CEL Defence, Late PoC etc - Help Please

Evening All,

Like many others I have had letter from CEL demanding an exorbitant amount of money - I have read the newbies thread and done lots of research on this forum, including around the latest issue with late PoC.

The following is a summary of events to date and I'd be really grateful for a bit of advice in terms of next steps and a critique of my suggested defence;

1. Received a 'Final Demand Before Action' letter from CEL on 120117, the first correspondence I'd had from them.
2. I sent a template letter from elsewhere on these forums to dispute, however never received a response
3. I subsequently received a number of letters from CEL, alleged debt collectors and solicitors etc, all of which i ignored
4. Received a claim form on 11th October, dated 10th October, stating PoC would follow in 14 days
5. Completed AOS on MCOL as wasn't aware of the need to wait for the PoC
6. Only received PoC on 2nd November, post marked 1st November, with cover letter and PoC dated 11th October
7. Sent the letter below, by email, to the court along with picture of envelope post mark and cover letter dating

Dear Sir/Madam

Claim number XXXXX

Regarding Claim Form XXXXX I am writing to draw to your attention that the Claimant has deliberately backdated the Particulars Of Claim, which were served separate to the Claim Form pursuant to CPR Rule 7.4(1)(b).

The Claim form was issued on 10th October, stating that the Particulars of Claim would be provided to me within 14 days after service of the claim form

The further Particulars of Claim and covering letter were sent under cover of 2nd November. However, they were dated the 11th October, but not actually posted until the 1st November and received on the 2nd November and service on 2nd November means that my defense is therefore not due until the 17th November (Rule 15.4(1)(a)).

The Claimant has made a poor attempt to conceal the actual date on which it served the further Particulars by backdating them by 22 days, together with the covering letter. This is clearly demonstrated by the post mark on the envelope they arrived in, which shows the date of posting as 1st November, a copy of which I have provided as evidence The Civil Procedure Rules are quite clear - under Rule 3.8 the court should apply the sanctions unless the Claimant has applied for relief under 3.9.

I cannot fathom any reason for the Claimant having backdated its further Particulars of Claim, other than to try to gain an advantage by making it appear that I have filed my defence late, or by confusing me into having to rush to file my defence prematurely. This is a serious matter and I ask that this is formally noted on the court file.

This is a commercial Claimant pursuing many other claims of this nature. It must therefore have knowledge of, and understand, the Civil Procedure Rules and these sorts of blatant breaches should not be allowed because they prejudice Litigants in Person who are not versed in court procedures and the court rules. It is with some difficulty that I have understood the various obligations and time limits set out in the Civil Procedure Rules, as a Litigant in Person, whereas the commercial Claimant has no such excuse.

Yours Faithfully

I have yet to receive a response from the court and, given my defence is due next Monday 11th November (if my calcs are correct, 10th October +5+28), I would appreciate any thoughts on my below proposed defence. I am keen to have this prepared should I either not receive a response from the court or they merely agree to extend my defence due date. I'm also struggling a little as to whether there is more I should be adding following their trick with the late PoC, or indeed if any points are no longer valid because of it.

In the County Court Business Centre
Claim Number: xxxxx

Between:
Civil Enforcement Limited v xxxxx

Defence Statement

I am xxxxx, the defendant in this matter and possible registered keeper of the vehicle that caused the contravention. I currently reside at xxxxxx

I deny I am liable for the entirety of the claim for each of the following reasons:

1. The Claim Form issued on the 10th October 2017 by Civil Enforcement Limited was not
correctly filed under The Practice Direction as it was not signed by a legal person but signed by “Civil Enforcement Limited (Claimant’s Legal Representative)”.

2. This Claimant has not complied with pre-court protocol. And as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

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 badly mail-merged documents contain very little information.

c) The Schedule of information is sparse of detailed information.

d) The Claim form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has no idea what the claim is about - why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information. The Claim form Particulars did not contain any evidence of contravention or photographs.

e) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.

f) Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;


(i) Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge

(ii) A copy of any contract it is alleged was in place (e.g. copies of signage)

(iii) How any contract was concluded (if by performance, then copies of signage maps in place at the time)

(iv) Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper

(v) Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter

(vi) If charges over and above the initial charge are being claimed, the basis on which this is being claimed

(vii) If Interest charges are being claimed, the basis on which this is being claimed

g) Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

3. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.

There can be no 'presumption' by the claimant that the keeper was the driver. Henry Greenslade, lead adjudicator of POPLA in 2015 and an eminent barrister and parking law expert stated that “However keeper information is obtained; there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort.”

Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and relevant contract' fairly and adequately communicated, which there was not as there was no clear, transparent information about how to obtain a permit either inside or outside the site) is the sum on the Notice to Keeper. They cannot pluck another sum from thin air and bolt that on as well when neither the signs, nor the NTK, nor the permit information mentioned a possible £328.48 for outstanding debt and damages.

4. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs' were incurred. I deny the Claimant is entitled to any interest whatsoever.

5. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (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.

6. In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.

a) The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.

b) In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.

c) Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:

(i) Sporadic and illegible (charge not prominent nor large lettering) of 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.

(ii) Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.

(iii) It is believed the signage and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from by an authorised party using the premises as intended.

(iv) 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.

(v) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.

d) BPA CoP breaches - this distinguishes this case from the Beavis case:

(i) the signs were not compliant in terms of the font size, lighting or positioning.
(ii) the sum pursued exceeds £100.
(iii) there is / was no compliant landowner contract.

7. 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.

8. 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.

9. 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.

10. The charge is an unenforceable penalty based upon a lack of 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.

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 incorrectly filed Claim Form issued on 10th October 2017.

(b) Sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.

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.

I confirm that the above facts and statements are true to the best of my knowledge and recollection.

Signed


Any help anyone can provide would be hugely appreciated!

Thanks
Stuart