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Mcol - cel
YveJuneBaby
Posts: 19 Forumite
Hello
I'm wondering if the good people on this board would take a look at my defence. This concerns CEL at a leisure centre car park that uses ANPR cameras. I am the registered keeper, however was not driving and can produce employment records to that effect if required. The PCN was sent a month after the alleged contravention not within the required 14 days for keeper liability. I have looked at various other CEL defences and hopefully I have covered all the relevant points. Thank you in advance
In the County Court Business Centre
Claim Number XXXXXXX
Between:
CivilEnforcementLimited v XXXXXXXDefence Statement
I am XXXXXXX, the Defendant in this matter and was the registered keeper of vehicle XXXXX. I currently reside at XXXXXXXXXXXXXXXXXXX
I deny liability for the entirety of the claim for the following reasons, any one of which is fatal to the Claimant’s case:
1. The Claim Form issued on the Xth April 2017 by Civil Enforcement Limited was not correctly filed under the Practice Direction as the Claim form is not signed by the Claimant’s Legal Representative nor a named employee/Director, nor any legal person
2. The Claimant has not complied with pre-court protocol: And 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 documents contain very little information.
(c) The Schedule of information is sparse of detailed information.
(d) The Claim form Particulars were extremely sparse and disclosed 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.
(e) The due date of the purported £236 sum listed on the claim form is listed as 2X/07/16, but the alleged/denied debt did not exist on that date as the PCN was not issued until 2X/8/16 and was for £100.
(f) The Claimant has incorrectly calculated the interest from the date of the alleged parking event and not from the date of any cause of action or costs. No cause of action could possibly arise until 28 days after the Parking Notice was served as stated in the Protection Of Freedoms Act (POFA) 2012, Schedule 4.
(g)The Defendant therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.
3.The driver of the vehicle has not been identified. The Defendant is the registered keeper but was not the Driver. In order for the Claimant to transfer liability from the driver to the keeper, they must do so within the strict requirements of POFA 2012. This was confirmed by Mr Greenslade, POPLA Lead Adjudicator and an eminent barrister and parking law expert,in page 8 of the 2015 POPLA Report: “If POFA 2012 Schedule 4 is not complied with then keeper liability does not generally pass.”
(a) The defendant was not the driver on the day of the parking event and the claimant cannot hold the defendant liable under any applicable rule of law.
(b) The driver has not been evidenced and the Defendant puts the Claimant to strict proof that it issued a compliant notice under Schedule 4 of the Protection of Freedoms Act 2012 (POFA).
(c) Such a notice was not served within 14 days of the parking event and when the notice was served, did not fully comply with statutory wording. The Claimant is therefore unable to hold the Defendant liable under the strict ‘keeper liability’ provisions.
(d) Henry Greenslade also 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.”
(e) Therefore, since the Defendant was not the driver, this Claimant has no basis of liability against the Defendant nor cause of action and the Court is invited to use discretion to strike this case out or put the Claimant to strict proof of their cause of action against a registered keeper.
4. The Claimant has no standing to bring a case
(a) There is/was no compliant landowner contract. 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.
(b) 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.
5. Schedule 4 of POFA states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it 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 neither the signs, nor the parking charge notice mentioned a possible £236 for outstanding debt and damages.
6. Inadequate signs incapable of binding the driver. In 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.
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) Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
(iii) 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.
(iv) 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.
(v) 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
7. The claimant has added unrecoverable sums to the original parking charge. The Defendant challenges the claimed amount of £324.xx
The Claimant has failed to mitigate its costs because it did not issue the claim immediately after its Letter Before Action for £140. Instead, the Claimant passed the matter to debt collector ZZPS who in turn passed it to solicitors Wright Hassall. The Defendant has the reasonable belief that this action had no purpose other than to artificially inflate the claim with imaginary charges in an attempt at double recovery.
c. The Defendant believes that the charges added by ZZPS (£60) and Wright Hassall (£36) are fake and were not incurred by the Claimant and therefore cannot be recovered in Court as part of this claim.
d. Even if the Wright Hassall legal cost of £36 is genuine it cannot be recovered in Court as this does not comply with Civil Procedure Rule 27.14
e. Wright Hassall also is a stranger to any contract as it was engaged by ZZPS not the Claimant.
f. The Claimant has added unrecoverable sums to the original parking charge. If Mr Michael Schwartz or Mr Ashley Cohen are employees then the Defendant suggests they are remunerated and the claim/draft claim are templates, so it is not credible that £50 legal costs were incurred.
g. If the £50 legal cost to prepare the claim was not incurred, the statement of truth must be false.
h. The Claimant is put to strict proof that it paid any debt recovery agency £40 or incurred a loss of £40 in escalating the matter. If incurred – the defendant believes this consists of the administration staff of the Claimant performing their normal duties. The Defendant believes this is another example of the Claimant artificially inflating the amount of the claim.
8. 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. Point 6 above, explains why strict compliance with the BPA Code of Practice signage has not been met by the defendant. No contract was formed to pay any clearly stated sum. In the Supreme Court case Mr Beavis was the admitted driver. Crucially, unlike in Beavis,the Defendant was not the driver in this case and so there is an absence of any liability and a failure to establish any cause of action
I believe the facts contained in this Defence Statement are true.
Signed
Dated
I'm wondering if the good people on this board would take a look at my defence. This concerns CEL at a leisure centre car park that uses ANPR cameras. I am the registered keeper, however was not driving and can produce employment records to that effect if required. The PCN was sent a month after the alleged contravention not within the required 14 days for keeper liability. I have looked at various other CEL defences and hopefully I have covered all the relevant points. Thank you in advance
In the County Court Business Centre
Claim Number XXXXXXX
Between:
CivilEnforcementLimited v XXXXXXXDefence Statement
I am XXXXXXX, the Defendant in this matter and was the registered keeper of vehicle XXXXX. I currently reside at XXXXXXXXXXXXXXXXXXX
I deny liability for the entirety of the claim for the following reasons, any one of which is fatal to the Claimant’s case:
1. The Claim Form issued on the Xth April 2017 by Civil Enforcement Limited was not correctly filed under the Practice Direction as the Claim form is not signed by the Claimant’s Legal Representative nor a named employee/Director, nor any legal person
2. The Claimant has not complied with pre-court protocol: And 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 documents contain very little information.
(c) The Schedule of information is sparse of detailed information.
(d) The Claim form Particulars were extremely sparse and disclosed 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.
(e) The due date of the purported £236 sum listed on the claim form is listed as 2X/07/16, but the alleged/denied debt did not exist on that date as the PCN was not issued until 2X/8/16 and was for £100.
(f) The Claimant has incorrectly calculated the interest from the date of the alleged parking event and not from the date of any cause of action or costs. No cause of action could possibly arise until 28 days after the Parking Notice was served as stated in the Protection Of Freedoms Act (POFA) 2012, Schedule 4.
(g)The Defendant therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.
3.The driver of the vehicle has not been identified. The Defendant is the registered keeper but was not the Driver. In order for the Claimant to transfer liability from the driver to the keeper, they must do so within the strict requirements of POFA 2012. This was confirmed by Mr Greenslade, POPLA Lead Adjudicator and an eminent barrister and parking law expert,in page 8 of the 2015 POPLA Report: “If POFA 2012 Schedule 4 is not complied with then keeper liability does not generally pass.”
(a) The defendant was not the driver on the day of the parking event and the claimant cannot hold the defendant liable under any applicable rule of law.
(b) The driver has not been evidenced and the Defendant puts the Claimant to strict proof that it issued a compliant notice under Schedule 4 of the Protection of Freedoms Act 2012 (POFA).
(c) Such a notice was not served within 14 days of the parking event and when the notice was served, did not fully comply with statutory wording. The Claimant is therefore unable to hold the Defendant liable under the strict ‘keeper liability’ provisions.
(d) Henry Greenslade also 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.”
(e) Therefore, since the Defendant was not the driver, this Claimant has no basis of liability against the Defendant nor cause of action and the Court is invited to use discretion to strike this case out or put the Claimant to strict proof of their cause of action against a registered keeper.
4. The Claimant has no standing to bring a case
(a) There is/was no compliant landowner contract. 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.
(b) 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.
5. Schedule 4 of POFA states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it 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 neither the signs, nor the parking charge notice mentioned a possible £236 for outstanding debt and damages.
6. Inadequate signs incapable of binding the driver. In 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.
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) Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
(iii) 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.
(iv) 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.
(v) 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
7. The claimant has added unrecoverable sums to the original parking charge. The Defendant challenges the claimed amount of £324.xx
The Claimant has failed to mitigate its costs because it did not issue the claim immediately after its Letter Before Action for £140. Instead, the Claimant passed the matter to debt collector ZZPS who in turn passed it to solicitors Wright Hassall. The Defendant has the reasonable belief that this action had no purpose other than to artificially inflate the claim with imaginary charges in an attempt at double recovery.
c. The Defendant believes that the charges added by ZZPS (£60) and Wright Hassall (£36) are fake and were not incurred by the Claimant and therefore cannot be recovered in Court as part of this claim.
d. Even if the Wright Hassall legal cost of £36 is genuine it cannot be recovered in Court as this does not comply with Civil Procedure Rule 27.14
e. Wright Hassall also is a stranger to any contract as it was engaged by ZZPS not the Claimant.
f. The Claimant has added unrecoverable sums to the original parking charge. If Mr Michael Schwartz or Mr Ashley Cohen are employees then the Defendant suggests they are remunerated and the claim/draft claim are templates, so it is not credible that £50 legal costs were incurred.
g. If the £50 legal cost to prepare the claim was not incurred, the statement of truth must be false.
h. The Claimant is put to strict proof that it paid any debt recovery agency £40 or incurred a loss of £40 in escalating the matter. If incurred – the defendant believes this consists of the administration staff of the Claimant performing their normal duties. The Defendant believes this is another example of the Claimant artificially inflating the amount of the claim.
8. 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. Point 6 above, explains why strict compliance with the BPA Code of Practice signage has not been met by the defendant. No contract was formed to pay any clearly stated sum. In the Supreme Court case Mr Beavis was the admitted driver. Crucially, unlike in Beavis,the Defendant was not the driver in this case and so there is an absence of any liability and a failure to establish any cause of action
I believe the facts contained in this Defence Statement are true.
Signed
Dated
0
Comments
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Hi - please can I ask someone to look over my defence. I've compared to other defences but I just need a second or third pair of eyes please. Thank you ��0
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Have you seen this one?
https://forums.moneysavingexpert.com/discussion/5620993
Yours is very good, the only thing I would do is change this at the start, to specify from the off (and not hidden at the bottom), that you were not driving. You don't need your postal address shown unless you want to tell the claimant that it's not the address they had on the claim form:I am XXXXXXX, the Defendant in this matter and was the registered keeper of vehicle XXXXX. However, other family members can drive this car - also, any driver who is insured on any fully comprehensive policy can drive any other car with agreement. I was not the driver at the material time. [STRIKE]I currently reside at XXXXXXXXXXXXXXXXXXX[/STRIKE]PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Brilliant - thanks Coupon-Mad
That wasn't one of the ones I was using but will compare to mine so that I can make sure i have ticked every point.
Will be sure to let you know how I get on.0
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