County court threat at incorrect address over PCN from Civil Enforcement LTD

Guest101

1postie wrote: »

[FONT=&quot]I hope someone can please advise us on where to go with this:

My partner rents her house out and we have moved in together.[/FONT]
[FONT=&quot] On 14 March 2016 a PCN was issued referring to parking for over 2 hours on Halls Mill Retail Park, Foundry Street, Bury I am unsure if we had been parked over this time, however a red letter was sent on 14 April 2016 increasing the amount from £60 to £100 and giving the 28 April 2016 as the time permitted to pay this charge. [/FONT]

[FONT=&quot]Both of these letters were sent to my partners house where she no longer lives, however it wasn’t until early May that she informed the DVLA of her new address and consequently [FONT=&quot]Civil enforcement LTD[/FONT] had applied to the DVLA for her details and sent the above letters to an address where she no longer resided.[/FONT]

[FONT=&quot]We had left a self addressed envelope with the tenant to forward any mail and both the above letters were received in this envelope after the specified date to pay the reduced amount or appeal.[/FONT]

[FONT=&quot]She had changed her address with the DVLA in May and yesterday 23 June we called at the rented house to collect any mail and drop off another self addressed envelope and we found 2 further letters on this subject one issued 17 May 2016 from civil enforcement Liverpool offering a final opportunity to pay the now amount of £140 within 14 days and a second letter dated 17 June 2016 from ZZPS of Surrey stating our unpaid PCN has been passed to them to resolve and referring to parking eye vs beaver.[/FONT]

[FONT=&quot]We had genuinely not received the PCN in time if we were going to pay or appeal and the further letters have been sent to an address which is no longer registered with DVLA. We would appreciate any helpful advise on what to do about this Scary matter as its time sensitive I feel we must act in the next couple of days.[/FONT]

Her tenant isn't a post office, so pay for mail redirection and or sort out changes of address......

Coupon-mad

Hi thanks for the info but I'm really struggling.

Put 'CEL DEFENCE' into the forum board search box (not searching the whole MSE website, just 'this board'). Your results will show you threads with defences from this year that beat CEL. Copy from those and show us your draft.

1postie

I have finally found them, thanks for your persistence with me, I am 7/8 through its a standard template I think so far with a few of my specific details in should I leave it at that or inform them of the fact that I couldn't pay the initial pcn due to it being sent to the wrong address and that I still have not had a reply to my appeal letter, is it a one shot deal and should I put all the details in or do I need to save that as a trump card?

Coupon-mad

A defence is a one-shot first effort, you have to mark every point now that you might later rely on.

1postie

[FONT=&quot]Here is my [FONT=&quot]defence letter, i[/FONT]t has taken a while but I am happy with it can you please cast your eyes over it and let me know if y[FONT=&quot]ou think it should work?

[/FONT]I am _______________________ the defendant in this matter and was at the time in question the 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/ 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) 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.

(b) The Schedule of information is sparse of detailed information:

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. Why the charge arose


(c) The claim is signed by 'Mr Michael Schwartz' who is and was under investigation by the SRA and has restricted operating 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, or that he is an employee of the Claimant.[/FONT]
[FONT=&quot]I have contacted Ajmer Nahal of the SRA for confirmation of this and I am currently expecting his reply.

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

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


4/ POFA 2012 breaches - this distinguishes this case from the Beavis case:

(a) 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. Therefore 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.

(b) Where a contravention is detected remotely (such as by cameras) the landholder must write to the registered keeper within 14 days. I refer you to the alleged incident date and the PCN issue date.



5/ 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. [/FONT]
[FONT=&quot]As an agent, I have requested information from them as to the relationship between both themselves and the land owner, however I have had no reply the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.


6/ 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.


7/ 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.


8/ 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.



9/ 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 fee was paid to any debt recovery agency so the Claimant is expected to evidence this fact. I deny the Claimant is entitled to any interest whatsoever.


10/ 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.


11/ If the court believes there was a contract (which is denied, due to unclear 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.

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

I believe that the facts contained within my defence are true, I have followed protocol and appealed.[/FONT]

[FONT=&quot]I received documentation relating to a PCN on [/FONT]23/06/16 due to the fact that I had moved, it seems that when you first contacted the DVLA for my contact details they were at my old property, shortly after I informed the DVLA that I had moved and gave them my new address as I have supplied to the court on my registration regarding this matter.

I explained this in my appeal and requested that all correspondence be to the new property and that all action on their behalf should remain on hold until we discuss the original letter relating to a £60 PCN.

My appeal was sent via email on __ June 2016 and as stated was only received on 23 June 2016 as the current tenant informed me that mail had been delivered for me, I was unaware of this allegation until this date 23 June 2016 and could not respond to an accusation that I had not been made aware of previously. I have evidence of my appeal and also the date it was sent.

Here is the text from the appeal :





Dear Sirs

Re: __________________________ dated ____________


It seems that you have sent 4 letters referring to the above PCN to my old address where I no longer reside and I have not received any of these until yesterday __06/16 when I attended the property to collect any mail that had been delivered.

It seems that during the process of you requesting my details from DVLA I had moved and informed them shortly after, so if you would have checked again with DVLA before sending further correspondence you would have seen that I am registered from the above address with them and have been for several of your letters so please make any correspondence to the correct address above. I have only received your PCN yesterday and as a result it is deemed to have only just been served on 23/06/16 hence what you may interpret as a late appeal is indeed an appeal on day 2 of being in possession of the alleged PCN. It is therefore given that any further action by you or indeed on your behalf should be placed on hold whilst we address the issue of your brown letter dated __/03/16 and as a result no action should be taken in relation to your letters dated __/04/16 red letter, __/05/16 letter before action and __/06/16 ZZPS until we have concluded our discussions regarding the original brown letter and its £60 amount.

I challenge this 'PCN' as keeper of the car and I will complain to the landowner about the matter if it is not cancelled.

I believe that your signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. Your unremarkable and obscure signs were not seen by the driver, are in very small print and the terms are not readable to drivers before they park.

Further, I understand you do not own the car park and you have given me no information about your policy with the landowner or on site businesses, to cancel such a charge. So please supply that policy as required under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. I believe the driver may well be eligible for cancellation as you have omitted clear information about the process for complaints including a geographical address of the landowner.




There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge.

I have kept proof of submission of this appeal and look forward to your reply.

Yours faithfully,

[FONT=&quot]____________________[/FONT]

It is without any doubt that my appeal has been sent and that it is requesting that we address this alleged PCN and that they correspond with me via my official DVLA address. Given that I can evidence that I have indeed sent an appeal and the content of this appeal and that I have not as of today 21 October 2016 received a response from my appeal it is evidently clear that CEL have breached protocol in not responding to a letter of appeal and instead of responding chose to employ the services of Wright Hassall solicitors of Olympus Avenue Leamington Spa who wrote to me again at the wrong address (letter dated _ August 2016) informing me of a formal letter of claim for the sum of £___. I promptly telephoned and spoke with a lady named Nina at approximately 1715 on the day I received the letter who informed me that CEL had indeed closed the case.

This being the last correspondence from both Wright Hassall solicitors and Civil Enforcement Limited until receipt of a claim form dated __ October 2016 .

I put it to you that it is CEL that have not responded to my letter of appeal and that continue to send letters to an address that I do not reside at and this is a large contributing factor to this matter reaching this stage and that instead of CEL claiming a ludicrous amount of money from me that simply does not match their expenses and £50 for a generic solicitor namely Mr Michael Schwartz that it is indeed questionable as to the legality of his employment in an official capacity due to what I believe are suspensions restricting his employment it should in fact be me claiming monies from CEL for harassment and for the trauma it has already caused and continues to cause as a blue badge holder life can be difficult enough, should I not be spending time with my new born baby instead of being stressed addressing allegations made by ruthless parking companies that it is clear to see do not follow the protocol set out that they must follow and instead attempt to extract unjust worthy amounts of money by using generic letters preying on the fact that the majority of people will not fight the injustice when they attempt to extract unreasonable amounts of money that simply do not match the costings and that I should also be charging them for the countless journeys being 13.5 miles per trip to collect letters from a property that I have informed them and also the DVLA that I no longer reside at.

I have included with this defence as evidence a copy of my appeal and also proof of the date and time it was sent via email and the fact that it was simply ignored and not responded to highlights that CEL have breached protocol and I respectfully request that the application claim against me be rescinded and CEL be informed to cease all communication in its attempt to claim any monies from myself regarding this matter. I can not tell you how much stress and anxiety that CEL is causing in its harassment.



[FONT=&quot]It is neither admitted nor denied that I the defendant was driving and the claimant is put to strict proof thereof[/FONT]


___________________

1postie

Can I have some feedback please guys, if its acceptable I need to enter it or if its rubbish I need to do another one we need to get this in so we can stop worrying about missing the date?

Grimble

I would add, I also require that the advertising consent and renewals are shown to the court, not just a statement of truth, not having these is a criminal offence under The Town & Country Planning Act 2007 section 30 and you cannot profit from a criminal offence.

Fruitcake

Grimble wrote: »

I would add, I also require that the advertising consent and renewals are shown to the court, not just a statement of truth, not having these is a criminal offence under The Town & Country Planning Act 2007 section 30 and you cannot profit from a criminal offence.

Good point. Everything flows from the flawed use of ANPR cameras and the flawed signage. Planning consent is required for cameras and advertising consent is required for signs greater than 0.3m2. Not having the latter is a criminal not civil offence, and it is also illegal to gain money from an illegal activity.

Deamand therefore that they show they have up to date advertising consent, and they are not trying to make money from you as a result of criminal activity, or anyone else for that matter.

Coupon-mad

I didn't see anything that explains what you do accept as true, compared to what you deny. So I would start by setting the scene (makes it easy for a Judge to grasp the issues). Make this point #1 and move the rest down in numbering:

1. It is common ground that I am the registered keeper of VRN xxxxxxx and that the vehicle was captured by ANPR cameras at the entrance and exit of Halls Mill Retail Park, Foundry Street, Bury. However any evidence is lacking:

i) No evidence has been supplied by the Claimant as to the identity of the driver on that day. More than one driver uses this vehicle.

ii) As the letters were only received four months after the alleged event and our visits to this retail park are generally unremarkable, I am unable to recall whether my partner or myself was driving and/or whether this was a day when either/both of us visited this local retail park once, or whether this might have been two shorter visits (for example, a second trip to return an item).

iii) I believe no contravention of terms occurred and doubt the car was parked for over two hours in a single bay for one visit and have seen no evidence of this. I am aware that ANPR has a known flaw of not capturing every visit and defaulting to the times 'first in' and 'last out' on any given day and suggest that may well explain the timings. I intend to rely on a British Parking Association Article exposing this fault with ANPR technology and believe this Claimant has failed to eliminate the possibility and indeed will be unable to, since missed VRNs or misreads are common and can be caused by a simple matter such as weather conditions, glare or even a large delivery lorry or other vehicle tail-gating.

iv) Notwithstanding the fact we use this Retail park, any signs are certainly unremarkable and I was not aware of - nor did either driver accept the risk of - any £100 'parking charge'. I deny liability for the entirety of the claim due to the above lack of evidence and for each and every one of the following reasons:

Your defence uses the word 'you' where it should say 'the Claimant'. Your defence is to be read by a Judge if a hearing happens (not inevitable, the Claimant might discontinue) and so should be in the third person when talking about your opponent.


I would add points (a) and (b) here to your point #2, moving your other sub-points down:

2/ This Claimant has not complied with pre-court protocol:

(a) The Claimant did not respond at all to my appeal. This had been correctly sent by email to the Claimant within days of the date I discovered the existence of their 'PCN' letter, and I clearly informed them of my postal address for service of any future letters.

(b) The Claimant continued to use my old address thereafter, including for service of the Court papers. I believe the intention was that I would not see the court papers in time to acknowledge or defend, since it has been well documented (with the current Prime Minister recently vowing to end the practice) that using old addresses and aiming to achieve default CCJs is an abhorrent tactic used by private parking companies.

You need a statement of truth at the end of your defence, like you see on others like this one, for example:

https://forums.moneysavingexpert.com/discussion/comment/71415539#Comment_71415539



You need to remove this (below), which is more like an evidence 'exhibit' which comes later in the process, before and at any hearing if they proceed:

I received documentation relating to a PCN on 23/06/16 due to the fact that I had moved, it seems that when you first contacted the DVLA for my contact details they were at my old property, shortly after I informed the DVLA that I had moved and gave them my new address as I have supplied to the court on my registration regarding this matter.

I explained this in my appeal and requested that all correspondence be to the new property and that all action on their behalf should remain on hold until we discuss the original letter relating to a £60 PCN.

My appeal was sent via email on __ June 2016 and as stated was only received on 23 June 2016 as the current tenant informed me that mail had been delivered for me, I was unaware of this allegation until this date 23 June 2016 and could not respond to an accusation that I had not been made aware of previously. I have evidence of my appeal and also the date it was sent.

Here is the text from the appeal :



Dear Sirs

Re: __________________________ dated ____________


It seems that you have sent 4 letters referring to the above PCN to my old address where I no longer reside and I have not received any of these until yesterday __06/16 when I attended the property to collect any mail that had been delivered.

It seems that during the process of you requesting my details from DVLA I had moved and informed them shortly after, so if you would have checked again with DVLA before sending further correspondence you would have seen that I am registered from the above address with them and have been for several of your letters so please make any correspondence to the correct address above. I have only received your PCN yesterday and as a result it is deemed to have only just been served on 23/06/16 hence what you may interpret as a late appeal is indeed an appeal on day 2 of being in possession of the alleged PCN. It is therefore given that any further action by you or indeed on your behalf should be placed on hold whilst we address the issue of your brown letter dated __/03/16 and as a result no action should be taken in relation to your letters dated __/04/16 red letter, __/05/16 letter before action and __/06/16 ZZPS until we have concluded our discussions regarding the original brown letter and its £60 amount.

I challenge this 'PCN' as keeper of the car and I will complain to the landowner about the matter if it is not cancelled.

I believe that your signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. Your unremarkable and obscure signs were not seen by the driver, are in very small print and the terms are not readable to drivers before they park.

Further, I understand you do not own the car park and you have given me no information about your policy with the landowner or on site businesses, to cancel such a charge. So please supply that policy as required under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. I believe the driver may well be eligible for cancellation as you have omitted clear information about the process for complaints including a geographical address of the landowner.




There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge.

I have kept proof of submission of this appeal and look forward to your reply.

Yours faithfully,

____________________

It is without any doubt that my appeal has been sent and that it is requesting that we address this alleged PCN and that they correspond with me via my official DVLA address. Given that I can evidence that I have indeed sent an appeal and the content of this appeal and that I have not as of today 21 October 2016 received a response from my appeal it is evidently clear that CEL have breached protocol in not responding to a letter of appeal and instead of responding chose to employ the services of Wright Hassall solicitors of Olympus Avenue Leamington Spa who wrote to me again at the wrong address (letter dated _ August 2016) informing me of a formal letter of claim for the sum of £___. I promptly telephoned and spoke with a lady named Nina at approximately 1715 on the day I received the letter who informed me that CEL had indeed closed the case.

This being the last correspondence from both Wright Hassall solicitors and Civil Enforcement Limited until receipt of a claim form dated __ October 2016 .

I put it to you that it is CEL that have not responded to my letter of appeal and that continue to send letters to an address that I do not reside at and this is a large contributing factor to this matter reaching this stage and that instead of CEL claiming a ludicrous amount of money from me that simply does not match their expenses and £50 for a generic solicitor namely Mr Michael Schwartz that it is indeed questionable as to the legality of his employment in an official capacity due to what I believe are suspensions restricting his employment it should in fact be me claiming monies from CEL for harassment and for the trauma it has already caused and continues to cause as a blue badge holder life can be difficult enough, should I not be spending time with my new born baby instead of being stressed addressing allegations made by ruthless parking companies that it is clear to see do not follow the protocol set out that they must follow and instead attempt to extract unjust worthy amounts of money by using generic letters preying on the fact that the majority of people will not fight the injustice when they attempt to extract unreasonable amounts of money that simply do not match the costings and that I should also be charging them for the countless journeys being 13.5 miles per trip to collect letters from a property that I have informed them and also the DVLA that I no longer reside at.

I have included with this defence as evidence a copy of my appeal and also proof of the date and time it was sent via email and the fact that it was simply ignored and not responded to highlights that CEL have breached protocol and I respectfully request that the application claim against me be rescinded and CEL be informed to cease all communication in its attempt to claim any monies from myself regarding this matter. I can not tell you how much stress and anxiety that CEL is causing in its harassment.

It is neither admitted nor denied that I the defendant was driving and the claimant is put to strict proof thereof

Finally, this bit makes no sense? So remove the second sentence:

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.

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

Try all of the above tweaks and show us draft #2 please.

Coupon-mad

For your later evidence, the BPA Article about ANPR flaws (thanks to IamEmanresu) is here:

http://forums.pepipoo.com/index.php?act=attach&type=post&id=44279

But like I said, this is not a time to include your actual exhibits. No links, no photos of small print on signs, no copies of appeals, not yet.

HTH