Preparing my defence against Civil Enforcement Limited

KeithP

gbxbrit said:

Also thank you KeithP, here is my claim history :

A claim was issued against you on 29/12/2023
Your acknowledgment of service was submitted on 03/01/2024 at 14:50:48
Your acknowledgment of service was received on 03/01/2024 at 16:05:23

With a Claim Issue Date of 29th December, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Wednesday 31st January 2024 to file your Defence.

That's almost 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'.

gbxbrit

Good morning,

I am having difficulties inserting the CEL vs Chan transcript after para 3 but otherwise this is my draft defence up to the CRA paragraph and rest as the template provided  (hyperlinks removed as I am new to the forum)

IN THE COUNTY COURT

 Claim No.:  xxxxxx

Between

Full name of parking firm Ltd, not the solicitor!

(Claimant) 

- and -  

Defendant named on claim (can’t be changed to driver now)                        

 (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').

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. 

 

CEL vs CHAN transcript here

 

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 private car park referred to in the particulars of claim was/is located at Wycombe Rye Lido, Bassetsbury Lane, High Wycombe, HP11 1QX. The defendant remembered the car park to be extremely busy as it serves a public outdoor swimming pool and it was a very hot weather day.  Several cars ahead were also waiting for a space to become available. The particulars of the alleged breach are not stated in the claim, but the driver of the vehicle never was able to actually park his car and left the car park a few minutes later.  Therefore the defendant disputes any contravention of parking terms occurred.

6. 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.

7. 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

 

8. 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.

9.  There is a further matter negating any cause of action, namely an incorrect 'payment due date' in the POC.  This point relies on Schedule 4 paragraph 9 of 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 ('payment due date').  This has the object or effect of these pleadings attempting to allege keeper liability wrongfully, and/or earlier than the law would allow. 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 two working days later.  Adding the POFA's statutory 28 days starting with the day after service of the NTK, the soonest that the 'right to recover' might exist would have been several days later than this Claimant states in their POC. That is, if they are seeking keeper liability under the POFA at all, which the Court and Defendant are being forced to guess.

10. 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).

11. The Department for Levelling Up, Housing and Communities ('the DLUHC') published a statutory Parking Code of Practice in February 2022: 

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." 

 

12. 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:   

13. 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).

14. 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.

15. 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. 

16. 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'.

17. 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).

18. 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'.

19. 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.

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 from a registered keeper. The Claimant is put to strict proof of POFA compliance if seeking 'keeper liability'.

21. 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').

Le_Kirk

gbxbrit said:

I am having difficulties inserting the CEL vs Chan transcript after para 3 but otherwise this is my draft defence up to the CRA paragraph and rest as the template provided  (hyperlinks removed as I am new to the forum)

Find @hharry100 and click on the profile to find the poster's threads, choose the MET Parking taking.......... which will take you here: -
https://forums.moneysavingexpert.com/discussion/comment/80343627/#Comment_80343627
and use this one to adapt for your circumstances.

gbxbrit

Thank you Le Kirk, I have now printed, signed and saved as a PDF attachment and also send it to CCBCAQ with an acknowledgment a few minutes later.  

I understand now that I must wait 2 or 3 months to receive a DQ N180 form and follow the directions from Bargepole. 

Many thanks 

Coupon-mad

gbxbrit said:

Thank you Le Kirk, I have now printed, signed and saved as a PDF attachment and also send it to CCBCAQ with an acknowledgment a few minutes later.  

I understand now that I must wait 2 or 3 months to receive a DQ N180 form and follow the directions from Bargepole. 

Many thanks 

Yes that's correct, but this is first:

Please find time to do this new Justice Committee Inquiry this month:

https://forums.moneysavingexpert.com/discussion/comment/80375249/#Comment_80375249

The Committee invites evidence on:

• What the current level of delay in the County Court is

• The ways in which the County Court engages with litigants in person, and how this could be improved

• The causes of action giving rise to claims in the County Court

• What future reforms to the County Court should be considered.

Please also state that private parking firms and their bulk litigators are the main problem as far as small claims delays are concerned, as the dominate and clog up court lists.

Please tell them that private parking firms and their bulk litigators are the problem as far as small claims delays are concerned, as they dominate court lists. Parking claim numbers are rising every year and will make up about a third of all small claims in 2023, based on the 2022 figures that the MoJ divulged in the DLUHC's recent Parking Code of Practice draft Impact Assessment.

The MoJ must now be informed to urgently separate parking cases with a new pre-action protocol (requiring use of ADR instead of inflated debt demands and bulk litigators who want court). It should be a last resort but litigation is the first aim of DCB Legal.  They state in various articles that bulk litigation is their company aim.

Tell the Committee about your claim and show the Claim Form to the committee.

Show them the other evidence you have: threatogram letters? and that the claim is a hopeless waste of time, and based on an unfair charge that you would have appealed if there had been an ADR.

The whole system is a nasty joke and the courts (and consumers) are being used and abused by firms making a mint (and it's not just the parking operators).  This is a hidden (unknown to many people) scandal affecting hundreds of thousands of people every year.

Please tell the Committee that the private parking legislative framework needs to be removed from the county court altogether.  To protect consumers from the stress of defending rogue claims and paying to unpick unfair CCJs, which are rinsing millions p.a. from the pockets of ordinary motorists and ruining credit ratings.

Ideally, parking cases should NEVER go to county court and should not be able to affect people's credit rating.

Please add your voice.

Interested parties have until 17 January  to make a submission to the committee.

gbxbrit

Coupon mad, I would be of course very happy to add my voice as I agree wholeheartedly about your points raise above.
As a European citizen, I also find the concept of parking cases clogging precious court time very strange.

Coupon-mad

gbxbrit said:

Coupon mad, I would be of course very happy to add my voice as I agree wholeheartedly about your points raise above.
As a European citizen, I also find the concept of parking cases clogging precious court time very strange.

Very good if you can.  Thankyou. This could make an enormous difference. Timing is perfect.

There are no wrong answers to their questions but they are asking for evidence and only in a WORD doc format.  

gbxbrit

Pleasure, I will do it on a Word document, would you like me to published my draft (without personal information) on this thread ?

Coupon-mad

Yes if you like.  Someone else did!  You don't have to answer every question. Up to you.

gbxbrit

Submission completed.  This is not anonymous so should be visible.