Civil Enforcement Ltd - Draft court letter **Urgent HELP pls**

N4D5

salmosalaris wrote: »

!!!!!! , this is all guesswork
I can't see the amount they're claiming or why !
Just submit the defence CM kindly wrote for you and keep your fingers crossed

Apologies, I'm quite annoyed myself with the family.

I can confirm the amounts as following:

amounts claimed: 151.38 for debt and damages including interest pursuant to S.69of county court act 1984
court fee 25.00
legal re costs 50
total 226

Coupon-mad

Hopefully the Court clerk you spoke to was making a general observation about the timeline (not with any knowledge of whether the Claimant had made a move to enforce the claim) but you may as well submit a defence and see.

I will make a few changes and will re-post here in a mo.

salmosalaris

Here is a CEL defence I did recently
Some parts will not be relevant to your case but I bet the PoC were the same . Leave out/ adjust to suit those points that are not relevant

I am xxxx the defendant in this matter and registered keeper of vehicle xxxxx.


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

1. 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.
2. The driver had the authority of the landowner to park as they were working on site at the hotel. An e mail from the hotel confirms this to be the case and confirms they do not wish the charge to be enforced. The Claimant is bringing a claim simply for its own profit and motive and not the purpose for which they were ( but I believe are no longer) supposedly engaged
3. The Claimant has suffered no loss. The charge that the Claimant is attempting to impose is for damages for breach of the Claimant’s own terms and conditions , but it cannot escape being anything other than an unenforceable penalty because the Claimant has no legitimate interest in enforcing this charge when its justification is apparently one of deterring unauthorised parking. The driver was authorised to park but was not made aware that the Claimant wished a permit to be displayed. It is not a legitimate interest in imposing a charge for failure to display a permit ( any requirement to so was also not made obvious) when the vehicle was fully authorised by the landowner to park as it did . The charge is also clearly disproportionate to any purported legitimate interest and is clearly extravagant and unconscionable. The Claimant suggests that the driver agreed to pay a charge in return for parking without displaying a permit. This is denied. This suggestion in paragraph 4 of the Particulars of Claim is clearly an attempt to thinly disguise what is a claim for damages for a purported breach of contract as a contractually agreed sum allowing the driver to park outwith the terms and conditions. This is a nonsense as a contract must contain a genuine offer and it is impossible for the Claimant to make an offer of something that the contract forbids , in this case purportedly parking without a permit.There can be no such contract in this situation. This is further confirmed by paragraph 6 of the Particulars of Claim where it conversely refers to the driver having breached the terms of conditions.
4. The Claimant has no locus stand to bring such a claim. Any contract for parking is offered by a clearly disclosed Principal, the hotel. As agent the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.
5. The original demand was for £100 , the absolute maximum allowed in the British Parking Association code of practice. A contractual term that was displayed on signage requiring payment of £100 cannot be enforced for the revised sum of £85 simply to fall in line with the Supreme Court judgment in Parking Eye v Beavis. No justification of the need to charge such an extravagant amount ,for simply inadvertently failing to display a permit when the vehicle was fully authorised to park, has been provided. This case is easily distinguishable from Parking Eye v Beavis and the judgment in that case is not applicable to the present case because there is no legitimate interest that saves this charge from being a clearly unlawful penalty.
6. I do not believe the Claimant has incurred further costs of £40 and put the Claimant to strict proof it has. I deny the Claimant is entitled to any interest whatsoever.
7. The term requiring payment is an unenforceable contract term with reference to The Consumer Rights Act 2015.
8. The signage on site was inadequate to constitute a contract , the terms of which could legally bind the driver. The signage was not clear and visible.
9. The Claimant has failed to comply with the strict requirements of Schedule 4 of the Protection of Freedoms Act 2012 and cannot rely on its provisions to hold me liable as Registered Keeper.The Claimant will be fully aware of this and paperwork received prior to legal proceedings in which they claim the requirements of the Act have been satisfied and that I am liable as keeper are I believe potentially fraudulent.
10. Paragraph 7 of the Particulars of Claim refers to the British Parking Authority. There is no such body. I believe this is possibly a deliberate misrepresentation of the authority of the British Parking Association which is a mere trade association representing its members. These Particulars of Claim are signed by a solicitor who I believe has been involved with the Claimant for many years.

I believe the contents of this statement to be true sign and date

N4D5

Thanks for this salmosalaris, I have removed the parts which I feel are not suited for me and posted below. I'm hoping its OK to submit.


Or should I use the earlier version which coupon-mad helped with? little confused.


I am ************ the defendant in this matter and registered keeper of vehicle ******.

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

1. 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.
2. The Claimant is bringing a claim simply for its own profit and motive and not the purpose for which they were (but I believe are no longer) supposedly engaged.
3. The Claimant has suffered no loss. The charge that the Claimant is attempting to impose is for damages for breach of the Claimant’s own terms and conditions, but it cannot escape being anything other than an unenforceable penalty because the Claimant has no significant interest in enforcing this charge when its justification is apparently one of deterring unauthorised parking. The charge is also clearly disproportionate to any purported legitimate interest and is clearly extravagant and unconscionable. This is denied. This suggestion in paragraph 4 of the Particulars of Claim is clearly an attempt to thinly disguise what is a claim for damages for a purported breach of contract as a contractually agreed sum allowing the driver to park out with the terms and conditions. This is a nonsense as a contract must contain a genuine offer and it is impossible for the Claimant to make an offer of something that the contract forbids, in this case purportedly parking without a permit. There can be no such contract in this situation. This is further confirmed by paragraph 6 of the Particulars of Claim where it conversely refers to the driver having breached the terms of conditions.
4. The Claimant has no locus stand to bring such a claim. Any contract for parking is offered by a clearly disclosed Principal. As agent the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.
5. The original demand was for £125, above the maximum allowed in the British Parking Association code of practice. A contractual term that was displayed on signage requiring payment of £125 cannot be enforced for the revised sum of £85 simply to fall in line with the Supreme Court judgment in Parking Eye v Beavis. No justification of the need to charge such an extravagant amount. This case is easily distinguishable from Parking Eye v Beavis and the judgment in that case is not applicable to the present case because there is no legitimate interest that saves this charge from being a clearly unlawful penalty.
6. I do not believe the Claimant has incurred further costs of £40 and put the Claimant to strict proof it has. I deny the Claimant is entitled to any interest whatsoever.
7. The term requiring payment is an unenforceable contract term with reference to The Consumer Rights Act 2015.
8. The signage on site was inadequate to constitute a contract, the terms of which could legally bind the driver. The signage was not clear and visible.
9. The Claimant has failed to comply with the strict requirements of Schedule 4 of the Protection of Freedoms Act 2012 and cannot rely on its provisions to hold me liable as Registered Keeper. The Claimant will be fully aware of this and paperwork received prior to legal proceedings in which they claim the requirements of the Act have been satisfied and that I am liable as keeper are I believe potentially fraudulent.
10. Paragraph 7 of the Particulars of Claim refers to the British Parking Authority. There is no such body. I believe this is possibly a deliberate misrepresentation of the authority of the British Parking Association which is a mere trade association representing its members. These Particulars of Claim are signed by a solicitor who I believe has been involved with the Claimant for many years.

I believe the contents of this statement to be true ******

salmosalaris

Wooaaaahhh
That does not fit your case at all

N4D5

salmosalaris wrote: »

Wooaaaahhh
That does not fit your case at all

Apologies I'm pulling my hair out trying to make it work for my scenario. I'm just not sure which parts I need to keep. I was not the driver of my so maybe I need to mention this also.

Coupon-mad

N4D5 wrote: »

Apologies I'm pulling my hair out trying to make it work for my scenario. I'm just not sure which parts I need to keep. I was not the driver of my so maybe I need to mention this also.

I'm grabbing some of salmosalaris' wording now to amalgamate the two...wait a sec.

N4D5

Coupon-mad wrote: »

I'm grabbing some of salmosalaris' wording now to amalgamate the two...wait a sec.

Thanks coupon-mad I really appreciate your help and everyone else's, wouldn't be going crazy if I had the letter two weeks ago.


Really appreciate all your guys efforts to help me out at this stressful time.

Coupon-mad

Claim Number: *******

Civil Enforcement Ltd v ******

Statement of Defence

I am xxxxxxx xxxxx , defendant in this matter and deny liability for the entirety of the claim.

1/ 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.


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 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 only contain two pieces of individual information: the name of the defendant and the name of the car park. The covering letter merely contains a supposed PCN number, but no date of event, no details, no VRN, no contravention nor photographs.

(c) 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 - what the date of the parking event was, what the vehicle was, why the charge arose, what the original charge was, what the alleged contract was; nothing that could be considered a fair exchange of information.

(d) The claim is signed by 'Michael Schwartz' who is and was under investigation by the SRA and has practising certificate conditions currently imposed. It is believed he can act as a solicitor only in employment, the arrangements for which must be pre-approved by the SRA and I have no evidence that this is the case, nor that he is an employee of the Claimant.


3/ Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:

(a) Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.

(b) Sporadic and illegible (charge not prominent nor large lettering) 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.

(c) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.

(d) 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 UTCCRs (as applicable at the time).

(e) 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.

(f) Absent the elements of a contract, there can be no breach of contract.


4/ POFA 2012 breach and the Defendant was not the driver - this distinguishes this case from the Beavis case:

No keeper liability can apply, due to this Claimant's PCN not complying with Schedule 4. The driver from three years ago has not been evidenced and a registered keeper cannot otherwise be held liable. In cases where a keeper is deemed liable, where compliant documentation was served, the sum pursued cannot exceed the original parking charge, only if adequately drawn to the attention of drivers on any signage.


5/ BPA CoP breaches - this distinguishes this case from the Beavis case:

(a) no grace period was allowed.

(b) the signs were not compliant in terms of the font size, lighting or positioning.

(c) the sum pursued exceeds £100.

(d) there is/was no compliant landowner contract.

(e) the charge is not based upon a genuine pre-estimate of loss (a condition at the time).


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:

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.


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, neither based upon a genuine pre-estimate of loss nor any 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.


10/ The claimant has added unrecoverable sums to the original parking charge. If Mr Schwartz is an employee then the Defendant suggests he is remunerated and the claim/draft claim are templates, so it is not credible that £50 legal costs were incurred. Nor it is believed that a £40 fee was paid to any debt recovery agency so the Claimant is put to strict proof it has. I deny the Claimant is entitled to any interest whatsoever.


11/ In the Beavis case the £85 was deemed the 'quid pro quo' for the licence granted to park free for two hours and there was no quantified loss. Not so in this case where it is believed the location is one with a small tariff after a grace period.


12/ If the court believes there was a contract (which is denied, due to unlit signage) this is just the sort of 'simple financial contract' identified at the Supreme Court as one with an easily quantifiable loss (the tariff) where any sum pursued for breach must still relate to a genuine pre-estimate of loss.


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 Claim Form issued on 20 January 2016
(b) failed to provide Particulars of Claim within 14 days of the date of service of that Claim Form, thus making it impossible for the Defendant to prepare any form of defence; and
(c) failed to respond to a letter from the Defendant dated 09 December 2015 requesting further information and details of the claim

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.

In the alternative, the Defendant is willing for the matter to be decided by POPLA (Parking on Private Land Appeals) which will decide the dispute and limits any further costs to this claimant to £27, with no legal costs. This is the bespoke ADR for BPA members, is available at any time (not just the first 28 days) and has been used to settle private parking court claims on multiple occasions even after proceedings have commenced. POPLA has not been undertaken in this case nor was it mentioned in the recent sparse communications from this Claimant.

The Defendant invites the Court to use its discretion to make such an order, if not striking out this claim.

N4D5

THANK YOU SOOO MUCH - Can I attach this as an attachment or email it as I can only use 122 lines on the MCOL defence page.