CEL Defence Pre POFA

stormyparky

Hi,

First of all, thanks to everyone who shares their experience and knowledge on this forum. I hope I can do the same, especially as CEL seem to be dragging up old cases - they must have money issues!

I'm in a very similar situation to bodrulm123 in this thread:
5428498 (cel County Court advice) - sorry I can't post links

I've moved house since and only just picked up my post and had to acknowledge service almost immediately, but I left the defence blank after looking through the posts on this forum. The claim form was issued on the 24th Feb - I assume 28 days is business days and i'm still in my response window?!

I was the registered keeper of a vehicle and I received this claim form for an event that occurred in August 2012 (Pre POFA). There is no evidence of the driver of the vehicle and I was not the only person who had access to the vehicle at this time.

The original letters a few years ago were all torn up after reading forums because they were so fishy, but now i'm in the middle of a timely situation! I've written my defence based on the one in the thread I linked to. I had to remove some things as they were not relevant to me but I would appreciate input.

I XXXXXXXXX as the Defendant deny any liability whatsoever to the Claimant for all of the following reasons:

1. I totally deny the whole claim firstly because I, as the registered keeper at the time, do not recall ever attending that car park. The incident apparently occurred in 2012 as per the schedule of information which is almost around 4 years ago. I am perplexed as to why the Claimant waited to bring proceeding until now. Further, I was not the only person who had access to that vehicle during that period. No evidence of the driver has been produced.

2. The The Protection of Freedoms Act 2012 (PoFA 2012) came in to force in 2012 which is the only legislation capable of allowing a private parking firm to hold a Registered keeper liable. From the limited information supplied in schedule 4, you will be able to note that the alleged incident date is prior to the enactment of the POFA 2012. This being the case, the Claimant cannot surely hold the keeper liable for the driver who never has been evidenced.

3. The Claimant has failed to comply with the pre-action protocol because:

(a) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents show no contravention nor photographs.

(b) The Particulars of claim were extremely sparse and divulged no cause of action nor sufficient detail. I as the defendant have no idea what the claim is about, why the charge arose, what the original charge was, what the alleged contract was; nothing that could be considered a fair exchange of information.

(c) The claim form is signed by 'Michael Schwartz' who I believe underwent through investigation by the SRA and consequently conditions were imposed on his practising certificate and he was fined in the sum of £1,000.00 by the SRA. It is believed he can act as a solicitor only in employment matters, 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.

4. 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 license to park free. None of this applies in this material case.

5. This claimant is known to use signs which are illegible and 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.

6. BPA CoP breaches - this distinguishes this case from the Beavis case:

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

(b) the sum pursued exceeds £100.

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

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

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.

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 sum of £40 to the original parking charge but has not provided proof that these costs were actually incurred. 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 license 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.

I as the defendant deny any liability whatsoever to the Claimant in any matter.

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.

Coupon-mad

I assume 28 days is business days and i'm still in my response window?!

YOU ARE WRONG. You could easily have found out on in any webpage about the Practice Direction or County Court small claims advice, but the 28 days (plus up to five for service) is just that. Expired on Fridayish...but luckily this has been a long BH weekend...

Get that defence submitted online IMMEDIATELY to avoid losing by default. It is fine and will do the job for this stage as long as you get it submitted NOW.

stormyparky

Hi,

Yes, that was a hope in the wind considering it made no difference to my situation as I didn't have the paperwork in good enough time! Hopefully this clears this up for others who may be faced with historic claims considering CEL's practice of dragging these up.

I've submitted the defence. I imagine there is a bit of a backlog after the long weekend. I'll update when I know the outcome. Many thanks.

henrik777

Coupon-mad wrote: »

YOU ARE WRONG. You could easily have found out on in any webpage about the Practice Direction or County Court small claims advice, but the 28 days (plus up to five for service) is just that. Expired on Fridayish...but luckily this has been a long BH weekend...

Get that defence submitted online IMMEDIATELY to avoid losing by default. It is fine and will do the job for this stage as long as you get it submitted NOW.

I highly doubt that it's late or even that close. CEL issue particulars of claim some time after the claim form and the clock starts once these are served.

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part09

(2) Where the defendant receives a claim form which states that particulars of claim are to follow, he need not respond to the claim until the particulars of claim have been served on him.

The_Deep

Too many eggs in that pudding imo, although others may disagree, (i.e. those accustomed to keeping their trousers up with a belt, braces, and a piece of string).


What is wrong with


"As far as I can recall, I was not the driver at the time of the event"?

salmosalaris

The_Deep wrote: »

Too many eggs in that pudding imo, although others may disagree, (i.e. those accustomed to keeping their trousers up with a belt, braces, and a piece of string).


What is wrong with


"As far as I can recall, I was not the driver at the time of the event"?

What is wrong is that a DJ could easily decide that the defendant was the driver on the balance of probailities if the defendant fails to deny it .
And by failing to address the PoC all other points are admitted

stormyparky

Hi The Deep,

I totally agree and I considered saying just that before I started doing the research. However, I felt more confident with a beefy response that included the serial nature of CEL's claims and having not done this before i'm interested to see what the outcome is.

Thanks for your comments.

The_Deep

What is wrong is that a DJ could easily decide that the defendant was the driver on the balance of probailities if the defendant fails to deny it

Now I am confused? If the defendant's defence is that they were not driving under what circumstance would they fail to deny that that was they were?

OP, it is your time, but do you not think that you deserve some compensation from these timewasters? Warn them that, if they withdraw the case, or you win in court, you will be invoicing them for their unreasonable behaviour.

salmosalaris

The_Deep wrote: »

What is wrong is that a DJ could easily decide that the defendant was the driver on the balance of probailities if the defendant fails to deny it


Now I am confused? If the defendant's defence is that they were not driving how would they fail to deny that that was the case?

But he/she not saying they were not driving , if they categorically stated that they were not driving that is a different matter .

The_Deep

But he/she not saying they were not driving , if they categorically stated that they were not driving that is a different matter .

Now I am even more confused, have you left out a word?

Herzlos

"This alleged incident occurred 4 yeas ago, CEL has provided no evidence and I have no recollection who the driver was, though multiple people used the car on a regular basis. The onus here is for CEL to prove that such an incident took place and the identity of the driver, but unfortunately I am not able to assist any further. Any initial correspondence was thrown out because it resembled a scam letter, indeed I have yet to be satisfied that it isn't".