Civil Enforcement Ltd Claim Form

Hi,
I hope I am correct in reading I need to start a new thread in requesting assistance for how to respond to Claim Form regarding a PCN from Civil Enforcement Ltd.

I received the Charge Notice in August 2016 for an incident on 10th June 2016. I was at Maidstone Leisure Centre for my daughters swimming lesson and we saw a friend there and stayed on after which took us outside of the 3 hours maximum free parking. There is a machine in the foyer where apparently car registration details are logged in on entry if you will be staying outside of this time. I was logged in the car park from 10:10 - 13:35.

Is the following an appropriate response for my situation...

It is admitted that the Defendant is the registered keeper of the vehicle in question.!
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However it is denied that the Claimant has authority to bring this claim on the following grounds:-!
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1. The registered keeper has not been proven as the driver. There is no keeper liability. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge. !
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2. Should you obtain the registered keeper's data from the DVLA without reasonable cause, please take this as formal notice that I reserve the right to sue your company and the landowner/principal, for a sum not less than £250 for any Data Protection Act breach. Your aggressive business practice and unwarranted threat of court for the ordinary matter of a driver using my car without causing any obstruction nor offence, has caused significant distress to me. !
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3. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort" (2015).!
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4. The proper claimant is the landholder. Strict proof is required that there is a chain of contracts leading from the landholder to!Civil Enforcement!Ltd.!
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5. Civil Enforcement!Ltd are not the lawful occupier of the land. Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.!
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6. No evidence has been provided that a valid ticket was not purchased. Photographs of the keeper’s vehicle do not constitute a proven contravention of the parking conditions.!
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7. Inadequate Illuminated signs incapable of binding the driver – this distinguishes this case from the Beavis case:!
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(a) This case can be easily distinguished from Parking Eye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an un-denied contract, formed by unusually prominent signage (see Appendix F IPC Code of Practice) 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 was paramount, and Mr. Beavis was the driver who saw the signs and entered into a contract to pay £85. None of this is applicable to this case. Additionally, of the Beavis case, the Judges held it was 'entirely different' from most ordinary economic contract disputes, and Excel Parking have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.!
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(b) The Beavis judgment relies on the signage being obvious and the amount of the penalty being known to the consumer so they could make their decision whether to park and risk a huge penalty. Here are a few of the references to signage from the judgment:!
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Para 100: “The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it” and “They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there.”!
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Para 108: “But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85”!
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Para 199: “What matters is that a charge of the order of £85 (reducible on prompt payment) is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.”!
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Para 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”!
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Para 287: In so far as the criterion of unconscionableness allows the court to address considerations other than the size of the penalty in relation to the protected interest, the fact that motorists entering the car park were given ample warning of both the time limit of their licence and the amount of the charge also supports the view that the parking charge was not unconscionable!
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Case law from Beavis would therefore lead to the conclusion that a vital ingredient is that the signage be ample, the charge clear.!
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(d) The signage at the!Maidstone Leisure Centre, Willow Way!is sporadic and illegible (charge not prominent nor large lettering) – breach of the POFA 2012 schedule 4 and the BPA Code of Practice, which the signage also states it abides by. Therefore, no contract is formed to pay any clearly stated sum.!!
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(e) Binding case law from the Beavis case would therefore appear to support the assertion that the charge of £140 in Maidstone Leisure Centre!would be a penalty and therefore not enforceable.!!
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8. No sum payable to this Claimant was accepted nor even known about by any driver; as they were not given a fair opportunity to discover the onerous terms by which they would later be bound.!
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9. The Claimant cannot recover additional charges as the Defendant has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "legal representative’s costs”. These cannot be recovered in the Small Claims Court regardless of the identity of the driver.!
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10. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.!!
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Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.!

Thank you in advance for your assistance

Replies

  • Coupon-madCoupon-mad
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    Points #1 and #2 have the word 'you' which you need to change to 'the Claimant'. This defence is not addressed to CEL, it goes to the court, so ''you'' is wrong.

    To help you check you have everything we normally suggest, this thread has a defence and a link to a successful one too:

    http://forums.moneysavingexpert.com/showthread.php?t=5620993

    HTH
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • That's great, thank you. I have used that as a template and amended accordingly. We will see how it goes

    In the County Court Business Centre
    Claim Number D9*****H5
    Between:
    Civil Enforcement Limited v Mrs Sarah Collins
    Defence Statement

    I deny I am liable for the entirety of the claim for each of the following reasons:

    1/ The Claim Form issued on the 7th April 2017 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 “Civil Enforcement Limited (Claimant’s Legal Representative)”.

    2/ This Claimant has not complied with pre-court protocol:
    (a) 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.
    (b) The Claim form Particulars were extremely sparse and divulged no cause of action nor sufficient detail.
    (c) A ‘Schedule of Information’ sent by the Claimant was sparse of detailed information:!
    1. The defendant, who is the registered keeper and not identified as the driver at the alleged time.
    2. The Vehicle Registration Number.
    3. The date and time of the alleged incident.
    4. Car park name.
    5. Outstanding amount and break down of costs.
    6. It does not detail:
    (a) Proof or confirmation of the driver at the time of the alleged incident.
    (b) Proof of the vehicle being there at the alleged time.
    (c)How long or proof that the car was actually parked.
    (d) The vehicle type and colour.
    (e) Why the charge arose.

    It has still not been made clear to the Defendant why the charge arose, what the alleged contract was; and cannot be considered a fair exchange of information.

    3/ The claimant has not 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 me liable under the strict ‘keeper liability’ provisions.

    4/ There can be no 'presumption' by the claimant that the keeper was the driver. 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 as there was no clear, transparent information about how to obtain a permit either inside or outside the site) is the sum on the Notice to Keeper. Neither the signs, nor the Notice to Keeper, mentioned a possible £326.52 for outstanding debt and damages.

    5/ 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.

    ! 6/ 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 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.

    7/ 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.

    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/ No legitimate interest - this distinguishes this case from the Beavis case:
    The Claimant has no legitimate reason to pursue a charge out of proportion with any loss or damages the true landowner could pursue.

    10/ 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.

    11/ The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirms that the penalty rule is still 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.

    12/ The claimant has added unrecoverable sums to the original parking charge. If the ‘Civil Enforcement Limited (Claimant’s Legal Representative)’ is an employee then the Defendant suggests he/she is remunerated and the particulars of claim dated 7th April 2017 are templates, so it is not credible that £50 ‘legal costs’ were incurred. I deny the Claimant is entitled to any interest whatsoever.

    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 incorrectly filed Claim Form issued on 7th April 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 believe the facts contained in this Defence Statement are true.
  • Coupon-madCoupon-mad
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    Looks good to go!
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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  • Fantastic!
    Thank you so much for your help. Much appreciated
  • LamiladLamilad Forumite
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    Schedule 4 also states that the only sum a keeper can be pursued for

    You need to state "schedule 4 of the Protection of Freedoms Act 2012( "POFA")"

    12/ If the ‘Civil Enforcement Limited (Claimant’s Legal Representative)’ is an employee then the Defendant suggests he/she is remunerated and the particulars of claim dated 7th April 2017 are templates, so it is not credible that £50 ‘legal costs’ were incurred

    This doesn't make sense - you refer a company "CEL" as the claimants legal reps, then refer to CEL as if it were an individual person - "is an employee".... "he/she is remunerated".... You need to edit this para. so it makes sense
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