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  • FIRST POST
    • bails1964
    • By bails1964 10th Oct 17, 8:41 PM
    • 65Posts
    • 33Thanks
    bails1964
    Another CEL claim.
    • #1
    • 10th Oct 17, 8:41 PM
    Another CEL claim. 10th Oct 17 at 8:41 PM


    Hi all, having trawled various forums like moneysavingexpert and PePiPoo the past couple of evenings, the keeper is just wondering if anyone can help regarding a PCN claim.





    The claim is currently at the County Court Claim stage, the claim was issued on the 4th of October 2017 and has been responded to this evening (10/10/2017) So within the 14 day window. Following very helpful advice the keeper has completed the online form via moneyclaim.gov and has stated that they intend to defend the whole amount for the claim. Is the next step to create a defence and enter this in to the response section via moneyclaim.gov?





    If so, then the keeper is in need with help creating a draft defence, which is where they are looking to this forum for some help/guidance. It can be seen that there are lots and lots of threads about creating a draft etc, but they all seem to be slightly tailored to individual circumstances. If someone could help with creating a draft for this situation, the keeper would be very grateful.





    The PCN incident date was the 31/08/2015, the keeper is accused of parking a vehicle on a small carpark that is often used when visiting fast food restaurants, KFC, Pizza hut and a Morrison's local to be precise. The keeper entered the car park at 00:54:22 to 01:08:44. A total of less than 15 minutes. The reason behind this was that the keeper’s vehicle had began to overheat on their way home, rather than pulling up on a busy road, they believed it would be safer to pull in and allow the car to cool down before continuing the short journey home. The car park operates on terms of up to either 1.5 or 2 hours free parking. However, at this time of night, no shops were open, there are no barriers to prevent entry and there is also nowhere to purchase a ticket as it is not a pay and display car park.





    The accuser did not supply the keeper with any ANPR images, or any images of the signage that is located on the carpark.





    If anyone could advise on what to do next regarding a defence or what steps to take next, that would be extremely helpful.





    Thanks.

    Last edited by bails1964; 11-10-2017 at 5:57 PM. Reason: Typo.
Page 1
    • Quentin
    • By Quentin 10th Oct 17, 8:47 PM
    • 33,044 Posts
    • 17,004 Thanks
    Quentin
    • #2
    • 10th Oct 17, 8:47 PM
    • #2
    • 10th Oct 17, 8:47 PM
    First step is to read up #2 in the newbies faq thread which covers court claims


    Lots of links there to other resources


    And lots of recent cel defences to read up and adapt in the forum
    • KeithP
    • By KeithP 10th Oct 17, 9:21 PM
    • 3,954 Posts
    • 2,206 Thanks
    KeithP
    • #3
    • 10th Oct 17, 9:21 PM
    • #3
    • 10th Oct 17, 9:21 PM
    The accuser did not supply the driver with any ANPR images, or any images of the signage that is located on the carpark.
    Originally posted by bails1964
    And how could they? They only know the registered keeper's address.
    They have no idea who the driver is.


    You mention 'the driver' many times throughout that post.

    It looks to me that CEL are claiming against the keeper.
    Is that correct?

    Yes we know the driver parked the car, but surely it is the keeper that received the PCN, and it is the keeper's identity that has obtained from the DVLA?

    Think carefully before you write anything more on this public forum, but unless the driver's identity is known to CEL, you may be wise to appeal as the keeper.
    Last edited by KeithP; 10-10-2017 at 9:23 PM.
    .
    • bails1964
    • By bails1964 11th Oct 17, 5:59 PM
    • 65 Posts
    • 33 Thanks
    bails1964
    • #4
    • 11th Oct 17, 5:59 PM
    • #4
    • 11th Oct 17, 5:59 PM
    And how could they? They only know the registered keeper's address.
    They have no idea who the driver is.


    You mention 'the driver' many times throughout that post.

    It looks to me that CEL are claiming against the keeper.
    Is that correct?

    Yes we know the driver parked the car, but surely it is the keeper that received the PCN, and it is the keeper's identity that has obtained from the DVLA?

    Think carefully before you write anything more on this public forum, but unless the driver's identity is known to CEL, you may be wise to appeal as the keeper.
    Originally posted by KeithP

    OP amended, thank you.
    • KeithP
    • By KeithP 11th Oct 17, 6:07 PM
    • 3,954 Posts
    • 2,206 Thanks
    KeithP
    • #5
    • 11th Oct 17, 6:07 PM
    • #5
    • 11th Oct 17, 6:07 PM
    Read that post that Quentin directed you towards.

    There are two CEL defences directly linked from there.

    Read them both and pick the one most appropriate to your situation and adjust it to perfection.
    .
    • bails1964
    • By bails1964 18th Oct 17, 6:24 PM
    • 65 Posts
    • 33 Thanks
    bails1964
    • #6
    • 18th Oct 17, 6:24 PM
    • #6
    • 18th Oct 17, 6:24 PM
    Okay, so it seems that CEL are issuing a lot of County Court Claim forms this month. This is good as there has been some very helpful advice on creating draft defences.

    Please find below a defence that the keeper is going to send.


    In the County Court Business Centre
    Claim Number: --------

    Between:

    Civil Enforcement Limited v -------

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

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

    1. The Claim Form issued on 4/10/2017 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. 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.

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

    f) 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

    g) 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. 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!

    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 £350.52 for outstanding debt and damages.

    4. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs' were incurred. I deny the Claimant is entitled to any interest whatsoever!

    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) It is believed the signage 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.
    (ii) 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.
    (iv) 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. 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 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.

    The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

    (a) 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.

    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
    Date


    Could anyone assist on how points like;

    No shops were open at the time of the alleged offence, meaning there would be no loss of earnings to any local businesses (Is this relevant?)
    There are no signs saying that the car park is not accessible after a certain time, the car park is also not guarded by a barrier. There is also nothing stating that you shall be charged for staying between …. And …. Hours.
    The keeper's vehicle was overheating, (safer to enter the carpark rather than pull up on a busy road) and the accused person did not leave the car (should this be included? we have no proof, but they also cannot prove that the driver actually parked in a space, or left the vehicle.)
    Should the new laws that have come in to effect this month be included? or should this defence be enough.
    Point 7, should this be included? How would the driver know if CEL had a contract with the landowner? Do they need to contact the landowner themselves?
    Thanks for the help, any input is greatly appreciated!
    • Redx
    • By Redx 18th Oct 17, 6:36 PM
    • 16,097 Posts
    • 20,152 Thanks
    Redx
    • #7
    • 18th Oct 17, 6:36 PM
    • #7
    • 18th Oct 17, 6:36 PM
    there are no new "laws" , they are NEW protocols for LBC and MCOL , so they supercede the old protocols , and yes they should be included for any claim dated oct 2017

    have a read through this recent defence that includes them

    http://forums.moneysavingexpert.com/showthread.php?t=5729157
    Last edited by Redx; 18-10-2017 at 6:40 PM.
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
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