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Hello,
I hope you can give me some assistance.
My vehicle overstayed 16 minutes in a free for 1 hour car park in a retail park in April 2016. All subsequent communication was ignored and a N1 Claim Form has been received from Northampton County Court. An Acknowledgement of Service has been submitted and received.
I have prepared a defence which I believe will probably need a number of alterations.
Claim Number: *******
Civil Enforcement Ltd v ******
Statement of Defence
I am ********* , defendant in this matter and deny liability for the entirety of the claim.
1/This case can be distinguished from ParkingEye v Beavis [2015] UKSC67 (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 initial County Court Claim Form only contains the claimants name, address and amounts of money identified as debt and damages, with a notice that detailed particulars will be provided within 14 days.
(c)The Schedule of information is sparse of detailed information:
1.The defendant, who is the registered keeper and not identified as the driver at the alleged time.
2.The VRN.
3.The date and time of the alleged incident.
4.Car park name.
5.Outstanding amount and a very brief summary of terms.
It does not detail:
1.Proof or confirmation of the driver at the time of the alleged incident.
2.Proof of the vehicle being there at the alleged time.
3.How long or proof that the car was actually parked, only the arrival and departure time.
4.The vehicle type and colour
5.Why the charge arose.
6.Any breakdown of the outstanding amount.
3/Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
(a)Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
(b)Sporadic and illegible (charge not prominent nor large lettering)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.
(c)The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
(d)It is believed the terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the UTCCRs(as applicable at the time).
(e)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.
(f)Absent the elements of a contract, there can be no breach of contract.
4/POFA 2012 breach and the Defendant was not the driver - this distinguishes this case from the Beavis case:
No keeper liability can apply, due to this Claimant's PCN not complying with Schedule 4. The driver has not been evidenced and a registered keeper cannot otherwise be held liable. In cases where a keeper is deemed liable, where compliant documentation was served, the sum pursued cannot exceed the original parking charge, only if adequately drawn to the attention of drivers on any signage.
5/BPA CoP breaches - this distinguishes this case from the Beavis case:
(a)No grace period was allowed.
(b)The signs were not compliant in terms of the font size or positioning.
(c)There is/was no compliant landowner contract.
(d)The charge is not based upon a genuine pre-estimate of loss (a condition at the time).
6/No standing - this distinguishes this case from the Beavis case:
It is believed Civil Enforcement do not hold a legitimate contract at this car park. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.
7/No legitimate interest - this distinguishes this case from the Beavis case:
This Claimant files serial claims regarding sites where they have lost the contract, known as revenge claims and it believed this is one such case. This is not a legitimate reason to pursue a charge out of proportion with any loss or damages the true landowner could pursue.
8/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.
9/The charge is an unenforceable penalty, neither based upon a genuine pre-estimate of loss nor any 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.
10/The claimant has added unrecoverable sums to the original parking charge. The claim/draft claim are templates, so it is not credible that £50.00 legal costs were incurred. I deny the Claimant is entitled to any interest whatsoever.
11/In the Beavis case the £85 was deemed the 'quid pro quo' for the licence granted to park free for two hours and there was no quantified loss. Not so in this case where it is believed the location is one with a small tariff after a grace period.
12/If the court believes there was a contract (which is denied, due to poor signage) this is just the sort of 'simple financial contract'identified at the Supreme Court as one with an easily quantifiable loss (the tariff) where any sum pursued for breach must still relate to a genuine pre-estimate of loss.
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 xx April 2017.
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.
In the alternative, the Defendant is willing for the matter to be decided by POPLA (Parking on Private Land Appeals) which will decide the dispute and limits any further costs to this claimant to £27,with no legal costs. This is the bespoke ADR for BPA members, is available at any time (not just the first 28 days) and has been used to settle private parking court claims on multiple occasions even after proceedings have commenced. POPLA has not been undertaken in this case nor was it mentioned in the recent sparse communications from this Claimant.
The Defendant invites the Court to use its discretion to make such an order, if not striking out this claim.
Notes:-
2a - A 'FORMAL LETTER OF CLAIM' was received from Wright Hassall. I don't know if the lack of 'before' is relevant.
3a and b - I have provided links of the signage as it is today. I think my argument here is weak but I don't know if the current signage differs to how it was in April 2016.
6 - I don't know if Civil Enforcement do or do not hold a legitimate contract.
7 - I have read Civil Enforcement do make 'revenge claims' but I don't know if this one.
12 – Is the signage poor enough to make this statement?
Here are the links to the signage and the Schedule of Information:-
http://imgur.com/gSuVWi6
http://imgur.com/cX7wHat
http://imgur.com/pU24Gbd
http://imgur.com/yXknp4s
Any assistance would be very much appreciated.
I hope you can give me some assistance.
My vehicle overstayed 16 minutes in a free for 1 hour car park in a retail park in April 2016. All subsequent communication was ignored and a N1 Claim Form has been received from Northampton County Court. An Acknowledgement of Service has been submitted and received.
I have prepared a defence which I believe will probably need a number of alterations.
Claim Number: *******
Civil Enforcement Ltd v ******
Statement of Defence
I am ********* , defendant in this matter and deny liability for the entirety of the claim.
1/This case can be distinguished from ParkingEye v Beavis [2015] UKSC67 (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 initial County Court Claim Form only contains the claimants name, address and amounts of money identified as debt and damages, with a notice that detailed particulars will be provided within 14 days.
(c)The Schedule of information is sparse of detailed information:
1.The defendant, who is the registered keeper and not identified as the driver at the alleged time.
2.The VRN.
3.The date and time of the alleged incident.
4.Car park name.
5.Outstanding amount and a very brief summary of terms.
It does not detail:
1.Proof or confirmation of the driver at the time of the alleged incident.
2.Proof of the vehicle being there at the alleged time.
3.How long or proof that the car was actually parked, only the arrival and departure time.
4.The vehicle type and colour
5.Why the charge arose.
6.Any breakdown of the outstanding amount.
3/Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
(a)Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
(b)Sporadic and illegible (charge not prominent nor large lettering)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.
(c)The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
(d)It is believed the terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the UTCCRs(as applicable at the time).
(e)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.
(f)Absent the elements of a contract, there can be no breach of contract.
4/POFA 2012 breach and the Defendant was not the driver - this distinguishes this case from the Beavis case:
No keeper liability can apply, due to this Claimant's PCN not complying with Schedule 4. The driver has not been evidenced and a registered keeper cannot otherwise be held liable. In cases where a keeper is deemed liable, where compliant documentation was served, the sum pursued cannot exceed the original parking charge, only if adequately drawn to the attention of drivers on any signage.
5/BPA CoP breaches - this distinguishes this case from the Beavis case:
(a)No grace period was allowed.
(b)The signs were not compliant in terms of the font size or positioning.
(c)There is/was no compliant landowner contract.
(d)The charge is not based upon a genuine pre-estimate of loss (a condition at the time).
6/No standing - this distinguishes this case from the Beavis case:
It is believed Civil Enforcement do not hold a legitimate contract at this car park. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.
7/No legitimate interest - this distinguishes this case from the Beavis case:
This Claimant files serial claims regarding sites where they have lost the contract, known as revenge claims and it believed this is one such case. This is not a legitimate reason to pursue a charge out of proportion with any loss or damages the true landowner could pursue.
8/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.
9/The charge is an unenforceable penalty, neither based upon a genuine pre-estimate of loss nor any 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.
10/The claimant has added unrecoverable sums to the original parking charge. The claim/draft claim are templates, so it is not credible that £50.00 legal costs were incurred. I deny the Claimant is entitled to any interest whatsoever.
11/In the Beavis case the £85 was deemed the 'quid pro quo' for the licence granted to park free for two hours and there was no quantified loss. Not so in this case where it is believed the location is one with a small tariff after a grace period.
12/If the court believes there was a contract (which is denied, due to poor signage) this is just the sort of 'simple financial contract'identified at the Supreme Court as one with an easily quantifiable loss (the tariff) where any sum pursued for breach must still relate to a genuine pre-estimate of loss.
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 xx April 2017.
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.
In the alternative, the Defendant is willing for the matter to be decided by POPLA (Parking on Private Land Appeals) which will decide the dispute and limits any further costs to this claimant to £27,with no legal costs. This is the bespoke ADR for BPA members, is available at any time (not just the first 28 days) and has been used to settle private parking court claims on multiple occasions even after proceedings have commenced. POPLA has not been undertaken in this case nor was it mentioned in the recent sparse communications from this Claimant.
The Defendant invites the Court to use its discretion to make such an order, if not striking out this claim.
Notes:-
2a - A 'FORMAL LETTER OF CLAIM' was received from Wright Hassall. I don't know if the lack of 'before' is relevant.
3a and b - I have provided links of the signage as it is today. I think my argument here is weak but I don't know if the current signage differs to how it was in April 2016.
6 - I don't know if Civil Enforcement do or do not hold a legitimate contract.
7 - I have read Civil Enforcement do make 'revenge claims' but I don't know if this one.
12 – Is the signage poor enough to make this statement?
Here are the links to the signage and the Schedule of Information:-
http://imgur.com/gSuVWi6
http://imgur.com/cX7wHat
http://imgur.com/pU24Gbd
http://imgur.com/yXknp4s
Any assistance would be very much appreciated.
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