Please assess my defense

Hello. I intend to submit this this week as I'm away for over a week having selected to defend myself.

Previous tread http://forums.moneysavingexpert.com/showthread.php?t=5733203

Claim No: xxx
Civil Enforcement Ltd v xxxxxxx
Statement of Defence
1. The Defendant denies any liability to the Claimant for all of the following reasons, any one of which is fatal to the Claimant’s case :
a. The Claimant has not identified the driver
b. The Claimant had no capacity to form a contract with the motorist
c. The Claimant did not offer a genuine contract and the amount claimed was intended as a penalty
d. Even if the Claimant did have the capacity to form a contract, it would be void under the Unfair Terms in Consumer Contracts Regulations

2. The Defendant neither admits nor denies that he was driver. The Defendant is in no position to identify who visited the carpark at the alleged date. Under current law, the registered keeper is only responsible for the drivers conduct and Claimant cannot use it to hold the registered keeper liable if it cannot identify the driver

3. The Claimant has stated in the Particulars of Claim that there were many clear and visible signs. The Defendant denies that signs were clear and visible. The Defendant was unaware of any signs until alerted to them by the Claimant’s Parking Enforcement Notice. A clear sign stating the terms and conditions at the entrance to the car park is a specific requirement of the British Parking Association Code of Practice that the Claimant is required to follow. This was absent

4. The Defendant is in no position to confirm or deny the Claimant’s timings. Neither can the Defendant understand why they are relevant. The Particulars of Claim do not give any reason why the Claimant requires a payment other than that it results from the Parking Terms and Conditions on the signage

5. The Claimant states that the claim results from a contract with the Defendant in accordance with terms and conditions of the site. The Defendant denies that he would have agreed to pay the original demand of £100 to perform the alleged but undisclosed conduct. The Defendant has no idea what terms and conditions were stated on the signs but disputes the Claimant’s statement that such an amount would have constituted an offer and submits that it in fact threatened punitive sanctions to discourage the undisclosed conduct.!

a. The Defendant has the reasonable belief that the Claimant’s intention was not to offer a genuine contract to park at that price and the main purpose was to deter the undisclosed conduct by attempting to enforce a penalty. The Defendant refers the court to 3YK50188 : Civil Enforcement Ltd v McCafferty (Luton County Court appeal) that was decided by Mr Recorder Gibson QC in almost identical words (21 February 2014)

6. The court is invited to consider whether a document a Parking Enforcement Notice would ever be sent between the parties to a genuine contract. The Claimant’s alternative claim for Breach of Contract and Damages further confirm that the sum is neither a contractual term nor a genuine assessment of pre-liquidated damages but a penalty. It cannot therefore be recovered under contract law.

a. The Defendant refers the court to the tests suggested by the House of Lords in Dunlop Pneumatic Tyre v New Garage & Motor Co. Ltd (1915) and Lordsvale Finance plc v Bank of Zambia to determine if the sum is a penalty or a genuine pre-estimate of damages. The Defendant also refers the court to O.B. Services v Thurlow (Worcester County Court 2011) and Excel Parking Services v Hetherington-Jakeman (2008) that involved similar facts to the present case.
b. The British Parking Association Code of Practice S.34 states that parking charges must be fair, reasonable and a genuine pre-estimate of the loss to the parking company. The Defendant asserts that the Claimant has also ignored the Government’s official position on parking charges as expressed clearly in the Department for Transport Guidance on the Recovery of Parking Charges:
c. Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver
d. The Defendant submits that the amount demanded cannot possibly be a genuine pre-estimate of the Claimant’s loss. The Claimant has provided loosely an explanation of 8% interest on the asking amount and it is not clear how 8% pa interest on £100 became £251.52 in a year’s time

7. Even if a contract had been formed it would be void. The Claimant was not acting in good faith and was in breach of the Unfair Terms in Consumer Contract Regulations 1999. The Defendant refers the court to the concept of good faith as elucidated by the European Court of Justice in Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5 (Para 69) regarding the Unfair Terms Directive :
a. With regard to the question of the circumstances in which such an imbalance arises “contrary to the requirement of good faith”, having regard to the sixteenth recital in the preamble to the directive and as stated in essence by the A.G. in point AG74 of her Opinion, the national court must assess for those purposes whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual contract negotiations.

8. The Defendant notes that the Claimant intends to rely on ParkingEye v Beavis. In Beavis, it was a free car park, with turnover required and a deterrent needed to stop commuters parking. As per the Claimant, this is a 24 hour car park and as long as the amount was paid, the driver can stay there indefinitely. As such turnover is not a requirement, meaning Beavis cannot apply

9. The Defendant disputes that the Claimant has incurred £50 solicitor cost to prepare the claim
a. The Defendant refers the court to the incompetent Particulars of Claim that does not clearly disclose how the amount is arrived!
b. The Defendant has the reasonable belief that the named solicitor is an employee of the Claimant and hence cannot charge Legal representative’s costs

10. The Defendant has the reasonable belief that the Claimant is abusing the court process by using the threat of action to alarm the Defendant into making a payment that is not owed. The Defendant is aware that the Claimant has a well-documented history of issuing large numbers of court claims that are discontinued at very short notice before a scheduled hearing. The court is invited to strike out the claim as having no prospect of success