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    • Peperlini
    • By Peperlini 27th Jun 17, 5:12 PM
    • 40Posts
    • 20Thanks
    Civil Enforcement (CEL) Defence - Help please
    • #1
    • 27th Jun 17, 5:12 PM
    Civil Enforcement (CEL) Defence - Help please 27th Jun 17 at 5:12 PM
    I have read tonnes of threads drafting CEL Defence and have to say you guys are amazing, this resource has been invaluable to me!

    To give you a bit of background.
    I tried to pay by phone for my parking but the payment would not go through. With no option to pay by cash I decided to leave the car park (after approx. 15 mins).

    27 days later I received 'PCN' invoice from Civil Enforcement £100
    I wrote to them to appeal on grounds that the automated telephone system failed and the 'PCN' or notice to keeper exceeded the 14 days.
    I never received a response to this letter nor a POPLA code to appeal further
    3 months later I got the standard hassling letters from ZZPS followed by Letters from Wright Hassle (no pun intended there I'm sure) I ignored these letters.
    14th June I received County Court Claim signed by Claimants Legal representative (no signature) and a day or two later some additional particulars of claim signed by the infamous Mr Cohen. I did not receive a LBA or LBCCC I have taken a stab at my defence, lifting all the relevant parts from other CEL defence threads that I could find, but before I email the signed pdf to the county court email address I was hoping you guys could take a look and give me any feedback.

    I hope I am posting this correctly, this is the first time I have ever used a forum so please forgive me if this is too long for one post.

    In the County Court Business Centre
    Claim Number XXX Between:
    Civil Enforcement Limited (Claimant) v XXX (Defendant)

    Defence Statement

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

    I deny I am liable to the Claimant for the entirety of the claim on the following grounds, any of which are fatal to the Claimant’s case:
    1. The Claim Form issued on the 12th June 2017 by Civil Enforcement Limited was not correctly filed under The Practice Direction as it was not signed by a legal person. The claim does not have a valid signature and is not a statement of truth. It states that it has been issued by “Civil Enforcement Limited” as the Claimant’s Legal Representative. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer.

    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. Furthermore, the due date of the purported £249.81 sum is listed as due on 15th September 2016, but the alleged debt did not exist on that date as the PCN was not issued until 12th October 2017 (exceeding the 14 day limit) and was for £100.No sum could have been outstanding on the date stated in the Particulars of Claim that are therefore untrue

    e) The additional particulars of claim are signed purportedly by Ashley Cohen, Mr Cohen was reported to sign off witness statements under London Councils POPLA on behalf of landowners, for CEL POPLA cases falsely stating authority. It is submitted that he is a director of another company, Bemrose Mobile Limited which supplies the pay by phone payment methods for parking. Mr Cohen was a former director of Creative Contracts Ltd but has since resigned. Mr Cohen is therefore put to strict proof the capacity and authority he has in signing such statements.

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

    g) 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

    h) 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 (“POFA 2012”). Such a notice was not served within 14 days of the parking event and when the notice was served, did not fully comply with statutory wording. The Claimant is therefore unable to hold me liable under the strict ‘keeper liability’ provisions:

    The Claimant did not comply with POFA 2012 and give the registered keeper opportunity at any point to identify the driver. A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered no later than 14 days after the vehicle was parked. No ticket was left on the windscreen and no notice to keeper was sent within the 14 days required to comply with POFA 2012 only a speculative invoice entitled “Parking Charge Notice” which was sent outside of the 14 day period, which did not comply with POFA 2012. This would exclude the registered keeper being liable for any charges.

    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) 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 £324.81 for outstanding debt and damages.

    4. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee, Ashley Cohen, who drew up the paperwork is remunerated by Civil Enforcement Ltd and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs' were incurred. The Defendant believes that Civil Enforcement Ltd has artificially inflated this claim. They are claiming legal costs when not only is this not permitted (CPR 27.14) but the Defendant believes that they have not incurred legal costs. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost. The Defendant denies that the Claimant is entitled to any interest whatsoever. The claimant has not explained how the claim has increased from the original £100 parking notice to £249.81 If the claimant alleges that they claim the cost of its in-house administration, these cannot be recovered - they are staff performing the task that they have been employed for and essential to the claimant's business plan.

    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 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.
    (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. 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 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.

    Claimants failure to process the payment is not the responsibility of the defendant, and no parking charge can be due. Driver made a telephone call to 0141 404 0000 at 12.24 pm on the 15th September 2016 to make payment. The call was automated and the driver followed all of the instructions. Evidence of this outgoing call was supplied to Civil Enforcement Ltd on 18th October 2016. This was a technical failure outside of the drivers control and therefore the driver discharges their duty to pay the sum necessary.

    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 12th June 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.

    c) failed to issue a compliant notice to keeper within 14 days under Schedule 4 of the Protection of Freedoms Act 2012 such that Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.

    d) failed to respond to letter from the Defendant dated 18th October 2016 to address the technological failure of the automated payment system.

    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)

    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 XXX
    Date XXX
Page 4
    • Peperlini
    • By Peperlini 9th Jan 18, 11:01 AM
    • 40 Posts
    • 20 Thanks
    Thanks @Loadsofchildren123 .

    Will do that and hopefully send it all off today. I'll come back and let everyone know what happens.
    • Peperlini
    • By Peperlini 9th Jan 18, 8:37 PM
    • 40 Posts
    • 20 Thanks
    Costs application docs link
    ... and in case anyone wants to read my final versions of the costs application letters and application or use them as a starting point. Here are links to the word docs:

    Letter to the court and application for costs with costs schedule:

    Letter to CEL with settlement offer: 0

    Now I just need to find the original postage receipts to send in with this and attach the other docs mentioned and I will finally be done!

    Thanks again everyone and a big shout out to @Loadsofchildren123
    • Berribear
    • By Berribear 10th Jan 18, 10:59 AM
    • 50 Posts
    • 36 Thanks
    Wow! Fantastic work by you and LOC 123!

    Would you mind if I used your documemts and edited them to suit my discontinuation case?

    Again, fantastic job!
    • Peperlini
    • By Peperlini 10th Jan 18, 11:24 AM
    • 40 Posts
    • 20 Thanks
    Of course @Berribear - I hope it works for you, but as Lamilad said earlier it is quite rare for a Judge to grant costs without a formal application so don't pin too many hopes on it. I'll come back at a later stage to let everyone know if mine is successful. It would be nice to teach CEL a little lesson wouldn't it!
    • Myshkin3
    • By Myshkin3 10th Jan 18, 2:30 PM
    • 11 Posts
    • 1 Thanks
    Hi - I've tried to private message but you seem to be someone in demand!

    If you're able to review my thread, I'd really appreciate it

    It's under Myshkin3 - Cel - CCJ

    Posted yesterday

    Thank you!
    • Peperlini
    • By Peperlini 10th Jan 18, 3:21 PM
    • 40 Posts
    • 20 Thanks
    Did you mean me Myshkin3? I!!!8217;ve looked at your thread but don!!!8217;t think this is a similar situation. You might want to look at sassii !!!8216;s thread. Search for: Urgent: Got CCJ on my credit records
    • 777ade777
    • By 777ade777 2nd Feb 18, 6:53 PM
    • 70 Posts
    • 20 Thanks
    Did anyone have any luck with costs???
    • KeithP
    • By KeithP 2nd Feb 18, 6:59 PM
    • 6,177 Posts
    • 5,130 Thanks
    Did anyone have any luck with costs???
    Originally posted by 777ade777
    Did you have any luck with costs?

    Did you submit a costs application?
    There's no indication on your thread that you did.
    • Peperlini
    • By Peperlini 3rd Feb 18, 9:47 AM
    • 40 Posts
    • 20 Thanks
    Yes. I sent the informal costs application to the court and a copy of it to CEL with a ‘without prejudice offer’ letter for £250. You can view both on the dropbox link above.

    As promised I’ll update the group if/when I receive any response from CEL or the court.
    • Peperlini
    • By Peperlini 1st Mar 18, 7:18 PM
    • 40 Posts
    • 20 Thanks
    End of the road
    Well I haven’t heard a peep from Civil Enforcement but today I got this letter back from the court regarding my informal request for costs:

    I guess that’s the end of that then !
    • nosferatu1001
    • By nosferatu1001 1st Mar 18, 7:48 PM
    • 1,959 Posts
    • 2,270 Thanks
    That was sadly expected. The courts just don!!!8217;t see the issue we all do.
    • IamEmanresu
    • By IamEmanresu 2nd Mar 18, 7:14 AM
    • 2,116 Posts
    • 3,789 Thanks
    An application under CPR 27.14 (2)(g) would cost £100 - but if you were to raise a simple new claim using MCOL for costs now instead it would be £25. It would probably be an easier sell than 27.14 too.

    Depends if you want another 6 months of paperwork.
    Idiots please note: If you intend NOT to read the information on the Notice of Allocation and hand a simple win to the knuckle dragging ex-clampers, then don't waste people's time with questions on a claim you'll not defend.
    • Peperlini
    • By Peperlini 2nd Mar 18, 9:09 AM
    • 40 Posts
    • 20 Thanks
    Thanks @

    That!!!8217;s an interesting idea, but you are right - I just don!!!8217;t think I can invest any more brain power in this.

    Plus, even if I only pay £25 on MCOL, if I don!!!8217;t get anywhere with it, that!!!8217;s only £5 less than the original ticket. This would smart a bit when I!!!8217;ve done nothing wrong.

    Thanks anyway, hopefully others will get a more sympathetic judge and be successful!
    • Peperlini
    • By Peperlini 2nd Mar 18, 9:10 AM
    • 40 Posts
    • 20 Thanks
    Not sure what!!!8217;s happening with my apostrophes!!
    • Le_Kirk
    • By Le_Kirk 2nd Mar 18, 9:51 AM
    • 2,466 Posts
    • 1,329 Thanks
    Not sure what!!!8217;s happening with my apostrophes!!
    Originally posted by Peperlini
    Are you using an Apple device with "Smart" Punctuation turned on?
    • Peperlini
    • By Peperlini 2nd Mar 18, 11:23 AM
    • 40 Posts
    • 20 Thanks
    YES!!! Thank you Le_Kirk - I never would have found that on my own
    • Loadsofchildren123
    • By Loadsofchildren123 19th Mar 18, 11:41 AM
    • 1,935 Posts
    • 3,188 Thanks
    Only just seen this peperlini.
    I've looked at Rule 38.6 and the judge got it wrong. 38.6 (set out below) says that it is automatic on a discontinuance that the D gets costs, and 38.6(3) says that this doesn't apply in small claims.
    The fact that you applied and made out all the arguments under the failure to comply with pre-action protocol and under the 27.14.2(g) unreasonable behaviour provisions clearly conceded that the court only had a discretion to award you costs (ie they were not an automatic right under 38.6). Anyway, you put up a good effort!

    (1) Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant.
    (2) If proceedings are only partly discontinued !!!8211;
    (a) the claimant is liable under paragraph (1) for costs relating only to the part of the proceedings which he is discontinuing; and
    (b) unless the court orders otherwise, the costs which the claimant is liable to pay must not be assessed until the conclusion of the rest of the proceedings.
    (3) This rule does not apply to claims allocated to the small claims track.
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
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