft trace to be undertaken was not followed. The BPA Code of Practice - Version 8, January 2020, clause 24.1c states;

15. “Before serving a Letter Before Claim and prior to the issue of proceedings, Operators must, if no responses have been received to the NTD/NTK/reminder letters, take reasonable endeavours to ensure that the contact details for the person you are writing to are correct.

THE CLAIM IS DEAD

16. Continuing a dead claim more than 4 months after it was raised (but never properly served) is impossible under any rule of law or practice (CPR 7.5). 

17. The Claimant is wholly responsible for failing to serve the claim correctly within the 4 months (as required by CPR 7.5) and as a result this claim is dead.

18. The Claimant should not be given extra opportunities to waste the Court’s time after failing to follow pre-action protocols for debt claims, breaching the BPA code of practice and the CPRs about taking 'reasonable steps' (CPR 6.9) to check a Defendant's address.

19. If the Claimant believes they still have a claim then filing afresh is the only way forward. The Claimant may send a ‘Letter Before Claim’ to the right address, this time following the pre-action protocol for debt claims. 

20. This claim should be struck out as more than 4 months have passed (CPR 7.5 refers) from issue of proceedings [date] and service of the claim was defective (i.e. it was never served).

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.

Signed:

Date:

Coupon-mad

I have left in para.s 2 and 3 but i dont think they apply as i have been sent the amended POC - can anyone please confirm?

I agree - my mistake.  Use the Template Defence instead, not the hharry version.

Remove all exhibits as they don't go with a defence.  BUT as this is post-CCJ set aside, you won't be asked for another WS, so send one anyway, now, with the defence!

Append your exhibits to the WS.  Keep that shorter.  More 'the story of what happened' and not repeating what is in the defence.

AND append a costs schedule and include the £275 fee as well as your costs for attending two hearings.  Those costs - even though you are unlikely to get them if the first Judge didn't grant costs - might then see CEL discontinue.

Create a whole bundle now.

CliveTreeHorn

Thank you for the feedback, really appreciated. I'll amend the defence.

So got the Witness Statement should this include information on how I found out about the CCJ etc?

A re-hash of my previous WS earlier in this thread?

Coupon-mad

Nope. This is a WS in support of the defence.

This is your story in the first person, about the day of parking and the PCN and it's a way to attach photos & exhibits. Only mention in passing about the letters going to an old address.

CliveTreeHorn

Civil Enforcement Limited
(Claimant) 
- and -  
XXXXXXXXX
 (Defendant)
_________________

WITNESS STATEMENT

1. I am XXX, (ADDRESS) and I am the Defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

2. In my statement I shall refer to(Exhibits 1-6) within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated and I will say as follows:

Facts and Sequence of events

3. Date and Time of the Incident: On Friday, XXXXXX, at approximately XXXXAM,my partner and I visited the CARPARK NAME as my wife had an ultrasound appointment.

4. On Approach: As I approached the parking area, located of STREET, I entered the carpark. It is important to note there was no entrance signage or clear signs (See Exhibitxx-01)

5. Attempts ot purchase digital ticket: Initially I attempted to purchase a digital parking ticket on the PhoneAndPay app. The app was not working correctly due to presumed technology issues, and would not accept my usual bank card when attempting to purchase the ticket and the app crashed. 

6. Therefore, I setup a second bank card on the app in order to purchase a ticket. A 1p transaction charge was registered, (See Exhibitxx-02), to finalise the set up of the new bank card. However when I attempted to purchase a digital ticket the app again crashed.

7.Inaccessible Kiosk:On the car parking site, there is a 'information' booth however this was not open. 

8. As a result I made the decision to purchase a paper parking ticket from the ticket machine. Due to the time that has elapsed from the date, almost exactly two years, I do not have a copy of this ticket. 

9. Illegible/ Unclear Signage:On revisiting the site I note that there is no signage that you are entering or exiting a parking area. The wall against which cars are parked had signs from Civil Enforcement Ltd that are small and illegible and certainly unreadable from within a car (See Exhibitxx-03).

Exaggerated Claim and 'market failure' currently examined by the Government 

10.The alleged 'core debt' from any parking charge cannot have exceeded £100 (the industry cap set out in the applicable Code of Practice at the time). I have seen no evidence that the added damages/fees are genuine.

11. I say that fees were not paid out or incurred by this Claimant, who is to put strict proof of:

(i) the alleged breach, and(ii)a breakdown of how they arrived at the enhanced quantum claimed, including how interest has been calculated, which appears to have been applied improperly on the entire inflated sum,as if that figure was immediately overdue on the day of an alleged parking event. 

12.This Claimant routinely pursues a disproportionate additional fixed sum (inexplicably added per PCN) despite knowing that the will of Parliament is to ban or substantially reduce the disproportionate 'Debt Fees'. This case is a classic example where the unjust enrichment of exaggerated fees encourages the 'numbers game' of inappropriate and out of control bulk litigation of weak/archive parking cases. No pre-action checks and balances are likely to have  been made to ensure facts, merit, position of signs/the vehicle, or a proper cause of action.

13.The Department for Levelling Up, Housing and Communities (the DLUHC) first published its statutory Parking Code of Practice on 7th February 2022, here:https://www.gov.uk/government/publications/private-parking-code-of-practice"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's implementation (marking it as temporarily withdrawn' as shown in the link above) a draft Impact Assessment (IA) to finalise the DLUHC Code was recently published on 30th July 2023, which has exposed some industry-gleaned facts about supposed 'Debt Fees'. This is revealed in the Government's analysis, found here:https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf21. Paragraphs 4.31 and 5.19 reveal that the parking industry has informed the DLUHC that thetrue minor cost of what the parking industry likes to call debt recovery or 'enforcement' (pre-action) stage totals a mere £8.42 per recovery case.

15. With that sum in mind, it is clear that the extant claim has been enhanced by an excessive amount, disingenuously added as an extra 'fee'. This is believed to be routinely retained by the litigating legal team and has been claimed in addition to the intended 'legal representatives fees' cap set within the small claims track rules. This conduct has been examined and found-including in a notably detailed judgment by Her Honour Judge Jackson, now a specialist Civil High Court Judge on the Leeds/Bradford circuit-to constitute 'double recovery' and I takes that position.

16. The new draft IA now demonstrates that the unnecessarily intimidating stage of pre-action letter-chains actually costs 'eight times less' (says the DLUHC analysis) than the price-fixed £70 per PCN routinely added. This has caused consumer harm in the form of hundreds of thousands of inflated CCJs each year that District Judges have been powerless to prevent. This abusively enhanced 'industry standard' Debt Fee was enabled only by virtue of the self-serving Codes ofPractice of the rival parking Trade Bodies, influenced by a Board of parking operators and debt firms who stood to gain from it.

17. In support of my contention that the sum sought is unconscionably exaggerated and thus unrecoverable, attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015]UKSC67 ('the Beavis case'). AlsoParkingEye Ltd v Somerfield Stores Ltd ChD[2011] EWHC4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment. Whilst £75 was reasonable, HHJ Hegarty (decision later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating a parking charge to £135 was not a true reflection of the cost of a template letter and 'would appear to be penalty.

18.This Claimant has not incurred any additional costs because the full parking charge (after expiry of discount) is already high and more than covers what the Supreme Court called an automated letter-chain' business model that generates a healthy profit. In Beavis, there were 4or 5 letters in total, including pre-action phase reminders. The £85 parking charge was held to cover the 'costs of the operation' and the DLUHC's IA suggests it should still be the case that the parking charge itself more than covers the minor costs of pre-action stage, even if and when the Government reduces the level of parking charges.

19. Whilst the new Code is not retrospective, the majority of the clauses went unchallenged by the parking industry and it stands to become a creature of statute due to the failure of the self-serving BPA & IPC Codes. The DLUHC's Secretary of State mentions they are addressing 'market failure' more than once in the draft IA, a phrase which should be a clear steer for Courts in 2023 to scrutinise every aspect of claims like this one.

20. 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. It is also disproportionate and in breach of the Consumer Rights Act 2015(CRA).CRA Breaches 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 CRA which introduced new requirements for 'prominence' of both contract terms and 'consumer notices'. In a parking context, this includes a test of fairness and clarity of signage and all notices, letters and other communications intended to be read by the consumer.

21. 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. Signage must be prominent, plentiful, well-placed (and lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.

22.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/open dealing and good faith (NB: this does not necessarily mean there has to be a finding of bad faith).

23. Now for the first time, the DLUHC's draft IA exposes that template 'debt chaser' stage costs less than £9. This shows that HHJ Jackson was right all along in Excel v Wilkinson. (SeeExhibitxx-04)The Beavis case is against this claim 

24.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 charges in the largest/boldest text. Rather than causing other parking charges to be automatically justified, that case, in particular, the brief, conspicuous yellow & black warning signs-(SeeExhibitxx-05)-set a high bar that this Claimant has failed to reach.

25. Paraphrasing from the Supreme Court, deterrence is likely to be penalty 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'.(SeeExhibitxx-06) for paragraphs from ParkingEye v Beavis).

26. In the present case, the Claimant has fallen foul of those tests.

27. Hidden Terms:The £100 penalty clause is positively buried in small print, as seen on the signs in evidence.The Purported added (false) 'costs' are even more hidden and are also unspecified as a sum. Their(unlawful, due to the CRA Schedule 2 grey list of unfair terms) suggestion is that they can hide a vague sentence within a wordy sign, in the smallest possible print, then add whatever their trade body lets them, until the DLUHC bans it in 2024. And the driver has no idea about any risk nor even how much they might layer on top. None of this was agreed by me, let alone known or even seen as Attempted to gain entry to the carpark. Court of Appeal authorities which are on all fours with a case involving a lack of ‘adequate notice’ of a charge, include: (i) Spurling vBradshaw[1956] 1 WLR 461 (‘red hand rule’) and (ii)Thornton v Shoe Lane Parking Ltd[1970]EWCA Civ 2 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: CA5 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". 

28. I maintain that no contractual agreement existed between myself and Civil Enforcement Ltd, and the Claimant will concede that no financial loss has arisen. The charge imposed, in all the circumstances is a penalty (not saved by theParkingEye v Beavis case, which is fully distinguished). In addition to the fact that the sum claimed under purported 'contract' is disproportionately exaggerated, additionally the interest is inflated interest appears to be miscalculated on the whole enhanced sum from day one as if £160 or £170 was 'overdue' on the day of parking.

29.Civil Enforcement Ltd indisputably issue tens of thousands of inflated parking claims every year and the unconscionably enhanced £60 or £70 (per PCN) which can add hundreds to some claims. Given that the MoJ's quarterly statistics show that 90% of small claims go to default CCJs, this is clearly an abuse, and it appears to be for the profit of Civil Enforcement Ltd and nothing to do with the Claimant's alleged £100 PCN.I hope the Judge addresses this in the final judgement, at the very least to warn or sanction Civil Enforcement Ltd  as the court sees fit. 

Conclusion

30. 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.

31.There is now ample evidence to support the view-long held by many District Judges- that these are knowingly exaggerated claims. The July 2023 DLUHC IA analysis surely makes that clear because it is now a matter of record that the industry has told the Government that 'debt recovery' costs eight times less than they have been claiming in almost every case.

32. 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. I believe 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.

33. In the matter of costs, I asks:(a) The previously reserved costs of £315, and (b) standard witness costs for attendance at Court, pursuant to CPR 27.14, and (c) the costs of my application to set aside the CCJ and (d) for a finding of unreasonable conduct by this Claimant, seeking costs pursuant to CPR46.5.

34. 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, theWhite 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.

Signed: 

Date:

KeithP

Statement of Truth:

I believe that the facts stated in this defence are true...

If that's a Witness Statement then the Statement of Truth needs to reflect that.   

CliveTreeHorn

DEFENDANTS SCHEDULE OF COSTS

Ordinary costs

Loss of earning through court attendance at two hearings

£95.00 x 2 = £190.00

Further costs of Claimants mis-conduct, pursuant to civil procedure rule 44.11

Reserach, preparation and drafting documents 10 hours at litigant in person rate of £19 per hour:

£190.00

N244 application cost to set aside CCJ:

£275.00

Total Sum:

£655.00

Coupon-mad

Very good.  But the WS doesn't need paras 10 onwards, if your defence has those paras.