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    • No imagination
    • By No imagination 20th Mar 17, 2:42 PM
    • 3Posts
    • 2Thanks
    No imagination
    CEL County Court Claim Defence
    • #1
    • 20th Mar 17, 2:42 PM
    CEL County Court Claim Defence 20th Mar 17 at 2:42 PM
    Hello, I've been using this forum to fight a PCN received almost a year ago (many thanks for all the information) and it's now at County Court Claim stage.

    Brief summary: Waited to pick someone up for less than 20 mins in a private car park, didn't see the signs/realise it was private. PCN issued by CEL 1 month later 'payment not in accordance with terms on signage/authorised users only' requesting £100 or £60 if paid within 14 days. Appealed to CEL by email as per guidelines (challenging PCN, requesting further info and POPLA code if rejected). Received acknowledgement saying would respond by post within 28 days but then nothing for 2 months when LBA received by post. Sent CEL a response to this by post and then nothing until ZZPS debts collection letters started. I sent a further email (with a copy of letter) to CEL but no response and Wright Hassall Solictors letters followed.

    The amount increased at each stage and now including Court fee and legal representative costs totals over £300.

    I have acknowledged the County Court Claim online and have drafted a defence below (in line with format instructions). I would really appreciate any advice on my defence - I have read and re-read this forum at length but I'm still not 100% all the points fit my case. Many thanks in advance.

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

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

    The Claim Form issued on the ******* 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)”.

    1/ This Claimant has not complied with pre-court protocol:
    (a) There was no compliant ‘Letter before County Court Claim’, under the Practice Direction, despite the Defendant's requests for this and further information.
    (b) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information. The covering letter merely contains a supposed PCN number with no contravention nor photographs.
    (c) The Claim form Particulars were extremely sparse and divulged no cause of action nor sufficient detail.
    (d) A ‘Schedule of Information’ sent by the Claimant includes a section entitled ‘Summary of terms’ with no text following the title and a later version with text that finishes mid-sentence and therefore both versions are incomplete. It has still not been made clear to the Defendant why the charge arose, what the alleged contract was; and cannot be considered a fair exchange of information.

    2/ The claimant has not 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.

    3/ 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. Neither the signs, nor the Notice to Keeper, mentioned a possible £254.21 for outstanding debt and damages.

    4/ 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.

    5/ Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
    (a) 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.
    (b) Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
    (c) 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.
    (d) 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.

    5/ 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.

    6/ 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.

    7/ No legitimate interest - this distinguishes this case from the Beavis case:
    The Claimant has no legitimate reason to pursue a charge out of proportion with any loss or damages the true landowner could pursue.

    8/ 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.

    9/ The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirms that the penalty rule is still 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.

    10/ The claimant has added unrecoverable sums to the original parking charge. If the ‘Civil Enforcement Limited (Claimant’s Legal Representative)’ is an employee then the Defendant suggests he is remunerated and the particulars of claim dated ******* are templates, so it is not credible that £50 legal costs were incurred. I deny the Claimant is entitled to any interest whatsoever.

    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 ******.
    (b) failed to respond to an email from the Defendant dated ****** requesting further information and details of the claim and failed to update the Defendant’s address details that were disclosed in this email.
    (c) failed to respond to a letter from the Defendant dated ****** requesting further information and details of the claim and again failed to update the Defendant’s address details that were disclosed in the letter.
    (d) failed to respond to an email from the Defendant dated ****** requesting further information and details of the claim and which included a copy of the letter dated *****. The Claimant again failed to update the Defendant’s address details which were included in the letter.
    (e) failed to provide a POPLA code so that the matter could be referred for their decision (in accordance with BPA AOS Code of Practice 22.12) despite requesting this in the email from the Defendant dated *****, letter from Defendant dated ***** (a copy of which was sent by email *****).

    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 believe the facts contained in this Defence Statement are true.
Page 1
    • Coupon-mad
    • By Coupon-mad 20th Mar 17, 9:22 PM
    • 51,855 Posts
    • 65,486 Thanks
    Coupon-mad
    • #2
    • 20th Mar 17, 9:22 PM
    • #2
    • 20th Mar 17, 9:22 PM
    The amount increased at each stage and now including Court fee and legal representative costs totals over £300.
    So point #3 needs amending to match that sum. They are really taking the mick now...£100 PCN becomes over 3 times that amount - ludicrous.

    Did you send all the letters and emails mentioned in point #10? If not, amend that.

    Did you read smiledotcom's defence where Lamilad suggested a few changes at the weekend? Might be something there to relate you yours. Apart from that, yes the defence you based this on looks enough to stop CEL from proceeding, and covers the bases for later evidence/Witness Statement and hearing, in case they don't.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • No imagination
    • By No imagination 21st Mar 17, 1:17 PM
    • 3 Posts
    • 2 Thanks
    No imagination
    • #3
    • 21st Mar 17, 1:17 PM
    • #3
    • 21st Mar 17, 1:17 PM
    Thanks for the reply. The over £300 includes court fee and 'legal representative's costs' so I wasn't sure whether to include those as well but will do.

    Yes I really sent all the letters and emails! They didn't engage with me at all including to my original appeal and request for POPLA code. They just left it 2 months and then sent me a LBA. I feel that this alone is a good defence but guess not up to me!

    Yes I did see that thread and Lamilad's suggestions, very helpful and I think I've incorporated them.

    Many thanks for your help, fingers crossed it works - I'll report back either way.
    • Coupon-mad
    • By Coupon-mad 21st Mar 17, 2:40 PM
    • 51,855 Posts
    • 65,486 Thanks
    Coupon-mad
    • #4
    • 21st Mar 17, 2:40 PM
    • #4
    • 21st Mar 17, 2:40 PM
    Reported as working today, look:

    http://forums.moneysavingexpert.com/showthread.php?t=5594720&page=2

    and has worked for a year v CEL.

    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • No imagination
    • By No imagination 28th Apr 17, 10:59 AM
    • 3 Posts
    • 2 Thanks
    No imagination
    • #5
    • 28th Apr 17, 10:59 AM
    • #5
    • 28th Apr 17, 10:59 AM
    Update:
    Defence statement received by county court business centre 23/03/17.
    Rang the county court business centre today 28/04/17 (takes a while to get through) and they informed me that CEL have not responded (they had 28 calendar days from receiving a copy of my defence statement) and therefore my case has been stayed (on 26/04/17)! Which is great news as they would now have to pay to get it re-opened.

    This was the expected outcome as advised on this forum but have to say I am super relieved and happy to have this outcome. Really pleased I took the time to follow the guidance on here and will be eternally grateful for all the help provided. Thank you so much! It's plain wrong what these cowboys are up to and out of principal I was not happy to pay a penny.

    Here is a copy of the final defence statement I used in case it helps anyone in future. Please note there are additions to suit my specific case, particularly sections 2/ (a) and (d) 6. and 12/ (b) - (e).

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

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

    1/ The Claim Form issued on the 21 February 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:
    (a) There was no compliant ‘Letter before County Court Claim’, under the Practice Direction, despite the Defendant's repeated requests for further information.
    (b) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information. The covering letter merely contains a supposed PCN number with no contravention nor photographs.
    (c) The Claim form Particulars were extremely sparse and divulged no cause of action nor sufficient detail.
    (d) A ‘Schedule of Information’ sent by the Claimant was sparse of detailed information:
    1. The defendant, who is the registered keeper and not identified as the driver at the alleged time.
    2. The Vehicle Registration Number.
    3. The date and time of the alleged incident.
    4. Car park name.
    5. Outstanding amount and break down of costs.
    6. A section entitled ‘Summary of terms’ with text that finishes mid-sentence. An earlier version of this document also included the section ‘Summary of terms’ with no text following it; both versions therefore appear incomplete.

    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.

    It has still not been made clear to the Defendant why the charge arose, what the alleged contract was; and cannot be considered a fair exchange of information.

    3/ The claimant has not 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.

    4/ 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. Neither the signs, nor the Notice to Keeper, mentioned a possible £329.21 for outstanding debt and damages.

    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/ Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
    (a) 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.
    (b) Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
    (c) 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 an authorised party using the premises as intended.
    (d) 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.

    7/ 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.

    8/ 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.

    9/ No legitimate interest - this distinguishes this case from the Beavis case:
    The Claimant has no legitimate reason to pursue a charge out of proportion with any loss or damages the true landowner could pursue.

    10/ 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.

    11/ The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirms that the penalty rule is still 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.

    12/ The claimant has added unrecoverable sums to the original parking charge. If the ‘Civil Enforcement Limited (Claimant’s Legal Representative)’ is an employee then the Defendant suggests he/she is remunerated and the particulars of claim dated 21 February 2017 are templates, so it is not credible that £50 ‘legal costs’ were incurred. I deny the Claimant is entitled to any interest whatsoever.

    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 21 February 2017.
    (b) failed to respond to an email (except for an automated email acknowledgement) from the Defendant dated XXX appealing the original PCN, requesting further information and details of the claim and failed to update the Defendant’s address details that were disclosed in this email.
    (c) failed to respond to a letter from the Defendant dated XXX requesting further information and details of the claim and again failed to update the Defendant’s address details that were disclosed in the letter.
    (d) failed to respond to an email from the Defendant dated XXX requesting further information and details of the claim and which included a copy of the letter dated XXX. The Claimant again failed to update the Defendant’s address details which were included in the letter.
    (e) failed to provide a POPLA code so that the matter could be referred for their decision (in accordance with BPA AOS Code of Practice 22.12) despite requesting this in the email from the Defendant dated XXX and letter from Defendant dated XXX (a copy of which was sent by email XXX).

    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 believe the facts contained in this Defence Statement are true.


    Mrs XXX
    • Coupon-mad
    • By Coupon-mad 28th Apr 17, 11:10 PM
    • 51,855 Posts
    • 65,486 Thanks
    Coupon-mad
    • #6
    • 28th Apr 17, 11:10 PM
    • #6
    • 28th Apr 17, 11:10 PM
    This was the expected outcome as advised on this forum but have to say I am super relieved and happy to have this outcome. Really pleased I took the time to follow the guidance on here and will be eternally grateful for all the help provided. Thank you so much! It's plain wrong what these cowboys are up to and out of principal I was not happy to pay a penny.
    Good! Thanks so much for the update so we can show NEWBIES this works!

    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

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