County Court Claim Defence Letter Help

OleGunnar20

Hi,

Seen loads of great info on here top work!!

The claim is regarding an Over stay in a free car park, that id previously never parked in before.it was dark and i didn't see any signs lit up clear enough for me to notice on entrance about any parking restrictions.

Particulars arrived 13 days after the issue date with only basic information of registration plate, date of incident and alleged times parked. along with 9 Particulars of claim points.

Amount claimed is the usual over £100 and with Mr Schwartz £50.00 so called price

i am looking to send off my letter within a couple of days Tuesday 5th or Wednesday 6th as i estimate that is all i have left. i have acknowledged the claim within the time frame for the extended 14 days for a defence.

I have taken a draft letter that is very similar to my current situation edited it accordingly (i think) so just checking if somebody can help me with a thumbs up to send or if there is anything i can or need to add on to sure up the letter.

Much appreciated if anyone can help.

*****************************
Claim Number: *******

Civil Enforcement Ltd v ******

Statement of Defence

I am ********* , 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 un-denied 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, no letters or correspondence has been received apart from the Claim notification itself and the Schedule of Information, which followed.

(b) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The initial County Court Claim Form
only contains the claimants name, address and amounts of money identified as debt and damages, with a notice that detailed particulars will be provided within 14 days.

(c) The Schedule of information is sparse of detailed information:
1. The defendant, who is the registered keeper and not identified as the driver at the alleged time.
2. The VRN.
3. The date and time of the alleged incident.
4. Car park name.
5. Outstanding amount and break down of costs.

It does not detail
1. Proof or confirmation of the driver at the time of the alleged incident.
2. Proof of the vehicle being there at the alleged time.
3. The vehicle type and colour
4. Why the charge arose

(d) The claim is signed by 'Mr 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) 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 Unfair Terms in Consumer Contracts Regulations (as applicable at the time).

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

(e) It is believed the 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).

(f) 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.

(g) 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 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) 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).


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 £50.00 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 xxxxxxx.

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.

Regards

Coupon-mad

i am looking to send off my letter within a couple of days Tuesday 5th or Wednesday 6th

You don't send off a letter and risk the defence being lost in the post or delayed. This is MCOL 'money claim ONLINE' for a reason! You register and put the defence in online.

That is a template defence but better than nothing; should be enough for CEL to allow you to expand on evidence like unreadable signage, no keeper liabilty etc. and defend it with a full defence bundle based on the points shown, at a hearing if needed. And it's detailed, relevant to CEL and much better than some !!!!!!£ rushed defence wording shown on forums that we see sometimes.

You need to check that you have countered EVERYTHING that the particulars say. So read the Schedule and make sure you have denied everything you need to and not left anything unresponded to.

You also need to make sure it is all relevant to the car park in question, for example you said:

The claim is regarding an Over stay in a free car park,

So I would completely remove #11 because your case IS too similar to have the Judge even look at this argument which might sway him/her in the PPC's favour! And in your case there was no 'tariff' (Pay and Display) was there, so not relevant:

11/ [STRIKE]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. [/STRIKE]

You also need to get rid of #12 which makes no sense for your case:

12/ [STRIKE]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.[/STRIKE]

You do need to add a statement of truth, top or bottom, as mentioned here:

https://forums.moneysavingexpert.com/discussion/comment/70413549#Comment_70413549

Oh, and this part confuses me, does this mean that this info IS in the Schedule of Info, or is not?

The Schedule of information is sparse of detailed information:
1. The defendant, who is the registered keeper and not identified as the driver at the alleged time.
2. The VRN.
3. The date and time of the alleged incident.
4. Car park name.
5. Outstanding amount and break down of costs.

To make this fit online in the restricted word count box for defence, you may have to remove 1 - 5 of that particular bit and just leave it as 'The Schedule of information is sparse of detailed information...It does not detail... etc...

OleGunnar20

Thank you @coupon-mad a great deal.

Ok, online defence.

i have also removed the numbered sections as recommended

i have also altered section 2 (c)

Has there been much success rate of the claim getting struck out as a result of the defence response?

Here is my updated draft.

i believe all the point in the particulars of claim are covered

Unless anything further could be recommended to add from previous successful defence drafts?

*****************************
Claim Number: *******

Civil Enforcement Ltd v ******

Statement of Defence

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

I believe that the facts stated in this defence are true.

1/ This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an un-denied 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, no letters or correspondence has been received apart from the Claim notification itself and the Schedule of Information, which followed.

(b) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The initial County Court Claim Form
only contains the claimants name, address and amounts of money identified as debt and damages, with a notice that detailed particulars will be provided within 14 days.

(c) The Schedule of information is sparse of detailed information it only states: The defendant, who is the registered keeper and not identified as the driver at the alleged time,The VRN,The date and time of the alleged incident,Car park name,Outstanding amount and break down of costs.

It does not state in detail,Proof or confirmation of the driver at the time of the alleged incident,Proof of the vehicle being there at the alleged time,The vehicle type and colour,Why the charge arose

(d) The claim is signed by 'Mr 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) 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 Unfair Terms in Consumer Contracts Regulations (as applicable at the time).

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

(e) It is believed the 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).

(f) 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.

(g) 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 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) 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).


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 £50.00 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.


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 xxxxxxx.

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.

Regards

Coupon-mad

What was the month of the parking event? Just checking it wasn't as long ago as early 2012?

If not, then I think this is enough.

Has there been much success rate of the claim getting struck out as a result of the defence response?

No-one has got that far yet. Yours is one of a massive batch of copied claims issued in bulk on 4th March by CEL, clearly to catch some people out and get a default judgment or a large payment from loads of people in haste/panic.

A previous batch was issued earlier (January I think) and I can't recall whether they have proceeded any further yet. It's gone a bit quiet.

We do know the SRA were looking at the fact Schwartz has signed these claims. A complaint was made to the SRA about this 'work' because of his restricted practice certificate. So maybe later down the line they will be discontinued. Can't be sure, but personally, I do not expect all these cases we've seen will be likely to end up in a hearing where CEL actually turn up.

OleGunnar20

it was in early 2015 the incident.

i have submitted my defence online.

Thank you for your help and answering my questions of need.

i will respond with any updates as and when i receive them.

Brilliant work!!!

Umkomaas

i will respond with any updates as and when i receive them.

Please do that. So many promise yet never do. Regulars put in a lot of hard work to help people in distress and feedback on the outcomes following the advice serves to motivate us to continue helping.

Good luck.

OleGunnar20

Acknowledgement receipt of Defence letter received.

Just a quick one, have i missed the opportunity to have the court changed to my local one?

I have just recently seen that i could do this.

Coupon-mad

No, that's in the Directions Questionnaire which arrives next.

See this:

https://forums.moneysavingexpert.com/discussion/comment/61084955#Comment_61084955

That's a link from the NEWBIES sticky thread and you wil see that bargepole explains what happens when and how to complete each part of the paperwork, which boxes to tick, etc.