Parking fine from civil enforcement ltd

milliemonster

Sorry for starting a new thread but I can't find my old one, happy for these to be merged.

Summary
Parked in Costa car park 6th nov last year and had a full morning meeting there (have bank statements to prove I purchased in there) 24th december received PCN from civil enforcement, I replied not admitting I was the driver and asked for evidence (followed the advice on this board) also was timed out from the popla appeal due to them not sending me the PCN in time.

They ignored my response and sent another letter in feb from solicitors (LBA) I defended this asking for photographic evidence and again used advice on this board.

Heard nothing since until today when I receive a pack from the county court business centre in Northampton that is titled a claim form and I can either pay or defend.

I am not sure what to do now as I have never been in this situation before, I have the option of paying, defending part of the claim or preparing a defence, can anyone offer any advice?

Redx

yep , please read the NEWBIES FAQ sticky thread, post #2

do the AOS online (nothing else at this stage)

then draft your CEL defence based on other recent defences published on here in the last few weeks or so (there are plenty to read and to plagiarise)

then post it on here for critique

you are one of hundreds , so you just do the same as those here before you , same actions , almost the same defence , etc

ps:- I clicked on your name , SHOW POSTS , went to page 2 and found your original thread from feb 2017

https://forums.moneysavingexpert.com/discussion/5598046

its that simple

and you said in that first post back then that you had read the sticky , well this is no different , read the same sticky , lol

milliemonster

Thanks redx, I've just had a quick read of the CEL recent defences and will put it together this weekend and post for critique, appreciate the help

Redx

yep, plenty of CEL court claim threads on this first page of the forum and also over the last few weeks, so look at those first and draft your own

I hope you have read the BARGEPOLE post and done the online AOS on the MCOL website ?

this extends the deadline for defence submission from 14 to 28 days

shouldnt take long to adapt one of the recent defences posted by others on here

milliemonster

No not had a look yet and haven't done the AOS yet as only just received the letter today, but I will take a look before I do it thank you

milliemonster

Hi everyone

quick summary again, parked in costa 4/11/16, received postal PCN from CEL dated 21/12/16 for overstaying (1hr maximum apparently), I was there for 4 hours for a meeting, have bank statement to prove I was a customer there at the time.
Initially responded to PCN asking for photographic proof, they ignored my request, sent further demands and an LBA, I responded to LBA in April stating they were not compliant with the practice direction, they ignored this.

Received county court claim form dated 10th Oct, I filed on MCOL my AOS on 16th and received particulars of claim from CEL dated 11th Oct, I received these around 20th Oct.

I have prepared my defence based upon the CEL template in the newbie thread which I have attached below, The claim particulars are signed by an individual on behalf of CEL so I have amended the template slightly. Would anyone please take a look and let me know if this is ok as I need to file this by 12th Nov.

In the County Court Business Centre
Between:
Civil Enforcement Limited
V
XXXXXXXXXXX




Claim Number: XXXXXXXX




I, XXXXXXXXXXXXX, deny I am liable to the Claimant for the entirety of the claim for each of the following reasons:

• This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017). As an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

a. There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.
b. This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.
c. The Schedule of information is sparse of detailed information.
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.
The Claim Form Particulars did not contain any evidence of contravention or photographs. These documents, and the ‘Letter before County Court Claim’ should have been produced, pursuant to paragraph 6 of the Practice Direction – Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to “take stock”, pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:
i. ‘early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute
ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure
iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and
iv. support the efficient management of proceedings that cannot be avoided.’
e. The Defence therefore asks the Court to strike out the claim as disclosing no cause of action and having no reasonable prospect of success as currently drafted.
f. Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;
i. Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
ii. A copy of any contract it is alleged was in place (e.g. copies of signage)
iii. How any contract was concluded (if by performance, then copies of signage maps in place at the time)
iv. Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
v. Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
vi. If charges over and above the initial charge are being claimed, the basis on which this is being claimed
vii. If Interest charges are being claimed, the basis on which this is being claimed.
g. Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.
• The Claimant failed to meet the Notice to Keeper obligations of 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. The Claimant issued the postal PCN on 21/12/16 following the alleged incident date of 4/11/16 thereby ensuring opportunity for appeal to POPLA was outside the 28 day rule and therefore denied.

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) is the sum on the Notice to Keeper. They cannot pluck another sum from thin air and bolt that on as well when it is believed that neither the signs, nor any NTK mentioned a possible additional £149.66 for outstanding debt and damages.
• The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs’ were incurred.
• 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. As far as I can ascertain, based upon the very vague particulars of claim and complete lack of evidence and photographs, and without having been furnished with the alleged signage 'contract', none of this applies in this material case.
• Proof of signage had been requested in response to the PCN In January 2017 however the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case. Photographic evidence of the alleged offence was also requested at this time and has not been received.
a. The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.
b. In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.
c. Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
i. 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.
ii. 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.
iii. 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.
iv. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
d. BPA CoP breaches - this distinguishes this case from the Beavis case:
i. the signs were not compliant in terms of the font size, lighting or positioning.
ii. the sum pursued exceeds £100.
iii. there is / was no compliant landowner contract.
• 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.
• 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.
• 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.
• Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car over 10 months later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.
• The Defendant has documentary evidence they were a customer at the retail park on the date of the alleged offence.

The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

• Failed to disclose any cause of action in the incorrectly filed Claim Form issued on 11th October 2017.
• Sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.
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 confirm that the above facts and statements are true to the best of my knowledge and recollection.


Many thanks

Rachel

milliemonster

Just one other thing, I've read the updated information regarding the POC sent by CEL which are often outside the 14 day time limit? I have been away for a couple of weeks so this is new information and I didn't keep the envelope so I can only hazard a guess as to when they were received but it was around 20th October so within the guidelines I guess

KeithP

So that's now four threads we have on this one CEL incident.

Why is that?

milliemonster

sorry, happy to merge them if anyone can help me?

KeithP

Milliemonster, you've been on MSE forums for nearly ten years now.

PM a board guide and ask them to help with that.