County Court Claim from CEL

Update (I really should be getting on with my defence I presume but anyway);

phoned Luke @ Ibis back, told him Creative Parking are indeed CEL etc. etc. and they cannot help me as it is they who are claiming against me. He still repeated that there is nothing they can do and netiher can anyone at Ibis / Accor. I then went on to tell him about the hotel chains metnioned above and about the Trip Advisor reviews they have, and then asked him who I should contact above him to dicuss (I might have name dropped contacting Mr Dubaer as well). Anyway, it did the trick as he then asked to put me on hold.

He came back and offered to write to CEL / Creative Parking (referred to a lady he knows there) and see what he can do. He has gave me his email address to email him the details. Do I do it or not? I don't want to give away any clues to my defecne and I've already told Luke that I may have purchased the car just after December 2015 (date of alleged parking offence), so it could of been a previous guest.

Oh yea, and Luke mentioned that it is the hotel policy that they only deal with parking queries / complaints up to 6 weeks after the offence.

In the County Court Business Centre
Claim Number ****
Between:
Civil Enforcement Limited v ******
Defence Statement


Monday 6th February 2017

I am ******* the Defendant in this matter and Registered Keeper of vehicle *****. I currently reside at ***.

As an unrepresented Litigant-in-Person I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant’s case.

I deny I am liable for the entirety of the Claim, and will defend such with each, and every, one of the following reasons;


1. The Claim Form issued on the 13th January 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”.

2. The Government have put in place a mechanism whereby liability can be transferred from driver to keeper, under the Protection of Freedoms Act 2012, Sch 4. In order for the Claimant to transfer liability for the charge from the driver of the vehicle to the registered keeper, they must do so within the strict requirements set out in the Act:

a) Henry Greenslade, POPLA Lead Adjudicator, in page 8 of the 2015 POPLA Report: “If POFA 2012 Schedule 4 is not complied with then keeper liability does not generally pass.'' Also in 2015, Mr Greenslade, 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.”

b) The Keeper appellant cannot be held liable, as the Claimant has made the conscious decision not to avail themselves of this legislation and use a Notice to Keeper which fails to comply with 9.5 of the Act. As such, the Keeper appellant has no liability in law and therefore I ask the court to respectfully strike out this claim with immediate effect.


c) Further the Claimant must also demonstrate that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the Registered Keeper.

d) The Claimant is put to strict proof that such a “relevant obligation” existed and that the Claimant has followed the correct procedure to transfer liability to the Registered Keeper.

e) In the absence of strict proof as to the existence or otherwise of a “relevant obligation” and as to properly transferring liability to the Registered Keeper the court is invited to strike the matter out.

f) 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.

g) Claimant is put to strict proof that they either complied with the POFA Schedule 4 or that they have evidence of who was driving over 1 year ago.

3. The Claimant has not complied with pre-action protocol, under the Practice Direction as a compliant ‘Letter before County Court Claim’ was not issued.
4. The Particulars of Claim fail to comply with Civil Procedure Rule (CPR) 16.4 and Practice Direction (PD) 16, paragraphs 7.3 – 7.5 CPR
CPR 16.4 Contents of the Particulars of Claim states that the Particulars of Claim must include:
a) A concise statement of the facts on which the Claimant relies
b) If the Claimant is seeking interest, a statement to that effect and the details set out in paragraph (2)
PD 16 para 7.3 states;
“Where a Claim is based upon a written agreement: (1) a copy of the contract or documents constituting the agreement should be attached to or served with the Particulars of Claim and the original(s) should be available at the hearing, and (2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).”
PD 16 para 7.4 states;
“Where a claim is based upon an oral agreement, the Particulars of Claim should set out the contractual words used and state by whom, to whom, when and where they were spoken.
PD 16 para 7.5 states;
“Where a Claim is based upon an agreement by conduct, the Particulars of Claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done.”
5. The Particulars of Claim fail to comply with Practice Direction (PD) 22, paragraphs 3.1 – 3.10
PD 22 para 3.1 states;
“In a statement of case, a response or an application notice, the statement of truth must be signed by: (1) the party or his litigation friend, or (2) the legal representative of the party or litigation friend.”
PD 22 para 3.4 states;
“Where a document is to be verified on behalf of a company or other corporation, subject to paragraph 3.7, the statement of truth must be signed by a person holding a senior position in the company or corporation. That person must state the office or position held.”

PD 22 para 3.5 states;
“Each of the following persons is a person holding a senior position: (1) in respect of a registered company or corporation, a Director, the Treasurer, Secretary, Chief Executive, manager or other officer of the company or corporation, and (2) in respect of a corporation which is not a registered company, in addition to those persons set out in (1), the Mayor, Chairman, President or Town Clerk or other similar officer of the corporation.
6. 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) The Particulars of Claim fail to disclose the head or heads of action in which these proceedings are based.
b) 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.
c) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.
d) 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
e) Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

7. It is denied that the Claimant is the lawful occupier of the land. Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this Claim.

a) The Claimant is therefore put to strict proof that at the time of the alleged event they were in possession of sufficient authority to issue parking charges and institute proceedings in their own name and can demonstrate a clear chain of authority from the landowner.
b) In the absence of strict proof I submit that the Claimant has no case and invite the court to strike the matter out.
c) If the court is minded to accept that the Claimant has standing then I submit that the signs on site at the time of the alleged event were indeed forbidding signs and therefore only the landowner, which the Claimant is not, can pursue a case under tort of trespass. This is confirmed in the Supreme Court in the Beavis vs ParkingEye (2015) [2015] UKSC 67 case, and as such a matter would be limited to the landowner themselves.

8. 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) It is denied that the signs on display fall under any of the classes in Schedule 1 or Schedule 3 of The Town and Country Planning (Control of Advertisements) (England) Regulations 2007 or that the Claimant has advertisement consent for the signs.
b) The Claimant is therefore 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.
c) 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.
d) 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 was not lit 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.
e) 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.
15. The Claimant’s Solicitors are serial abusers of the Court process; the Claimant is known to be a serial litigant, issuing up to 1,000 similar claims on a weekly basis.

a) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.
b) Given the Claimant uses a fully automated, bulk processing service, requiring no intervention from a Solicitor often generating up to £50,000 of income they are put to strict proof to show how this cost has been incurred.
c) The Claim includes a sum of £50, described as ‘Legal Representative’s costs’. The Claimant is put to strict proof of all his assertions.
d) In the above circumstances, I respectfully ask that the Court dismiss the claim.


16. 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. 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.


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




Signed
Date

Yes am conducting all of it on MCOL / online.
Claim issued on the 13th
AOS submitted on 26th, received on 27th.

Thank you

Barbs