CEL County Court Claim

CathodeMan · 4 May 2017 at 7:25PM

Hello
I have a County Court Claim from CEL for staying 1 hour without a ticket at Huddersfield Hospital. I looked extensively for the ticket machine (maybe I should ask for the CCTV footage!) and couldn't find the machine (someone has since told me they are inside the hospital. I didnt know that).
Ive read the newbie posts, used the really helpful examples and come up with the following which is the most applicable to my case. Is there anyone able to give it a quick once-over for me please? Id be *really* grateful, I have to respond tomorrow

Thanks in advance if anyone can look

1. As an unrepresented litigant-in-person I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant’s case.

2. The Claimant has not complied with pre-action protocol, under the Practice Direction as a compliant ‘Letter before County Court Claim’ was not issued.

The particulars of claim fail to comply with Civil Procedure Rule 16.4 and Practice Direction 16, paragraphs 7.3 – 7.5

CPR 16.4 Contents of the particulars of claim
(1) Particulars of claim must include –
(a) a concise statement of the facts on which the claimant relies
(b) if the claimant is seeking interest, a statement to that effect and the details set out in paragraph (2)
c) if the claimant is seeking aggravated damages(GL) or exemplary damages(GL), a statement to that effect and his grounds for claiming them;
(d) if the claimant is seeking provisional damages, a statement to that effect and his grounds for claiming them; and
(e) such other matters as may be set out in a practice direction.

PD 16 paras 7.3 – 7.5
7.3 Where a claim is based upon a written agreement:
(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and
(2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).
7.4 Where a claim is based upon an oral agreement, the particulars of claim should set out the contractual words used and state by whom, to whom, when and where they were spoken.
7.5 Where a claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done.

I contend that the claimant has failed to comply with these requirements in that:
(i) the claimant has offered two different versions of its ‘Particulars of Claim’ – that dated 7th November 2016 and that dated 7 April 2017. This difference is material to this case as only the later version includes a direction to where the payment machine is located. This information is not included in the earlier version.
(ii) The wording of the signage included in the Schedule of Information in ‘Particulars of Claim’ dated 7 April 2017is unintelligible in its final sentence, the one which relates to the possibility of further costs and charges.
(iii) The second version of Particulars of Claim (dated 7 April 2017) was dated the same day as this court action (7 April 2017) but is postmarked 13 April 2017. It did not precede the filing of the claim.
(iv) Interest is being charged but no details have been provided as to the basis of that element of the claim, the interest rate, date accrual start and daily accrual rate.

3. The particulars of claim fail to comply with Practice Direction 22, paragraphs 3.1 – 3.10

PD 22 para 3.1 – 3.10
3.1 In a statement of case, a response or an application notice, the statement of truth must be signed by:
(1) the party or his litigation friend, or
(2) the legal representative of the party or litigation friend.
3.4 Where a document is to be verified on behalf of a company or other corporation, subject to paragraph 3.7 below, the statement of truth must be signed by a person holding a senior position in the company or corporation. That person must state the office or position held.
3.5 Each of the following persons is a person holding a senior position:
(1) in respect of a registered company or corporation, a director, the treasurer, secretary, chief executive, manager or other officer of the company or corporation, and
(2) in respect of a corporation which is not a registered company, in addition to those persons set out in (1), the mayor, chairman, president or town clerk or other similar officer of the corporation.
3.6 Where the document is to be verified on behalf of a partnership, those who may sign the statement of truth are:
(1) any of the partners, or
(2) a person having the control or management of the partnership business.
3.6A An insurer or the Motor Insurers’ Bureau may sign a statement of truth in a statement of case on behalf of a party where the insurer or the Motor Insurers’ Bureau has a financial interest in the result of proceedings brought wholly or partially by or against that party.
3.6B If insurers are conducting proceedings on behalf of many claimants or defendants a statement of truth in a statement of case may be signed by a senior person responsible for the case at a lead insurer, but–
(1) the person signing must specify the capacity in which he signs;
(2) the statement of truth must be a statement that the lead insurer believes that the facts stated in the document are true; and
(3) the court may order that a statement of truth also be signed by one or more of the parties
3.7 Where a party is legally represented, the legal representative may sign the statement of truth on his behalf. The statement signed by the legal representative will refer to the client’s belief, not his own. In signing he must state the capacity in which he signs and the name of his firm where appropriate.
3.8 Where a legal representative has signed a statement of truth, his signature will be taken by the court as his statement:
(1) that the client on whose behalf he has signed had authorised him to do so,
(2) that before signing he had explained to the client that in signing the statement of truth he would be confirming the client’s belief that the facts stated in the document were true, and
(3) that before signing he had informed the client of the possible consequences to the client if it should subsequently appear that the client did not have an honest belief in the truth of those facts (see rule 32.14).
3.9 The individual who signs a statement of truth must print his full name clearly beneath his signature.
3.10 A legal representative who signs a statement of truth must sign in his own name and not that of his firm or employer.

I contend that the claimant has failed to comply with these requirements in that
(i) No signature or name is provided on the formal claim form. Instead, “Civil Enforcement Limited” is typed on the signature line, followed by “(Claimant’s Legal Representative”)
(ii) The Particulars of Claim form dated 7 April 2017 contains a digitally reproduced signature by “Ashley Cohen”. No indication of this person’s role is given so it is impossible to determine which of the approved capacities s/he is acting in.

4. The Particulars of Claim fail to disclose the head or heads of action in which these proceedings are based, and has failed to clearly set out all elements that constitute a wrong.

5. It is denied that the Claimant is 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.

6. I submit that the signs on site at the time of the alleged event were insufficient in terms of their location, content, numbers and number to reasonably convey a contractual obligation and did not in any event at the time comply with the requirements of the Code of Practice of the Independent Parking Committee’s Accredited Operators Scheme a signatory to which the Claimant was at the relevant time.

I contend that the Claimant’s signs at the site:

i) are positioned after the numberplate has already been captured, such that if the Court were to eventually be convinced that a contract had been entered into, this would be on the grounds that the contract would have begun before the driver were aware of it
ii) fail to advise the driver where the paystations are
iii) fail to make it clear it clear that the motorist is entering onto private land
iv) contain text of complexity and density such that the most onerous terms are not clear
(v) do not fall under any of the classes in Schedule 1 or Schedule 3 of The Town and Country Planning (Control of Advertisements) (England) Regulations 2007 or that the Claimant has advertisement consent for the signs. 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. In the absence of any signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.

7. The Claimant has indicated that they will seek to rely on the recent Supreme Court ruling in the case of ParkingEye -v- Beavis [2015]. 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.

I submit that none of this applies in this case, and that as the site in question is a Pay and Display car park the penalty clause is still in effect as was established in ParkingEye -v- Cargius [2014].

8. Finally, I submit that the claimant and their solicitors are serial abusers of the court process in this manner, producing large volumes of mailmerged claims that are issued as ‘fishing expeditions’ and frequently failing to follow claims through, provide evidence or attend court hearings. This is an abuse of court time and that of many members of the public.

9. Given the submissions made in points 1 to 8 herein, I respectfully ask that the court
strike out the claim as having no reasonable prospect of success as currently drafted.

11. If the Court considers that this case should be heard, I ask that the Claimant be:
(i) put to strict proof at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.
(ii) put to strict proof that at the time of the alleged event they were in possession of sufficient authority to issue parking charges and institute proceedings in their own name and can demonstrate a clear chain of authority from the landowner.
(ii) put to strict proof that each of the assertions made is true
(iii) required to file particulars which comply with practice directions and include at least the following information:
a. 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
b. A copy of any contract it is alleged was in place, as it was on the date of the alleged event (eg copies of signage)
c. How any contract was concluded (if by performance, then copies of signage maps, copies directions to payment machines, copies of location of ANPR in relation to signage and payment machines, as it was on the date of the alleged event)
d. Whether the Claimant is acting as agent or principal, together with a list of documents they will rely on in this matter
f. If charges over and above the initial charge are being claimed, the basis on which this is being claimed
g. If interest charges are being claimed, the basis on which this is being claimed
(iv) required to disclose:
a. how many Claims it has made from members of the public between 6th April 2014 and 7th April 2017
b. how many of these Claims have progressed to Court Hearing
c. how many of these Claims were found in the Claimant’s favour

12. Once these particulars have been filed, the Defendant asks for reasonable time to file a defence

I believe the facts stated in this Defence Statement are true.