Civil Enforcement Ltd PCN, CCC Defence Advice Options

[Vindu]

Hi there,
The driver overstayed in a pub car park by 28 minutes back in January 2019 (first 20 minutes was free but they were there for 48 minutes). The signage was reasonably clear, but the mention of any fines was hidden in the small print.
The keeper, who will be defending the claim, received all the demands for payment etc, which they ignored (which they now realise was the wrong thing to do), and has now received a CCC from Civil Enforcement Ltd dated 30 October 2019. Amount was initially £100 but has now gone up to £268.01 (including £25 Court fee & £50 Legal representative's costs).
The keeper submitted AOS on 5th November with MCOL, which was acknowledged as received on 6th November.
The keeper has been reading up for a few days on how to proceed with the defence and is currently working on it, but to be honest is finding it all a bit overwhelming and confusing! Any advice would be much appreciated.

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This post has been edited by Vindu: Wed, 13 Nov 2019 - 19:05

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[Sheffield Dave]

Unless there's anything on the back of that NtK which talks about making the keeper liable under POFA, then only the driver is liable, who they won't know. This will be your strongest defence point.

However, you need to edit your original post immediately to avoid hinting at the identity of the driver. "The driver" parked on the day and had no other involvement; "I" / "the keeper" has received all paperwork and is the one who will be defending the claim.

[nosferatu1001]

There are probably a dozen CEL defences on here
you WILL have a section on the fact its been unlawfully bumped from, at a presumption, £100 up to the amount claimed. They wil have added amounts they KNOW they cannot claim

Do you have the further PoC? Last sentence of the PoC box states within 14 days, its been that long.

This post has been edited by nosferatu1001: Wed, 13 Nov 2019 - 09:08

[Vindu]

Unless there's anything on the back of that NtK which talks about making the keeper liable under POFA, then only the driver is liable, who they won't know. This will be your strongest defence point.

I've attached a photo of the back - seems to be fine.

Do you have the further PoC? Last sentence of the PoC box states within 14 days, its been that long.

Yes, PoC was received on 06.11.19

[Sheffield Dave]

I've attached a photo of the back - seems to be fine.

There's definitely an attempt there to invoke POFA to make the keeper liable if they don't identify the driver.

Yes, PoC was received on 06.11.19

So post up here what the further particulars say

[SchoolRunMum]

the mention of any fines was hidden in the small print.

OK so the Consumer Rights Act 2015 covers that. See the completed cases board about the hearing at Southampton where a PPC was handed their ass on a plate, as all Defendants can use the same sort of arguments v any PPC trying to claim more than they are entitled to pursue. A PPC can only claim the parking charge plus court/legal fees, not some fake added some in double recovery.

[Vindu]

Yes, PoC was received on 06.11.19

So post up here what the further particulars say

[Sheffield Dave]

They state that the driver entered into a contract, but nowhere in their claim do they assert that the defendant is the driver, nor that they can hold the keeper liable. If they can't prove that the defendant was the driver, then they're stuffed. (A risk is that, if the defendant is the driver, the judge could ask the defendant if they're the driver and they'd have to answer truthfully.)

[Vindu]

the mention of any fines was hidden in the small print.

OK so the Consumer Rights Act 2015 covers that. See the completed cases board about the hearing at Southampton where a PPC was handed their ass on a plate, as all Defendants can use the same sort of arguments v any PPC trying to claim more than they are entitled to pursue. A PPC can only claim the parking charge plus court/legal fees, not some fake added some in double recovery.

Here's a picture of the sign.

[Vindu]

Ok, so here's the first draft of the defence statement. I'm sure there's likely to be things I need to change or add etc, please advise;


The Defendant admits to being the registered keeper of the vehicle on the material date. The defendant denies liability for the entirety of the claim for each of the following reasons:

1. The ‘Particulars of claim’ document states that ‘When the vehicle parked at the site (on the date and time detailed in the schedule) the driver of the vehicle accepted, by their conduct, the terms and conditions of parking.’ Nowhere is it asserted that the defendant is the driver, nor that they can hold the keeper liable.


2. Schedule 4 states that the only sum a keeper can be pursued for when it is fully complied with is the sum on the Notice to Keeper. The Claimant has added unrecoverable sums to the original parking charge. The claim was intentionally moved around various debt and collection companies in order to inflate the charge before court action was taken.
(a) Civil Enforcement LTD claimed in their letter dated 8th May 2019 an outstanding debt of £140, which included £40 ‘Additional Costs’. The defendant has the reasonable belief that the claimant has not incurred £40 costs as in-house administration. These cannot be recovered - they are staff performing the task that they have been employed for and essential to the claimant's business plan.
(b) ZZPS LTD added a £30 charge using a template letter. The Defendant has the reasonable belief that the Claimant did not pay ZZPS £30 to recover a £100 parking charge whether or not it was successful and that it has artificially inflated the claim.
© QDR Solicitors then added an additional £12 and state that they are instructed by ZZPS. CEL did not appoint QDR Solicitors (not the Claimant and therefore stranger to the arrangement) and so cannot claim this charge, additionally these are claimed legal costs that cannot be recovered in the Small Claims Court (CPR 27.14).
(d) In the Claim Form dated 30th October 2019 Civil Enforcement LTD claimed an additional £50 ‘Legal representative’s costs’. The defendant has the reasonable belief that the claimant has not incurred these costs.
The defendant denies the Claimant is entitled to any of these additional sums.


3. 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.
a) 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.
b) In the absence of strict proof the defendant submits 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 Protection of Freedoms Act 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 an inflated sum as 'compensation' from 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 well exceeds £100.
(iii) There is / was no compliant landowner contract.

4. The Claimant has not complied with pre-court protocol. And as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.
(a) The Claim form Particulars contained insufficient detail for cause of action. The Claim form Particulars did not contain any evidence of contravention or photographs.
(b) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contains very little information.
The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.

5. It is believed that CEL has no intention to continue to a hearing and the claim is only intended to cause alarm resulting in payment of the Parking Charge.
The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has;
(a) Failed to disclose any cause of action in the Claim Form issued on 30th October 2019.
(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.

The court is invited to strike out the claim as having no merit and no reasonable prospects of success.

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

[nosferatu1001]

2) Are those details all correct? We dont have the info so we cant check. For (d) if they havent used a legal rep - to fuile the claim or otherwise - then you need to make that explicit.

You also use POFA to help you, but dont say whether or not CEL actually complied with POFA to hold you liable as keeper. So 1) is not that useful

Have you looked at the 17 defences over on MSE forum? Your defence is a little incoherent - it lacks any logical structure to the order of the points.

[Vindu]

Thanks for the pointers nosferatu1001. I've been over and looked on MSE and found this defence written by Coupon-Mad which I'm pretty sure should fit my circumstances. Coincidentally even the additional charges are the same as in my case. See what you think;

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. 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.
3. 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.
4. The Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.
5. The Defendant has the reasonable belief that the Claimant has not incurred an additional £82 in damages or costs to pursue an alleged £100 debt, for the following reasons:
6. The arbitrary addition of a fixed sum purporting to cover 'damages/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.
7. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £82 'damages/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, when it comes to parking charges on private land, binding case law and two statute laws have the effect that the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.
The Beavis case is against this Claim
8. 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. 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.
8.1. This charge is unconscionable and devoid of any 'legitimate interest', given the facts. To quote from the decision in the Beavis case at Para [108]: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''. Ad at [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''
8.2. In the Beavis case it was said at para [205]: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''
8.3. At para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...''
8.4. At para 193. ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.'' and at para 198: ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.''
The POFA 2012 and the ATA Code of Practice are against this Claim
9. 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.
The Consumer Rights Act 2015 is against this claim
10. Further, the purported added 'costs' are disproportionate, vague and in breach of the Consumer Rights Act 2015 Schedule 2 'terms that may be unfair'. This claim is a worse abuse of process than most, as this Claimant has arbitrarily added an extra 82% of the parking charge in a disingenuous double recovery attempt that has already been exposed and routinely disallowed by other Courts in England and Wales. It is atrocious that this is allowed to continue, given the number of victims who pay when they receive the Claimant's exaggerated Letter before Claim, or the claim form, or who suffer a default judgment.
10.1. 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.''
10.2. 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. The considered sum in that case was reduced to £100 with a full case hearing to follow, 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.
10.3. In Claim numbers F0DP806M and F0DP201T - BRITANNIA PARKING -v- Mr C and another - less than two weeks later - 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 the Beavis case. 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...''
10.4. 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 knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.
© 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 Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14
10.5. 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.
10.6. 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 the 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).''
11.0. 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.''
11. 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.
12. The Defendant is of the view that this Claimant knew or should have known that to claim in excess of £100 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.
13. If this claim is not struck out for the same reasons as the Judges cited in the multiple Caernarfon and Southampton cases, then full costs will be sought by the Defendant at the hearing, such as are allowable pursuant to CPR 27.14.

Statement of Truth:
I believe that the facts stated in this Defence are true.
Name

Signature

Date

[Vindu]

Hi, can anyone give some feedback on the statement above please? I want to make sure it's ok before I send it 😁

[nosferatu1001]

Well citing sources is useful - witha link - and telling us what youve changed, if anything> Dont expect us to read it closely when its a copy and paste job.