Text from Empira Ltd (Gladstones) - CCJ

tunm153

I'll give them a call Monday morning. From my understanding, the judge must have said that as she didn't completely dismiss the case, she just set the CCJ aside, which means we're at the stage just before the parking operator filed the CCJ. Which is why she recommended I get in touch with them to come up with a repayment plan. Maybe I didn't defend the case well during the hearing or needed to say more?

LDast

Let's hope that one claim was dismissed and that the second was set aside but has allowed the claimant to re-serve the claim with the defendant allowed to resubmit their defence.

Coupon-mad

tunm153 said:

I'll give them a call Monday morning. From my understanding, the judge must have said that as she didn't completely dismiss the case, she just set the CCJ aside, which means we're at the stage just before the parking operator filed the CCJ. Which is why she recommended I get in touch with them to come up with a repayment plan. Maybe I didn't defend the case well during the hearing or needed to say more?

"Recommended" doesn't mean you have to pay them.  She just meant it's an option!

But defending is a better option.

So she DIDN'T order you to pay one.

tunm153

It's been a busy week, however here is what they said when I called, I'll need to sort the defense as soon as possible:

1st claim:

Ordered judgment on default is set aside on condition that the defendant sends a fully particularised defense to the court and the claimant.


2 claim:

1. ordered that the judgment entered on xx/xx/23 set aside - 

2. court is satisfied that the defendant moved to correct address in march xx and did not therefore receive any parking notices

3. claim is stayed and shall stand struck out if no application is made by xx may 2025 to restore it to allow the parties the opportunities to negotiate


I've looked at the defence template, here is an initial draft:

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

(District Enforcement Limited)

• and -

*my name*

---

DEFENCE

---

The facts known to the Defendant:

Background

1. It is admitted that at all material times the Defendant is the registered keeper and probable driver of vehicle registration mark xxxx xxx, which is the subject of these proceedings.

2. It is admitted that on xxth July 2022, xxst July 2022, xxth August 2022, and xxth August 2022, the Defendant's vehicle was parked at the location specified by the Claimant.

3. It is further admitted that the Defendant failed to update their address with the DVLA upon moving on xx March 2022.

Service of the Claim

1. The Defendant contends that the Claim Form was not served at their current address, xxxxxxx, where the Defendant had moved on xx March 2022. The claim was instead served to the previous address, xxxxxxx, where the Defendant no longer resided. Consequently, the Defendant was unaware of the Default Judgment until notified by Empira Ltd on xx January 2024.

2. The Defendant asserts that the Claimant failed to carry out a proper address search prior to filing the claim, contrary to the regulations outlined in the International Parking Community (IPC) Code of Practice version 9, Clause 22.1, which requires operators to take reasonable steps to ensure that the motorist’s details are still correct if 12 months have passed from the parking event before issuing court proceedings.

Particulars of Claim

1. The Defendant submits that the Particulars of Claim filed by the Claimant are insufficient and fail to comply with Civil Procedure Rule 16.4 and Practice Direction Part 16. The Claimant 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, as supported by the recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44).

2. The Defendant denies that any agreement existed between themselves and the Claimant regarding the parking conditions. The Claimant has not demonstrated any legitimate interest or suffered any actual loss or damage justifying the parking charge.

3. The sum claimed by the Claimant exceeds the maximum recoverable amount under the Protection of Freedoms Act (POFA) 2012, Schedule 4, Section 4(5).

Procedural Failures

1. Given that more than 4 months have passed from the issue of proceedings and service of the claim was defective, the Defendant submits that this claim should be struck out and the period for service cannot be extended by this application process. This is supported by several authorities, including Boxwood [2021] EWHC 947 (TCC), Vinos v Marks & Spencer plc [2001] 3 All ER 784, and Croke & Anor v National Westminster Bank Plc & Ors [2022] EWHC 1367 (Ch).

2. The Defendant asserts that under CPR 13.2, the court must set aside a judgment entered under part 12 if judgment was wrongly entered. Given that CPR 6.9 (3) was not met, CPR 13.2 applies and the CCJ must be set aside. Alternatively, CPR 13.3 applies due to the circumstances, which represent good reasons to set the CCJ aside, and in view of the fact that the Defendant acted within a reasonable time period and has good prospects of defending the claim.

Costs

1. The Defendant seeks: a. Standard witness costs for attendance at Court, pursuant to CPR 27.14. b. That any hearing continues as a costs hearing if the Claimant discontinues the claim late, seeking a finding of unreasonable behaviour and further costs pursuant to CPR 46.5.

Conclusion

1. The Defendant invites the court to dismiss the claim as entirely without merit.

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.

Defendant’s signature:

Date:

LDast

That isn't a proper defence. It reads like an application for a set aide, which has already happened in this case. Did the judge order the Claimant to re-serve the claim? Were they not ordered to submit the PoC? If you never receive the original claim due to failure to have it served properly, how can you submit a defence unless you have had the PoC in the first place?

Aside from that, if you are submitting a defence, just use the template defence.

tunm153

I received a bunch of stapled letters from Gladstones a few weeks back (one week before the hearing). Some are PCN's they'd sent to the old address 2 years ago. A witness statement too, there's a bit which say's "the defendant's contention that he did not receive the original notices as he moved out of the property in March 22 does not assist him in making the application. The defendant had clearly failed to update the DVLA of the change in address in relation to his V5, something that is a legal requirement. He is therefore the author of his own misfortunate in this respect." Is that the PoC?

Using the defense template - number formatting is incorrect, however will sort on final draft:

IN THE COUNTY COURT

Claim No.: xxxxxx

Between

[UK parking control limited]

(Claimant)

• and -

*name*

(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:

1. 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.

2. The Defendant moved from xxx to xx on xx March 2022. The Defendant acknowledges failing to update the DVLA with the new address, which was an oversight. Consequently, the Defendant did not receive any correspondence from the Claimant regarding the Parking Charge Notices (PCNs) or subsequent legal actions.

3. The Defendant first discovered the default County Court Judgment (CCJ) against him when he received a text from Empira Ltd on 00th January 2024. Upon checking his credit report, he noticed the CCJ. The claim form was not served at his current address, and he was unaware of the Default Judgment.

Service of Claim and CPR Compliance

1. The claim form was not served at the Defendant's current address, in breach of CPR 6.9(3). As a result, the Defendant was unaware of the Default Judgment, constituting a breach of CPR 13.2(a). The judgment was wrongly entered as the Defendant was unable to submit an acknowledgment of service.

2. Under CPR 13.2, the court must set aside a judgment entered under part 12 if it was wrongly entered. Given the breach of CPR 6.9(3), CPR 13.2 applies, and the CCJ must be set aside. Alternatively, CPR 13.3 applies due to the circumstances, which represent good reasons to set the CCJ aside, considering that the Defendant acted within a reasonable time period and has good prospects of defending the claim.

3. The Claimant's failure to conduct a proper address search before filing the claim, as required by the International Parking Community (IPC) Code of Practice version 9 - Clause 22.1, raises concerns about the thoroughness of any address search performed before filing the claim. The ease with which DCBL traced the Defendant's current address immediately after the County Court Judgment was issued underscores this neglect.

Particulars of Claim

1. The Claimant's particulars of claim fail to comply with Civil Procedure Rule 16.4 and Practice Direction Part 16, as they do not set out the conduct which amounted to the breach. This failure to particularise the claim should result in the claim being struck out.

Exaggerated Claim and 'market failure' currently being addressed by UK Government

1. 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.

2. 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.

3. 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).

4. 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."

5. 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_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

6. 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).

7. 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.

8. 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. Ministry of Justice statistics reveal several hundred thousand parking claims per annum, with approximately 90% 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.

9. 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 Court of Appeal) 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'.

10. 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).

11. 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'.

12. 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.

13. 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'.

1. 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 and 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

1. 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_data/file/450440/Unfair_Terms_Main_Guidance.pdf

1. 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 and 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.

2. 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, and 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

1. 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.

2. 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 Civ 2,

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".

1. Fairness and clarity of terms and notices are paramount in the DLUHC Code and these clauses are supported by the BPA & IPC. In the official publication 'Parking Review', the IPC's CEO 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

1. 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.

2. 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

1. 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.

2. 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.

1. 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:

LDast

That one, but we don't need to see the whole template. Just the bits you edited/added.

In your para #2, why would you give the claimant ammunition to shoot you with? There is no need to admit that you failed to updater your V5C logbook. hundreds of thousands of people forget or don't even realise that they have to update their V5C when they move because many assume that because they update their driver licence details with the DVLA that it would be automatic. It is not the average persons responsibility that the DVLA is so dysfunctional in the 21st century.

It was the claimants responsibility to do a credit reference check to find the defendants address if none of their communications had received any response. They can only request the DVLA data once. They can't keep going back. It is a snapshot of the data held on that date only. It cannot be relied on as a reliable address for service of documents.

The Claimants WS is not the PoC of the claim. Do you have any record of the PoC for the claims that were set aside but ordered to be defended?

tunm153

When I called I think they said something was being sent out in the post, may have to call again to ask about PoC. I haven't received any paperwork, the hearing took place almost 2 weeks ago, only issue is I need to submit the defence by tomorrow. I should have been quicker to deal with this, but unfortunately wasn't entirely sure what the next steps were until today, still not 100%.

During the hearing I did mention to the judge about the superficial trace not being good enough etc, but she said something about it being my fault for not updating DVLA and that parking operators can only check with DVLA for people's addresses. So what I said as a defence against the claim (the one we're drafting a response for) wasn't good enough during the hearing, that's why I was then told to submit a defence separately. 


Updated:

The facts known to the Defendant:

1. 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.

2. The Defendant moved from xxxx to xxxxx on xxst March 2022. The Defendant did not receive any correspondence from the Claimant regarding the Parking Charge Notices (PCNs) or subsequent legal actions at the new address.

3. The Defendant first discovered the default County Court Judgment (CCJ) against him when he received a text from Empira Ltd on xx January 2024. Upon checking his credit report, he noticed the CCJ. The claim form was not served at his current address, and he was unaware of the Default Judgment.

Coupon-mad

That's not a defence.  You need to state some facts, if you know any.

Also your first draft said it was District Enforcement and the second version says it's UK parking control limited.

Which one are you required to defend?  District Enforcement or UKPC?

Do you have any idea which car park it is about?

tunm153

Ah ok, have updated below. It's for district enforcement, the one with the 4 charges between July/August. I'd parked outside a shopping center, not an official car park, private property, in the evening. It was dark and I do recall other cars being parked there on occasion, though not sure that would be accepted as a defence.

The facts known to the Defendant:

1. 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 Particulars of Claim (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.

2. The Defendant moved from xxxx to xxx  on xx March 2022. Due to an oversight, the Defendant did not update the DVLA with the new address immediately.

3. The Defendant did not receive any correspondence from the Claimant regarding the Parking Charge Notices (PCNs) or subsequent legal actions because they were sent to the previous address. Consequently, the Defendant was unaware of the Default Judgment until receiving a text from Empira Ltd on xx January 2024. Upon checking his credit report, the Defendant noticed the CCJ.

4. The Defendant acknowledges that on the dates of xxth July 2022, xxst July 2022, xxth August 2022, and xxth August 2022, the vehicle was parked at [location]. The Defendant accepts that parking on these dates was in breach of the parking conditions at that location.

5. The Defendant's failure to update the DVLA with the new address was an oversight, not an intentional act to avoid correspondence. Many individuals are unaware of the requirement to update their V5C logbook separately from their driver's licence.

maybe these too, though might contradict 4 above?

1. The Defendant asserts that the alleged breaches occurred at night, during hours of darkness, on private property that was not designated as an official car park. This significantly impacts the visibility and readability of any signage that might have been present.

2. The Defendant contends that any signage present on the property was not adequately lit or positioned to be visible at night. As such, the Defendant was not aware of any parking restrictions or terms and conditions that might have been in effect.

3. The parking incidents occurred at night, when visibility of any signage was significantly reduced. The Defendant asserts that any signage present was not adequately lit or positioned to be visible under these conditions, making it unreasonable to expect compliance with terms that could not be seen.
4. The Claimant has not provided evidence that the signage met the requirements set out in the British Parking Association (BPA) Code of Practice or the International Parking Community (IPC) Code of Practice for nighttime visibility. Proper illumination and clear placement of signs are essential for informing motorists of parking terms, especially at night.

5. The photographs provided by the Claimant (when they posted the documents a few weeks back to my current address) are dark nighttime images that only show the Defendant's number plate. These images do not demonstrate the presence of clear, illuminated signage indicating the parking terms and conditions. The Defendant asserts that these images are insufficient to prove that any breach of parking conditions occurred.