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Civil enforcement, Chasing after 2 years
Sigurd
post Wed, 14 Mar 2018 - 20:55
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Good evening all. First time poster and possibly a tad too late but here goes !
I received an invoice from Civil Enforcement in April 2016 for overstaying in Taunton Holiday Inn car park. I appealed at the time stating poor signage positions and punitive charging etc. Appeal rejected. I then made a Popla appeal which was also rejected. I waited and heard nothing from Civil Enforcement after this at all until a letter today, nearly 2 years later, asking for £100 within 14 days or the hounds of hell shall be released on me !!
Any advice as to how I should deal with this would be much appreciated.

Many thanks
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post Wed, 14 Mar 2018 - 20:55
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Sigurd
post Thu, 4 Oct 2018 - 20:28
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Hi Cabbyman,
I have had no contact with Cel or anyone else but in the Popla appeal I think I may have eluded to me being the driver. I can’t be certain if this as it was so long ago but I think I did.
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nosferatu1001
post Fri, 5 Oct 2018 - 08:25
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Given you have 2 weeks holiday, if you DONT acknowledge NOW, you will have a risk of a default judgement

So, do whatever you can to get this acknowledged. Ring them. Do SOMETHING

Have you not got your appeal still? SUrely its just a word doc?
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Sigurd
post Sat, 6 Oct 2018 - 00:09
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Hi , thanks for your reply. I have searched and cannot find anything to do with my appeal anywhere. Have tried upteen times to acknowledge on the website but it won’t accept the password given. I am going to try and ring on Monday to see if I can get it acknowledged.
I have previously started to put together a defence so if I post that on here would you guys be so good as to critique it for me please ?
Thank you
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SchoolRunMum
post Sun, 7 Oct 2018 - 14:57
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QUOTE
Have tried upteen times to acknowledge on the website but it won’t accept the password given.
MCOL is a useless clunky system - are you sure you were not trying to put the password where it actually wants the Gateway ID that you have to obtain first?

Did you do this:

https://www.dropbox.com/s/xvqu3bask5m0zir/m...wledge.pdf?dl=0
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Sigurd
post Mon, 8 Oct 2018 - 08:55
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Hi there! Yes, I did follow the Dropbox instructions and am definitely doing it correctly. Anyhow, panic over as have managed to get through to the court on the phone and they say I can acknowledge via email so am doing that now.
I will be needing and much appreciate any help you good people can give me with what comes next x
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Sigurd
post Thu, 18 Oct 2018 - 13:57
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Hi guys, I have used a fairly recent defence here and adjusted it to show some relevant facts and figures. As a first draft, is there anything I should be adding or removing ? Anything different I should focus on ?

I look forward to your critique
Many thanks

In the County Court Business Centre
Claim Numbers z****
Between:
Civil Enforcement Limited v ******
Defence Statement

I am ******* the defendant in this matter and registered keeper of vehicle *****. I currently reside at ***.

The Claim Form issued on the **** by Civil Enforcement Limited was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by “Claimant’s Legal Representative”.

I deny I am liable for the entirety of the claim for each and every one of the following reasons:

1: 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.

2: This Claimant has not complied with pre-court protocol:
(a)There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.
(b) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.
© The Claim form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has no idea what the claim is about - why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information.

3: I put the Claimant to strict proof that it issued a compliant notice under Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.
Henry Greenslade, lead adjudicator of POPLA in 2015 and an eminent barrister and parking law expert stated that “However keeper information is obtained, 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.”

Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and relevant contract' fairly and adequately communicated, which there was not as there was no clear, transparent information about how to obtain a permit either inside or outside the site) is the sum on the Notice to Keeper. They cannot pluck another sum from thin air and bolt that on as well when neither the signs, nor the NTK, nor the permit information mentioned a possible £308.85 for outstanding debt and damages.

4: Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
(a) 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.
(b) Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
© It is believed the signage was above the eyeline of an average height person 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.
(d) 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.

5: BPA CoP breaches - this distinguishes this case from the Beavis case:
(a) the signs were not compliant in terms of the font size, lighting or positioning.
(b) the sum pursued exceeds £100.
© there is/was no compliant landowner contract.

7: 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.

8: 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.

9: (a)The claimant has added unrecoverable sums to the original parking charge. The £60 debt collectors fee will not have been paid. The £36 solicitors fee will not have been paid. CEL do not employ a solicitor, and even if they did the charge cannot be recovered in Small Claims Court.
The Legal Representative cost of £50 had not been incurred as “Claimants Legal Representative” consists of CELs own employees.
(b) The claimant has added incorrectly calculated interest from the date of alleged violation rather than from the date of cause of action or costs. No cause of action could have arisen until 28 days after the PCN was served.

10: The Claimant has sent this claim on a fictitious journey via themselves, ZZPS and QDR in a attempt at double recovery.

11: Not one single piece of correspondence from CEL, QDR, ZZPS or the Claim Form have been signed

The Defendant denies any liability whatsoever to the Claimant in any matter.


The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

I believe the facts contained in this Defence Statement are true.
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SchoolRunMum
post Thu, 18 Oct 2018 - 20:56
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QUOTE
Defence Statement
Should be DEFENCE.

Why 'Claim Numbers' (plural) at the top left? More than one claim?

Don't use the acronym CEL in the defence. Just call them 'the Claimant' throughout.

How can a person have ''overstayed'' at a Hotel Car Park? Do you mean it wasn't free, and there was a period of paid-for time then an alleged overstay of a few minutes? Your defence at the start needs to cut to the heart of the matter and explain better what the claim centres on (location, facts, alleged breach) and why you contend the D is not liable (unclear signs, no keeper liability).

Letters not being signed is not a point of defence. Loads of letters are digital templates and don't have a signature these days.
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Sigurd
post Fri, 19 Oct 2018 - 09:27
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Hiya!
It turned out that The hotel car park was free only to guests who had registered their vehicles. On this occasion the driver was not staying there, just using as a meeting point to pick up a colleague. Had done many times before and was not aware that a PPC had taken up roost there. Did not see the sign on entrance or where he/she actually stopped, though cel photos show there are plenty of signs.
How do I best word this in my defence ?
Many thanks

This post has been edited by Sigurd: Fri, 19 Oct 2018 - 12:17
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nosferatu1001
post Fri, 19 Oct 2018 - 09:43
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It still isnt a statement... READ posts. Dont skip them!

You do realise a key element of CEL defences is that they cannot hold a Keeper liable? Yet youve just blabbed about who the keeper is? EDIT THAT LAST POST, NOW. THE DRIVER parked...
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Sigurd
post Fri, 19 Oct 2018 - 12:20
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Thankyou Nosferatu. Edited.
And finally understood regarding Defence, not statement. Thanks
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Sigurd
post Fri, 19 Oct 2018 - 12:42
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SchoolRunMum
Thankyou for your reply. To answer all your points in full :
No, only one claim. Copied that and didn’t notice.
Defence, not statement, also pointed out by nosferatu. Understood
Thankyou for these observations. Could you please help me with how I best use and input the facts ?
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SchoolRunMum
post Fri, 19 Oct 2018 - 16:26
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QUOTE
How do I best word this in my defence ?

Go to MSE and search for ParkingEye defence iPad Odeon as your forum keywords.

It's a long one I wrote on there as Coupon-mad a few months ago, and it deals with the ''ANPR plus hidden registration of VRN system, unbeknown to the driver'' issue.

This post has been edited by SchoolRunMum: Fri, 19 Oct 2018 - 16:26
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Sigurd
post Fri, 19 Oct 2018 - 16:56
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Hi SchoolRunMum
Found it ! Would you suggest I use that one and amend accordingly, or pick some points to use with the one I posted above ?
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SchoolRunMum
post Fri, 19 Oct 2018 - 17:37
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I'd adapt the Odeon iPad one, because some of your defence above you can't use (POFA) if the driver was admitted earlier. I also think a longer defence is more likely to see off CEL.
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Sigurd
post Fri, 19 Oct 2018 - 18:43
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In the County Court
Claim Number: xxxxxxx

Between

Civil Enforcement Ltd

v

Xyour nameX


DEFENCE




Background - the Defendant was an authorised patron of the Holiday Inn
1. The Defendant is the registered keeper and driver of the vehicle in question. The Claim relates to an alleged debt arising from the driver's alleged breach of contract, when parking at Holiday Inn car park on 30/04/16. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant £100 'parking charge' for the lawful conduct described below.

2. The allegation appears to be that the 'vehicle was not authorised to use the car park' based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit and is no evidence of 'No Authorisation' or not being a patron of the Holiday Inn.

3. The Defendant has long been a patron of the Holiday Inn, and it is the Claimant's own failure, caused by their deliberately obscure terms that catches out far too many victims at this location, that has given rise to a 'PCN' that was not properly issued from the outset.


Unclear terms - no agreement to pay a penalty for failing to log vehicle details.
4. According to the small, badly positioned and unlit signs in this car park, to avoid a Parking Charge, users of the service must be"Patrons" of the Holiday Inn.


4.1. Prior to the Defendant's visit, he has used this car park as a patron of the hotel and as a meeting point with no previous issues. The BPA Code of Practice v6 states at 18.11: ''Where there is any change in the terms and conditions that materially affects the motorist then you should make these clear on your signage. Where such changes impose liability where none previously existed then you should consider a grace period to allow regular visitors to the site to adjust and familiarise themselves with the changes.''

4.3. It is contended that the Claimant failed to alert regular local visitors to an onerous change and unexpected obligation to register with the hotel reception or risk £100 penalty. The Claimant is put to strict proof, with the bar being set by Denning LJ in J Spurling Ltd v Bradshaw [1956] in the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient.''


Consumer Protection from Unfair Trading Regulations - breach
5. Upon receiving the claim, the Defendant telephoned and had a fairly long conversation with the Manager, who was unhappy that these complaints were becoming a daily occurrence for him, ever since the enforcement started.

5.1. The Defendant was told for the first time, that if a complaint had been made at the time of receipt of the parking charge notice (PCN), the hotel had the authority to cancel the charge, but that it may now be 'too late'.

5.2. The Defendant avers that no signs and no paperwork from the Claimant gave any hint to registered keeper recipients, that the onsite business could very easily cancel a charge, apparently with one email. By failing to alert the consumer , and then withholding the route of cancellation/complaint from a consumer are 'misleading omissions' of material facts. These breaches of the CPUTRs 2008 have caused the unfair PCN, prevented its cancellation before proceeding started and this conduct by the Claimant has severely disadvantaged the Defendant.

5.3. The only route offered was an 'appeal' to Civil Enforcement themselves, but the Defendant knew he had done nothing wrong as a matter of principle, and honestly believed from research that private parking charges and the appeals systems were unlikely to be fairly weighted in favour of consumers.

5.4. This fact was later confirmed in the second reading of the Private Parking Code of Practice Bill on 2nd February 2018, where more than one MP named and shamed Private Parking Companies and the unanimously damning Hansard quotes include: ''the current system of regulation is hopeless, like putting Dracula in charge of the blood-bank''; ''wilfully misleading; signage is a deliberate act to deceive or mislead''; ''confusing signs are often deliberate, to trap innocent drivers''; ''unreasonable; operating in a disgusting way''; ''appeals service is no guarantee of a fair hearing''; ''outrageous scam''; ''the British Parking Association is as much use as a multi-storey car park in the Gobi desert''; and finally, by way of unanimous conclusion: ''we need to crack down on these rogue companies. They are an absolute disgrace to this country. Ordinary motorists and ordinary residents should not have to put up with this''.


No locus standi
6. In order to issue and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. Civil Enforcement has taken no steps to provide evidence that such authority has been supplied by the Claimant or their legal representatives, and the Claimant is put to strict proof.


No 'legitimate interest' or commercial justification - Beavis is distinguished
7. Even if the Claimant is able to produce such a landowner contract, it is averred that there can be no legitimate interest arguable by the Claimant in this case. When Civil Enforcement , all too often at this location, unfairly ticket a patron of the Holiday Inn , any commercial justification in the form of support by the Holiday Inn for such unfair ticketing is absent.

7.1. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant is fully aware that their claim is reduced to an unrecoverable penalty and must fail. This case is fully distinguished in all respects, from ParkingEye Ltd v Beavis [2015] UKSC 67, where the decision turned on a legitimate interest and clear notices.


Data Protection Act and BPA Code of Practice breach
8. This Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information' (the ICO Code). This is both a specific Data Protection and BPA Code of Practice breach.

8.1. The ICO Code applies to all ANPR systems, and states that the private sector is required to follow it, in order to meet its legal obligations as a data processor. Members of the BPA are required to comply fully with the Data Protection Act (DPA) and all ICO rules and guidelines, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land.

8.2. The Claimant's failures to comply include, but are not limited to the following, and the Claimant is put to strict proof otherwise on all counts:

i) Lack of an initial privacy impact assessment, and

ii) Lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle, and

iii) Failure to regularly evaluate whether it was necessary and proportionate to continue using ANPR, as opposed to a less privacy-intrusive method of parking enforcement (such as 'light touch' enforcement only at busy times, or manning the car park with a warden in order to consider the needs of genuine patrons), and

iv) Failure to consider the number of complaints from the Holiday Inn , which would have alerted this Claimant to the fact that their woeful signage was not being seen by all genuine patrons and was therefore a wholly inappropriate method of data capture, which was unreliable at best and negligent (or even deliberately misleading) at worst, being the main cause of unfair parking charges against Holiday Inn patrons, and

v) Failure to prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR system and how the data captured on both would be used, and

vi) Lack of the 'Privacy Notice' required to deliver mandatory information about an individual's right of subject access, under the DPA. At no point has the Defendant been advised how to apply for, and what a data subject's rights are, to obtain all images and data held via a Subject Access Request from the Claimant.

9. This Claimant has therefore failed to meet its legal obligations and has breached principle 1 (at least) of the DPA, as well as the BPA Code of Practice.


Unlawful conduct/data use and breach of the Consumer Rights Act 2015
10. In a similar instance of DPA failure by excessive and inappropriate use of ANPR cameras - confirmed on this Claimant's Trade Body (BPA) website in a 2013 article urging its members to comply - Hertfordshire Constabulary was issued with an enforcement notice. The force were ordered to stop processing people's information via ANPR until they could comply. The Information Commissioner ruled that the collection of the information was specifically illegal; breaching principle one of the DPA.

11. The Court's attention will be drawn to the case of Andre Agassi v S Robinson (HM Inspector of Taxes). Whilst not wholly aligned to the issues in this case, it is on all fours with the above point, because of the principle it extols that no one should profit from their unlawful conduct. Paragraph 20 of the Transcript of that case states: ''It is common ground that, whatever costs may be recoverable by a litigant in respect of professional services such as those provided by Tenon to the appellant, they cannot include the cost of any activities which are unlawful''. Paragraph 28 continues - ''...cannot on any view recover the cost of activities performed by Tenon which it was not lawful for them to perform.''

11.1. Further, in RTA (Business Consultants) Limited v Bracewell [2015] EWHC 630 (QB) (12 March 2015), at paragraph 34 the Judge discusses the relevance of the public law principle going back well over 200 years, that no man should profit from his crime; it is submitted that this is particularly relevant in this action. The Judge cited Lord Mansfield CJ to explain that: ''The principle of public policy is this; ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If [...] the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff.''

12. Even if there was a purported contract between the Claimant and the Defendant, it was illegal at its formation because it was incapable of being created without an illegal act (due to non-compliance with the ICO requirements at the outset, before enforcement started using ANPR systems at this site).

12.1. Where a contract is illegal when formed, neither party will acquire rights under that contract, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it had never been entered into. As such, the asserted contract cannot be enforced.

12.2. To add weight, the Defendant also cites from ParkingEye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338. Whilst the facts of that case differ, due to the arguments between the two commercial parties, the Judge's comments at paragraph 29 of the Transcript of Somerfield are of importance, where he discussed ParkingEye's misleading letters to consumers, whereby they had committed the tort of deceit. : ''At common law, historically, a distinction has been drawn between cases where the guilty party intended from the time of entering the contract unlawfully and cases where the intention to perform unlawfully was only made subsequently''. Laws LJ, in Somerfield, concluded that ParkingEye did not set out to deceive consumers before they signed the contract with Somerfield, so the contract was upheld in that case.

12.2.1. Differently in this case, it is asserted that the Claimant did deliberately or negligently break the DPA. Being a BPA member with access to a wealth of ICO and DVLA-led data compliance information, relevant articles, compliance events and specific parking & DPA related legal advice for members, and given that this Claimant has its own in-house Legal Team and solicitors, it cannot justify nor plead ignorance to excuse their conduct in failing to meet their legal obligations both before enforcement and by way of regular evaluations to avoid just this sort of data abuse.

12.2.2. At paragraphs 65-74 of the Somerfield transcript, Laws LJ set out three factors which need to be considered in a defence of illegality. The Defendant submits that the key issues in this action are that:

(i) the commission of an illegal wrong being present at the time of entering the contract means that the Claimant will not be able to enforce the contract.

(ii) the illegality is central to the contract and is not merely a minor aspect, thus it should not be held to be too remote so as to render the contract enforceable.

(iii) the nature of the illegality: in this case it was a breach of legal obligations regarding data, and not merely a civil tort as in Somerfield. The gravity of the illegality is therefore far greater.

13. The Defendant avers that a breach of the DPA and failure to comply with ICO rules regarding data captured by ANPR, also transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015 (enacted after the final hearing in Beavis and not considered in that case).

13.1. The excessive, inappropriate and unjustified use of ANPR system by this claimant is both unfair and lacking in transparency for an average consumer and as such, this claim must fail.


Unconscionable and unrecoverable inflation of the 'parking charge'
14. In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported Solicitor's Costs of £50, which I submit have not actually been incurred by the Claimant.

14.1. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, Civil Enforcement Ltd have not expended any such sum in this case. This Claimant has a Legal Team with salaried in-house Solicitors and it files hundreds of similar 'cut & paste' robo-claims per month, not incurring any legal cost per case. I put the Claimant to strict proof to the contrary because the in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

14.2. The very same can be said for the £60 charge made by a debt collection company which is also an in-house “company” of the Claimants and therefore cannot have incurred such a charge.

15. The added 'legal' cost is in fact an artificially invented figure, which represents a cynical attempt to circumvent the Small Claims costs rules and achieve double recovery. In Beavis, only the parking charge itself (£85) was pursued and the sum was scrutinised by the Supreme Court and held to already include a significant sum in profit; being a pre-set sum dressed up as a fee or charge agreed in contract. This was already significantly over and above the very minimal costs of operating an automated ticketing regime, and it was held that the claim could not have been pleaded as damages, and would have failed.

15.1. Similarly, in Somerfield a £75 parking charge was not held to be a penalty but a sum mentioned in the harassing letters of double that amount, almost certainly would be.

16. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.

I confirm that the facts in this defence are true to the best of my knowledge and belief.


Name/signature

Date





How does this read ? Is using Parking Eye examples ok in a Cel defence?
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SchoolRunMum
post Fri, 19 Oct 2018 - 20:54
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Whilst they have a legal team, using meaningless ''look at me'' titles like ''Head of Legal'', I am not sure CEL have solicitors so remove that word/phrase from 12.2.1. and 14.1.

The rest looks OK to me (given you say the driver has already been admitted which is a shame).

It's a long defence but it makes a main argument about unclear signs, and hidden terms about using an unexpected keypad, and you've got the point that this was a change of enforcement regime so you wouldn't have been reasonably expected to check the unremarkable signage every time you visited. So I say that's good to go.
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Sigurd
post Fri, 19 Oct 2018 - 22:02
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Excellent, thankyou so much for your help. I will get this printed out, signed, scanned and sent off.
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nosferatu1001
post Mon, 22 Oct 2018 - 09:43
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You can also just take a photo of your signature on very white paper, and append that as an image at the bottom of your defence. When you convert to PDF it will be more readable, smaller in size, and you dont need a printer smile.gif
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Sigurd
post Fri, 9 Nov 2018 - 17:38
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Hi guys
My defence was acknowledged by the court on 22nd Oct. As I have heard nothing since, could I just ask, in your experiences, what I might expect to happen now, and if there is anything further I need to do at this point ?

Many thanks

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ostell
post Fri, 9 Nov 2018 - 22:04
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Next is directions questionaire when you select the court of your choice.
And the notification of the hearing date and submit witness statement about 14 dyas before
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