Civil Enforcement Ltd - Northampton County Court...

Jonny_Red

Hi all

Have done some browsing compiled a draft defence statement which I'd appreciate some comments on.

Any advice greatly appreciated.

DEFENCE STATEMENT


Initial Defence to Particulars of Claim


1 The defendant has no recollection of parking this vehicle at the location alleged by the claimant at the dates and times specified. It is therefore denied that the Claimant entered into a contract with the Defendant. Under civil law, any contract must be formed by offer, consideration both ways and acceptance. The Claimant is a third party agent of a private parking company (Civil Enforcement Ltd) who was simply contracted by the landowner to provide car-park management services. The claimant therefore is not capable of entering into a contract with the Defendant on its own account. Accordingly, it is denied that the Claimant has any standing to bring this claim in their own name.


2. Part of the alleged debt (87.5%) was apparently assigned to Debt Enforcement & Action Ltd by Civil Enforcement Ltd. The claimant therefore cannot claim for the whole alleged amount, or any sum at all, since all parties to the alleged debt must be listed as claimants. Further, this is not a 'debt' at all. There was no credit agreement so the defendant has never consented to the possibility of 'assignment' which has taken place unilaterally and is unenforceable.


3. The N1 claim form has been signed off by a Mr M Shwarts (Solicitor); the SRA have confirmed that this person does not appear to be listed as a solicitor on the SRA roll. It is a criminal offence for somebody to call themselves a solicitor or act as a solicitor if they are not on the roll of solicitors. It is therefore denied that the £50 solicitor’s fee can be claimed. Also the full claim is denied as the claim has not been signed by either the landowner or the landowner’s solicitor.


4. The claim does not differentiate between a breach, trespass or a contractual charge so therefore does not disclose what conduct is complained about, therefore discloses no cause of action. If the claim is for a breach of contract or trespass then the claimant may only claim for their losses due to said breach. If the claim is for a contractual charge then the defendant submits that it is a contractual charge disguised as a penalty.


5. The claimant’s notices do not create any contractual relationship between the claimant and motorists using the car park.


6. The car park is a free car park and as such there can be no loss suffered by either the claimant or the landowner as a result of any alleged overstay. The charge of £130.00 (plus other fees) is therefore not a genuine pre estimate of loss.


7. The claimant has not provided enough information to enable the defendant to fight this claim. The defendant requires to see what alleged contract was broken (i.e. the signage), also the Notice to Keeper sent as it is the defendants submission that any contract was unfair and unsupported by Consumer law.

8. There can be no keeper liability because this Claimant has never issued Notice to Keeper letters which are compliant with paragraph 9 of Schedule 4 of the POFA 2012. Therefore the 'second condition' for keeper liability has not been met. As noted in paragraph 1 of this statement the defendant has no recollection of parking the vehicle as alleged by the claimant and submits that it is far too long ago for the keeper to have any knowledge of who was driving the vehicle that day. It was the will of Parliament when the Impact Assessment of the POFA 2012 was discussed in 2011, that keepers are not legally obliged to name a driver - even if known therefore he defendant cannot be held liable in law.


9. The Defendant relies on the ruling of Mr Recorder Gibson QC in the case of Civil Enforcement v McCafferty (3YK50188, Luton County Court on Appeal from Watford County Court, 21/02/2014) in which it was held that the primary purpose of CEL’s ‘parking charge’ was to deter, and that it is therefore a penalty in terrorem which is irrecoverable through civil action.


The above points will be explained fully in the Witness Statement which will be served not later than 14 days before the date of any hearing.


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

bod1467

Item 4 ... then the defendant submits that it is a penalty in the guise of a contractual charge. Is how I think it would be better worded.

Item 7 ... it is the defendant's submission (possessive noun).

Item 8 ... Expand first instance of POFA to Protection of Freedoms Act (POFA) 2012 then just use POFA thereafter

Item 8 ... name a driver - even if known - therefore the defendant cannot be held liable in law.

bluetoffee1878

If on the particulars of claim it states that the debt has been assigned with the knowledge and consent of the co-op, then this can also be challenged. There is evidence from co-op customer careline where they confirm that co-op had no knowledge and gave no consent to such an assignment. If you do contact co-op they should confirm this to be true in your case.
Deborah Misell-Williams customer.careline@co-operative.coop

bluetoffee1878

There is also a very good defence written by user Gan over on pepipoo, written specifically for all these deal cel claims that have come through recently. Well worth a read.

Coupon-mad

bluetoffee1878 wrote: »

There is also a very good defence written by user Gan over on pepipoo, written specifically for all these deal cel claims that have come through recently. Well worth a read.

I think it's in Nik0las' thread on pepipoo, which is one of the links the OP should read which are collated in post #5 of the Newbies thread. I agree with you too, about adding another defence point that the Co-op have not had any knowledge of, nor given consent to, the alleged partial 'assignment' to DEAL.

Marktheshark

Who has signed the court papers and what do they state they are, they only have two options.
Solicitor or Claimant.
A private individual has no right of audience to bring a claim on behalf of a company and you have the right to demand the actual claimant turns up at court in person.
Can you have a look.

bluetoffee1878

Coupon-mad wrote: »

I think it's in Nik0las' thread on pepipoo, which is one of the links the OP should read which are collated in post #5 of the Newbies thread. I agree with you too, about adding another defence point that the Co-op have not had any knowledge of, nor given consent to, the alleged partial 'assignment' to DEAL.

Coupon Mad and all its here http://forums.pepipoo.com/index.php?showtopic=95325&view=findpost&p=1027957

Jonny_Red

Marktheshark wrote: »

Who has signed the court papers and what do they state they are, they only have two options.
Solicitor or Claimant.
A private individual has no right of audience to bring a claim on behalf of a company and you have the right to demand the actual claimant turns up at court in person.
Can you have a look.

Hi Mark. The papers are signed M.Shwarts (solicitor). I gather from previous threads that this is a bogus/fictional character.

Jonny_Red

Thanks for the feedback all. Have made some tweaks and checked out the other post. Will post a revised version for final comments tomorrow if that's okay all.

Cheers

J

Marktheshark

If a bogus solicitor has signed your court papers then you should look at filing to have the actual claimant turn up at court.
I would at very least state that Mr shwarts is required to attend the court as claimant to state on what behalf he is authorised to bring such action.
In this case Mr Shwarts.
When he fails and they send a subber in his place you should bring it straight to the courts attention that the person filing the case has no right of audience as he is not a solicitor which I believe the SRA have confirmed, therefore if Mr Shwarts has no right of audience as claimant to act as litigant on behalf of this company then his representative certainly does not.
They could end up getting jailed here if this is pulled up.