Claim Number : XXXXX

Claimant Reference:
Defendant Reference: XXXXXXX

XXXXXX
XXXXXXXXXXXXXXX
XXXXXXXX
XXXXXXXXX
County Court Money Claims Centre
PO BOX 527
SALFORD
M5 0BY
DX: 702634 SALFORD 5

Claimant/Operator: Civil Enforcement Limited

Defendant: XXXXXXXXXX
22

nd

May 2015

Statement of Defence - to be added to XXXXXX and Defendants Acknowledgement of Service Letter ref:
XXXXXXX

1. The Defendant denies any liability whatsoever to the Claimant for all of the following reasons, any one
of which is fatal to the Claimants case:
I. The Claimant has not acquired the alleged debt as a valid Legal Assignment from the Land-Owner and
has no legal capacity to bring the claim
II. The Defendant has never owed any debt to the Claimant to be assigned
III. The Claimant had no capacity to offer a contract with the motorist
IV. The signage did not offer a contract with the motorist
V. No consideration passed from either the Claimant or the motorist
VI. The Claimant did not identify the driver
VII. The Claimant has disclosed no cause of action to give rise to any debt
VIII. The charge is not a genuine pre-estimate of a loss, and therefore an unenforceable penalty
IX. Even if a debt had existed, it would be due to the The Co-operative Group Limited, not the Claimant

2. The Particulars of Claim state that the Claimant managed the car park on behalf of the The Cooperative Group Limited. The Claimant was not therefore the Land-owner. Neither has it claimed to be an
Agent. The Defendant has the reasonable belief that it was merely a contractor. ParkingEye v Sharma
(3QT62646 Brentford County Court) examined the contract and dismissed the claim for the reason that
the Claimant had no ownership of, or proprietary interest in, the land ; it followed that the Claimant, acting
as an agent, had no locus standi to bring court proceedings in its own name. ParkingEye v Gardam
(3QT60598) similarly examined the contract and found the Sharma judgment persuasive. The Defendant
also refers the court to ParkingEye v Somerfield (2012) (EWCA Civ 1338 case A3/2011/0909) that
examined ParkingEye contracts. This stated that any debt was due to Somerfield and that ParkingEye did
not have the authority to issue proceedings. It follows therefore that if a debt exists, it is owed to the The

Co-operative Group Limited, not the Claimant

3. The Particulars of Claim state that the alleged debt was assigned to the Claimant with the knowledge
of the Co-operative. The Claimant is put to proof that the contract provided for parking charges to be so
assigned, that the Co-operative was so informed and that it accepted the assignment
4. The Claimant might argue that the Protection of Freedoms Act allows him to hold the registered keeper
liable if it cannot identify the driver. There can be no keeper liability because the Claimant failed to serve
Notice to Keeper letters compliant with paragraph 9 of Schedule 4 of the POFA 2012. Therefore the
'second condition' for keeper liability was not met. It is far too long ago for the keeper to have any
knowledge of who was driving the vehicle that day, and it was the will of Parliament when the Impact
Assessment of the POFA 2012 was discussed in 2011, that keepers are not legally obliged to name a
driver - even if known. The defendant cannot be liable unless he was actually the driver
5. The Claimant has stated in the Particulars of Claim that there were many clear and visible signs. The
Defendant is in no position to confirm what signs were in place more than one year ago. The Defendant
was unaware of any signs constituting an offer to enter into a contract with the Claimant. A clear sign
stating the terms and conditions at the entrance to the car park is a specific requirement of the British
Parking Association Code of Practice that the Claimant is required to follow. The Defendant refers the
court to Excel Parking Services Ltd v Cutts that the content relied on by the Claimant could not be read by
a driver entering the car park
6. The Claimant states it was contracted to manage the car park. As a mere contractor, the Claimant
could not possibly be entitled to damages for trespass as claimed in one of the possible grounds for
action. The Claimant is also put to proof that it had sufficient interest in the land or that there are specific
terms in its contract to bring an action on its own behalf as required in the British Parking Associations
Legislation Guidance to Operators
7. The Claimant has stated that, as a result of the Defendants conduct, a charge was incurred.
Notwithstanding that the Defendant does not know if he was the driver, the Claimant has given no
indication of the nature of the alleged conduct in the Particulars of Claim. The Claimant has therefore
disclosed no cause of action
8. The Claimant states that the claim results from a contract with the Defendant. The Defendant denies
that he would have agreed to pay the original demand of 90 to perform the alleged but undisclosed
conduct in a free car park and submits that no motorist would agree to such a contract
9. There was no consideration from the Claimant to the Defendant. The Claimant was not a tenant of the
The Co-operative Group Limited and the provision of any parking is by the land-owner. It is therefore
nonsense that the Claimant provided consideration by allowing the Defendants vehicle to remain.
10. There is no consideration from the Defendant to the Claimant in a free car park. Even if it were not
free, any consideration would be due to the land-owner with whom the motorist would have intended to
deal.
11. The Claimant had no standing to offer a contract; there was no meeting of minds nor any
consideration passed. None of the elements that are fundamental to a contract were present and
therefore no contract could possibly have existed. The Defendant was, at the most, granted a licence to
park. Whatever the conduct was that the Claimant alleges, a breach of a licence would be trespass, not a

breach of contract. It could only be pursued by the land-owner.

12. Whether there was a contract or a licence, only the Land-owner has standing to bring a claim, not the
Claimant.
13. The Defendant has no idea what terms and conditions were stated on the signs but disputes the
Claimants statement that such an amount would have constituted an offer and submits that it in fact
threatened punitive sanctions to discourage the undisclosed conduct. The Defendant has the reasonable
belief that the Claimants intention was not to offer a genuine contract to park at that price and the main
purpose was to deter the undisclosed conduct by attempting to enforce a penalty. The Defendant refers
the court to 3YK50188 : Civil Enforcement Ltd v McCafferty (Luton County Court appeal) that was
decided by Mr Recorder Gibson QC in almost identical words (21 February 2014).
14. The court is invited to consider whether a documents titled Parking Charge Notice and Parking
Contravention would ever be sent between the parties to a genuine contract. The Claimants claim for
Breach of Contract and Damages further confirm that the sum is neither a contractual term nor a genuine
assessment of pre-liquidated damages but a penalty. It cannot therefore be recovered under contract law.
The Defendant refers the court to the tests suggested by the House of Lords in Dunlop Pneumatic Tyre v
New Garage & Motor Co. Ltd (1915) and Lordsvale Finance plc v Bank of Zambia to determine if the sum
is a penalty or a genuine pre-estimate of damages. The Defendant also refers the court to O.B. Services
v Thurlow (Worcester County Court 2011) and Excel Parking Services v Hetherington-Jakeman (2008)
that involved similar facts to the present case.
The British Parking Association Code of Practice S.34 states that parking charges must be fair,
reasonable and a genuine pre-estimate of the loss to the parking company. The Defendant asserts that
the Claimant has also ignored the Governments official position on parking charges as expressed clearly
in the Department for Transport Guidance on the Recovery of Parking Charges :
Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This
means charges must compensate the landholder only for the loss they are likely to suffer because the
parking contract has been broken. For example, to cover the unpaid charges and the administrative costs
associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than
necessary to recover business losses and the intention should not be to penalise the driver.
The Defendant submits that the amount demanded cannot possibly be a genuine pre-estimate of the
Claimants loss. The Claimant has at no time provided an explanation how the sum has been calculated,
the conduct that gave rise to it or how the amount has climbed from 90 to 130.
15. The Defendant disputes that the Claimant incurred 40 costs writing letters. The judgment in VCS v
Ibbotson (2012) makes clear that only the costs that directly result from the parking may be included, not
an arbitrary proportion of normal business costs. A Retailer v Ms. B & MS. K (1UC71244) citing R+V
Versicherung AG v Risk Assurance and Reinsurance Solutions SA (2006 EWHC 42) and Aerospace
Publishing Ltd v Thames Water Utilities Ltd (2007 EWCA Civ 3) dismissed a claim for the costs of security
staff dealing with shoplifters who had deliberately attempted to cause a loss to the claimant, not merely
over-stayed in its car park. The court stated that the claimant had to establish that the conduct caused
significant disruption to its business. Security people, far from being diverted from their usual activities,
were in fact actively engaged in them and doing just what they were paid to do. Neither could any
administrative or security costs be claimed. The amounts spent by the claimant would have been identical

if the defendants had stayed at home or limited their shop-lifting to other establishments
The Claimants business model in a free car park relies entirely on the income from alleged breaches of
terms and conditions, not from customers that adhere to them. The cost of administration staff involved
with the processing of parking notices cannot be presented as a loss because their employment is
essential to the Claimants revenue.
If the Claimant suggests that these costs are in fact the charges of an external Debt Collection Agent, the
Defendant submits that such a contract would be most unusual and understands that such companies are
normally paid only if successful.
16. The Defendant disputes that the Claimant has incurred 50 solicitor cost to prepare the claim. Apart
from the incompetent Particulars of Claim that fail to disclose a cause of action, the solicitor named as the
signatory cannot be found on the registries of either the law Society or the Solicitors Regulatory Authority.
The Statement of Truth has not therefore been verified and the Claimant cannot rely on it as evidence of
any of the matters set out in it (CPR Practice Direction 22)
17. The Defendant fails to understand why the Claimant, a London-based Debt Collection Agent has
provided the Claimants address and telephone number as its contact details on Page 1 of the Claim. The
Defendant has the reasonable belief that the Claimant is not independent and there has not been a
genuine assignment of the disputed debt.
18. The Claimant has no legal capacity to bring a claim; the Claimant that it states to be the assignor of
the debt has never had any legal capacity to offer a contract to the motorist. Even if a debt had ever
existed, it would be due to the land-owner, not the Claimant. The Claimant has also failed to disclose the
conduct that is complained of and has therefore brought a claim that discloses no cause of action. The
Solicitor that allegedly signed the Particulars of Claim does not exist; the Statement of Truth has not been
verified and cannot be relied upon. The court is invited to strike out the claim as having no prospect of
success
I believe the facts stated in this defence are true

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