CEL Claim Defence

TrolleyMonkey

Evening All, I have been aware of this area of the MSE blog for sometime and now have a County Court Business Centre Claim from CEL to defend. I am aware of the process to date which I have done and now need to polish off my defence. When I say polish I mean write something that won't offend the court/judge as my skills in this area are lacking. I have been skimming through this blog for defences but wanted one of the stalwarts of this blog to advice me as I have to send it registered by the end of the week.

I have a PCN for a car I am the registered keeper of from a private car park outside a shop. I have received a series of letters over the past 11 months which have been threatening various things which were duly ignored and binned (my bad). The defence below is a work in progress but not sure if it makes sense or if I am missing anything. The carpark was using an ANPR system, with alleged signage. Let me know if you require any further details. Here is my anon defence to date. Thanks in advance for your help and words of legal wisdom, or just punctuation tips:

Claim Number: XXXXXXX

Civil Enforcement Limited
Vs
XXXXXXX

Statement of Defence


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

The Claim Form issued on the 22 February 2017 by Civil Enforcement Limited was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by “Claimant’s Legal Representative”.

I deny liability for the entirety of the claim for each and every one of the following reasons:

(1) This claim appears to relate to an allegedly unpaid parking charge from Civil Enforcement Limited dating back to XXXXXXX, almost a year ago. I have no recollection of parking at this car park, however other people had use of this car as well. On the balance of probabilities and to the best of my recollection, I am unlikely to have been the driver on that occasion and I put this Claimant to strict proof, because without that they have no case against me, since this Claimant chooses not to use the statute which would have given them a potential right to claim 'keeper liability'.

(2) 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, no keeper liability can apply, due to this Claimant's PCN not complying with Schedule 4.

(4) 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 license to park free. None of this applies in this material case.

(5) This Claimant has not complied with pre-court protocol:

(a) There was no compliant ‘Letter before County Court Claim’, under the Practice Direction, no letters or correspondence has been received apart from the Claim notification itself and the Schedule of Information, which followed.

(b) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The initial County Court Business Centre 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.

(c) The Schedule of information is sparse of detailed information:
1. The defendant, who is the registered keeper and not identified as the driver at the alleged time.
2. The VRN.
3. The date and time of the alleged incident.
4. Car park name.
5. Outstanding amount and break down of costs.
6. Summary of Terms.

It does not detail:
1. Proof or confirmation of the driver at the time of the alleged incident.
2. Proof of the vehicle being there at the alleged time.
3. How long or proof that the car was actually parked.
4. The vehicle type and colour

(6) 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) Sporadic and illegible (charge not prominent nor large lettering) 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.

(c) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.

(d) It is believed the 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).

(e) 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.

(f) Absent the elements of a contract, there can be no breach of contract.


(7) POFA 2012 breach and the Defendant was not the driver - this distinguishes this case from the Beavis case:

(8) BPA CoP breaches - this distinguishes this case from the Beavis case:

(a) The sum pursued exceeds £100.

(b) There is/was no compliant landowner contract.

(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 with no 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) 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 (or even admin) costs' were incurred

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 22 February 2017

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.

Mr XXX

Coupon-mad

There is no such thing as registered post - you mean Recorded Delivery - but that's by the by. And there will be unlikely to be any court/judge reading this defence because CEL stop dead when they see this sort of version, as confirmed again this week by the poster called 'Barbie' something. And all the rest before her, for a year!

Your defence looks fine for CEL. You might want to check out Barbie's and smiledotcom's threads to make sure you haven't missed any good bits, then post it to the CCBC at Northampton, Recorded if you wish, to get a signature.

TrolleyMonkey

May one concern; and I understand that CEL are unlikely to defend this in court is they have sent me a 'Particulars of Claim' letter on plain paper. It states 9 points ref cases and is quite thorough so the last section of my defence may not withstand scrutiny here is an anon version of this as I have not seen it being ref here to date [sorry if I missed another example]

CEL
v
XXXXXXXXX

Particulars of Claim

1. At all material times, the Claimant managed the car park the address of which is stated on the attached Schedule of Information. The car park is private property.

2. By way of background, the Claimant uses ANPR cameras at the entrance and exit of the car park, which identify time of arrival and departure of vehicles form the car park.

3. There are many clear and visible signs in the car park advising drivers of the terms and conditions of use. Drivers are permitted to park in the car park in accordance with the terms displayed on the signage, and these signs constitute an offer by the Claimant to enter into a contract with drivers.

4. The key terms of the signs are summarised in the attached Schedule of information.

5. When the Defendant parked their vehicle (on the date and time as set out in the attached Schedule of information) in the Car Park they accepted , by their conduct, the terms and conditions of parking. See Vine v Waltham Forest London Borough Council [2000] 4 All ER 169

6.The Defendant breached the terms and conditions of the site and , as such , is liable to pay the Claimant the amounts as set out in the attached Schedule of Information.

7. The Supreme Court Judgement i the case of ParkingEye Limited v Beavis has established that it is both legal and commercially justifiable for car park operators to implement a disincentive, such as the above , so as to efficiently manage the car park for the benefit of its users. Our charge is neither extravagant nor unconscionable, and falls within British Parking association's guidelines as stated in their code of practice.

8. The Claimant (directly/through ots agents) was left with no alternative but to escalate the matter as a result of their non-payment of the debt, which further increased the amount owed, ion accordance with the terms of parking.

9. The Claimant claims the amount owed, plus court and legal fees, and interest, pursuant of section 69 of the County Courts Act 1984 on the amount found to be due to the Claimant at such rate, and for such period, as the court thinks fit.

Statement of Truth

blah blah blah

signed

Ashley Cohen
with an address in Liverpool

I am aware that this is a generic letter that was sent alongside a basic schedule of information on the same date as the CCBC Claim Form. I just wanted to ensure that this was something that was known about as it looks like Mr Cohen has been reading your advice also !!

Coupon-mad

I would perhaps just add to the end bit:

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 22 February 2017

(b) 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.

Seeing as '(a)' on its own with no '(b)' was odd anyway!

TrolleyMonkey

Coupon Mad,

I would just like to thank you for your kind words and advice regarding my CEL claim
I have just confirmed via the CCBC that my defence has been filed and the case has been stayed. This is of great relief and this site/blog has been a great example of how collective action can do positive things in our current world.
I would not hesitate to recommend you and the blog advice pages to anyone I meet in the same boat.
thanks again

Adam (TrolleyMonkey)

parist

"hear, hear":T:T

Coupon-mad

Good to hear that, Adam!