Civil Enforcement Ltd & DCBL

[des8]

The templates we offer do generally refer to the poor quality of the POC and the lack of compliance with CPR as per the case you quote.

However I would refrain from referring to any particular county Court case by name in my defence.
CC cases are only persuasive, and some judges become quite irate if such judgments are brought to their attention.
Some (not all) will tell you that they are quite capable of making a judgment of their own accord, and will not be influenced by judgments reached in other county courts.
You need to tread carefully, and just carefully point the way to the judge so he makes his own decision

[ecalid]

Thanks des8

How's this for a starter:

• On or around XXXXXXXXXX the Respondent received a county court claim from the Claimant indicating their intention to recover sums relating to a Parking Charge virtue of a breach of Contract terms/Conditions (TCs)
  -
• The Respondent denies that the Claimant is entitled to relief of the sum claimed, or at all. It is denied that any conduct by the registered keeper was in breach of any term.
  -
• The Claimant appears to manage the private car park on behalf of the land owner and collects debts for breach of the TCs.
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• The Respondent has issued a request pursuant to Civil Procedure Rule 31.14 and has asked the Claimant to provide copies of the contract with the land owner upon which they rely.
  -
• The Claimant has refused to disclose this information notwithstanding referring to this relationship in their Particulars of Claim (POC).
  -
• The Claimant has therefore breached their responsibilities under CPR 31.14 and they are put to strict proof to demonstrate they can lawfully collect this alleged debt on behalf of the land owner virtue of the relevant provisions in Protection of Freedoms Act 2012.
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• The POC issued by the Claimant is not compliant with Civil Procedure Rules, namely CPR 16.4(1)(e) and Practice Direction 16 para 7.5 (PD 16)
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• Additionally, pursuant to the PD 16, the Claimant has failed to identify by whom the breach was undertaken.
  -
• It is the Respondent's respectful submission that after reviewing online maps and the Claimant having provided in their POC, the terms upon which they rely are allegedly agreed upon Entry to the car park, or upon parking within it; the Respondent submits that the sign upon entry to the car park does not consist of any agreeable terms, it reads "See car park signs for terms and conditions".
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• The Claimant has failed to show that the Respondent has entered and breached the TCs in the POC of which the Claimant relies.
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• The Claimant has therefore issued a claim with POC which are contrary to the Claimant’s statement of truth and therefore not compliant with Practice Direction 22 para 2.1. The Claimant is therefore put to strict proof to disclose all material evidence in support of their POC.
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• Attention is therefore drawn for the Claimant to the consequences imposed by the courts on Claimants who breach the Civil Procedure Rules.
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• It is the Respondents respectful submission that the Claimant has brought a claim which not only exhibits a catalogue of Civil Procedure Rule breaches but has no reasonable prospect of success and should be struck out.

I'm thinking that I definitely want to address the poor signage issue, so by having this loosely mentioned in the defence I can expand on this significantly in the witness statement. Let them think I'm throwing all I've got at this point, hopefully to galvanize them to discontinue, but keep the ace up the sleeve just in case instead of allowing them to see the skeleton?

I haven't numbered these yet as I'll likely be adding more or taking away.

Even if they then come back with the conduct element, they will have to then produce a statement for the day of the alleged contravention, indicating the lack of payment, which they probably won't even bring.

You can tear this to bits if you like, I'm really open to suggestion and won't be offended at all.

[des8]

Your defence is not due in for some time, so I would wait until you either receive a response to your CPR request, or it is nearer the date

Below is the basic template I use (together with an additional bit at the end which may be incorporated in the appropriate place
Obviously it has to be amended to suit individual circumstances by deletion of some or addition of more

You might like to use it as a guide

Unless otherwise stated in this Defence:

1. I) the Defendant uses the same terminology as the Claimant has employed in the Particulars of Claim; and
   ii)the Defendant denies each and every allegation or that the Claimant is entitled to any relief.
   iii)all references to paragraph numbers are to paragraph numbers in the Particulars of Claim

INTRODUCTION

1. This claim has been issued against the Defendant in connection with the Defendant’s refusal to pay a private parking charge which the Claimant alleges that the Defendant is liable to pay either as the driver of the vehicle or as the registered keeper. For the reasons set out in this Defence, it is denied that the Claimant is entitled to the sums claimed or any relief at all.

CLAIMANT’S NON-COMPLIANCE WITH THE CIVIL PROCEDURE RULES

1. By way of general comment, it should be noted that whilst the Defendant intends to respond to the issues raised by the Claimant in the Particulars of Claim, he cannot do so with complete accuracy because the Claimant has not pleaded its case in accordance with CPR 16.4(1)(a). There is not a concise statement of the facts which discloses a cause of action, rather the Claimant has merely provided a series of generalised statements which in turn makes it difficult for the Defendant to respond as he does not know or understand the basis of the Claimant’s case. For example, the particulars allege that the Defendant:
   1. entered into a contract with the Claimant but does not explain how or on what basis the contract was entered into;
   2. was in breach of the contract but the particulars fail to specify which term or terms the Defendant has breached; and
   3. is liable as the registered keeper of the vehicle yet the Claimant has failed to particularise the basis of that allegation.
2. The Defendant is surprised by the the haziness of the particulars given that the Claimant is represented professionally by a firm of solicitors and as such, the lack of compliance with the CPR to formulate proper particulars cannot be excused. The court is invited to consider its general case management powers pursuant to CPR 3.1 to:
   1. make an order that unless the Defendant files and serves an amended Particulars of Claim compliant with CPR 16.4(1)(a) within 14 days of said order, then the claim shall be struck out and judgment entered in favour of the Defendant; or
   2. if the court considers it appropriate, to strike out the claim entirely as on the basis that the claim discloses no reasonable grounds for a cause of action; and
   3. exercise any other case management powers the court sees fit.

RELEVANT FACTS

1. 1. [APPROPRIATE FACTS INSERTED]

APPLICABLE LAW

1. Section 56 together with Schedule 4 of The Protection of Freedoms Act 2012 (“POFA”) provides landowners with powers to manage parking on their land. Paragraph 4 of Schedule 4 of POFA stipulates that the liability for an unpaid parking charge may only be transferred from the driver to the registered keeper of the vehicle if certain conditions as prescribed in Schedule 4 are met.

LIABILITY AS THE DRIVER OF THE VEHICLE

1. It is denied that the Defendant was the driver of the vehicle. Despite the Defendant requesting proof from the Claimant of the allegation, the Claimant has so far failed to provide any supporting evidence. Accordingly, the Claimant’s allegation is entirely baseless and nothing more than a fishing expedition in which the Defendant considers to be an abuse of process.
2. Without prejudice to the foregoing paragraph, a series of requests by letter and email were made by the Defendant asking the Claimant to provide evidence establishing that:
   1. the Claimant has authority to manage and enforce the car park by way of issuing parking charge notices pursuant to condition 5(1)(a) of POFA 2012; and
   2. the Defendant was the driver of the vehicle on the day that the Parking Charge was incurred.
3. Despite the requests as referred to in paragraph 6, the Claimant has refused or otherwise failed to provide the necessary evidence or explanation to establish the Claimant’s authority to enforce the Parking Charge.
4. In the absence of the such evidence, it is the Defendant’s contention – and the court is invited to make an inference that – the Claimant has no lawful basis to pursue the Defendant as the driver of the vehicle.
5. If (which the Defendant denies), the Defendant is found to be liable for the Parking Charge, the Defendant will say that the Parking Charge is not enforceable on the basis that there was not adequate notice of the Parking Charge given to the Defendant pursuant to Paragraph 2(2) of Schedule 4 of POFA 2012. Paragraph 3(b) defines “adequate notice” as the display of one or more notices which:
   1. specify the sum as the charge for unauthorised parking; and
   2. are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.
6. The signage at the car park was not sufficient to give the driver adequate notice of the parking charge because:
   1. There was no signage at the entrance of the car park indicating that there would be a parking charge or that the car park was subject to certain parking conditions; [and]
   2. [in any event there was no notice to say that if there was a failure to comply, a parking charge would be issued.]
7. The Claimant in correspondence has suggested there is adequate signage available at the car park and relies on a sign that the Claimant says is clearly visible. The Defendant will say that:
   1. The sign referred to by the Claimant is erected at the rear of the car park and is obscured by various tree foliage;
   2. The vehicle was parked on a dark evening and the car park is not adequately lit such that any visibility of the sign could not be seen; and
   3. As already referred to earlier in this Defence, the vehicle was parked at the front of the entrance to the car park, so it was not reasonably possible for the driver to see the sign.

Recovery of Claimant’s costs associated with the Parking Charge

1. The Defendant denies that the Claimant is entitled to claim the recovery of its costs in respect of the Parking Charge. As described above, there was no adequate signage giving fair and reasonable notice of the parking terms and it is trite law that one cannot incorporate terms and conditions after the fact, without giving reasonable notice beforehand.
2. Further and alternatively, if (which is denied) it is found that reasonable notice was given, the Defendant will say that the term was contrary to the requirement of good faith which causes a significant imbalance under the contract to the detriment of the Defendant. Consequently, the term is unfair and is not binding on the Defendant pursuant to section 62 of the Consumer Rights Act 2015. The Defendant will rely on the following points:
   1. Section 68 of the CRA requires that every term of a consumer contract must be transparent and expressed in a plain and intelligible language. The Defendant contends that the term referring to the charges on the signage was neither transparent nor intelligible in that:
      1. the font size of the term is extremely small making it illegible from a reasonable distance; the term ought to have been presented in a manner which was far more legible considering the amount of blank space available on the sign itself; and
      2. the term refers to ‘charges’ but fails to explain what charges the Claimant is seeking to recover. Accordingly, the term described is vague and ambiguous contrary to the guidance published by the Competition and Markets Authority on unfair contract terms.

LIABILITY AS THE REGISTERED KEEPER

1. It is denied that the Claimant is entitled recover the Parking Charge from the Defendant as registered keeper of the vehicle. The Defendant repeats paragraphs five to nine (inclusive) of this Defence.
2. Further and alternatively, the Defendant contends that the Claimant has failed to comply with the mandatory conditions under POFA 2012 in order for the registered keeper to be held liable for the Parking Charge:
   1. Contrary to condition 5(1)(a) of POFA 2012, the Claimant failed to provide evidence that it has the right to enforce against the driver of the vehicle the requirement to pay the Parking Charge. The Claimant has indicated that there is a written contract between the Claimant and the landowner but the Claimant has failed to supply:
      1. a copy of the written contract setting out the Claimant’s authority to enforce and/or pursue the Parking Charge against the driver; and
      2. what (if any) conditions may be attached as regards the recovery of the Parking Charge.
   2. Contrary to condition 5(1)(b), the Claimant knew the identity of the driver prior to the commencement of these proceedings. In the particulars of claim, the Claimant represents that “the Defendant was the driver of the vehicle”. In light of that allegation, it is implied that the Claimant has actual knowledge of the driver’s identity and so the Defendant cannot be held liable for the Parking Charge as the registered keeper, and the Claimant must pursue the driver of the vehicle only. The Defendant will seek to rely on paragraph 221 of the POFA 2012 Explanatory Notes, which states that:

… The creditor is not obliged to pursue unpaid parking charges through this scheme and may seek to do so through other means but they may not use the scheme provided for here to secure double recovery of unpaid parking charges (paragraph 4(6)), nor will they have the right to pursue the keeper, as opposed to the driver, of the vehicle where they have sufficient details of the driver’s identity (emphasis added)

Recovery of Claimant’s costs associated with the Parking Charge

1. To the extent that the Claimant seeks to recover the costs incurred in pursuing the Parking Charge, the Defendant denies that such sums are recoverable for the following reasons:
   1. The costs sought by the Claimant are based upon a contractual right under the terms of the parking contract. It is well established under the doctrine of privity that a person who is not party to the contract cannot sue or be sued. Any contractual relationship in respect of the parking and the alleged contravention was solely between the Claimant and the driver of the vehicle, not the registered keeper; and
   2. paragraph 4(5) of POFA provides that the maximum amount which may be recovered from the registered keeper is the total amount of the unpaid parking charges specified in the notice to the registered keeper. The unpaid parking charges specified in the notice were £XXX.XX.
2. It follows that any liability owed by the keeper to the Claimant is several to the driver’s liability and is limited to an amount that does not exceed the unpaid parking charges. The Claimant’s pursuit of these contractual costs is not recoverable and amounts to an abuse of process.

CONCLUSION

1. By reason of the Defendant’s non-compliance with the POFA requirements as set out in this Defence, the Claimant is not entitled to pursue the Defendant as either the registered keeper or the driver of the vehicle for the Parking Charge.

Additional
17) Alternatively, the Defendant asserts the “additional charges” term on the parking sign is contrary to the requirement of good faith and causes a significant imbalance under the contract to the detriment of the Defendant.
18) Section 68 of the Consumer Rights Act 2015. (CRA 2015) requires that every term of a consumer contract must be transparent and expressed in a plain and intelligible language.
19) The Defendant contends that the term referring to the charges on the signage was neither transparent nor intelligible in that it only refers to unspecified additional charges.
20) It fails to explain what charges the claimant seeks to recover, and is also contrary to CRA2015 Schedule2 (10 & 14).
21) Consequently, the term is unfair and is not binding on the Defendant pursuant to section 62 of the CRA2015)
22) In Parking Eye vs Beavis ([2015] UKSC 67. Case ID. UKSC 2015/0116. the S C found the parking charge (£85) was a genuine estimate of the costs of operating the parking scheme including losses suffered by the operator if its terms and conditions were not complied with (see paras 188 and 193 of the judgment).
23) In this claim unspecified costs additional to the parking charge may involve an element of double recovery and is an abuse of process that may taint the entirety of the claim and permit the Court to strike out the claim (CPR3 4 (2) (b))

[ecalid]

Thank you des8 this will be extremely helpful.

[ecalid]

Hi guys,

I've still not heard anything from CEL with regards to the CPR request, but I have been drafting my defence.

I'm ready to include about inadequate signage but not sure which is the best way to get this point across in the defence.

Could somebody please give me some pointers on this?

I still need to include facts running up to the alleged contravention but not sure how to approach this either.

1. On or around XXXXXXXXXX the Respondent received a county court claim from the Claimant indicating their intention to recover sums relating to a Parking Charge virtue of a breach of Contract terms/Conditions (TCs)
   -
2. The Respondent denies that the Claimant is entitled to relief of the sum claimed, or at all. It is denied that any conduct by the registered keeper was in breach of any term.
   -
3. The Claimant appears to manage the private car park on behalf of the land owner and collects debts for breach of the TCs.
   -
4. It is denied that the Claimant has the relevant authority to conduct car parking enforcement on the car park in question as the car park appears to be subject to local byelaws upheld by the local council.
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5. The Protection of Freedoms Act 2012 “POFA2012” Schedule 4, 3(1)(b) & (c) provides that ‘a parking place which is provided or controlled by a traffic authority’ and ‘relevant land means any land which is not subject to statutory control respectively’ is unable to be lawfully imparted as private land for the use of parking enforcement activities.
   -
6. POFA2012 Schedule 4(3) provides: “For the purposes of sub-paragraph (1)(c) the parking of a vehicle on land is “subject to statutory control” if any statutory provision imposes a liability (whether criminal or civil, and whether in the form of a fee or charge or a penalty of any kind) in respect of the parking on that land of vehicles generally or of vehicles of a description that includes the vehicle in question.”
   -
7. Attention is drawn for the claimant to the Department of Transport Guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012: Recovery of Unpaid Parking Charges, Section 4.1. “The provisions in Schedule 4 are intended to apply only on private land in England and Wales. Public highways are excluded as well as any parking places on public land which are either provided or controlled by a local authority (or other government body). Any land which already has statutory controls in relation to the parking of vehicles (such as byelaws applying to airports, ports and some railway station car parks) is also excluded.”
   -
8. It is the Respondents respectful submission that according to online maps of the car park, one of the signs which is centered within the car park, reads: “Market. Thurs & Fri. Car Park Closed 8.00am – 4.00pm”
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9. It is the Respondent’s respectful submission that the car park is likely under statutory control of the local council. The Claimant is therefore put to strict proof to demonstrate the Claimant’s ability to enforce parking terms on the specified land.
   -
10. The Respondent has therefore issued a request pursuant to Civil Procedure Rule 31.14 and has asked the Claimant to provide copies of the contract with the land owner upon which they rely.
    -
11. The Claimant has refused to disclose this information notwithstanding referring to this relationship in their Particulars of Claim (POC).
    -
12. The Claimant has therefore breached their responsibilities under CPR 31.14 and they are put to strict proof to demonstrate they can lawfully collect this alleged debt on behalf of the land owner virtue of the relevant provisions in POFA 2012.
    -
13. The POC issued by the Claimant is not compliant with Civil Procedure Rules, namely CPR 16.4(1)(e) and Practice Direction 16 para 7.5 (PD 16)
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14. It is the Respondent's respectful submission that after reviewing online maps and the Claimant having provided their POC, the terms upon which they rely are according to the claimants POC: “displayed in CP and agreed upon entry/parking”.
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15. The Respondent respectfully submits that the sign upon entry to the car park does not consist of any agreeable terms, in fact it reads "See car park signs for terms and conditions".
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16. The Respondent submits that the conduct element upon which the Claimant relies appears to be with regards to bringing a vehicle onto land and breach of alleged terms of that land.
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17. Contrary to CPR 16.4(1)(e) and PD 16 para 7.5 respectively, the Claimant has failed to declare the conduct, amounting to breach of the alleged terms, on which the Claimant relies.
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18. Additionally, pursuant to the PD 16, the Claimant has failed to identify by whom the breach was undertaken.
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19. The Claimant therefore issued a claim with particulars which must be contrary to the Claimant’s statement of truth and therefore not compliant with Practice Direction 22 para 2.1.
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20. Attention is therefore drawn for the Claimant to CPR 3.4(2)c which provides the consequences imposed on Claimants who breach the Civil Procedure Rules. The court is respectfully invited therefore to strike out the Claimant’s statement of case.
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21. The Respondent respectfully submits that the terms upon which the Claimant relies are contrary to s62 of the Consumer Rights Act 2015 “CRA 2015” which is the requirement of good faith. The Respondent will elaborate with the below.
    -
22. In the Claimants signage, above the sub header “Terms and Conditions” it reads: “IF YOU BREACH ANY OF THESE TERMS YOU MAY BE LIABLE TO A PARKING CHARGE OF UP TO £100.”
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23. In the Claimants signage, under the sub header “Terms and Conditions” it proceeds to read: “If you do not obtain a valid permit, you must (a) pay within 15 minutes of arrival;”
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24. s13.1 of the British Parking Association code of practice indicates that all car parking enforcement companies under this association must provide a consideration period which exceeds at least 5 minutes to allow the driver the ability to consider the terms provided.
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25. The Respondent contends that the alleged term in para 23 does not inform the driver to pay upon parking on the premises, in fact it demands payments upon arrival of the premises only.
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26. Attention is drawn towards the particulars of claim which indicate the Claimant’s own distinction between entry to and parking within the car park.
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27. The Respondent therefore contends that the Claimant cannot realistically have intended to enter into legal relations with the driver or registered keeper based on the conflicting code of practice.
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28. The Respondent contends that this term is an unfair term contraire to para 18 of Schedule 2 CRA 2015.
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29. In the Claimants signage, further down the alleged terms, it reads: “Additional costs/recovery charges will be incurred if payment is not received within 28 days”
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30. The Respondent contends that the statement in para 22 therefore renders the term in para 29 to within the scope of the conduct required by the Practice Direction 16 para 7.6.
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31. It is the Respondents interpretation that the terms indicate that, without a permit, additional costs/recovery charges will be issued for lack of payment for parking within the car park which is due for up to a maximum time of 28 days lapsed.
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32. The Respondent therefore contends that the Claimant cannot rely upon the alleged term in para 29 to add additional charges or recovery charges which their claim relies, as s68 of the CRA 2015 provides that every term of a consumer contract must be transparent and expressed in a plain and intelligible language. The respondent contends that the terms in the Claimants signage are neither transparent nor intelligible as the terms seem to contradict each other and the contract should be construed against the draftsman.
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33. If it is found that the term in para 29 refers to a parking charge, then the Respondent will contend that the Claimant is attempting to perform a double recovery on the alleged debt. The Respondent respectfully forwards the Claimant’s attention to the case of Parking Eye v Beavis; it was determined in this ruling that the charge in which the Claimant is attempting to recover, is a cost sanctioned by the supreme court as reasonable costs to cover the recovery. It was also decided that a global sum of £160 would be considered as a penalty and not a pre-estimate of loss.
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34. The Respondent respectfully submits that the Claimant has added an unlawful extra amount of £70 payable to the Claimant.
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35. It is therefore denied that the Claimant is entitled to relief of the sum claimed as the additional charges/recovery charges are contraire to s67 CRA 2015 and Schedule 2 CRA 2015.
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36. Attention is therefore drawn for the Claimant to s71(2) CRA 2015 which indicates the courts obligation to consider unfair terms in contracts.
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37. It is the Respondents respectful submission that the Claimant’s claim should be struck out as the Claimant has exhibited a blatant abuse of process by attempting to claim for additional fees for which the Claimant is not entitled.
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38. If it is found that the Terms provided by the claimant are correct then the Respondent will contend that the signage upon entering the car park does not neither allow or guide any driver to the knowledge that it is a private car park.
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39. It is the Respondents respectful submission that the Claimant has brought a claim which not only exhibits a catalogue of Civil Procedure Rule breaches but has no reasonable prospect of success and should be struck out.

[des8]

You still have a week (I think) before your defence is due in, and you are still awaiting a response to your CPR 31.14 request, so not commenting in depth yet.

Have noted you refer to yourself as "respondent", although "Defendant" is normally used as the opposing party to a "claimant", in a civil cause of action (as in CPR). Is this the latest trend?

You state " the car park appears to be subject to local byelaws upheld by the local council."
1) you appear uncertain about this
2) how does this fit with PoFA 2012 definition of what is not relevant land?
PoFA definition: (a)a highway maintainable at the public expense (within the meaning of section 329(1) of the Highways Act 1980);
(b)a parking place which is provided or controlled by a traffic authority;
(c)any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.

[ecalid]

You still have a week (I think) before your defence is due in, and you are still awaiting a response to your CPR 31.14 request, so not commenting in depth yet.

Have noted you refer to yourself as "respondent", although "Defendant" is normally used as the opposing party to a "claimant", in a civil cause of action (as in CPR). Is this the latest trend?

You state " the car park appears to be subject to local byelaws upheld by the local council."
1) you appear uncertain about this
2) how does this fit with PoFA 2012 definition of what is not relevant land?
PoFA definition: (a)a highway maintainable at the public expense (within the meaning of section 329(1) of the Highways Act 1980);
(b)a parking place which is provided or controlled by a traffic authority;
(c)any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.

Hi des8

Thanks for your reply. As always, any advice you can provide is extemely helpful for me.

Respondent I believe is homogenous with Defendant but lacks the adverserial tone, it's just one I've always used to distinguish between Defendant in criminal cases. I know particularly in employment cases that there is a Respondent as it refers to a singular entity.

The byelaw arguement is more of a rabbithole to add extra clout to the CPR request, which might hopefully make them discontinue as opposed to risk being forced tk release business sensitive information into the public domain.

The sign which reads Car Park closed is contraire to the claimants alleged terms of being in operation 24 hours a day which might cause a reasonable judge to force the disclosure. Also the burden is on the claimant to prove they owe the debt.

The PoFA definition is a presumption, and one that a ligitant in person might be forgiven for raising. You've rightly pointed out that it's a weak arguement but it is the first line of attack out of three. But generally if land is council owned and it is signposted as being shut between X and X, I suppose they would likely issue PCN's, as per para 6 of the above.

[JimmyC1573]

Hi - been reading the forums and have come into a bit of an issue.

My 85 year old mother received a notice of debt recovery from DCBL the other day for two PCNs from 2021. She has never received any previous correspondence on this matter so it came as somewhat of a shock to her. Total debt is £340.

What would be the best option? She is worried sick bless her (and currently undergoing treatment for cancer so not in the best health). I would like to put her mind at ease if I can.

Best wishes

Shawn

[des8]

Welcome Shawn JimmyC1573

The best thing to do is start your own thread, posting up if poss a copy of the demand letter and any other documents your mother might have.
Piggy backing on someone else's thread only causes confusion

[ecalid]

Good afternoon,

Just a heads up that the defence is due in on Friday, but I intend to put it in on Thursday just to make sure it gets in.

Claim Number:

IN THE COUNTY COURT

BETWEEN


Civil Enforcement Ltd

Claimant

V



XXXXXXXXXXXXX

Defendant



__________________________________________________


Defence

__________________________________________________

1. On or around XXXXXXXX the Defendant received a county court claim from the Claimant indicating their intention to recover sums relating to a Parking Charge virtue of a breach of Contract terms/Conditions.
   -
2. This claim appears to have been issued against the Defendant in connection with the Defendant’s refusal to pay a private parking charge which the Claimant alleges that the Defendant is liable to pay, either as the driver of the vehicle or as the registered keeper. For the reasons set out in this defence, it is denied that the Claimant is entitled to the sums claimed or any relief at all.
   -
3. Each and every allegation made by the Claimant is denied unless stated explicitly otherwise.
   -
4. The Defendant respectfully submits that he is a litigant in person and some of his defence is formed from information gathered from online sources and he cannot guarantee that these were up-to-date when the alleged contravention took place, notwithstanding, the Claimant is put to strict proof to declare all evidence upon which their claim relies.
   -
5. The Defendant intends to respond to the issues raised by the Claimant in the Particulars of Claim; however, he cannot do so with complete accuracy because the Claimant has not pleaded its case in accordance with the civil procedure rules, namely CPR 16.4(1)(e) and Practice Direction 16 para 7.5 (PD 16)
   -
6. It is the Defendant's respectful submission that the conduct upon which the Claimant relies is - according to the claimants POC - “Drivers may only park pursuant to TCs of use displayed in CP and agreed upon entry/parking”.
   -
7. The sign upon entry to the car park does not consist of any agreeable terms, in fact it reads "See car park signs for terms and conditions".
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8. The Defendant submits that the conduct element upon which the Claimant relies appears to be with regards to parking a vehicle on private land and breach of alleged terms of that land.
   -
9. Contrary to CPR 16.4(1)(e) and PD 16 para 7.5 respectively, the Claimant has failed to declare the conduct, amounting to breach of the alleged terms, on which the Claimant relies and has failed to particularise the basis of the allegation made against the registered keeper pursuant to the practice direction; the Claimant has failed to identify by whom the breach was undertaken.
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10. The defendant is therefore confused by the vagueness of the particulars considering that the claim was issued by the head of the Claimant’s legal team. The lack of compliance with the CPR to issue proper particulars cannot be excused, particularly as the Claimant’s head of legal team appears to have invoked the Chorley principle to claim expenses for exercising his legal expertise.
    -
11. The Defendant has been unable to identify the Claimants legal representative on the Solicitors Regulators Authority register as the Claimant’s legal representative has not contacted the Defendant prior to issuing the claim, which would otherwise allow him the opportunity to determine their credentials. This has not afforded the Defendant to an opportunity to identify whether the representative is qualified to conduct legal advocacy for the Claimant or 3rd party to the Claimant and in either way therefore eligible for the additional costs.
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12. The Defendant therefore respectfully forwards the Claimant’s attention to the draconian consequences imposed by the court on Claimants who provide false information when filing their claims.
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13. The Claimant therefore has filed a claim which must be contrary to the Claimant’s statement of truth and therefore not compliant with Practice Direction 22 para 2.1.
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14. Attention is therefore drawn for the Claimant to CPR 3.4(2)c which provides the consequences imposed on Claimants who breach the civil procedure rules. The court is respectfully invited to exercise its powers to strike out the claim.
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15. By way of the relevant facts, the Defendant acknowledges that his details are on the V5 form as a registered keeper. However, the V5 also indicates that the V5 is not proof of ownership. It is denied that the Defendant was the driver at the time of the alleged contravention.
    -
16. The Defendant recently moved into an area near the car park, so he and any of his associates are not accustomed to the various pitfalls of alleged private parking in the area.
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17. The Defendant contends that the signage upon entering the car park is not sufficient to enable a driver to enter into contract with the Claimant.
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18. The car park in which the claim relies is attached to XXXXXXXX in XXXXXXXXX. This is a road which is perpendicular to XXXXXXX Road. Both roads run alongside the car park.
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19. When approaching the car park from XXXXXXX Street, it is a one-way street with no access from XXXXXXX Road.
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20. The sign which indicates that the car park is private land is facing all oncoming traffic from XXXXXXX Road only and does not at all offer any guidance to the terms of, or specification of private land from any driver approaching from XXXXXXXXX Street.
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21. Additionally, the signs in the car park which have the terms written upon them are positioned over the left half of the car park and are not clearly visible when entering the car park.
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22. The Defendant contends that if a driver was to arrive at the car park from XXXXXXX Street and then positioned their vehicle on the right hand side of the car park, for example to decrease the walking distance between himself and a shop on XXXXXXXXX Road, the signs would not have been visible enough for the driver to enter into the agreement upon which the Claimant relies.
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23. If it is found that the signage was adequate, then the Defendant will say that it is denied that the Claimant has the relevant authority to conduct car parking enforcement on the car park in question as the car park appears to be subject to ownership by the local council.
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24. The Claimant appears to manage the private car park on behalf of the land owner and collects debts for breach of the TCs.
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25. The Defendant is unable to determine the legitimacy of the claim to successfully plead his defence and has therefore issued a request pursuant to Civil Procedure Rule 31.14 and has asked the Claimant to provide copies of the contract with the land owner upon which they rely. The Claimant has not responded at all, notwithstanding having received the request as per the proof of postage.
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26. The Protection of Freedoms Act 2012 “POFA 2012” Schedule 4, 3(1)(b) & (c) provides that ‘a parking place which is provided or controlled by a traffic authority’ and ‘relevant land means any land which is not subject to statutory control respectively’ is unable to be lawfully imparted as private land for the use of parking enforcement activities.
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27. POFA 2012 Schedule 4, 3(3) provides: “For the purposes of sub-paragraph (1)(c) the parking of a vehicle on land is “subject to statutory control” if any statutory provision imposes a liability (whether criminal or civil, and whether in the form of a fee or charge or a penalty of any kind) in respect of the parking on that land of vehicles generally or of vehicles of a description that includes the vehicle in question.”
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28. Attention is drawn for the claimant to the Department of Transport Guidance on Section 56 and Schedule 4 of the PoFA 2012: Recovery of Unpaid Parking Charges, Section 4.1. “The provisions in Schedule 4 are intended to apply only on private land in England and Wales. Public highways are excluded as well as any parking places on public land which are either provided or controlled by a local authority (or other government body). Any land which already has statutory controls in relation to the parking of vehicles (such as byelaws applying to airports, ports and some railway station car parks) is also excluded.”
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29. It is the Defendant’s respectful submission that according to online maps of the car park, one of the signs which is centered within the car park, reads: “Market. Thurs & Fri. Car Park Closed 8.00am – 4.00pm”; this appears to contradict the alleged terms of the Claimant’s car park which provide that the car park is operational 24 hours a day.
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30. It is the Defendant’s respectful submission that the car park is likely under control of the local council and it is the council who issue PCN’s to drivers who park when the car park is closed. The Claimant is therefore put to strict proof to demonstrate the Claimant’s ability to enforce parking terms on the specified land.
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31. The Claimant has refused to disclose this information notwithstanding referring to this relationship in their Particulars of Claim (POC).
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32. The Claimant has therefore breached their responsibilities under CPR 31.14 and they are put to strict proof to demonstrate they can lawfully collect this alleged debt on behalf of the land owner pursuant to Schedule 4, s5(1)a PoFA 2012.
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33. In the absence of such evidence, the Defendant respectfully asks that the court makes an inference that the Claimant has no lawful basis to pursue the Defendant for alleged monies owed and strike out their claim.
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34. The Defendant respectfully submits that if, (which is denied) it is found that reasonable notice was given, he will contend that the signage upon which the Claimant relies is contrary to s62 of the Consumer Rights Act 2015 “CRA 2015” which provides that a term is unfair if it is contrary to the requirement of good faith as it causes a significant imbalance to the detriment of the consumer.
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35. Attention is therefore drawn for the Claimant to s71(2) CRA 2015 which indicates the courts obligation to consider unfair terms in contracts.
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36. In the Claimants signage, above the sub header “Terms and Conditions” it reads: “IF YOU BREACH ANY OF THESE TERMS YOU MAY BE LIABLE TO A PARKING CHARGE OF UP TO £100.”
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37. In the Claimants signage, preceding the statement in para 36, it reads: “Payment must be made within 15 minutes of arrival on the premises”
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38. The Defendant contends that the alleged term in para 37 does not inform the driver to pay upon parking on the premises, in fact, in its literal sense, it demands payments upon entry to the premises only.
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39. The definition of ‘arrival’ according to the Claimant’s terms indicates the knowledge that the driver will enter and remain on the premises. However, the claimant cannot rely on an implied conduct as the Claimant cannot know the future.
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40. Attention is drawn towards the particulars of claim which indicate the Claimant’s own distinction between entry and parking within the car park: "Drivers may only park pursuant to TCs of use displayed in CP and agreed upon entry/parking.”
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41. The Defendant respectfully forwards attention to para 7, which highlights that there are no agreeable terms at the entry point of the car park so therefore all terms can only be agreed upon parking.
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42. Attention is drawn to s13.1 of the British Parking Association code of practice indicates that all car parking enforcement companies under this association must provide a consideration period which exceeds at least 5 minutes to allow the driver the ability to consider and accept the terms provided or leave the car park free of charge.
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43. The Defendant therefore will content that the term in para 37 is an unfair term contraire to para 5 of Schedule 2 CRA 2015 and the Claimant cannot realistically have intended to enter into legal relations with the driver.
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44. The Defendant contends that the term is not binding on the Defendant pursuant to s62 CRA 2015 and respectfully invites the court to exercise its powers and nullify the term or strike out the claim.
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45. If it is found that the term in para 37 is correct then the Defendant will contend that the statement in para 36 therefore renders the term in para 46 to within the scope of the conduct required by the Practice Direction 16 para 7.5.
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46. In the Claimants signage, proceeding the statement in para 36 it reads: “Additional costs/recovery charges will be incurred if payment is not received within 28 days”
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47. It is the Defendants interpretation that the terms indicate that, without a permit, additional costs/recovery charges will be issued for lack of payment for parking within the car park which is due for up to a maximum time of 28 days lapsed. The terms under the title ‘Terms and conditions’ make no reference to any parking charge, but the Defendant contends that the statement in para 36, has downward causation to the terms titled “Terms and Conditions”
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48. The Defendant therefore contends that the Claimant cannot rely upon the alleged term in para 47 to add additional charges or recovery charges which their claim relies, as s68 of the CRA 2015 provides that every term of a consumer contract must be transparent and expressed in a plain and intelligible language. The Defendant contends that the terms in the Claimants signage are neither transparent nor intelligible as the terms seem to either contradict each other or are not easily interpreted and should be construed against the draftsman.
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49. If it is found that the term in para 46 is correct, then the Defendant will contend that the Claimant is attempting to perform a double recovery on the alleged debt.
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50. The Defendant respectfully forwards the Claimant’s attention to the case of Parking Eye v Beavis; it was determined in this ruling that the charge in which the Claimant is attempting to recover, is a cost sanctioned by the supreme court as reasonable costs to cover the recovery. It was also decided that a global sum of £160 would be considered as a penalty and not a pre-estimate of loss.
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51. The Defendant respectfully submits that the Claimant has added an unlawful extra amount of £70 payable to the Claimant.
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52. It is therefore denied that the Claimant is entitled to relief of the sum claimed as the additional charges/recovery charges are contraire to s67 CRA 2015 and Schedule 2 CRA 2015.
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53. It is the Defendants respectful submission that the Claimant’s claim should be struck out as the Claimant has exhibited a blatant abuse of process by attempting to claim for additional fees for which the Claimant is not entitled.
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54. By reason of the multiple failures exhibited by the Claimant in issuing the claim, notwithstanding all errors in pursuit of the claim against the registered keeper, it is the Defendants respectful submission that the Claimant has brought a claim for which he is not entitled to recover any alleged parking charge and no reasonable prospect of success and should be struck out.

Any advice you can provide would be helpful.

[des8]

IMO para 4 & 16 are irrelevant to your defence and could be omitted

I think you need to show more positively that the land is owned or controlled by the local council.
Use of terms such as "appears" and "likely" leave lots of room for argument.
Have you checked Land Registry for ownership details?

In para 50 I think you cite Beavis so need to include the year (could also add the neutral citation and indicate the judgment paragraphs you are relying on)
I would add that the additional charges are unlawful as they smack of double indemnity

Good luck

[ecalid]

IMO para 4 & 16 are irrelevant to your defence and could be omitted

I think you need to show more positively that the land is owned or controlled by the local council.
Use of terms such as "appears" and "likely" leave lots of room for argument.
Have you checked Land Registry for ownership details?

In para 50 I think you cite Beavis so need to include the year (could also add the neutral citation and indicate the judgment paragraphs you are relying on)
I would add that the additional charges are unlawful as they smack of double indemnity

Good luck

Thanks des8

I've changed things slightly just to reflect your points.

I've sent it over by email to ClaimResponses.CNBC@justice.gov.uk, with the subject [Claim Number] - Defence, and I've received my confirmation email.

Do you think its worth sending over a paper copy recorded delivery also?

[des8]

IMO not necessary, but did you remember to serve a copy on claimant?

[ecalid]

IMO not necessary, but did you remember to serve a copy on claimant?

Good morning des8

This has been posted with recorded delivery today.

Do you think its worth sending a copy via email to the claimant also?

[des8]

Not if you have sent a hard copy