Please I need help with CEL County Court Claim Defence

ibyesan76

Hi Everyone,

Please I need your assistance. I have been reading through so many different threads relating to CEL and I'm so confused on how to prepare my defence.
I received a County Court Claim form on 07/04/2017, CEL are seeking £323.16 (which includes court costs etc after ignoring all the letters sent to me)
They have claimed I overstayed at a retail park because my two different visits to the retail park were claimed to be a long stay. I stayed in a hotel close to the retail park with free parking from 12/08/2016 to 14/08/2017. On the 14/08/2016, I drove to the retail park twice around 10:04/10:30am and 14:50/15:07pm but they have claimed I parked at the retail park from 10:04am to 15:07pm which is not true because I checked out of the hotel around 11.55am with my car after the first visit to the retail park. There was no returns policy at the retail car park.


I received the County Court Claim Form on the 7th April 2017 and confirmed the acknowledgement of service. Please could you help to comment on my defence as stated below as I don’t want to send off the wrong one, your responses would be highly appreciated.
Thank you,
In the County Court Business Centre
Claim Number ***
Between:
Civil Enforcement Limited v ***
Defence Statement

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

1. The Claim Form issued on the 7th April 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”.

2. This 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 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. The Claim form Particulars did not contain any evidence of contravention or photographs.
e) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.
f) 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
g) Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

3. 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.

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. They cannot pluck another sum from thin air and bolt that on as well when neither the signs, nor the NTK, nor the permit information mentioned a possible £323.16 for outstanding debt and damages.

4. 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 representative’s (or even admin) costs' were incurred

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. 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. No standing - this distinguishes this case from the Beavis case:
The Defendant made two different visits to a ?????/ retail park on 14/08/2017 between 10:04/10:30 and 14:50/15:10 this was claimed as a long stay from 10:04 to 15:07 which is not true as the defendant stayed in a close hotel to the retail park and check out of the hotel at 11:55am on 14/08/2017.

8. 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.

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.

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.
(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.

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.

Coupon-mad

All OK except the bit you added which suggests the driver (vital not to!) so change to this and make it a point near the top, not under another one (not under 7):


The car was not parked for the time stated - this was two visits caught wrongly by ANPR

The Driver made two different visits to the retail park in question on 14/08/2017 between 10:04/10:30 and 14:50/15:10. However, this was shown by this Claimant's ANPR in error, as a single long stay from 10:04 to 15:07, which is not true. In fact the occupants of the car stayed in a hotel close to the retail park and checked out of the hotel at 11:55am on 14/08/2017 which falls within the period the Claimant alleges the car was stationary in the retail park.

In fact the car visited twice that day and parked on two separate occasions, within the offer allowed on the signage. There is ample evidence in the public domain that ANPR has this inherent fault. Here are just three examples of BPA member ANPR evidence failures, including a court loss and an ICO investigation:

parking-prankster.blogspot.co.uk/2013/05/highview-parking-spurred-into-immediate.html

parking-prankster.blogspot.co.uk/2016/03/parkingeye-lose-in-court-accuse-drivers.html

parking-prankster.blogspot.co.uk/2015/10/parkingeye-subject-to-data-protection.html

This 'double dip' fault in ANPR evidence is a fact confirmed by the BPA in the following article:

britishparking.co.uk/Other-Advice#4

''As with all new technology, there are issues associated with its use: Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.''

Further, there can be no 'keeper liability' for two parking events on one Notice to Keeper. In the POFA 2012, Schedule 4 paragraph 9(3) states:

“The notice must relate only to a single period of parking specified under sub-paragraph (2)(a)”

Where the ANPR system has picked up two separate occasions then it would fail on the above ruling as two separate PCNs should be issued and only if the vehicle in question had breached the contract terms, which they had not. I put the operator to strict proof from their records that day, that there was only one period of parking, should they proceed.

ibyesan76

Thanks so much for your help, much appreciated.

ibyesan76

Hi,


Thanks again for your continued assistance.
Please could you have a final review before submission?


Hope to hear from you soon,



Kind regards,




















In the County Court Business Centre
Claim Number ***
Between:
Civil Enforcement Limited v ***
Defence Statement

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

1. The Claim Form issued on the 7th April 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”.
2. The car was not parked for the time stated - this was two visits caught wrongly by ANPR.
The Driver made two different visits to the retail park in question on 14/08/2017 between 10:04/10:30 and 14:50/15:10. However, this was shown by this Claimant's ANPR in error, as a single long stay from 10:04 to 15:07, which is not true. In fact the occupants of the car stayed in a hotel close to the retail park and checked out of the hotel at 11:55am on 14/08/2017 which falls within the period the Claimant alleges the car was stationary in the retail park.
In fact the car visited twice that day and parked on two separate occasions, within the offer allowed on the signage. There is ample evidence in the public domain that ANPR has this inherent fault. Here are just three examples of BPA member ANPR evidence failures, including a court loss and an ICO investigation:
parking-prankster.blogspot.co.uk/2013/05/highview-parking-spurred-into-immediate.html
parking-prankster.blogspot.co.uk/2016/03/parkingeye-lose-in-court-accuse-drivers.html
parking-prankster.blogspot.co.uk/2015/10/parkingeye-subject-to-data-protection.html
This 'double dip' fault in ANPR evidence is a fact confirmed by the BPA in the following article:
britishparking.co.uk/Other-Advice#4
''As with all new technology, there are issues associated with its use: Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.''
Further, there can be no 'keeper liability' for two parking events on one Notice to Keeper. In the POFA 2012, Schedule 4 paragraph 9(3) states:
“The notice must relate only to a single period of parking specified under sub-paragraph (2)(a)”
Where the ANPR system has picked up two separate occasions then it would fail on the above ruling as two separate PCNs should be issued and only if the vehicle in question had breached the contract terms, which they had not. I put the operator to strict proof from their records that day, that there was only one period of parking, should they proceed.

3. This 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 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. The Claim form Particulars did not contain any evidence of contravention or photographs.
e) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.
f) 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
g) Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

4. 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.

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. They cannot pluck another sum from thin air and bolt that on as well when neither the signs, nor the NTK, nor the permit information mentioned a possible £323.16 for outstanding debt and damages.

5. 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 representative’s (or even admin) costs' were incurred

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. None of this applies in this material case.

7. 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.

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:
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.

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 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.

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.
(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.

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.

The_Deep

C.E.L. do not usually enjoy their finest houts in Court, read this.

http://parking-prankster.blogspot.co.uk/2014/11/civil-enforcement-limited-turn-up-in.html

Coupon-mad

Looks good to go.