Please kindly REVIEW MY DEFENCE. AOS sent a fortnight ago.

Just looking for some advice on above please?

Please can you check my final draft which needs to be submitted today (deadline is this Monday, 2nd December).
I know it is long but I am happy with the contents - I have Bargepole’s concise defence plus my own points on POPLA plus issues with obscurity by foliage etc plus Abuse of Process #14 since recent court case that Coupon mad attended.

Please check my figures on paragraph 21 and paragraph 33. CEL are claiming debt + damages of £182 (with interest/court fees/legal rep total amount = £279).

Please check amounts I have stated as slightly unsure, Paragraph 21 therefore should say “Claimant’s purported added £82.00 “costs” as this excludes £100 Notice to keeper I assume?

Similarly in Para 33, the Claimant should have known that to claim £182 for a parking charge on private land…. - other defendants mention £160 here but I assume that’s individual Claimant’s value.

£182 as mentioned is on my court form as debt + damages.

Please also quickly review the final 10 or so paragraphs which I have switched to the updated version from Abuse of Process #14 (Coupon mad) as previously instructed.

Thank you SO MUCH as I really want to submit now.



IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

CIVIL ENFORCEMENT LTD (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________



1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from the Defendant’s alleged breach of contract, when parking on the material date in a marked bay at xxxx car park, xxxx

3. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

4. Further, the Claimant’s signs fail to transparently warn drivers of what the ANPR data will be used for, which breaches the BPA Code of Practice and the Consumer Protection for Unfair Trading Regulations 2008 due to the inherent failure to indicate the ‘commercial intent’ of the cameras.

5. Further and in the alternative, it is denied that the Claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom.

6. The Defendant avers that the signage at the site in question was demonstrably OBSCURED by foliage, this is supported by photographic evidence taken at the time of the Defendant’s alleged breach of contract.

7. Further, the Claimant’s own photographic evidence of the car park is dated years before the Defendant’s alleged breach of contact took place.

8. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

9. Further, there is insufficient notice of the parking charge itself. The sum of the parking charge appears in the same very small font size used to supply the address of the claimant. The Defendant believes this is intentional on the part of the operator to “bury” vital information in a wall of words to deliberately confuse car park users.

10. The terms of parking are displayed inadequately, without prominence and clarity. The actual visibility of signage, the legibility of the wording and the size of lettering for the most onerous term, the parking charge itself leads the Defendant to aver that the signage is in breach of the Claimant’s own Trade Association’s code of conduct.

11. The Defendant originally appealed to POPLA on the basis of the terms stated in paragraph 9 of the Defendant’s defence. The appeal was uploaded successfully within the timescales, yet POPLA claimed they did not receive the Defendant’s pdf file containing details of the appeal and supporting photographic evidence. The Defendant made several attempts to contact POPLA to request a review of the appeal stating the unfairness of failing an appeal based on a technical fault rather than on the merits of the appeal itself. The Defendant finally received verbal confirmation months later, (after renewed contact with POPLA) that POPLA had indeed experienced historic technical problems with PDF files. The Defendant subsequently received verbal acknowledgement from POPLA that the appeal, including the PDF file, would be reviewed and that POPLA would also notify the Claimant of this fact.

12. POPLA’s subsequent written communication has contradicted all verbal communication between the Defendant and POPLA. The Defendant has now requested copies of telephone recordings in the last 12 months in line with POPLA’s GNPR.

13.The lack of clear and prominent signage differentiates this case from the Parking Eye vs Beavis case upon which the Claimant may rely, and that the signage fails the test of Lord Denning’s “Red Hand Rule”.

14. The case Parking Eye vs Beavis [2015] addresses the need for signs to be clear, as such my case is fully distinguished in all respects, from Parking Eye V Beavis [2015] UKSC 67, where the decision turned on a legitimate interest and clear notices. However, this Claimant did not show the charges incurred for breach in a sufficiently large font nor had the claimant set out the terms and conditions in a readable format without either the need for a step ladder, the need to manoeuvre oneself into a bush to gain proximity or the need to remove overgrown foliage in order to read the terms and conditions of the claimant’s signage.

15. Case law from Beavis would therefore lead to the conclusion that a vital ingredient is that signage be ample, prominent and the charge clear. In the Beavis case, the £85 charge was in the largest font and the terms were legible and unambiguous. The Defendant’s case, in comparison does not demonstrate an example of large lettering and prominent signage that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park, in the Beavis case alone, a contract and agreement on the charge existed.

16. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation, and to provide details of any Terms and Conditions placed upon the Claimant by the landowner in relation to such authorisations.

17. The Parking Charge of £100 with a discount to £60 for early payment is excessive and unconscionable. In the Beavis case, it was held that the claim could not have been pleaded as damages, as that would have failed. It was accepted that £85 was the sum of parking, and that was the ‘parking charge’ for want of any other monetary consideration in a free car park. It was not pleaded in damages, unlike here, where the Claimant is attempting to claim “debt + damages of £1xx.00.”

18. The purported added 'costs' are disproportionate, a disingenuous double recovery attempt, vague and in breach of the Consumer Rights Act 2015 Schedule 2 'terms that may be unfair'.

19.The arbitrary addition of a fixed sum purporting to cover 'administration/recovery costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

20. The standard w*ording for parking charge/debt recovery contracts is on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process.

21.Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £82 'costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, case law and two statute laws hold that, when it comes to parking charges on private land, the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.

22. Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages.

23.Unlike this greedy Claimant, ParkingEye themselves took on board the Beavis case outcome and they never add fake costs on top of the parking charge. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters, and all parking firms are very familiar with ParkingEye Ltd v Beavis case.


24.The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') at paras 4(5) and 4(6) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (further, the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

25.Judges have disallowed all added parking firm 'costs' in County courts in England and Wales. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated: ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court in Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

26.That decision in Wales was appealed by VCS but the added £60 was still disallowed on 30 Oct 2019, where District Judge Jones-Evans stated that even in cases parking firms win, he never allows the £60 add on, and despite parking firms continuing to include it in their Particulars, most advocates have now stopped pushing for it at hearings. The Judge said that a contract formed by signage is a deemed contract, which the motorist does not have the opportunity to negotiate. That, and the fact that there is no specified sum on the signage, means that the extra £60 cannot possibly be recoverable. He said that the £60 was clearly a penalty, and an abuse of process. However, in light of the overriding objective (CPR 1) he would allow the Claimant to proceed, but the £60 would not be awarded under any circumstances, and further, he ordered that the Claimant must now produce a statement of how they pleaded claims prior to Beavis, and subsequently.

27. In Claim numbers F0DP806M and F0DP201T - less than two weeks later but in England - the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being summarily struck out in the IOW and Hants circuit. These included BPA members using BW Legal's robo-claim model and IPC members using Gladstones' robo-claim model, and the Orders from that court were identical in striking out all such claims without a hearing during a prolonged period in 2019, with the Judge stating: ''It is ordered that The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

28. At the hearing for BW Legal's N244 application to appeal against two 'test' cases that had been struck out by District Judge Taylor against Britannia Parking for trying to claim for £160 instead of £100 parking charge, the Defendants successfully argued on all three counts including a citation of the Consumer Rights Act 2015 and the duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that falls upon the courts, whether a consumer raises the issue or not). All three points were robustly upheld by District Judge Grand, sitting at the Southampton Court on 11 November 2019, where he agreed that:

(a) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA, due to paras 4(5) and 4(6).
(b) The Claimant kne**w or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.
(c) The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the POFA para 9.

29. Further, it was successfully argued that the parking firm's consumer notice stood in breach of the Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14 and due to the statutory duty upon the Courts to consider the test of fairness and properly apply schedule 2 of the CRA 2015 it was irrelevant whether or not the consumers' defences had raised it before. The Claimants were refused their request to appeal - given that the £160 claim in its entirety, was adjudged to have been 'tainted' by breaches of two statute laws and going behind a Supreme Court ruling - and both Defendants were awarded their costs.

30.Consumer notices - such as car park signs - are not excused by the 'core exemption' as set out in the CRA 2015. The CMA Official Government Guidance says: ''2.43 In addition, terms defining the main subject matter and setting the price can only benefit from the main exemption from the fairness test ('the core exemption') if they are transparent (and prominent) – see part 3 of the guidance.'' and at 3.2 ''The Act includes an exemption from the fairness test in Part 2 for terms that deal with t*he main subject matter of the contract or the adequacy of the price, provided they are transparent and prominent. (This exemption does not extend to consumer notices but businesses are unlikely to wish to use wording that has no legal force to determine 'core' contractual issues).''

31.The definition of a consumer notice is given at 1.19 and the test of fairness is expended at 1.20: ''A consumer notice is defined broadly in the Act as a notice that relates to rights or obligations between a trader and a consumer, or a notice which appears to exclude or restrict a trader’s liability to a consumer. It includes an announcement or other communication, whether or not in writing, as long as it is reasonable to assume that it is intended to be seen or heard by a consumer. Consumer notices are often used, for instance, in public places such as shops or car parks as well as online and in documentation that is otherwise contractual in nature. 1.20 Consumer notices are, therefore, subject to control for fairness under the Act even where it could be argued that they do not form part of the contract as a matter of law. Part 2 of the Act covers consumer notices as well as terms, ensuring that, in a broad sense any wording directed by traders to consumers which has an effect comparable to that of a potentially unfair contract term is open to challenge in the same way as such a term. There is no need for technical legal arguments about whether a contract exists and whether, if it does, the wording under consideration forms part of it.''


32. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading, harassing and indeed untrue in terms of the added costs alleged and the statements made.

33.The Defendant is of the view that this Claimant knew or should have known that to claim £182 for a parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015 and that relief from sanctions should be refused and costs will be sought by the Defendant on the indemnity basis.

34.The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety (due to the similarities with the Southampton case where the entire claim was deemed 'tainted') and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant.

Statement of Truth:

I believe that the facts stated in this Defence are true.




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