Classic CCJ from CEL - Defence post set aside

Coupon-mad

Well done! 

I am concerned now that if I file a defence and CEL discontinue, I would not recover the fee?

You would because your costs are reserved and you could then ask the court (by email) for them and cite VCS v Carr and the White Book annotation about the unreasonable conduct of a late discontinuance. That exact wording appears at the end of the Template Defence.

But there is an issue and I am more concerned that they'll sit on their hands and do nothing:

that Order doesn't give CEL any deadline at all to send the claim form, so maybe they never will (and hope you never follow up for your costs which they can see are reserved and thus, hanging over their head).

Wait until May.

If you hear nothing:

Email the court and attach a copy of that order, a copy of your costs assessment and receipt for the £303 and any other costs for the hearing, and ask for your 'reserved costs' because the Claimant has failed to comply with the Order of DDJ Ramsden dated 4th April.

tuna460

So following the court's order for CEL to send the claim, I did eventually receive a letter with essentially just the same POC attached, just a claim summary, nothing signed by S Wilson despite being handled by CEL in house.

Here are the more distinctive parts of my draft defence

DEFENCE

1. ...

Preliminary matter: The claim should be struck out 

2. ...

3. The Defendant draws to the Court's attention two persuasive Appeal judgments that would indicate the POC fails to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5. 

3.1. Civil Enforcement Limited v Chan (Luton County Court, August 2023, Ref. E7GM9W44): 

HHJ Murch held: “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 Particulars of Claim must specify the conduct constituting the breach, which was not done in that case.”  

The same is true in this case and the Defendant trusts that the Court should strike out the extant claim, using its powers pursuant to CPR 3.4.  

3.2. Car Park Management Service Ltd v Akande (Manchester County Court, May 2024, Ref. K0DP5J30): 

HHJ Evans held: “Particulars of Claim have to set out the basic facts upon which a party relies in order to prove his or her claim The Defendant must be able to understand the case against them, which was not possible in that case.”  

Transcripts for both cases are linked below to assist the Court to deal with this failure promptly and the two authorities will also be exhibited later, if the claim is not struck out at allocation stage: 

Link to the two authorities: Chan_Akande 

The facts known to the Defendant: 

5. The facts in this defence come from the Defendant's own knowledge and honest belief.  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. 

6. Regarding the alleged breach between 12:57 to 14:39 on XX/XX/XX, the Defendant visited and ate at a fast-food restaurant with a car park that offered 90 minutes free parking. 

Consideration and grace periods 

7. The claim is without merit, as the Claimant did not adhere to both the BPA and Department for Levelling Up, Housing and Communities (DLUHC) CoP requirements of minimum consideration and grace periods. 

8. The Claimant has failed to acknowledge the “consideration period” that is required to ensure a driver has enough time to drive into a car park, find a space and read the signs before a contract has started.  

9. Parliament agrees. The Claimant has ignored the Private Parking (Code of Practice) Act 2019 first published by the DLUHC in February 2022, due to be finalised after a Judicial Review delay engineered by the parking industry, who did not object to the following clause which remains unchanged:  

10. Clause 2.24 defines a parking period as: "the length of time that a vehicle has been parked, i.e. left stationary otherwise than in the course of driving, after any relevant consideration period has expired ... This is not the period between a vehicle being recorded as entering and departing controlled land."  

11. As seen in Annex B Table B.1 of the same CoP, a minimum consideration period of 5 minutes and a grace period of 10 minutes should have been applied. Had they been followed correctly, there would have been no violation, as the alleged total stay was 102 minutes.

 

Signage Issues 

12. The Claimant has failed to provide evidence that their signage complied with the British Parking Association Code of Practice requirements regarding: 

(i) Size and positioning of signs 

(ii) Legibility of terms 

(iii) Adequate notice of contractual terms 

13. The Defendant puts the Claimant to strict proof that: 

(i) Signs were of sufficient size and prominence 

(ii) All material terms were clearly displayed 

(iii) The signage complied with the Consumer Rights Act 2015 requirements 

 

14. 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. 

15. 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 

16. There is an abuse of process in that the amount of interest applied has been miscalculated. Even if the claimant was allowed to claim interest on £170, 8% per year flat interest from due date to 17/11/23 would result in £17.73 interest, £1.09 below the amount on the POC.   

17. Whilst seemingly minimal, this overcharge affects the total amount claimed and raises concerns about the accuracy and good faith of the claimant’s case and constitutes an abuse of process. By inflating the interest amount, the claimant is misusing the court process to claim more than what is legally and factually justified. This undermines the integrity of the legal process and places an undue burden on the defendant. 

18. Given that the MoJ's quarterly statistics show that 90% of small claims go to default CCJs (including this one) there is clearly an abuse by parking claimants who were said by the Civil Justice Council to be the main perpetrators. The added fake £70 'damages/fee' and inflated interest both appear to be for the profit of CEL and nothing to do with the Claimant's alleged PCN. I see this as 'vexatious litigation' and there has been a totally unreasonable course of litigation conduct from start to finish. 

19. 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. 

(rest of template...)

Coupon-mad

Yep that's good but I wouldn't admit to the times they allege, so I'd remove this:

"6. Regarding the alleged breach between 12:57 to 14:39 on XX/XX/XX, the Defendant visited and ate at a fast-food restaurant with a car park that offered 90 minutes free parking."

Nope. Your car was not parked for more than 90 minutes so don't repeat their times that don't even appear in the POC. Also remove the bit talking about an 'alleged 102 minutes' because the POC alleges nothing!

Don't fill in their gaps for them.

And you have no para 4.

tuna460

Sorry I'm not sure I follow. I do understand your point about not filling in the gaps for them since the POC don't actually allege anything. 

However those times are explicitly mentioned in the POC as Time in and Time out, does this change anything?

And I was colloquially "parked" for over 90 minutes, but my understanding was that with the consideration and grace period properly taken into account, this should not have resulted in a PCN. Was your point just that I was not parked for 90 minutes by the DLUHC definition of a "parking period"?

Is it just that I should leave my facts known to the defendant vague until CEL actually accuse me of something

Coupon-mad

tuna460 said:

Sorry I'm not sure I follow. I do understand your point about not filling in the gaps for them since the POC don't actually allege anything. 

However those times are explicitly mentioned in the POC as Time in and Time out, does this change anything?

And I was colloquially "parked" for over 90 minutes, but my understanding was that with the consideration and grace period properly taken into account, this should not have resulted in a PCN. Was your point just that I was not parked for 90 minutes by the DLUHC definition of a "parking period"?

Yes. You were only actually 'parked' for no more than c90 mins.

The rest is driving in and finding a space (using a drive-thru?) then parking up and ONLY THEN having a chance to read a sign, if it was even prominent enough? Then add the minimum ten minute grace period at the end, as mandated for years in this industry.

Is it just that I should leave my facts known to the defendant vague until CEL actually accuse me of something

Yes indeed, and remember that CEL v Chan was about the same Claimant: a case with the exact same POC as yours:

Your particulars of claim: 

CLAIM FOR MONEY RELATING TO A PARKING CHARGE FOR BREACH OF CONTRACT TERMS/CONDITIONS(TCS) FOR PARKING IN PRIVATE CAR PARK (CP) MANAGED BY CLAIMANT. DRIVERS MAY ONLY PARK PURSUANT TO TCS OF USE DISPLAYED IN CP AND AGREED UPONENTRY/PARKING. ANPR CAMERAS OR MANUAL PATROLSMONITOR VEHICLES ENTERING/EXITING THE CP AND TC BREACHES. CHARGES OF GBP170.00 CLAIMED. 

VIOLATION DATE: 30/06/2022 

PAYMENT DUE DATE: 29/07/2022 

TIME IN: XXXX

TIME OUT: XXXX

PCN: REFXXXXX

VEHICLE REG MARK: XXXXX

CAR PARK:- XXXXX

TOTAL DUE- GBP170.00 (PAY:WWW.CE-SERVICE.CO.UK OR 01158225020) 

THE CLAIMANT CLAIMS THE SUM OF GBP188.82 FOR THE UNPAID PARKING CHARGE INC GBP18.82 INTEREST UNDER S.69 OF THE CCA 1984 RATE: 8.00% PA FROM DUE DATE TO- 17/11/23 SAME RATE TO JUDGMENT OR SOONER PAYMENT AT DAILY RATE OF- GBP0.04 TOTAL DEBT AND INTEREST DUE- GBP188.82

tuna460

I see thank you. Obviously in that original message I had substituted the explicit time in and out with XXXX. I will remove those lines as you suggest.