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Wheelie
Hi All

I'm filling out court forms having refused to pay Civil Enforcement Ltd. I received a PCN nearly 2yrs ago and refused to pay up so have now received Court claim forms. They used all the usual tactics, threatening letters, etc. which I did respond to. I don't remember receiving the 'Letter before claim' but I'll check.

I entered a car park monitored by them so they sent photos of my car entering and leaving (and it shows clearly that I am driving). I was there for just over half an hour, I'd pulled off the road into the nearest place as my 93yr old Mum was feeling unwell (she had just left hospital a day or so beforehand). I sat with her in the car with the engine running (not in a parking space) until she felt better and therefore did not see any parking information because I had no intention of parking (I understand that this is no defence).

I'd happily drag them to court to see if they actually turned up but I don't think I would have a strong enough defence and it would take longer that I have left to respond to get copies of Mum's medical records, etc. so I'm considering selecting the 'admit part of claim' option to pay just the original PCN charge of £100 but not their other excessive charges lumped on top. I understand that if they then pursued the rest of the money (as I'm sure they would..) it would go to mediation.

Would welcome your advice
Thanks!
Sheffield Dave
Has the identity of the driver been revealed, or their relationship with the keeper been hinted at, during any correspondence with CE?
If you are going to contest part of the claim, you might as well contest the whole claim.
What is the date of issue of the claim form?
Acknowledgement of service should be done online ASAP after 5 days from the date of issue of claim, but leave the defence completely blank for now - this will be submitted later via email (you will have 33 days from date of issue if the acknowledgement is done right).

A defence doesn't include any evidence or paperwork; that is submitted later. Here's my standard blurb on the matter:

At its heart, a defence is list of admit/deny/not-in-my-knowledge responses to every point in their claim, so that the judge can see what the case is about (the claim and defence are known as "statements of case"). Anything you don't challenge, you may be deemed to have accepted. For each denied point, you assert a short "alternative truth" if relevant - for example: "it is denied that the defendant was the keeper; the defendant sold the vehicle two weeks before the incident".

Later, your witness statement "tells your story" and introduces any exhibits, such as letters or photos of signs, which you include in your bundle at the same time.

Then a few days before the hearing you can submit a Skeleton Argument (or just present it orally on the day) which is a series of arguments explaining how your evidence and witness statement(s), plus law and case law, confirm the validity of your defence points.

Of course, this being the small claims track, judges allow a lot of latitude in terms of the sloppiness of the paperwork.
nosferatu1001
Give us the date of issue of the claim form
Have you acknowledged the claim? If NO then go online and do so, five days from date of issue , as that gives you a total of 33 days from date of issue to file the defence
You DO NOT provide evidence. You are filin a defence, evidence comes further down the line. A defence is simply a series of accept / deny and arguments as to why you're not liable

Now, onto the stupid part. Ignoring. NOT a good idea. You look unreasonable.
Not intending to park could be a defence - you were attending to, what you considered to be, a medical emergency. You did not take up any space so there is no commercial justification for the charge. A commercial justification is what is required under PE V Beavis to justify the parking charge NOT being s penalty,and penalties cannot be recover3 by private firms.


Wheelie
Thank you both for the advice, I did refer to the fact that I was driving my elderly mother in previous correspondence with them, as I said, it was clear from the photos anyway.

I'm aware of the date of service, acknowledgement of service and nearing the end of the 33 days. I did ask them to send photos of my car parked, which of course they couldn't, is it usual for them to just have ANPR at the car park entrance and no other cameras?
DWMB2
Yes, fairly standard to just have ANPR at the entrance and exit. The owner of the car park might have installed their own CCTV, but Civil Enforcement wouldn't necessarily have access to the footage.
Wheelie
Thanks, does anyone have experience of the mediation process if I decided to part pay? I would expect that an offer of only part payment would be considered reasonable given my circumstances on the day..
Sheffield Dave
Please read carefully what people ask you, and try to answer any questions. Once again, what was the date of the claim form?

Mediation has nothing to do with reasonableness - it is purely down to whether the two parties can mutually agree on something. The result may be unfair or unreasonable, but one side may be willing to pay over or under the odds to avoid the hassle of taking the case further. Historically, PPCs haven't been willing to accept much if any reduction in mediation.

You could always defend all the claim, then in mediation offer to pay therm what they ask less the £60, and they might accept. Or they might not. if they don't, then it goes to a hearing, where the judge can decide whether you owe the main sum (quite possibly) and whether you owe the extra £60 (probably not). So I'd still recommend defending all the claim.
Wheelie
I have read the question but choose not to give specific dates as I don't know who is on this forum. I'm well aware of my final date to respond.

What is the amount of £60 that you refer to?

Thanks
DWMB2
QUOTE (Wheelie @ Fri, 26 Nov 2021 - 13:40) *
What is the amount of £60 that you refer to?

Parking companies often add £60 onto their claims for "debt collection/recovery" charges or similar. This add-on can be challenged as an attempt at double recovery, as the costs of recovering the charge are part of the £100 charge itself. You can quote Excel v Wilkinson to support this point. In that case, the charge was thrown out entirely as an abuse of process (this doesn't happen routinely, but is good for illustrating the point).

How much are they claiming, and what's the breakdown provided?
nosferatu1001
Ok, but it doesn't assist anyone if you silently don't respond to questions. We don't know why, or if you've just missed them.

Have you found the MSE forum NEWBIES thread which gives you a full template defence?
Wheelie
Unfortunately, I can't log back into MSE, it doesn't like either of my email addresses for some reason. I have found some templates elsewhere though.

After reading lots of different threads, I have contacted the landowners which I should've done at the very beginning but it didn't occur to me at the time. I hope I get a positive reply but it was nearly 2yrs ago and it is obviously late in the day now as I'm about to submit a defence.

I'd be grateful if you could advise me if the following points would be likely to 'stand up' in court;

- Evidence & signage (6.b) being parked
I revisited the c/p and don't think I could claim the signage wasn't clear. I read elsewhere that a judge had questioned a parking firm for bringing a claim for a parking charge notice when they could not provide any photographic evidence that the vehicle was in fact parked. I entered the c/p, did not park, had the engine running and exited 35mins later. I wrote to CEL using the BPA code of practice template and they responded saying it was too late to submit an appeal as it was after 28 days. They said that they didn't have CCTV in the c/p so could only provide photos of my car entering & exiting. They have no patrols. Can't upload the photo of their signage as it's too many MBs but it says that payment must be made within 20mins of arrival and if terms are breached, you will be charged £100.

- Medical grounds
I had pulled off the road as my elderly mother felt dizzy/sick and she has a history of TIAs (looks like they are having a stroke). 5hrs after we left the c/p, she had another funny turn, fell over and was admitted to hospital that evening. (I should mention that I did not discuss her medical issues with the parking firm in any correspondence as I didn't think it was any of their business and I doubt that it wouldn't have made any difference anyway). I can provide the necessary medical documents if/when we get to court.

I received what I assume is their version of a letter before claim, it says 'ON - Claim for debt' with a 'debt outstanding' of £185 and no breakdown of the costs/how they got to that figure. I need to check the contents of the letter to see if they covered all of the points the are supposed to in a LBC. I'm fairly sure that I did respond to this letter by the way and will have a copy. I did not then hear from them again until I got the court claim form 1yr and 3wks later.

Their amount claimed now totals £215, with court fees added, £300.

Your thoughts?
Thanks


DWMB2
QUOTE (Wheelie @ Sun, 28 Nov 2021 - 19:40) *
Unfortunately, I can't log back into MSE, it doesn't like either of my email addresses for some reason. I have found some templates elsewhere though.

You don't need to log in to view the forum - the relevant post is HERE

That the engine was running and someone was in the car does not of itself mean that the car was not parked. A better angle is the one nosferatu mentioned further up: not intending to park - you stopped in a safe location in order to attend to what you believed to be an urgent medical emergency. You were forced into parking by circumstances outside of your control, and due to the incident were unable to leave your mother unattended to pay for parking.

QUOTE
I wrote to CEL using the BPA code of practice template
What did you send them?
Wheelie
I sent them the formal challenge, BPA Ltd AOS Code of Practice B.22
because it included the reference to evidence of being parked (6.b) but not within the time limit for appealing unfortunately so they didn't provide anything requested other than ANPR photos and 1 photo of their parking sign.
DWMB2
I'm not entirely sure what you are referring to, the BPA's Code of Practice (available HERE), does not contain any template appeals. Section B 22 concerns the use of ANPR cameras...?

It's probably not overly important at this stage, I'm just trying to figure out what correspondence has been sent to them so far, in case it can be used to help demonstrate that you have been reasonable and they have not.
Wheelie
It was similar to this one:

I dispute your claim for the reasons set out below. Please note that although I dispute the whole basis of the parking charge, my main concern is its disproportionate and punitive level.

1. Your parking charge amount claim.

Please explain on which of the following grounds your claim is based:

(i) Damages for trespass
(ii) Damages for breach of contract
(iii) A contractual sum
2. Your loss.

If it is your case that that a trespass was committed or that a contract was breached such that your claim is one for damages; please give me a full breakdown of the actual losses which evidences that this parking charge is a true reflection of the damages caused solely by the alleged parking contravention.


3. Your status – the creditor.

Your Parking Charge Notice - Notice to Keeper simply mentions [Insert name of parking company if that is who is named on the PCN/NTK]. Please tell me who is the actual creditor making this £[insert amount] parking charge demand. I need to know exactly who is making the claim and in what capacity.

4. Ownership of premises.

Please tell me who owns the car park as I wish to send them a copy of this letter.
5. Contractual Authority (as required by BPA Ltd AOS CoP B.7)

Please provide me with a copy of the contract between your company and the landowner/landholder that provides the necessary contractual written authority for the issue and enforcement of your Parking Charge Notice - Notice to Keeper.

6. Signage.

If it is your case that a contract has been breached or that a contractual sum is now due, please send me photographs of the signs that you display and upon which you seek to evidence that a lawful and legally enforceable contract was been entered into. Please ensure that the photographs show the terms and conditions in a clear and legible manner. Please provide me with a diagram showing the locations and layout of those signs at the car park. Also provide evidence that the wording is in plain and intelligible language and in sufficiently large print as to be legible to a driver at the car park’s entry point.

7. Summary
I look forward to receiving your acknowledgement within 14 days and as there are no ‘exceptional circumstances’ your comprehensive reply within 35 days (in accordance with the BPA AOS Code of Practice B.22.8). I will then be able to make an informed decision as to how I deal with your Parking Charge Notice – Notice to Keeper.
If you reject this challenge or fail to address the issues that have been raised then, in accordance with the BPA AOS Code of Practice 22.12, please ensure that you enclose all the required information (including the necessary ‘POPLA code’) so that I may immediately refer the matter for their decision.
If you fail to follow any of the procedures outlined in the BPA AOS Code of Practice or your legal requirements under the Protection of Freedoms Act, or the requirements of the Practice Direction on Pre-Action Conduct then I will make a formal complaint to the DVLA Data Sharing Policy Group, D16.
Please Note: Unless you have specifically requested it and received my express permission, you do not have my authority to disclose or refer this letter or any other communication from me to any other person or organisation.
DWMB2
Looks like the Parking Cowboys one. Won't make much difference to this case now but for any future tickets come here before appealing... Not your fault, but Its a rubbish template, that was written in about 2013 I think. So the info in it is way out of date, and it doesn't actually cite any reasons why the charge is not owed.

Have you at any point previously raised the issue of the medical emergency with Civil Enforcement?
Wheelie
Ok, it wasn't exactly worded as above but very similar, I just can't find the version I used at the time.

In my correspondence, I only referred to the fact that I had no intention of parking or using the facilities as my mother is elderly, disabled and in a wheelchair.

So if you don't think it's worth pursuing/defending, I could offer to make a part payment with a defence. Although, the landowners may still ask for the PCN to be cancelled.
DWMB2
QUOTE (Wheelie @ Sun, 28 Nov 2021 - 22:47) *
So if you don't think it's worth pursuing/defending

I haven't said that. I said that the medical emergency is potentially a stronger argument than a claim that the car was not parked at all.

As noted re the strategy you keep suggesting of admitting the claim in part... if you're going to contest part of the claim, you might as well contest it all (when you propose admitting in part, which part(s) of the claim would you intend to admit, and which part(s) of the claim would you contest?).

If you want to, you can make a without prejudice save as to costs offer to settle the claim and see if they go for it. From what I've seen on here parking companies often seem reluctant to settle for much less than 80% of the claim amount, but if you want to make them an offer you're free to do so, and doing so doesn't prevent you defending the claim if you don't come to an agreement.
nosferatu1001
Stop jumping to conclusions. It helps no one.

We ask because by failing to set out the obvious grounds, you've reduced your credibility as a witness. What looks better to a court - a full explanation at the first opportunity OR I had a disabled occupant which explains NOTHING about why you parked there!?

So, you're playing catch up

And, again. Get that damned defence written. 99% is done for you
- do NOT use sub numbering. No 1.2,2.4 etc. 1,2,3,4. Nothing else
- do NOT write war and peace. A defence is a list of accept or deny their claims and it is arguments why you're not liable. DO include a BRIEF outline of the type of carpark, WHY YOU WERE THERE and when I say brief, I mean it.
- IF you need to add para, renumber the following para. This is obvious but you'd be surprised how often people have 2 para 5....

Show us your defenc,e but not the whole template. Only the bits YOU altered.
Wheelie
Ok, firstly apologies for the hatchet job, but I have no idea which parts I should leave in or omit from the template as I am not disputing that the signage was clear, so have copied it all..

Would be grateful for your help

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

The facts as known to the Defendant:

2. It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied.

☆ 3. I entered the grounds on 'insert date' due to what I considered to be a medical emergency and had no intention of parking. I pulled off the busy main road into the nearest safe location as my elderly mother (92 at the time) was feeling unwell. She looked ‘vacant’ and has a history of Transient Ischemic Attacks. She is wheelchair bound so sat with her in the car with the engine running inside the main entrance until she was feeling better. I did not exit the vehicle as I was attending to my mother and therefore I was not able to exit the vehicle to check any parking restrictions. A few hours later, my mother was admitted to hospital (I can provide medical doumentation as required).



☆ As I did not park and did therefore did not take up any space, I dispute that Civil Enforement Ltd incurred any loses. CE Ltd are claiming a Parking Charge Notice debt, I wrote to CE Ltd requesting that they provide photographic evidence of my vehicle being parked in a designated parking space but they informed me that they ‘do not operate CCTV at this location. The high-tech cameras are not designed to monitor movements within the car park’.



4. The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon. Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3. That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71. The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2. NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair. ☆ having now seen the signage, it appears to be clear so should this be included? I have taken out the other points further down referring to signage.



5. It is denied that the exaggerated sum sought is recoverable.

The Defendant's position is that this moneyclaim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135. Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper. At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable. ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event.



☆ CE Ltd sent a photograph of the parking signage at this site and it states a £4 charge for 8 hours parking. The initial PCN of £100 is excessive. CE Ltd have at no point provided a breakdown of costs to explain how they have reached the figure claimed.



6. Even if the Claimant had shown the sum claimed, they are attempting double recovery of the cost of their standard automated letter-chain. It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85.



7. The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties. It is known that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing. He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice. He was not taken by either party to Somerfield in point #5 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed. It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA').

8. Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case). It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land. There is now also the Parking (Code of Practice) Act 2019 with a new, more robust and statutory Code of Practice being introduced shortly, which evolved because the two Trade Bodies have failed to properly govern this industry.

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

9. Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable. However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.

10. Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text. The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach.

11. Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail. Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.

12. The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.

13. In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant. It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints. There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

☆ I have made contact with the landowners and I understand that they will be requesting that this PCN is withdrawn – is it worth including a reference to this?

14. The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim.
DWMB2
You will notice that the template refers only to 'the defendant', not 'I', so you should do the same.
nosferatu1001
We don't need the template. Just yiur work.
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