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

1postie

Thank you for your effort in helping me with this we really appreciate it

1postie

Thanks for your help with this, we have spent a couple of hours amending it, is this looking better, have we covered everything needed?


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[FONT=&quot]1. It is common ground that I am the registered keeper of VRN ___________ 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 or indeed another family member 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 £60 'parking charge'.[/FONT]
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[FONT=&quot]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:[/FONT]
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2/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.

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[FONT=&quot]3/ 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.

(c) 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.

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

It does not detail:
1. Proof nor 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.


(e) 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.

4/ 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.


5/ 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.



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. [/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.


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 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.


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 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.

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[FONT=&quot]I also request 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.[/FONT]
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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 the claim form dated 14 October 2016.

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[FONT=&quot]Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.[/FONT]
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Coupon-mad

The parking charge is £100 not £60 (the latter was merely a discount bribe, not the actual 'charge' at all, just an aggressive 'offer' to rush idiot victims into coughing up). Hence why I said:

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:

I would add a point (d) here:

4/ 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.

(d) The sporadic placement of signs and use of small print to hide the £100 'charge' is in stark contrast to the 'prominent', brief and clear signs in the Beavis case which turned on the finding that he was 'bound to' have seen the charge and accepted it. Not so here. There are parts of this site which are very poorly signed and there are no signs near the buildings as a person walks from their car to shop, hence no drivers of this vehicle were even aware that a charge was possible at this advertised 'free' car park.

Just spotted that as your case DOES have similarities with the 2 hour fee Beavis case you need to remove the bit I've crossed out and add the bit I;ve suggested in read, to draw a clear distinction:

2/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 admitted to seeing the signs and admitted to parking for longer than authorised. [STRIKE]and entered into a contract to pay £85.[/STRIKE] [STRIKE]after exceeding a licence to park free.[/STRIKE] None of this applies in this material case.

For the same reason I would completely remove #9 purely because your case IS similar (a retail park offering 2 hours free and you are accused of overstay) so I feel you should steer well clear of arguing issues like 'must be a GPEOL' which failed in the Beavis case:

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.

Replace #9 with this which needs to be a defence point in itself:

I also request 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 remove these two if this was a free car park, these make no sense (so lose #11 and #12 completely):

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 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.

As far as I could see, you've entirely removed this bit but I didn't suggest removing it all, only the second line that you had below it. This is worth having near the end:

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.

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BTW - once you have submitted your defence, get some photos of the lack of clear signs in case this goes to a hearing, because they will show signs in misleading close-up, nothing like a driver actually sees. You need to show the truth to demonstrate why no drivers had accepted any risk of paying any charge in this free retail park. Here's a photo of the place which suggests a distinct lack of signs near the buildings but maybe this is an old pic?

http://www.visitnorthwest.com/malls/halls-mill-retail-park

The best evidence for a hearing IMHO, is dash-cam or mobile phone camera footage (phone held by a passenger), showing what the place really looks like as you driver in and choose the parking place where there are NO SIGNS! Do that, in readiness to win this, if they proceed.

But CEL cases we've seen off here do not go to a hearing, so far. CEL have been seen to quietly not proceed and instead move on to easier victims. That's why the defences are pretty robust in attacking Schwartz & exposing PPC bad practice, saying it like it is about SRA complaints...such that CEL may not want these things seen by a Judge.

1postie

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[FONT=&quot]1. It is common ground that I am the registered keeper of VRN

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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 or indeed another family member 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'.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]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:[/FONT]
[FONT=&quot]
2/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 who was the driver [/FONT][FONT=&quot]who admitted to seeing[/FONT][FONT=&quot] the signs and admitted to parking for longer than authorised. [/FONT][FONT=&quot]None of this applies in this material case.

[/FONT][FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]3/ 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.

(c) 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.

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

It does not detail:
1. Proof nor 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.


(e) 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.

4/ 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.

[/FONT]
[FONT=&quot](d) The sporadic placement of signs and use of small print to hide the £100 'charge' is in stark contrast to the 'prominent', brief and clear signs in the Beavis case which turned on the finding that he was 'bound to' have seen the charge and accepted it. Not so here. There are parts of this site which are very poorly signed and there are no signs near the buildings as a person walks from their car to shop, hence no drivers of this vehicle were even aware that a charge was possible at this advertised 'free' car park.[/FONT][FONT=&quot]

5/ 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.



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. [/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.


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/ [/FONT]I also request 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.
[FONT=&quot]


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 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.



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[FONT=&quot]I also request 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.[/FONT]
[FONT=&quot]
The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

[/FONT]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.[FONT=&quot][/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]

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1postie

Is this worthy of a defence, we need to enter it as we're worried sick or if its not we can amend it still?

1postie

Is this ready to go guys we need to enter a defence ?

Coupon-mad

1postie wrote: »

Is this worthy of a defence, we need to enter it as we're worried sick or if its not we can amend it still?

Go for it...don't be too worried, we've never seen a defended CEL case on this forum go much further (no hearings so far, many just went quiet for months, which means the claims are stayed now, dead unless CEL pay another fee to resurrect them).

We've had no losses and no-one paid. Yours is as good as the others, get it submitted on MCOL and breathe! A good job turn, you have negotiated a steep learning curve so far, so well done!

Then read bargepole's updated advice about what happens next/all about the hoops to jump through to see this out. It's linked in the NEWBIES thread under 'small claim?' and he re-wrote it only the other day so it is new information.

1postie

thanks, were entering it today

1postie

When im uploading it by copying and pasting I am informed
'Please state your defence in a maximum of 122 lines in the box below.*"

and it doesn't fit am I uploading it to the wrong place?

Redx

that box only allows for a small holding defence

you may need to email the attachment or to print and post it , like bargepole stated recently

also read the reply by hoohoo too