Civil Enforcement Ltd!!!

AJMorton · 21 December 2017 at 1:00PM

So sorry I don't understand......this is way above my pay grade, you guys have been so helpful but I'm getting so confused.

The_Deep · 21 December 2017 at 1:13PM

It most certainly is not above you pay grade, it is a small claim, where legal representation is discouraged by a very low cap on what one may claim in legal costs. A hell of a lot of everymen manage it, I think that you need to try harder, (or pay the scammers).

Loadsofchildren123 · 21 December 2017 at 1:27PM

I didn't appreciate it was denied MiL was driving, rather than not admitting it and saying the burden of proof is on them. Absolutely specifically deny it if she wasn't.

Loadsofchildren123 · 21 December 2017 at 2:21PM

Xxxxxx the defendant in this matter and registered keeper of vehicle registration xxxxxxx currently residing at xxxxxxxc

The amended defence against the amended particulars of the claimant are on the following grounds and respectfully ask that all points are taken into consideration:
The Defendant denies the claim on the following grounds:

1. The driver complied with the terms and conditions offered by the Claimant, save for a small and insignificant error in the entry of the vehicle's VRN into the Claimant's machine, to which the doctrine Maxim de minimis non curat lex applies;
2. The Defendant was not driving and the Claimant has not produced any evidence to the contrary, and so the Defendant cannot be liable operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.
[note: forgive me, are we also saying following on from 2 that D can't be liable as keeper either because POFA not complied with? if yes, this needs to be added as a number 3:
3. The Defendant cannot be liable as the keeper of the vehicle because the provisions of Schedule 4 of the Protection of Freedoms Act 2012 ("POFA") have not been complied with]

1. Doctrine Maxim de minimis non curat lex

1.1 On the date of the parking, the driver (who for the avoidance of doubt was not the Defendant and is a person of advancing years), complied with the terms and conditions of parking by purchasing a ticket and entering the vehicle registration number.

1.2 The keypad and display on the Claimant's pay and display machine was poorly laid out and positioned and the driver, whilst taking care to enter it correctly, made a small, insignificant and obvious error by inverting two letters of the VRN and duplicating one. It is common ground between the parties that the Claimant was aware of this error, and that the driver had in fact paid the relevant parking charge, before it chose to issue proceedings.

1.3 The "de minimis" doctrine (literally An abbreviated form of the Latin maxim de minimis non curat lex, "the law cares not for small things." provides that the A legal doctrine by which a court should refuses to consider trifling matters. This is a case where the court should apply In a lawsuit, a court applies the de minimis doctrine in order to avoid the resolution of trivial matters that are not worthy of judicial scrutiny. Its application sometimes results in the dismissal of an action.

The driverof advancing years inadvertently inputted a letter in the incorrect place and duplicated a number of the vehicle registration number, due to the poor display of keys on the pay and display machine.[/s]

1.4 The Lead Adjudicator of one of the two trade bodies for private parking companies has advised its members that such small errors should be forgiven, saying that motorists are being "unfairly penalised for the most trivial of mistakes when entering their vehicle registration numbers.... where the mistake is so trivial that even someone applying their full attention might not realise.... then it is...unfair to enforce a charge". [note: you then expand upon this in your WS. Strictly speaking, you could miss this part out entirely as it's evidence rather than defence, but I'd put it in as it may discourage them from proceeding] , Bryn Holloway (Barrister) , of the IAS has published his annual report for 2016/2017. In his forward he stated that:

A commitment to continuous improvement must be a prerequisite for any service that seeks to provide truly independent redress for consumers. While the IAS has continued to grow since the 2015/2016 report, it is significant that we have also taken every opportunity to ensure the service evolves and develops to provide the best possible service to the Consumer. One example involved a growing concern that motorists were being unduly penalised for the most trivial of mistakes when entering their vehicle registration numbers as they are registering for parking. Of course, it is incumbent upon the motorist to take reasonable care in entering their details, and when they fail to do so properly very often a charge may be justified. However, where the mistake is so trivial that even someone applying their full attention might not realise - such as entering a ‘0’ instead of a ‘O’ or a ‘1’ instead of an ‘I’ - then it is, in my view, unfair to enforce a charge.
As a consequence, I released guidance to all the adjudicators that they should have regard to the nature and extent of such mistakes in determining whether a charge is lawful. I am pleased to say that, since issuing the guidance, there has been a visible reduction in the amount of cases where operators pursue such parking charges and far fewer (justifiably) frustrated motorists as a result.

It is impossible to differentiate between a 0 (zero) and the letter O on a vehicle registration mark and feel it is unfair to penalise customers for such a trivial mistake. The fact that a ticket had been purchased meant that there could be no loss for Civil Enforcement Ltd and the fact that a zero was used instead of the letter O is a minimal error.

2. The Defendant was not driving.
2.1 The Defendant cannot be liable for the sums sought as she was not the driver. operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.
The Claimant cannot confirm the defendant was the driver on the day of the event. In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. N There can be no presumption made that the Defendant, as the keeper of the vehicle, was the driver on the day in question and the Claimant cannot have any evidence that she was. can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and can confirm that they were, but they are exercising there right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. Appellant throughout (as entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

The keeper of the vehicle, has a right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4 of the PAFA 2012.

2.2 The burden of proof rests with the Claimant Operator to show that the Defendant was driving, and it cannot do so. (the individual) has personally not complied with terms in place on the land and show that personally not liable for their parking charge. They cannot.

3. The Defendant cannot be liable as keeper because the strict requirements of POFA have not been complied with by the Claimant because.... [eg the Notice to Keeper was served out of time or was not compliant with POFA]

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

The Defendant therefore asks the Court to strike out the claim as having no reasonable prospect of success, under CPR Rule 3.4 a claim.

4. Other matters

4.1 Additional sums sought:
Should it be decided that the Defendant is liable for the charge, the Claimant is not entitled to recover the entire sum sought because it The Claimant has added unrecoverable sums to the original parking charge which did not form any part of any contract between the driver and the Claimant. Furthermore, the Claimant is not entitled to £50 in respect of legal costs because it does not use the services of a solicitor [can you check the £50 legal costs is part of the claim?]. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs' were incurred. The Defendant also denies that I deny the Claimant is entitled to any interest whatsoever.

This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr. Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case. I've deleted this because this is all about the penalty rule which you haven't argued.

In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case. I've deleted this because I don't think you can have it both ways - you acknowledge driver saw the signs because she bought a ticket, but then you are saying the signs were inadequate. Even if inadequate, the fact is driver saw and read them!

4.2 The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs. If no such consent was obtained then the Claimant was committing a criminal offence and cannot rely on a criminal act on which the found a claim.

b) In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.!

c) Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:

(i) Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum.
(ii) Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
(iii) It is believed the signage and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from by an authorised party using the premises as intended.
(iv) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
(v) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.

d) BPA CoP breaches - this distinguishes this case from the Beavis case:!
(i) the signs were not compliant in terms of the font! Size, lighting or positioning.
(ii) the sum pursued exceeds £100.
(iii) there is / was no compliant landowner contract. see note above

4.3 The Claimant has no standing to bring a claim because it has not shown that it has the landowner's authority to operate on the land in question or to bring proceedings in its own right - this distinguishes this case from the Beavis case:
It is believed Civil Enforcement do not hold a legitimate contract at this car park. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.

No legitimate interest - this distinguishes this case from the Beavis case:
This Claimant files serial claims regarding sites where they have lost the contract, known as revenge claims do you have any evidence they lost the contract and it is a revenge claim????? and it believed this is one such case. This is not a legitimate reason to pursue a charge out of proportion with any loss or damages the true landowner could pursue.!

The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.

The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim. see note above re relevance of this

The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to strike out the Claim because note that the Claimant has:

(a) Failed to disclose any cause of action in the incorrectly filed Claim Form issued on 12th June 2017.

(b) Sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA compliant documentation.

(C) Sent amended particulars under Doctrine Maxim de minimis non curat lex I don't understand what the point being made here is?

I confirm that the above facts and statements are true to the best of my knowledge and recollection.

Signed

Date:

AJMorton · 21 December 2017 at 2:23PM

In the County Court Business Centre
Claim Number:

Between:

Civil Enforcement Limited v
Preliminary Matters: Strikeout

Amended Defence Statement

The amended defence against the amended particulars of the claimant are on the following grounds and respectfully ask that the point be taken into consideration:

1. Doctrine Maxim de minimis non curat lex

1. Doctrine Maxim de minimis non curat lex

An abbreviated form of the Latin maxim de minimis non curat lex, "the law cares not for small things." A legal doctrine by which a court refuses to consider trifling matters.
In a lawsuit, a court applies the de minimis doctrine to avoid the resolution of trivial matters that are notworthy of judicial scrutiny. Its application sometimes results in the dismissal of an action.
The machine was not adequately positioned for a person of advancing years, also the size of the font on the keys are not large enough. Therefore mistakes are inevitable.

The fact that a ticket had been purchased and covered the allotted parking duration meant that there could be no loss for Civil Enforcement Ltd.

The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of a claim.

The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs' were incurred. We deny the Claimant is entitled to any interest whatsoever.!

(i) the signs were not compliant in terms of the font! Size, lighting or positioning.
(ii) the sum pursued exceeds £100.
(iii) there is / was no compliant landowner contract.

(a) Failed to disclose any cause of action in the incorrectly filed Claim Form issued on 12th June 2017.

(b) Sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.

(C) Sent amended particulars under Doctrine Maxim de minimis non curat lex

I confirm that the above facts and statements are true to the best of my knowledge and recollection.

Signed

................................................

Date:

AJMorton · 21 December 2017 at 2:24PM

Sorry just posted my new defence just as you posted your help.

AJMorton · 21 December 2017 at 2:25PM

Thank you

Loadsofchildren123 · 21 December 2017 at 2:26PM

Is this an amended defence? There's reference somewhere in the above to amended PoC which leads me to believe that this is supposed to be an amended defence.

Strictly speaking, an amended defence should start with the old defence, and you then amend that by striking out in red any deletions and underlining in red any additions. Including the original date of the first defence being crossed out and replaced with the date of the amended defence.

But I think a court will forgive you for not knowing this.

If it is an amended defence, the document should be headed "Amended Defence".

I've deleted the Beavis references, I don't see how they apply because you don't seem to be defending on the basis that it's an unconscionable penalty and the penalty rule has not been disengaged as it was in Beavis. If you do want to argue this, then you need to add a defence point that the sum sought is an unconscionable penalty, and the facts of this case are entirely different to the facts of the Beavis case, which means that the penalty rule has not been disengaged. And then you add a point that they failed to comply with the BPA CoP (that becomes relevant if Beavis is being argued).

Loadsofchildren123 · 21 December 2017 at 2:27PM

OK, can I suggest you have a look at my changes, amalgamate them into your new document and re-post a new draft which we can then all look at again?

AJMorton · 21 December 2017 at 5:10PM

Thank you LOC123 for your help, please see below. Just need to print and get of to the post office we don't have the ability to scan and email

In the County Court Business Centre
Claim Number:

Between:

Civil Enforcement Limited v

Preliminary Matters: Strikeout

Amended Defence Statement

The defendant denies the claim on the following grounds:
1. The driver complied with the terms and conditions offered by the Claimant, save for a small and insignificant error in the entry of the vehicles VRN into the Claimants machine, to which the Doctrine Maxim de minimis non curat lex applies.

1.1 On the date of the parking, the driver complied with the terms and conditions of parking by purchasing a ticket and entering the vehicle registration number.
1.2 The keypad and display on the Claimants pay and display machine was poorly laid out and positioned for the driver, whilst taking care to enter it correctly, made a small, insignificant and obvious error by inverting two letters of the VRN and duplicating one. It is common ground between the parties that the Claimant was aware if this error, and that the driver had in fact paid the relevant parking charge, before it choose to issue proceedings.
1.3 The “de minimis" doctrine “the law cares not for small things." Provides that the court should refuse to consider trifling matters. This is a case where the court should apply the doctrine in order to avoid the resolution of trivial matters that are not worthy of judicial scrutiny.

1.4 The Lead Adjudicator of one of the two trade bodies for private parking companies has advised its members that such small errors should be forgiven, saying that motorists are being “unfairly penalised for the most trivial of mistakes when entering their vehicle registration numbers, where the mistake is so trivial that even someone applying their full attention might not realise their mistake, then it is unfair to endorse a charge. Therefore the driver of advancing years inadvertently made that insignificant error and had no knowledge of their error at the time.

2. The Defendant cannot be liable as keeper because the strict requirements of POFA have not been complied with, the Claminant was not compliant with POFA.

The Defence therefore asks the Court to strike out the claim as having no reasonable prospect success, under CPR Rule 3.4.

3. Other Matters.
3.1 Additional sums sought: Should it be decided that the defendant is liable for the charge, the Claimant is not entitled to recover the entire sum sought because it has added unrecoverable sums to the original parking charge which did not form any part of any contract between the driver and the Claimant. Furthermore, the Claimant is not entitled to £50 in respect of legal costs because it dies not use the services of a solicitor. The Defendant also denies that the Claimant is entitled to any interest whatsoever.
3.2 The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs. If no such consent was obtained then the Claimant was committing a criminal offence and cannot rely on a criminal act on which the found a claim.
3.3 The Claimant has no standing to bring a claim because it has not shown that it has the landowners authority to operate on the land in question or to bring proceedings in its own right.

The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to strike out the Claim because the Claimant has:

(a) Failed to disclose any cause of action in the incorrectly filed Claim Form issued on 12th June 2017.

(b) Sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA compliant documentation.

I confirm that the above facts and statements are true to the best of my knowledge and recollection.

Signed

................................................

Date:

Civil Enforcement Ltd!!!

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