Court Claim from Civil Enforcement civil national business centre

Coupon-mad

No evidence photos / SAR us attached at this stage. Evidence comes at WS stage in 2024.

Show us the sign please. Does it use that word 'thereafter' that you quoted?  And was the car there after that time stated on the sign?

Search the forum for keywords: parked thereafter and change to NEWEST results (never 'best match') as I just wrote an appeal paragraph about that this week/yesterday about a sign like that.

Le_Kirk

If you are using the @hharry100 defence of sparse or vague particulars, why have you said in your defence that it is an overstay?  How do you know this from the claim form?

Baile

@Le_Kirk
it is what is stated in the first NTK. 

There is minimal information on the actual POC. 

I have added the point about the ambiguity though not sure if I have done it right. The legal language is really messing my head. @Coupon-mad

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').

 

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 (and this is the same Claimant, who are simply ignoring the Appeal decision and still churning out the same generic POC to obtain 90% default CCJs. This looks like a possible case of contempt of court to the Defendant). The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind.  Civil Enforcement Limtied 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.

 

5.    The Defendant received a ‘Parking Charge Notice’ with an issue date 29/4/2022 via the post for an incident concerning breach of Terms and Conditions of Parking’, namely ‘Maximum 30 minutes free parking. Thereafter permit holders only’ in the car park at Spice & Spirits restaurant in the NTK. The defendant and the extended family and friends regularly visit the restaurant and there is a system whereby the restaurant staff would take the registration of the customer for exemption of customer free parking, which is FREE OF CHARGE. The Defendant authorises the vehicle to be used by driver other than the Defendant himself on a regular basis. The Defendant cannot remember who was the driver at the material time of the incident. The Defendant can assure that the driver is insured but there is no legal obligation to name that person.

 

6.    The Defendant views that the Terms and Conditions of the signage are unfair terms, and the driver was not in contravention of any terms set out there on the signage because of the ambiguity of the Terms and Conditions of parking. It does not indicate that the driver must display a permit, or means of obtaining a permit such as inputting their numberplate on the signage to enter the terms of the contract. More importantly, the word ‘thereafter’ must be interpreted with its natural meaning, indicating ‘after that time’, for instance, later than 11:30PM. Ambiguity of the terms and conditions would indicate that the terms are unfair pursuant to The Consumer Rights Act (CRA) 2015 Part 2 Section 62 and ‘an unfair terms of a consumer contract is not binding on the consumer’. The CRA 2015 Part 2 Section 62 sets out the standard and robust test for UNFAIR TERMS and the ‘requirement for contract terms and notices to be fair’. ‘A notice is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations to the detriment of the consumer.’, indicating that when the terms are disputed, ambiguous terms should be interpreted in the way that most favours the consumer.

7.    The Defendant, upon receiving the Letter of Claim dated 26/09/2023, had sent two correspondences to the Claimant with a proof of postage (attached) on 5/10/2023- 1. Subject Access Request (SAR) as per the Defendant’s legal right (attached) 2. Formal Reply to the Letter of Claim seeking clarification of POC pursuant to breaching of the Practice Direction (PR) on Pre-action Conduct 2.1. (attached) The Claimant had failed to respond to neither of the requests and subsequently unduly pursed the claim through the Civil National Business Centre.

 

8.    The Claimant fails to comply with the PoFA 2012 Sch 4 to exercise the legal right of claiming the Defendant for the liability of the alleged claim as the registered keeper of the vehicle concerned pursuant to Section 4 (5). The Claimant incurred a charge of £100 in the original Notice to Keeper (NOK), the claimant arbitrarily raised the charge without providing any evidence of financial loss that has arisen in order to impose an inflated parking charge. 

 

 

Failure to comply with Civil Procedure Rules

 

9.    The Defendant believes the Claim should be struck out at Allocation stage and should not have been accepted by the CNBC due to a represented parking firm Claimant knowingly breaching basic CPRs.

 

10. The Claimant made a woefully inaccurate assumption that the Defendant was the driver concerned in the incident. The POC does not provide the essential information to allow the Defendant to understand and investigate the alleged claim of breach of contract. The Claimant had ignored the SAR and request for concise details of the claim pursuant to PD 2.1 that are the Defendant’s very legal rights for clarification of liability of the allege claim.

 

11. 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.

 

12. 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.

 

13. The Defendant discovered at Parking on Private Land Appeals ('POPLA') stage that these unexpected new rules only started mere weeks before this event. As further proof of the inadequacy of 'extra signage' required at the entrance and within the site, the Claimant was in breach of paragraph 19.10 of the British Parking Association Code of Practice ('the BPA CoP') which says:

 

” Where there is a change in the terms and conditions that materially affects the motorist then you must make these terms and conditions clear on your signage. Where such changes impose liability where none previously existed then you must consider a transition to allow regular visitors to the site to adjust and familiarise themselves with the changes. Best practice would be the installation of additional/temporary signage at the entrance and throughout the site making it clear that new terms and conditions apply. This will ensure such that regular visitors who may be familiar with the previous terms become aware of the new ones.

 

https://www.britishparking.co.uk/write/Documents/AOS/AOS_Code_of_Practice_January_2020_v8(2).pdf 

 

14. The defendant asserts a breach of process, highlighting that the initial correspondence received was a debt collection letter, rather than affording an opportunity to appeal.

15. There is a further matter negating any cause of action, namely a likely defective Notice to Keeper (NTK) and incorrect 'payment due date' in the POC.  This point relies on Schedule 4 paragraph 8 or 9 of the Protection of Freedoms Act 2012 (the POFA) and the Defendant will raise various issues, including probable non-compliant NTK wording and an apparently incorrect statement in the POC regarding what appears to be the alleged date of keeper liability.  This has the object or effect of these pleadings attempting to allege keeper liability wrongfully, and/or earlier than the law would allow, even for a case with a compliant NTK. The Claimant's POC has unreasonably shortened the statutory 28 day period by several days or even weeks, which has had the additional unreasonable effect of backdating interest incorrectly.  Even if posted 1st class on the same day as the alleged event, (which it cannot have been) a NTK would be deemed served on the 28th day.  Adding the POFA's statutory 28 days starting with the day after service of the NTK, the soonest that the 'right to recover from the keeper' might exist would have been two days later than this Claimant states in their POC.  In fact, it would have been impossible for a postal NTK (which the Defendant does not hold - the Claimant is put to strict proof) to have been dated/posted the same day as the parking event. Further, the generic POC omits whether or not a windscreen PCN was served first; a vital detail which affects liability dates by at least a month and would have clarified whether the Claimant seeks to rely on POFA paragraph 8 or paragraph 9.  The Defendant (and court) is reduced to guesswork.

 

Failure to comply with Protection of Freedom Act 2012 (PoFA 2012) Schedule 4 and Abuse of Process

 

16. Recent District Court by District Judge Taylor in Britannia Parking Group v Crosby (Ref F0DP201T, attached) would indicate that for the Claimant to charge additional charge additional to the parking charge which it is alleged the defendant contracted to pay, This additional charge is not recoverable under the protection of freedoms act 2012, Schedule 4 not with reference to the judgement in parking eye v Beavis. It is an abuse of process from the claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover.

 

17. The Claimant fails to comply with the PoFA 2012 Sch 4 to exercise the legal right of claiming the Defendant for the liability of the alleged claim as the registered keeper of the vehicle concerned pursuant to Section 4 (5) ‘The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified).’ The Claimant incurred a charge of £100 in the original Notice to Keeper (NOK), the claimant arbitrarily raised the charge without providing any evidence of financial loss that has arisen in order to impose an inflated parking charge. 

 

Castle

Check your dates in para 13, it looks like you have just copied and pasted them from somewhere else.

Coupon-mad

Your deadline is Monday but you are nearly there with this draft. But:

Did you go through POPLA because that defence says you did?

And was the car there after that time stated on the sign?  What time did this occur?

Baile

Fast forward to present, I have submitted the defence, witness statement thank you to the helps from the talents and veterans of this forum. Civil Enforcement decided to go ahead with the claim. 
I attended the hearing, the case is dismissed and the judge has awarded me the expenses. 
Couldn't be more happy to persevere on the virtue of unjust practice by these dodgy carpark operators though it is unfortunately ANPR is the norm everywhere!
Thank you and want to remind everyone to keep fighting (I know it is a massive hassle, stress and probably costs more to go through the battle but it's the experience that counts, and to put things right!) 

LDast

On what grounds did the judge dismiss the case?

Coupon-mad

Baile said:

Fast forward to present, I have submitted the defence, witness statement thank you to the helps from the talents and veterans of this forum. Civil Enforcement decided to go ahead with the claim. 
I attended the hearing, the case is dismissed and the judge has awarded me the expenses. 
Couldn't be more happy to persevere on the virtue of unjust practice by these dodgy carpark operators though it is unfortunately ANPR is the norm everywhere!
Thank you and want to remind everyone to keep fighting (I know it is a massive hassle, stress and probably costs more to go through the battle but it's the experience that counts, and to put things right!) 

Yay! Well done you.

  

ANOTHER CEL ONE BITES THE DUST!

Which point(s) won it?

Did you remember to ask for your costs at the end?