Lbc civil enforcement ltd

[moleman]

Received a claim? Yes
Issue Date: 28/01/2021
Have you Acknowledged the Claim?: Yes
Total Amount Claimed : £200
Claimant’s Name: Civil Enforcement Ltd
Solicitors Firm: Unsure - Letter signature states 'Legal team'
Original Creditor: Unsure
Original Debt: PCN
Particulars of Claim:
Is the debt Statute Barred (have you had any contact with the creditor or claimant over the last 6 years?): No
List any letters you have sent (eg: CCA/ CPR ): None held
Any Other Information or Background Details: See below

Hi All,

I would appreciate some advice with regards to a parking charge I received in October 2019.

I parked at a fast food restaurant unaware that there was a 90 minute time limit on free parking(no sign nearby), I was probably in there for two hours. My friend met me there and parked in the same car park for the same length of time but he didn’t get a PCN! Seems very strange to me.

I got two letters from two different companies which I ignored and since cannot find. I also didn’t take any photographs at the time showing the signage (or lack of). I have since gone back to the same car park 15 months later to find it plastered with signs which all state the maximum time allowance, there is one on entry and one by almost every parking bay! I am certain they were not there when I parked and the signs there now are only zip tied.

I have now received an LBC to which I replied with an SAR to the parking company but not a CPR 31.14 to their solicitor which I saw on another forum post, this is because there is no sign of the legal representatives identity on the LBC.

I did send a letter of acknowledgement beforehand in which I also asked for the contract between the creditor and the landowner and also for pictures of the vehicle in question. They said the contract would be presented to POPLA or small claims if the matter would proceed. They did not provide any photographs of the vehicle.

The SAR I sent includes asking for all photographs of the vehicle as well as all previous correspondence and the PCN and NTK.

I am worried that with my lack of evidence of no signage I would lose in a claim. I will wait to hear back from the SAR but any help in the meantime is greatly appreciated.

[ostell]

If CEL are running the case themselves then CPR 31.14 to them

[moleman]

Hi Ostell,

Do I still need to send this if I have only received the letter before claim and not actually a County Court Claim just yet? As the template needs a claim number etc.

Also, any advice re my lack of photos of signage from original incident? Will it significantly reduce my chances of winning if I went to court?

Appreciate the help.

[ostell]

So the template is a template and needs to be modified to suit.

[moleman]

Hi Ostell,

I used the SAR template and I have now received an email from Civil Enforcement. It includes all previous correspondence, including letters from previous debt collection companies and also includes timestamped photographs of my vehicle entering and leaving the car park. It's funny that one of the earlier letters asks for £170 and then the next asks for £140!

I am worried now that if taken further I would have no evidence that the signage was not clear at the time, as they have since put up new signs. The original PCN was from 2019.

Should I keep fighting and wait for the eventual court proceding? Or is it worth paying to avoid further costs?

Appreciate your help.

[ostell]

So edit so that the identity of the driver cannot be inferred.

Post up the NTK suitably redacted but leave dates

go to Google street view and you ay be able to look at earlier signage.

[moleman]

Please find the letters I have received attached, except for the original PCN and the most recent which is the LBC.

Had a look on street view and the signs are there so it must be recent.

[moleman]

Today I have received county court claim forms, now asking me to pay almost £300 or appeal and file a defence.

I am prepared to file a defence as I have seen a number of others in this position have the claim withdrawn however, I am worried that if the case was not withdrawn and I was to lose, that I would be issued a CCJ. If I paid the sum of the claim straight away would I still get a CCJ?

Appreciate any help with this.

[ostell]

If you paid immediately then the CCJ would not be recorded against you

Where is the original NTK?

Acknowledge the claim but put nothing in the defence

That's a large sum they are claiming

[moleman]

Thank you, I was worried about the CCJ being issued and then affecting my ability to get a mortgage in the future.

I have looked through all of the information that I was sent after my subject access request and those were the only letters besides the letter before action claim and also the response to the SAR. So they have omitted the original NTK and I also did not keep a copy.

I will send off the acknowledgement, this looks like it'll give me 28 days to file a defence (from letter date). If I work on this over the next couple of days would you kindly read over it for me?

[ostell]

Was this a windscreen ticket?

Acknowledge the claim but nothing in the defence. This give you the lesser of 28 days from acknowledgement or 33 days from date of issue to get your defence to the court.

That letter you labelled the NTK is insufficient to be able to hold the keeper liable.

Have a read of this linked document and work it into your defence. They are asking for more than the court of appeal said was reasonable in the Beavis case in an attempt to increase the amount and it is an abuse of process.

[moleman]

No it wasn't a windscreen ticket, it was automated through cameras in and out.

I am going to acknowledge the claim tomorrow, if I do this online following the steps below, do I still need to send off the letter?
https://www.dropbox.com/s/ni1h8g3u5s...0file.pdf?dl=0

Thanks for the document, I will work this into my defence. I'll do this before next weekend. Would be grateful if you could read through for me when I post in here.

Really appreciate all of your help.

[ostell]

Yes, follow that.

[moleman]

Hi Ostell,

I will be filing my defence this week, I have made this draft and I would be grateful if you could read through it and let me know what you think:

In The County Court
Claim No: XXXXXXX
Between
Civil Enforcement Ltd (Claimant)

-and-

XXXXXXX (Defendant)

____________
DEFENCE
____________



1. The Claim Form issued on 28th January 2021 by Civil Enforcement Ltd was not correctly filed under The Practice Direction as it was not signed by a legal person. The claim does not have a valid signature and is not a statement of truth. It states that it has been issued by 'Civil Enforcement Limited' as the Claimant's Legal Representative. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer.

2. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

3. A subject access request was issued to the claimant on 01/03/2021, to be compliant with GDPR guidelines all information held by the claimant of the defendant should be issued within 30 days. The claimant failed to provide the original notice to keeper document and therefore the defendant has not been provided all of the information necessary to aid this defence.

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, 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.
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.


6. The claimant is 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.

9. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass.

10. 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.

11. The Defendant has the reasonable belief that the Claimant has not incurred £104.54 costs to pursue an alleged £100 debt. The Protection of Freedoms Act 2012, in Schedule 4, Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case believed to be £100 though the original Notice to Keeper was not provided by the claimant.



In the matter of costs, the Defendant seeks:
12. (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and
(b) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance. The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.
13. The Defendant invites the court to find that this exaggerated claim is an abuse of process and to dismiss the claim.
Statement of Truth
I believe that the facts stated in this defence are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
Defendant’s signature:
Date: