CEL County Court Claim

xbone

I came home to a County Court Claim from CEL on Friday and have since spend hours reading about the next steps, and bookmarked different cases on both here and Pepipoo. From what I've read it seems CEL are taking advantage of those ignoring all letters hoping I'll ignore this one (I too took some bad advice), and those that prepare poor defences or would rather pay than write one. I've decided to defend on the belief that should it come to a hearing, I'll either save money or have costs covered. Plus I dislike their practice. Also if they can only win the cost of the initial charge (please correct if wrong, I assume this would be in my defence parkingcowboys.co.uk/keeper-liability-amount-recoverable/) then it wouldn't be worth their time to pursue. All advice points towards a new thread for help with preparing defence statements, so here goes! Thanks to everyone in advance.

I've seen statements as short as fifteen bullet points and ones with over forty. So any help with points that NEED to be included that I can expand on would be massively appreciated.

Here is a brief summary of the situation:

I'm the keeper of a vehicle which was booked by an ANPR camera overstaying a 2 hour free car park by around 20 minutes. I've checked the location on Google Maps, and if you're parked in front of a sign, it's so high you can't see it out your windscreen. Those images are from 2012.

From the PoC: 'If you exceed the free 2 hour parking allowance and do not obtain a permit, you agree to pay £100.'

They're claiming over £320 including legal fees and interest to date.

Earliest correspondence I have is a Letter Before Action which has only the VRN, PCN reference, incident date, and location. Since then I have two letters from Wright Hassall who have been "instructed" by ZZPS Limited acting on behalf of CIVIL ENFORCEMENT LIMITED. They took the amount from £140 on the LBA to £236.

I don't recall seeing anything else until the date I got this County Court Claim and Particulars of Claim. I haven't seen any pictures of the car on any letters either.

I've got so many tabs open there will be something that I wanted to say but missed. Again, thanks in advance for any advice!

Redx

find the basic template for CEL COURT CLAIMS and start off with that

then add or remove anything else that may be relevant, or delete the irrelevant , especially any facts that are not true or are for a different case

and for legal points and procedures, ALWAYS read the court sub-section of the NEWBIES sticky thread, especially the BARGEPOLE ones

Coupon-mad

I've seen statements as short as fifteen bullet points and ones with over forty. So

any help with points that NEED to be included that I can expand on would be massively appreciated.

This is covered by bargepole in the 'Small Claim?' section of the NEWBIES thread, you need to read his posts to know how to fill the forms in and to be ready for the later, vital stage of Witness Statement and evidence (prior to the hearing). And to know what irrelevant points to avoid in any defence.

Same advice as here:

https://forums.moneysavingexpert.com/discussion/5610030

CEL always discontinue when they see a forum defence. On MSE we've not seen a CEL one go to Witness Statement stage, let alone a hearing.

xbone

In the County Court Business Centre
Claim Number ****
Between: Civil Enforcement Limited (Claimant) vs. **** (Defendant)


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.
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, how long the car was actually parked (only the arrival and departure times), 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 the Defendant 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) is the sum on the Notice to Keeper and no more. They cannot recover an additional £2XX.XX for outstanding debt and damages when neither the signs, nor the NTK, nor the permit information mention this.

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) No grace period was allowed. The vehicle in question was parked only 20 minutes and XX seconds over the 2 hours free.
d) There is/was no compliant landowner contract.

6. No standing - this distinguishes this case from the Beavis case:
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.
[FONT=&quot]b) In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and no contract could have been entered into between the driver and the Claimant. Therefore the Claimant has no case.[/FONT]

7. No legitimate interest - this distinguishes this case from the Beavis case.

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:
a) If Mr. Cohen is an employee then the Defendant suggests he is remunerated and the Particulars of Claim and draft are templates, so it is not credible that £50 legal costs were incurred. I deny the Claimant is entitled to any interest whatsoever.
b) The Claimant did not incur £40 recoverable costs before sending a Letter Before Action dated XX/07/16.
c) The Claimant did not pay £60 to ZZPS Limited. As Wright Hassall Solicitors state they were instructed by ZZPS Limited, I deny that the Claimant paid £36 to Wright Hassall Solicitors either.
d) The Claimant failed to take legal action following the Letter Before Action, and in failing to mitigate costs has artificially inflated the amount.

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 and vague Particulars of Claim. 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:


A copy of my draft Defence. I got some help from some recent successfully stayed claims. The lines marked in bold are those of which I am unsure of or don't fully understand. Any comments would be much appreciated.

Coupon-mad

The vehicle in question was parked only 20 minutes and XX seconds over the 2 hours free

It certainly wasn't, so don't hand them stuff like that. Think again...the car CANNOT have been parked for the time shown by the ANPR cameras which show moving traffic at the far corner entrance & exit. So don't say it was! More likely parked within 7 or 8 mins of arrival (perfectly OK in a busy car park) and vacated the space well within the parking-end grace period.

Say that on the balance of probabilities, the car was only parked for the 2 hours allowed.

Check your defence against this one, this is the sort of thing used to make CEL stop:

https://forums.moneysavingexpert.com/discussion/comment/71748239#Comment_71748239

HTH - no cases have gone to a hearing v CEL from this forum so far, all stayed.

xbone

Thanks for your reply Coupon. I see how I worded that completely wrong! I have the point in there further up 'how long the car was actually parked (only the arrival and departure times)', but clearly I need some emphasis on that here too.

'No grace period was allowed. The total time between the arrival and departure from the ANPR cameras do not take into account the time taken to locate a free space and park, nor the parking-end grace period. The vehicle in question was likely only parked for the two hours allowed, taking just shy of ten minutes to park on arrival and vacating the space well within the grace period.' How's that?

The defence you mentioned was one I used to make this one. In that case CEL had their contract cancelled with the landowner. So would this point still apply?:

'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'

Coupon-mad

Yes that observation (arrival time) and grace period (separate allowance at the end) point is clear. I would add this, deliberately using the 'balance of probs' which is what a Judge would have to use:

on the balance of probabilities, the car was only parked for the 2 hours allowed and this Claimant is put to strict proof otherwise.

And you are right that #7 about revenge claims makes no sense in your case if CEL haven't (yet!) been kicked out.

I think you have covered the bases you need to and should submit that, as recommended by bargepole, by post to Northampton CCBC, set out in Times New Roman font size 12 and 1.5 line-spaced, etc. Not via MCOL which chews up the formatting & paragraphs.

xbone

Thank you Coupon. I'll leave a copy of my final draft below and post it tomorrow unless any other changes are advised. Would it be a good idea to email it across too? I expect I'll receive either a letter or email of confirmation of receipt.

In the County Court Business Centre
Claim Number ****
Between: Civil Enforcement Limited (Claimant) v **** (Defendant)


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.
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, how long the car was actually parked (only the arrival and departure times), 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 the Defendant 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) is the sum on the Notice to Keeper and no more. They cannot recover an additional £XXX.XX for outstanding debt and damages when neither the signs, nor the NTK, nor the permit information mention this.

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 CoP and no contract formed to pay any clearly stated sum.
b) Non-existent ANPR 'data use' signage - breach of ICO rules and the BPA CoP.
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.
d) No grace period was allowed. The total time between arrival and departure from the ANPR cameras do not take into account the time taken to locate a free space and park, nor the parking-end grace period. On the balance of probabilities, the vehicle in question was only parked for the two hours allowed, having vacated the space well within the grace period. The Claimant is put to strict proof otherwise.

6. No standing - this distinguishes this case from the Beavis case:
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 no contract could have been entered into between the driver and the Claimant. Therefore the Claimant has no case.

7. No legitimate interest - this distinguishes this case from the Beavis case:
a) The Claimant has no 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 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:
a) If Mr. Cohen is an employee then the Defendant suggests he is remunerated and the Particulars of Claim and draft are templates, so it is not credible that £50 legal costs were incurred.
b) The Claimant did not incur £40 recoverable costs before sending a Letter Before Action dated XX/07/16.
c) The Claimant did not pay £60 to ZZPS Limited. As Wright Hassall Solicitors state they were instructed by ZZPS Limited, I deny that the Claimant paid £36 to Wright Hassall Solicitors either.
d) The Claimant failed to take legal action following the Letter Before Action, and in failing to mitigate costs has artificially inflated the amount. I deny the Claimant is entitled to any interest whatsoever.

The Defendant denies any liability 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 and vague Particulars of Claim. 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

Would it be a good idea to email it across too?

Yes, as a signed & dated scanned attachment, a true copy of the real thing.