2x CCJ's - Civil Enforcement Limited - Private Parking Violation

Coupon-mad

Yes that's a good idea.

Chop out some of the blurb about the DLUHC and do your own hybrid version 

RedOrchid

Ok thanks, I’ll draft something this evening and share here for feedback, once done I’ll email to DCB Legal as well as my local court?

DCB Legal mentioned they need to submit by midday tomorrow (Friday 7th) 

RedOrchid

How about this for a defence? Is the paragraph order good enough? Any help would be massively appreciated.

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 Claimant's PoC is a generic and incoherent statement of case, failing to specify key facts necessary for a complete cause of action, such as:

a) The contractual terms allegedly relied upon.

b) How the alleged contract was formed.

c) Any proof of clear and sufficient signage as per ParkingEye Ltd v Beavis [2015] UKSC 67.

d) Justification for the claimed amount beyond the initial charge, contrary to Excel Parking Services Ltd v Wilkinson [2022].

 

The facts known to the Defendant:

2. 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.

3.     Referring to the POC: paragraph 1 is denied. The Defendant is not indebted to the Claimant. Paragraph 2 is denied. No PCNs were "issued on 01/03/2020, 19/03/2020, 27/09/2020 or the 05/12/2020” (the dates of the alleged visits).  Whilst the Defendant is the registered keeper, paragraphs 3 and 4 are denied. The Defendant is not liable and has seen no evidence of a breach of prominent terms.  The quantum is hugely exaggerated (no PCN can be £170 on private land) and there were no damages incurred whatsoever. The Defendant disputes and puts the Claimant to strict proof for the amount claimed as it is excessive, unjustified, and unenforceable.

i) The claimed sum of £680 (Or £170 per PCN) is disproportionate to the original PCN amount.

ii) In Excel Parking Services Ltd v Wilkinson [2022], the court ruled that artificially inflating the claim with debt recovery fees was an abuse of process.

4.     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.

5.     The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances is a penalty. ParkingEye Ltd v Beavis [2015] UKSC 67 establishes that a parking charge must be clearly communicated and proportionate. The Claimant has failed to prove that these conditions were met.

 

Exaggerated Claim and 'market failure' currently being addressed by UK Government (FROM THE DEFENCE TEMPLATE)

6. The alleged (....)

7. This claim is unfair and inflated and (...)

8. This is a classic example where adding (...)

9. The Department for Levelling Up, Housing and Communities ('the DLUHC') (...)

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." 

10. Despite legal challenges delaying the Code (temporarily withdrawn) (...)

11. 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).

12. This claim has been enhanced by a disproportionate sum (...)

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_Main_Guidance.pdf

13. The draft IA shows that the intimidating letter-chains (...)

14. The heads of alleged loss or purported 'contractually agreed (...)

15. A typical private PCN model comprises a series of demands that the Supreme Court (...)

Failure of Service - Claim Form Not Received:

16. The Defendant asserts that the Claimant did not properly serve the Claim Form and will swear on oath that this is the absolute truth, the court ought to note that they have already dealt with two other claims from the same Claimant and understands the consequences of not responding to a claim form.

a) CPR 6.9 allows for a rebuttable presumption of service, but the Defendant did not receive the Claim Form.

 b) In Akande v The Parking & Property Management Ltd [2020], the court ruled that non-receipt of a claim form justifies setting aside a default judgment.

17. The burden is on the Claimant to prove proper service, which they have failed to do, the court ought to note that there are two CCJ’s  from this Claimant against the Defendant, awaiting litigation, defences were logged with the Civil National Business Centre (The court appointed to the case and tasked with serving the claim) back in June 2024 and they have yet to be allocated to a judge, confirming that this specific court has suffered with staff shortage and delays which may have impacted the delivery of letters.

18. The Claimant questions the Defendant as to how they were able to obtain the Particulars of Claim and the simple answer (which the Claimant should be well aware and know by now) is by phoning the Civil National Business Centre and requesting that the particulars are sent to them.

19.  The Claimant ascertains those previous claims issued by the same Claimant (All for alleged PCN’s dated before the third claim, which is hereby being litigated) bear no “relevance” and are totally unrelated. I again invite the court to note that In Arnold v National Westminster Bank plc [1991] 3 All ER 41 the court noted that cause of action estoppel “…applies where a cause of action in a second action is identical to a cause of action in the first, the latter having been between the same parties or their privies and having involved the same subject matter.” which is exactly what is happening here and the relevance it bears is very strong.

In Henderson -v- Henderson [1843] 67 ER 313 the court noted the following:

(a) when a matter becomes subject to litigation, the parties are required to advance their whole case;

(b) the Court will not permit the same parties to re-open the same subject of litigation regarding matters which should have been advanced in the earlier litigation, but were not owing to negligence, inadvertence, or error;

(c) this bar applies to all matters, both those on which the Court determined in the original litigation and those which would have been advanced if the party in question had exercised ''reasonable diligence''

20. The Claimant also highlights the Defendant’s “unreasonable conduct” has prevented the Court and Parties from conducting this litigation efficiently and at a proportionate cost. The court ought to note that by the Claimant’s unreasonable conduct, the Defendant finds themselves indebted by £909 pounds (The cost of litigating 3 identical claims by the Claimant) and guaranteed to take up the courts and parties time in order to litigate all claims separately, when a single claim from the Claimant would’ve sufficed.

CRA breach - lack of prominent terms

21. Section 71 CRA creates a statutory duty upon Courts to consider the test of fairness whether a party raises it or not.

22. 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 & lines' and all communications (written or otherwise). Signs must be prominent (lit in hours of darkness/dusk and adequately positioned where terms are bound to be seen) and all terms must be unambiguous and contractual obligations clear.

23.  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 & 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

24.  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.  

25. 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:

(a) Spurling v Bradshaw [1956] 1 WLR 461 (Lord Denning's ‘red hand rule’) and

(b) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2,

both leading authorities that a clause cannot be incorporated after a contract has been concluded; and

(c) 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''. 

Lack of standing or landowner authority, and lack of ADR

26. DVLA registered keeper data is only supplied on the basis that parking operators who do not own the land must hold prior written agreement from the landholder. Should the Claimant try to rely upon the finding in One Parking Solution v Wilshaw in this regard, it is averred that this appeal judgment was misguided and plainly wrong. The DVLA rules and requirements that relate to private parking operators are a fundamental set of rules specific to parking on private land and regrettably, HHJ Simpkiss was not appraised about the 'KADOE' requirement for written landowner authority. Even the BPA & IPC's questionable industry Code gets this right: absent written landowner authority, there is no 'reasonable cause' to obtain DVLA data nor to issue PCNs. 

27. It is not accepted that this Claimant (an agent of a principal) had written authority from the landowner to offer and form contracts with drivers at this site, in their own right. Many parking operators merely act as agents (contracted to put signs up and issue charges 'on behalf of' the site landowner) and this Claimant is put to strict proof of their standing to litigate.

28. The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). 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 average 5% of decided cases (ref: recent Annual IAS Reports). An impartial, fair appeals service was never on offer.

 

Overriding Objective - Ensuring Justice:

29. Under CPR 1.1, the court must ensure that cases are dealt with justly. As the Defendant was unaware of the claim due to not receiving the claim form, justice requires that they be given a fair opportunity to defend themselves.

 

Relief from Sanctions Under CPR 3.9 and the Denton Test:

30. Even if the court finds any procedural non-compliance, the Denton test applies:

a) The breach was not serious or significant as it resulted from non-receipt of the claim form.
b) The Defendant acted promptly upon discovering the claim (Submitted on 20/11/2024 – Roughly 1 Week after discovering the claim against me had already been logged).
c) Setting aside the claim and allowing a fair hearing aligns with justice and does not prejudice the Claimant.

 

Conclusion

31. 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 Government IA analysis shows (from data from this industry) that the usual letter-chain costs eight times less than the sum claimed for it. The claim itself relies on an unfair charge which is entirely without merit, and should be dismissed.

32. In the matter of costs, the Defendant seeks:

(a) Award the Defendant costs in the amount of £303 (For this claim) due to the unreasonable and vexatious nature of this claim.

(b) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(c) a finding of unreasonable conduct by this Claimant, and further costs pursuant to CPR 46.5. 

33.  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.

Signed: [MY NAME] Dated: [INSERT DATE]

Coupon-mad

Head it up 'Draft Defence'.

This needs to be much nearer the start:

Overriding Objective - Ensuring Justice:

29. Under CPR 1.1, the court must ensure that cases are dealt with justly. As the Defendant was unaware of the claim due to not receiving the claim form, justice requires that they be given a fair opportunity to defend themselves.

Relief from Sanctions Under CPR 3.9 and the Denton Test:

30. Even if the court finds any procedural non-compliance, the Denton test applies:
a) The breach was not serious or significant as it resulted from non-receipt of the claim form.
b) The Defendant acted promptly upon discovering the claim (Submitted on 20/11/2024 – Roughly 1 Week after discovering the claim against me had already been logged).
c) Setting aside the claim and allowing a fair hearing aligns with justice and does not prejudice the Claimant.

Isn't there also something to be added to paragraph 3 or thereabouts, about the POC not specifying four breaches, only one?  They can't just trot out 4 dates and not break down the four allegations in some detail.

And you said there were two CCJs, (two claims)?  Both from the same Claimant, same location, same facts?  If so, then you need to add the usual words about Henderson v Henderson and mention the other claim number.

DCB Legal mentioned they need to submit by midday tomorrow (Friday 7th) 

Right. Oh dear.

You DO NOT have until the morning.  They will ignore you and send it off without you, so you MUST MUST MUST email the signed draft defence to add to the hearing bundle, tonight. Now.

RedOrchid

This is sent with my local court in copy! 

RedOrchid

I've now received the bundle from DCB Legal and they have filed it with my draft defence included, any tips on how I can argue my case in front of the judge? I am really stressing out as this sum of money + a CCJ for 6 years will be a very big knock on my personal life, if you have any points that I should really exaggerate during the hearing, I'd be ever so grateful to hear it! 

Coupon-mad

VCS v Carr at the COURT OF APPEAL this week. Watch the video. Parking firms can't use old DVLA addresses to file claims.

RedOrchid

But this specific claim doesn’t cite VCS vs CARR nor has it used an old dvla address to serve the claim (The other two earlier on in this thread has)? Did you mean VCS vs CARR? 

Coupon-mad

Coupon-mad said:

Remind us why a defence went in with a N244? Is your case the one that's not about a wrong address being used?

I have 3 CCJs, the first two were sent to a very old address, whilst the latest one (from the same alleged parking contraventions) did go to my current address but it never arrived.



UPDATE

RedOrchid said:

But this specific claim doesn’t cite VCS vs CARR nor has it used an old dvla address to serve the claim (The other two earlier on in this thread has)? Did you mean VCS vs CARR? 

Is this hearing only about the one that simply didn't arrive?

In that case your main push should be telling the Judge that this is one of three sequential and duplicate facts (bar the PCN dates) court claims involving the same parties, same location, etc., that should have been filed as one claim.  None of the three claims were received and two out of three were deliberately or negligently sent to an old address so were improperly served.

And cite Henderson v Henderson as trite law. 

As I said to you - below - in January.

THIS claim needed a draft defence because it relies upon CPR 13.3 (discretion of the court ... where there is 'some other good reason' to set aside the CCJ). You'll have to fight hard for this one ... but surely the compelling 'good reason' is that there never should have been three separate claims and if they'd filed these PCNs as one claim AND to the right address, it would never have cost you £909 (three applications).

Three claims is clearly negligent at best, and certainly 'wholly unreasonable conduct' for which there is 'no reasonable explanation' (ref Dammerman).

It would be an injustice to refuse the application - any of the 3 applications - given all the circumstances and when considering the Denton principles.

It's clear that in circumstances where you didn't receive ANY of the 3 claims, you cannot be in breach at all so there is no conduct of yours that needs sanctions. 

Coupon-mad said: 

In normal (wrong address) CCJ set aside cases we tell people not to include a defence.

That's why the CCJ set aside advice says only add a WS about your house move, evidence of where you were living, case law about unserved claims & set asides, and a Draft Order.

The idea is not to give the set aside Judge an excuse to make YOUR paid for hearing into a mini trial of the Claimant's claim (a 'free hit' at a hearing for them just isn't fair or just).

Your third one might have warranted a draft defence to persuade the Judge because that one depends upon the court's discretion under CPR 13.3 and 'prospects of defence' come into play.

With the first two cases, it isn't a matter for discretion and persuading the Judge with a draft defence to 'let you off' sanctions.

A mandatory set aside under CPR 13.2 is the Order required in those cases because the Claim Form was not properly served.

Three separate N244s were needed but no defence with the first 2 cases.

Only a draft defence should have been attached for the final one, perhaps adding Henderson v Henderson and saying that all 3 claims are so similar that they should have been one claim and should now be consolidated, and the C sanctioned for full costs for causing you this detriment.

Chan & Akande included only if ANY/ALL of those claim POC did not plead the breach properly.

RedOrchid

You are correct Coupon, this hearing is for the latest claim ONLY so I’ll take your advice and push forward with that argument, thank you for your input. I’ll start creating a list of bullet points to take with me so I can refer back to them and expand as necessary. 

Quick question, if my case is denied, do I have the option to appeal and would that cost even more? 🥲