CEL defence

Just a quick overview of the particulars: The keeper has received a claim form signed Civil Enforcement Ltd (Claimant's legal representative)

The alleged offence was 15th December 2016, at which time the driver had used several services on site and had coffee in Costa, also on site. The driver has receipts to back up the services rendered to the amount of just under £150, if that's relevant.

Having a look through the Google maps street view, there are very visible and large signs on a either side oft the entrance. Although, the signs in the car park are very small and there are only a few scattered around .In fact, I have to look real hard to find any in the main car park. Does this mean I should remove the reference to the signs being being unclear?

The keeper's defence is below, however, I don't know if the keeper should add extra detail about the driver being on site having services rendered. This has really confused me.

Also,the driver has evidence of using the services on site, does the keeper or driver need to provide these? Should the keeper or driver include photos of the lack of signage?

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I am ____, the defendant in this matter and registered keeper of vehicle ____. I currently reside at ____.

The Claim Form issued on the 8th March 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 “The Legal Team”.

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

1/ This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an un-denied 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) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The covering letter merely contains a supposed PCN number with no contravention nor photographs. The defendant, who is the registered keeper and not identified as the driver at the alleged time.

(b)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 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.

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
4. The vehicle type and colour
5. Why the charge arose

3/ I put the Claimant to strict proof that it issued a compliant notice under 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.

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 £322.89 for outstanding debt and damages.

4/ 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.

5/ 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.

6/ BPA CoP breaches - this distinguishes this case from the Beavis case:

(a) The signs were not compliant in terms of the font size, lighting or positioning.

(b) The sum pursued exceeds £100.

(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).

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 claimant has added unrecoverable sums to the original parking charge. It is not credible that £50.00 legal costs were incurred. Nor it is believed that a £40 fee was paid to any debt recovery agency so the Claimant is put to strict proof it has. I deny the Claimant is entitled to any interest whatsoever.

11/ If the court believes there was a contract (which is denied, due to unlit 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 08th June 2017.
(b) Failed to provide Particulars of Claim within 14 days of the date of service of the Claim Form, thus making it impossible for the Defendant to prepare any form of defence.

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.

"I believe the facts contained in this Defence Statement are true."