Civil Enforcement Ltd - County Court Claim Form

TDS1999 · 8 March 2016 at 9:58PM

Hi,

My wife overstayed a parking ticket in Milton Keynes back in Jan 2015. We ignored the various threatening letters from Civil Enforcement Ltd, today we have received a County Court Claim form (N11SDT) for ££227.67 of outstanding debt and damages.

We have no intention of paying this charge, and would appreciate any advice on how to proceed and or respond?

Many thanks

Tony

Redx · 8 March 2016 at 10:10PM

same advice as in all the other recent 2016 CEL threads posted recently

like this one earlier today

http://forums.moneysavingexpert.com/showthread.php?t=5426988

use the forum search box to find the rest (half a dozen or more this year)

Coupon-mad · 9 March 2016 at 2:19AM

Acknowledge the claim (leave the defence box BLANK) and then after reading all the CEL/Schwartz defence examples you can find, show us your defence draft and we'll help. You can win this.

TDS1999 · 13 March 2016 at 9:29PM

Thats fr the replies.

So will be popping in the post the acknowledgement tomorrow and ensure its recorded mail.

From a defence perspective do I have to wait for them (the infamous Mr Schwartz) to tell me what he is claiming for as in their 'particulars of claim' it doesn't actually say what they are claiming for apart from outstanding debt and damages.

Much appreciated.

Redx · 13 March 2016 at 9:32PM

its called an MCOL for a reason , the OL means On Line so you can log in and tick the I WILL DEFEND box, leave the defence box BLANK and get yourself a further 14 days to sort out a holding defence and submit it into the blank box after approval

you should also sort out a part 18 request

these procedures are outlined in the bargepole explanation that you do not appear to have read yet

you should be doing all of this and meeting the extended deadline REGARDLESS and no you dont wait until its too late to do anything, CEL wont help you win this, they will hope you make mistakes like waiting for MR SCHWARTZ to contact you again

less than 33 days from the claim date is when you should have your defence in (after acknowledging it online) , perhaps less , so lets agree on 28 days for safety

Coupon-mad · 13 March 2016 at 11:42PM

TDS1999 wrote: »

Thats fr the replies.

So will be popping in the post the acknowledgement tomorrow and ensure its recorded mail.

No. That's not how to do MCOL claims, why would you use post for 'moneyclaim online'? It'll cost you a fortune at this rate! You complete the acknowledgement online by registering with the Government gateway as discussed on other CEL threads we hope you've read by now? Leaving the defence box blank, not even 'TBA' nothing at all in that box buys you time, extends it to 28 days instead of 14.

From a defence perspective do I have to wait for them (the infamous Mr Schwartz) to tell me what he is claiming for as in their 'particulars of claim' it doesn't actually say what they are claiming for apart from outstanding debt and damages.

No - as Redx says, you'd run the risk of missing your defence deadline. Please read the dozen other threads from February alone and you will find an example of a defence (needs details adjusting to suit, of course) and you will read about a Part 18 request and info on what to do when.

All you need do is search the forum for something obvious like the single word 'Schwartz'.

TDS1999 · 16 March 2016 at 10:59PM

Thanks for the replies.

Have read the vast amounts of information on here, guys you need medals.

Please be as blunt as possible on me there is a good chance I am just being a tube.......

I have been looking at the defence sections and all makes sense (I think) however that said the Claim Form does not actually state what they are claiming for apart from damages and out standing debt. How can I defend what I don't know?

It states they "will provide the defendant with separate detailed particulars within 14 days after service of the claim". that means I should receive something from these pranksters by Friday 18th otherwise I can defend on the fact I don't know what the hell they are talking about? (I don't recall seeing anything on this in the newbies thread but I may missed it)

I have already acknowledged the claim so now have 28 days from the 4th March.

Thanks muchly. :beer:

Tony

Coupon-mad · 16 March 2016 at 11:34PM

Yes you should receive something by way of futher particulars but everyone else is in the same position with these CEL claims.

This is why the example defence wording you will have seen in other threads in February, covers the fact that the paperwork from CEL and PoC are woeful...and covers other bases you need to cover now, in March, whether they play the game with much more info or not.

You do get to submit a full defence later you know (but you'll know that already from reading bargepole's thread about what happens when, as linked under 'Small Claim?' in the NEWBIES thread). But your full defence can only expand on bullet points argued now - can't introduce new points - which is why the example defences here have a lot of points, so nothing is missed that you may want to use at a hearing if it comes to that (not that CEL tend to turn up often).

This will take months to get shot of but you need to have your ducks lined up now, so you have a decent defence to build on.

So, having read the February threads which covered this already and the links in the NEWBIES thread about small claim stage, come back in a week or so to show us your draft defence - which can be very similar to the others but needs to be correct in dates/details for your case.

So if the example you are reading on a thread talks about a pay and display tariff and yours was a free car park, obvs you remove that line, etc. If it says it was dark and the signs could not be read, but yours was in daylight but the signs were still not seen as they are so high and in small lettering, change that bit to suit.

I know at least one recent example CEL defence comes up when you search 'Schwartz' and read the resulting threads.

TDS1999 · 16 March 2016 at 11:38PM

Thanks @coupan_mad I am out of the country next week so will get on it as soon as I return, gives me a week to sort it.

TDS1999 · 25 March 2016 at 5:06PM

IGNORE THIS POST OLD TEMPLATE USED

[STRIKE]Evening all, would appreciate feed back on my first drafted defence to Civil Enforcement claim via the County Court.

************

Re: Parking Charge Notice County Court Reference XXX

On ********* I was the registered keeper of vehicle registration number *********. As the registered keeper of this vehicle I dispute and deny the charge for the reasons set out below:

1. No contract

There was no contract between the driver and Civil Enforcement Limited. The driver did not see any contractual information on any of the signs when entering the car park and therefore at that time had no idea that any contract or restrictions applied. As a consequence the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied.

2. Trespass

If there was no contract, then at most the driver was guilty of a civil trespass (though this is neither admitted nor denied). If this were the case, the driver may be liable to damages. Given that no ‘damage’ was done to the car park and that the car park was not completely full when the driver entered or when the driver left, there was in fact no loss at all.

3. No Landowners Contract

I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give Civil Enforcement Limited any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, Civil Enforcement Limited lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge.

I contend that Civil Enforcement Limited are only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS -v- HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.

I believe there is no contract with the landowner/occupier that entitles them to levy these unreasonable charges and therefore has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to Civil Enforcement Limited to prove otherwise so I require that Civil Enforcement Limited produce a copy of their contract with the owner/occupier and that the adjudicator scrutinises it in the light of VCS -v- HMRC 2012.

Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between Civil Enforcement Limited and the owner/occupier, containing nothing that Civil Enforcement Limited can lawfully use in their own name as a mere agent, that could impact on a third party customer.

The notice to the keeper is not compliant with paragraph 9 (2)(h) of schedule 4 of the Protection of Freedom Act 2012 in that it does not identify the creditor. The operator is required to specifically "identify" the creditor not simply name them on it. This would require words to the effect of " The creditor is ..... " . The keeper is entitled to know the party with whom any purported contract was made. This they have failed to do and thus have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper.

4. Punitive/unfair/unreasonable charge

The Department for Transport guidelines state, in Section 16 Frequently Asked Questions, that:

"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." In this case, Civil Enforcement Limited have failed to provide any calculation to show how the £152.67 figure is arrived at apart from noting outstanding debt, damages and interest.

It is the Appellant's position that Civil Enforcement Limited have suffered no loss whatsoever in this case. Even if there was a contract (which is denied), the following matters are relevant:

4(a). Punitive

The parking charge Civil Enforcement Limited are imposing is punitive and therefore void (i.e. unenforceable). The £152.67 and £75.00 for court and legal costs is arbitrary and disproportionate to any alleged breach of contract or trespass.

4(b). Unfair

The £152.67 charge Civil Enforcement Limited is imposing is an unfair term (and therefore not binding) under the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations which gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e):

‘Terms which have the object or effect of requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation.’

Furthermore, Regulation 5(1) says:

‘A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer’

And 5(2), which states:

‘A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.’

4(c). Unreasonable

The £152.67 charge Civil Enforcement Limited is imposing is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says:

‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’

Those Regulations give an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer" and 5(2) states: "A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the outcome”.

5. Genuine Loss.
In the unlikely event that Civil Enforcement Limited do have full rights to make contracts with individual drivers, or on behalf of the landowner, then I request a breakdown from Civil Enforcement Limited of the actual financial loss for the alleged 14 minutes and 24 seconds the vehicle was in the car park, as well as confirmation that the vehicle was actually parked in this vast car park

Regards

Mrs X[/COLOR][/STRIKE]

Herzlos · 25 March 2016 at 5:11PM

The Beavis case yielded the crazy result that the £85 charge was reasonable, so you should probably go on to explain why Beavis doesn't apply here (namely, in Beavis the judges agreed the signage was unmissable and the charge was required to encourage parking turnover whilst allowing Parking Eye to keep its contract).

You can also bring up the Aziz ruling, which went along the lines of a contract being unfair if the 2 parties wouldn't come to the same agreement if they started with a blank contract and had an even standing. Would anyone really agree to paying £100 for overstaying in a free car park if they had any control over the contract?

I'd add a "No keeper liability" point, listing all of the ways in which the whole thing wasn't POFA 2012 compliant.

And you should also be making a point along the lines of "No evidence of the alleged infraction". How was this overstay determined? Was it ANPR, in which case was it accurate, was it counting only parking time or time on site, and was it definitely only a single visit? Was it a warden, in which case will he be present to confirm his statement? Was he in full uniform and following all of the procedues required by the BPA/IPC?

How long was the alleged overstay? Could it be within a reasonable grace period?
Has the driver been named? Do they have any evidence of such?

Essentially you want to contest every single part of their claim and make them prove everything.

Civil Enforcement Ltd - County Court Claim Form

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