Parking fine from civil enforcement ltd

milliemonster

Thank you I have done as you requested, please could someone take a look at my defence in the meantime and advise?

Crabman

Four threads have been merged together

milliemonster

thank you Crabman, please could someone take a look at my defence? I really need to get this posted in the next couple of days

thank you

claxtome

My comments about your defence:
1) You haven't mentioned, in your opening line(s), if you are defending as Keeper or Driver.
(From reading further it looks like you are defending as Keeper and pointing out POFA Schedule 4 2012 misdemeanours)
2) I would remove the following text ", under the Practice Direction" from 1a as you mention it further down after 1d
3) I assume the final version will have more spacing and blank lines

Umkomaas

3) I assume the final version will have more spacing and blank lines

I think that should be the OP’s first action in regard to the draft.

Walls of text (and regulars are reading so much text each day) produce real headaches. I refuse to try to read such blocks. It’s not very courteous to expect those giving freely of their time to be just presented with a dump of text and expected to respond, with an implied deadline by which to do so.

milliemonster

Ok, thanks for that, I have redrafted, reformatted and posted my updated defence below, I have never been through anything like this before so I am sorry if I am offending you all, I have researched and read and have only come her for help and assistance, I have been courteous and polite throughout.

I would be grateful if anyone can now read my defence and offer any further advice?



In the County Court Business Centre

Between:

Civil Enforcement Limited
V
XXXXXXX




Claim Number: XXXXXXX

1 I was the registered keeper of the vehicle at the time of the alleged offence. The claim relates to an alleged debt arising from overstaying in a free retail customer car park of which I was a customer.

2 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.

3 I submit that I was not afforded any method by which to appeal, nor any information about complaints procedures to the landowner. This omission prevented me from being able to get this charge cancelled by the Retailer, a right that I believe existed as an exemption clause for shoppers written into the landowner contract/retailer user manual but a material fact which is withheld from consumers. If I could have appealed to POPLA or had been informed that the Retailer/landowner could deal with such complaints and cancel charges, I would have done so.

4 The 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’.

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.

e. 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 support the efficient management of proceedings that cannot be avoided.’

5 The Claimants representatives, have artificially inflated the value of the Claim from £100 to £253.54. I submit the added costs have not actually been incurred by the Claimant; these are figures plucked out of thin air and applied regardless of facts, as part of their robo-claim litigation model, in an attempt at double recovery, circumventing the Small Claims costs rules. 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 additional £50 'legal representative’s (or even admin) costs’ added to the above sum were incurred.

a. 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.

b. 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.

c. Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

6 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.

7 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.

8 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.

9 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.

10 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.

11 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.

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

i Failed to disclose any cause of action in the incorrectly filed Claim Form issued on 11th October 2017.

ii 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.


……………………………………………. ……………………….
(Defendant) (Date)

Coupon-mad

Have you said that the Particulars were late - I couldn't see it.

System

@milliemonster

How did this case end up. Did they drop or did you settle?