Claim Form from CEL

Scholars86

Thanks for the reply C-M - have removed my name, rookie mistake!

Ashley Cohen signed the particulars of claim that I received but the claim form was signed off "Legal
Team".

Will add in the POFA paragraph but would appreciate some help with the wording in relation to the landlord no longer dealing with CEL due to the way they harass customers as well as where I should insert the claim form not being properly filed.

Also, when I re-visited the pub yesterday there were no parking restriction signs at the entrance of the car park & there were only 2 signs (not illuminated). The signs did include a warning of how the ANPR data would be used however.

Scholars86

2nd draft. Have got it formatted correctly on my word document with double spacing, correct font & size etc.

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

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 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) The Claim Form issued on the 2nd December 2016 was not correctly filed under The Practice Direction as it was not signed by a person but signed by “The Legal Team”.
(c) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information. The covering letter merely contains a supposed PCN number with no contravention nor photographs.
(d) 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 - why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information.

3/ I put the Claimant to strict proof that it issued a compliant notice under Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.

4/ Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
(a) Lack of 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.
(b) 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).
(c) 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.
(d) Absent the elements of a contract, there can be no breach of contract.

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) sum pursued exceeds £100.
(c) there is/was no compliant landowner contract.

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. Having spoken with the landowner since receiving the claim form, he has confirmed that the he no longer has a contract in place with Civil Enforcement Limited due to the way that they operate their business in harassing paying customers.

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 based upon a lack of 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 Cohen is an employee then the Defendant suggests he is remunerated and the particulars of claim are templates, so it is not credible that £50 legal costs were incurred. 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 2nd December 2016
(b) failed to respond to a letter from the Defendant dated 09 December 2016 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.

I believe the facts contained in this Defence Statement are true.

xxxxxxxx

Carthesis

Personally, I'd add to your Point #3 some wording about POFA being the only means by which the Keeper can be held liable, and there is no other method by which liability can be transferred. I'd point out the E-v-L case, refer to Henry Greenslade, and list the cases where PPCs have been spanked by judges for relying on anything except POFA for Keeper Liability.

Coupon-mad

Your first post still needs editing - 2nd & third lines talk about 'who' was there.

Remove 4d because GPEOL arguments are superfluous.

I agree with Carthesis - mention the Lead Adjudicator and barrister Henry Greenslade and the POPLA Annual Report 2015. No need to actually quote him yet (that's for later if this actually proceeds) but you can state that he explained that there is 'no lawful presumption' that a keeper was the driver and no adverse conclusions can be drawn from a keeper exercising their right to handle and defend an unfair parking charge themselves, rather than name the driver.

You can find his words by searching 'Henry Greenslade presumption' on this board.

The UTCCRs were superseded by the CRA in 2015, so I'd change this as shown:

(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 Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from by an authorised party using the premises as intended.

Object to the added costs (whoever they describe them, except the court fee itself). You can find wording for that by searching the forum for 'thin air defence'. Make sure you have that in there.

And add that:

The Defendant visited the premises with family after the parking charge was issued, as the family are regulars but had no idea of any change of parking terms. The pub landlord assured us that nothing would happen and, as the keeper receiving these demands, I was specifically instructed by the pub (this Claimant's principal at the time of this 'parking charge') to ignore any future correspondence I received, since the Claimant was not authorised to pursue matters and the intention of the scheme was never to enforce charges against pub customers. The Defendant relies on the doctrine of promissory estoppel in this regard and has also secured confirmation that the Pub ended their contract with this Claimant earlier this year, due to the aggressive way they operate against the interests of customers.

And add something specifically that says that there was no clear, transparent information about how to obtain a permit, either inside or outside at this site, so there was no 'relevant obligation' nor 'relevant contract' in existence that could be considered fairly and adequately communicated. Absent either a relevant obligation and/or a relevant contract, there can be no keeper liability as these are prerequisites under Schedule 4 of the POFA, regardless of documents served.

Scholars86

Thanks again for all of the pointers. Have only just discovered the "thank you button". How is this now looking?

In the County Court Business Centre
Claim Number ****
Between:
Civil Enforcement Limited v ******
Defence Statement

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

The Claim Form issued on the **** by Civil Enforcement Limited was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by “The Legal Team”.

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 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 contain very little information. The covering letter merely contains a supposed PCN number with 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 - why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information.

3/ I put the Claimant to strict proof that it issued a compliant notice under Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.
Henry Greenslade, lead adjudicator of POPLA in 2015 and an eminent barrister and parking law expert stated that “However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort.”

Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and relevant contract' fairly and adequately communicated, which there was not as there was no clear, transparent information about how to obtain a permit either inside or outside the site) is the sum on the Notice to Keeper. They cannot pluck another sum from thin air and bolt that on as well when neither the signs, nor the NTK, nor the permit information mentioned a possible £252.71 for outstanding debt and damages.

4/ Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
(a) Sporadic and illegible (charge not prominent nor large lettering) of 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.
(b) Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
(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 Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from by an authorised party using the premises as intended.
(d) 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.

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.

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.

The Defendant visited the premises with family after the parking charge was issued, as the family are regulars but had no idea of any change of parking terms. The pub landlord assured us that nothing would happen and, as the keeper receiving these demands, I was specifically instructed by the pub (this Claimant's principal at the time of this 'parking charge') to ignore any future correspondence I received, since the Claimant was not authorised to pursue matters and the intention of the scheme was never to enforce charges against pub customers. The Defendant relies on the doctrine of promissory estoppel in this regard and has also secured confirmation that the Pub ended their contract with this Claimant earlier this year, due to the aggressive way they operate against the interests of customers.

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 based upon a lack of 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 Cohen is an employee then the Defendant suggests he is remunerated and the particulars of claim dated 1st December 2016 are templates, so it is not credible that £50 legal costs were incurred. 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 incorrectly filed Claim Form issued on 2nd December 2016
(b) failed to respond to a letter from the Defendant dated *** 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.

I believe the facts contained in this Defence Statement are true.

Signed
Date

Coupon-mad

Will take a look later.

Scholars86

Apologies for the bump, but was hoping to get this sent to the court this week before the Christmas slow down.

Thanks in advance

System

Looks fine. What has the pub said (see your #7)

Scholars86

I'm due to chase the landlord again today as he still hasn't emailed me with his statement. Will wait until I receive that before sending my defence off.

Thanks for the reply.

Scholars86

Defence was received by the court yesterday so now I guess I wait to hear...?

Thanks again for all of the pointers in this thread & on the forum in general, huge help!