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    • Molts
    • By Molts 13th Jan 18, 6:37 PM
    • 97Posts
    • 214Thanks
    Small victory snatched from the jaws of defeat - CEL/WH
    • #1
    • 13th Jan 18, 6:37 PM
    Small victory snatched from the jaws of defeat - CEL/WH 13th Jan 18 at 6:37 PM
    Firstly sincere apologies for adding more drama to you heavily overworked but wonderful forumites! I have done what I can off forum but using the plethora of information available on here but now I am well above my pay grade but I think we have a chance to give CEL a good old spanking if played right. I will cut a long story as short as humanely possible,


    D approached me via PM off a Facebook forum following concerns about the amount of conflicting advice he was receiving. D had received a judgement in default following a CEL PCN for an alleged overstay in a KFC car park. D ignored then moved hence default CCJ. The process followed the usual shoddy format with CEL handing over to DC to WH culminating in the usual template PoC signed by the "legal expert" we all know and love, Ashley Cohen.

    D payed set aside fee and attended court with a hand written FMOTL style statement written by his "crazy friend" (D's description not mine!). Hearing did not go well but D did scrape an adjournment with the General Order stating that the D had failed to establish the judgement was irregular but CEL had to provide photographic evidence as the D claimed he had never seen any. The order also stated that the D would agree to pay the judgement on receipt of substantial evidence from CEL. This is where I picked the case up and based on this I felt we had little or no chance of success.

    To add to the complication the D is not actually the D but her spouse. The actual D was heavily pregnant and wanted nothing to do with the case. The Judge, however, kindly let him represent her in absence and submit written documents and evidence although would not be allowed to speak. Armed with this we sent the D's representative (DR) to court armed with a draft defence and witness statement (to follow). DR did not win but did not lose either! The case was once again adjourned with the order stating the D must submit a full defence and signed statement of truth with the C given the opportunity to respond if advised to do so. No mention of "failing to establish judgement". I was pretty happy with the result in all and believe it gives us a real chance of getting this returned to defence stage or possibly even struck out.

    I could not think of a better place to come and ask for assistance to arm the D with a solid defence than here after being an avid follower for some time now.

    D to be submitted by February 13th
    C to respond by February 27th
    Hearing date March 15th

    I have convinced the DR to respond directly as I know 3rd party representation can be difficult but please understand he feels even more out of his depth than I do. I sincerely thank you all in advance for any assistance provided.
Page 2
    • claxtome
    • By claxtome 20th Jan 18, 8:37 AM
    • 518 Posts
    • 581 Thanks
    There were a lot of CEL threads on here late last year but think most/all got discontinued prior to court early this year or very late last year.
    • Molts
    • By Molts 1st Feb 18, 9:23 PM
    • 97 Posts
    • 214 Thanks

    I'll get the D to write to CEL requesting photos of the signage from the time of the event. Should we cc the court in any correspondence at this stage?
    ”No, not if just writing to ask for some evidence. Just put copies of everything into the case file.
    As expected no response from CEL so I will add the request to file and crack on with the defence.

    Many thanks for all the support so far.
    • Molts
    • By Molts 7th Feb 18, 7:21 PM
    • 97 Posts
    • 214 Thanks
    Draft Defence (Redacted)

    CLAIM No: xxx





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


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

    1. The Claim Form issued on the 07 April 2017 by Civil Enforcement Ltd 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. 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 complaint “Letter before County Court Claim”, under the Practice Direction.

    b. This is a speculative serial litigant, issuing a large number of “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. Furthermore, the Claim Form Particulars did not contain any evidence of contravention or photographs. These documents, and the “Letter before County Court Claim” should have been produced, pursuant to paragraph 6 of the Practice Direction – Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to “take stock”, pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:

    i. “Early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute

    ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure

    iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and

    iv. support the efficient management of proceedings that cannot be avoided”.

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

    f. Alternatively, the Defendant asks that the Claimant is required to file Particulars 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 a reasonable time to file another defence.

    Keeper Liability

    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.

    a. In order to invoke keeper liability, PoFA 2012 states that:
    9(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
    (4)The notice must be given by—
    (a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
    (b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
    (5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
    In this case the parking event occurred on March 7th 2016 and the notice to keeper was served on April 5th 2016, which is well outside the 14 day period allowed by the Act in order to invoke keeper liability. As the claimant has not provided any evidence of who was driving and cannot hold the keeper liable, the court is invited to use its discretionary case management powers to strike out the claim on this basis alone.

    b. 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.

    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 costs were incurred.


    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. As far as I can ascertain, based upon the very vague particulars of claim and complete lack of evidence and photographs, and without having been furnished with the alleged signage “contract”, none of this applies in this material case.

    6. In the absence of any proof of adequate signage 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 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 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
    iii. 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

    Driver Liability

    7. The Claimant, in paragraph 5 of their Particulars of Claim, cites Vine v Waltham Forest London Borough Council [2000] 4 All ER 169 to evidence that the Defendant agreed to an alleged contract to park due to reading (or should have read), and therefore agreeing to, the terms & conditions of the site signage. The Defendant denies this claim entirely. It is clear from the cited case that there was no dispute to the fact, indeed it was common ground, that Ms Vine was the driver of the vehicle at the relevant time. The Defendant in this case is defending the claim as the registered keeper of the vehicle, not the driver of the vehicle at the time of the alleged contravention. The Defendant puts the Claimant to strict proof that the defendant was in fact driving the vehicle at the relevant time.

    No Standing

    8. No standing – this distinguishes this case from the Beavis case:

    a. It is believed Civil Enforcement Ltd 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. 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.

    11. Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable expect a registered keeper to be able to recall the potential driver(s) of the car nearly 2 years later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that a registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.

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

    • Failed to disclose any cause of action in the incorrectly filed Claim Form issued on 07 April 2017.
    • Sent a template, well-known to be generic cut and paste “Particulars” of claim relying on irrelevant case law (Beavis/Vine v Waltham Forest) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.

    12. In the event that this Claimant now discontinues its claim, this would be indicative of the wholly unreasonable conduct of this Claimant from start to finish, and as such, the Defendant asks the court to exercise its case management powers and grant an Order for costs on the indemnity basis. This to include all costs, including but not limited to the set aside application fee of £255, since filing a claim to an old address (with no attempt made whatsoever, to ascertain the current address of the Defendant) cannot be considered 'good service'.

    Further and in addition to the conduct regarding the lack of good service of the claim, the purported cause of action was meritless and misconceived. Given the fact that this Claimant does not rely on the Protection of Freedoms Act 2012, Schedule 4, and cannot claim 'keeper liability' under that law due to the wording of its notice, the action of pursuing a registered keeper with no evidence as to who was driving on the material date, is vexatious and wholly unreasonable. From the outset, this Claimant's claim was without merit and had no prospects of success.

    Should the claim continue to trial, the Defendant submits that, for any or all of the reasons stated above, the Claimant is not entitled to the relief in the sum claimed, or at all, and invites the Court to dismiss the claim in its entirety, and to award such Defence witness costs as are permissible pursuant to CPR 27.14.


    I confirm that the contents of this Defence are true.

    7 February 2018
    Any further feedback gratefully received and appreciated. Final draft needs to be submitted by Feb 13th.
    • KeithP
    • By KeithP 7th Feb 18, 7:50 PM
    • 5,658 Posts
    • 4,347 Thanks
    Just a couple of easy points, but wait for comments from others.

    Your title should be DEFENCE not DEFENCE STATEMENT.

    There is no need for the defendant's address in your first sentence.

    2.a. complaint compliant
    • Coupon-mad
    • By Coupon-mad 7th Feb 18, 9:05 PM
    • 53,987 Posts
    • 67,666 Thanks
    As above, and I would remove #7 entirely.

    I would never have a defence point headed 'driver liability'! And the paragraph mixes up Vine with putting CEL to proof of who was driving, and doesn't really make any point at all that's not already in your defence elsewhere.

    Apart from that it's ready to sign, date, and email to the CCBCAQ email addy (publicly available).
    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.

    • Molts
    • By Molts 7th Feb 18, 9:39 PM
    • 97 Posts
    • 214 Thanks
    I would never have a defence point headed 'driver liability'!
    Haha yeah I struggled somewhat to format it into a "Johnersh style" highly regarded titled defence! Noted and deleted.

    And the paragraph mixes up Vine with putting CEL to proof of who was driving
    This was an attempt to rebut CEL's use of Vine and making the false assumption that the keeper was the driver as the case relies on the "driver" seeing/not seeing the signs but I bow down to your vastly superior knowledge and certainly agree that the point is firmly established elsewhere.

    Thank you.
    • Molts
    • By Molts 7th Feb 18, 9:51 PM
    • 97 Posts
    • 214 Thanks
    Apart from that it's ready to sign, date, and email to the CCBCAQ email addy (publicly available).
    Hope you don't mind me just querying that now the case is with the D's local court should we not send the docs direct?
    • Coupon-mad
    • By Coupon-mad 7th Feb 18, 9:52 PM
    • 53,987 Posts
    • 67,666 Thanks
    Ooops sorry, yes.
    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.

    • Molts
    • By Molts 7th Feb 18, 10:15 PM
    • 97 Posts
    • 214 Thanks

    Out of interest I am assuming we are still fighting for set aside as the General Order does not state it has been granted but do you think the Judge intends to hear the case at the defence stage and if so, should I arm the D with an updated SA and paginated bundle?

    IMHO the Order reads more like what you would see at defence stage...
    • Coupon-mad
    • By Coupon-mad 7th Feb 18, 10:24 PM
    • 53,987 Posts
    • 67,666 Thanks
    As it says 'the Defendant must attend in person' (no mention of Claimant) it seems this is 'round two' of the set aside hearing, which has not yet been granted.

    do you think the Judge intends to hear the case at the defence stage and if so, should I arm the D with an updated SA and paginated bundle?
    Well the Judge is expecting to see a full defence and all evidence, it appears, but Lord knows how they reckon that will be seen/dealt with in a 30 minute set aside hearing. Maybe they already know they will grant the set aside, maybe they are wise to it. But you can't assume.

    I would prepare a SA and full evidence, all the usual things such as the Beavis sign as a comparison (showing a clear sign versus unclear signs). I would also take other relevant case law - see Parking Prankster's case law - and a printout of the Parliamentary debate from last Friday (relevant words highlighted about CCJs being 'outrageous' etc.) and also, Sir Oliver Heald's 2017 press release about the Government's view on these rogue parking firms getting stealth CCJs.

    I would be armed with everything, plus proof of earnings and a costs schedule to claim back all expenses/costs/lost earnings/loss of leave, that this rogue firm has put the defendant to lose.
    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.

    • Johnersh
    • By Johnersh 7th Feb 18, 11:10 PM
    • 818 Posts
    • 1,562 Thanks
    That's a bl**dy mess that is, isn't it?

    Still trying to get evidence in before the judge as judgment was being handed down? That's crazy stuff, but may have worked.

    It reads as though it might have been going Pete Tong, but then there was new evidence and the DJ felt unhappy as the case may be arguable after all. If that is correct, it also explains why there's no more of the messing about and a specific order for the defendant to attend.

    If it's a set aside, remember it's procedural. Why entitled to set aside, promptly acting, a defence more than merely arguable. There's not normally a detailed hearing of the case/issues. However, with such an unusual order though, it's impossible to know it may now go.

    I would get a bundle sent to court and defendant in advance with photos an index and pagination. Remember to post it 2 days before the deadline.
    "The best advice I ever got was that knowledge is power and to keep reading."
    DISCLAIMER: I post thoughts as & when they occur. I'm unlikely to respond to DMs seeking personal advice. It's ill-advised & you lose the benefit of a group "take" on events.
    Your home is at risk if you don't meet mortgage payments or other loans secured on it
    • Molts
    • By Molts 10th Feb 18, 11:46 AM
    • 97 Posts
    • 214 Thanks
    Quick q. In determining costs does reclaiming set aside fee fall under ordinary costs or is it to be claimed under 27.14(2)(g)?
    Last edited by Molts; 10-02-2018 at 11:47 AM. Reason: Typo
    • Coupon-mad
    • By Coupon-mad 10th Feb 18, 2:55 PM
    • 53,987 Posts
    • 67,666 Thanks
    Ordinary costs. It's a fee you expended and they caused it, not dependent upon unreasonableness.
    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.

    • Molts
    • By Molts 10th Feb 18, 4:45 PM
    • 97 Posts
    • 214 Thanks
    Agreed. Thank you.
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