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CEL court letter/mamas and papas help!
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KLB88
Posts: 2 Newbie
Hi there,
I am so relieved to have found this forum and really hope you can help me in this situation (also posted on pepipoo too.)
The PCN arose last June from the driver of said vehicle (but not the RK) overstaying in a free 60 min for customer only car park (by 35 mins) Driver was heavily pregnant and had a toddler in tow. Sent a letter in response as PCN received 28 days after the incident date however appeal rejected and then letters commenced from ZZPS, wright Hassall, Gladstones and now the county court claim has arrived.
We have commenced a draft letter but would be grateful of any assistance to try and overturn this.
With regards to the first point the management team were spoken with who agreed that this has become an issue with the store and that they regularly put in requests to have the PCN's stopped or cancelled in appropriate circumstances. As the PCN has now escalated to the small claims court, they report they are unable to view the PCN on their 'system'. Is it even worth mentioning this point, or does it become too wishy/washy and better to be to the point. As from reading lots of other threads, we have the same letters as everyone else with dodgy POC, not signed by the guy who's been struck off etc??
I will attach pictures taken today to show the signage in place, initial entry sign on entering the car park 'FREE CAR PARK' but then signs on every fourth bay.
Thank you in advance :-)
(We have until the 10th May to submit our defence.
DRAFT ****
In the County Court Business Centre
Claim Number XXXXX
Between:
Civil Enforcement Limited v XXXXXXXXXXXX
Defence Statement
I am XXXXX registered keeper of vehicle registration XXXXXXXX. I can confirm that I was not driving the vehicle (XXXXXXX) on the 07/6/2016 and I deny any liability of the claim on the following grounds, any of which is fatal to the claimant’s case:
1.The Manager of Mamas and Papas, Southampton (car park signage states that car park is for Mamas & Papa’s customers only) told the driver of XXXXXX that they would put a request in for the PCN xxxxxx to be removed from the system. The driver was informed they 'do this all the time' for their customers and was happy to do so on this occasion also. Unfortunately the PCN number was not appearing on their system so they couldn’t process the request. With this in mind any penalty or damages suggested by Civil Enforcement Limited are not existent, and the Defendant requests the court to strike out the claim.
This extract is taken from the creative car park who manage the car park’s APNR -
“Of course, the most important thing is ensuring that customers benefit from the same high levels of customer service in your car park as they receive inside your store. We understand that your customers are as important to you as our clients are to us. We understand that parking enforcement is less important than customer loyalty and that you need the flexibility to cancel a ticket or stop it being produced. “
2. The claim does not have a valid signature and is not a statement of truth. It states that it has been issued by “Civil Enforcement Limited” as the Claimant’s Legal Representative. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer. The claim should therefore be struck out as the claimant has not complied with pre-court protocol.
It is therefore denied that the £50 solicitor’s fee can be claimed. Also the full claim is denied as the claim has not been signed by either the landowner or the landowner’s solicitor.
3. The letter before action which was not signed but was sent from Mr Michael David Schwartz of Civil Enforcement on the 6th September 2016. On the 9th September 2016 Mr Michael David Schwartz was suspended from practising as a solicitor for five years by the Solicitors Disciplinary Tribunal (SDT) after twice being fined for previous accounts rule breaches.
The claimant did not advise in writing a change to Claimant’s Legal Representative following the suspension of Mr Michael David Schwartz which as stated occurred 3 days after the letter before action dated 6th September 2016 from the Claimant’s Legal Representative named; Mr Michael David Schwartz. The Defendant requests the court to strike out the claim as the claimant did not advise that they were appointing a legally practising Legal Representative following Mr Michael David Schwartz on the 9th September 2016.
4. The Defendant does not know what action by the driver they are defending. The Particulars of Claim are generic and the Schedule of Information only states the location, date, parking time and a summary of the terms of parking. The Defendant requests the court to strike out the claim for failure to disclose a cause of action and failure to comply with CPR 16.4 Contents of the particulars of claim and Practice Direction 16 paras 7.3 – 7.5
The Particulars of Claim do not meet the requirements of CPR 16. In particular it does not include a concise statement of the facts on which the Claimant relies as it must do under CPR 16.4(1)(a) Neither are they compliant with practice direction 16 7.5.
5. This Claimant has not complied with pre-court protocol: There was no compliant ‘Letter before County Court Claim’. This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information, the letter is unfinished and therefore misleading ‘Additional costs / recovery charges will be incurred if payment is not received’. The covering letter merely contains a supposed PCN number with no contravention nor clear photographs of the vehicle in question given that ANPR is mentioned in the Claimant’s case.
6. The Particulars of Claim state that it concerns a debt that was due on 7/06/16. No debt could
possibly have existed on this date. The Claimant did not issue a parking Notice on this date and the PCN issue date is 30/06/2016, exceeding the 14 day limit. No debt could have been outstanding on the date stated in the Particulars of Claim that are therefore untrue.
7. Civil Enforcement Limited failed to meet the requirements of POFA schedule 4 to hold the keeper liable. Namely, but not limited to, failed to deliver the notice to registered keeper within 14 days. The claimant did not comply with the Protection of Freedoms Act 2012 (“POFA 2012”) and give the registered keeper opportunity at any point to identify the driver. A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered no later than 14 days after the vehicle was parked.
No ticket was left on the windscreen and no notice to keeper was sent within the 14 days required to comply with POFA 2012 only a speculative invoice which was sent outside of the 14 day period, which did not comply with POFA 2012. This would exclude the registered keeper being liable for any charges. The following are some of the reasons the speculative invoice was not a notice to keeper and did not comply with
POFA 2012:
a) It was not a notice to keeper but a “Parking Charge Notice” as detailed in the title of the invoice.
b) It did not advise that the driver is liable for the parking charge and that it has not been paid in
full.
c) It did not warn the keeper that if the parking charges remains outstanding after 28 days and the
name and address of the driver has not been given, or otherwise known to the person entitled to the
parking charge, that “creditor” will be entitled to recover the parking charge from the registered
keeper.
d) It did not invite the registered keeper to pay the outstanding parking charge or, if he was not the
driver, to provide the name and address of the driver and to pass a copy of the notice on to that
driver.
e) It did not state the means of how the parking ticket was issued, it simply quoted
dates, times of the alleged offence and that signage stated “Authorised Vehicles Only”.
f) It was a speculative invoice titled “Parking Charge Notice” and not a notice to keeper and was not
sent within the 14 day period to comply with POFA 2012 even if it was deemed to comply with
POFA 2012 (which it did not).
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.”
I put to the claimant strict proof that they complied with POFA 2012 in issuing a valid notice to keeper to pursue a claim to the registered keeper and a copy of any notices or letters.
The PCN that was issued 23 days and received 28 days (05/07/2016) after the alleged offence took place which included a picture of XXXX however the picture was too small to confirm the driver. As I the registered keeper did not drive vehicle XXXX on the 07/06/2016 can I please request evidence of the vehicle/driver (a zoomed in photo) to establish the driver and registration as they are illegible in all evidence provided by the claimant.
8. Civil Enforcement Limited did not employ a legal representative and cannot claim its £50 fee. The Defendant believes that Civil Enforcement Limited has artificially inflated this claim. The claimant has added unrecoverable sums to the original parking charge. They are claiming legal costs when not only is this not permitted (CPR 27.14) but the Defendant believes that they have not incurred legal costs as, the claimants legal representatives are themselves, Civil Enforcements Limited so it is not credible that £50 legal costs were incurred and hence cannot charge the standard £50 fee.
According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost. The Defendant denies that the Claimant is entitled to any interest whatsoever. The claimant has not explained how the claim has increased from the original £100 parking notice to £251.67
If the claimant alleges that they the cost of its in-house administration, these cannot be recovered - they are staff performing the task that they have been employed for and essential to the claimant's business plan. I deny the Claimant is entitled to any interest whatsoever.
9. The Unfair Terms in Consumer Contract Regulations 1999 applies
It is asserted that the Claimant’s charges are unlawful, as they are in breach of the Unfair Terms in Consumer Contract Regulations 1999, specifically regulation 8(1) of the Regulations and article 6(1) of the Unfair Terms Directive (in providing that an unfair term is not to be binding on the consumer), which is to redress the imbalance between the contracting parties’ bargaining power, and to re-establish equality between them, so that the contract terms which bind the parties are such as the parties would have agreed if they had negotiated the contract on equal terms.
It is asserted that no reasonable person, of whatever means, would willingly agree to pay a charge of £100 as a consequence of staying over free time, if they had the opportunity to negotiate the contract on equal terms with the other contracting party.
10. The Claimant relies on the Court of Appeal judgment in the case of ParkingEye v Beavis. However, in that case the court applied the wrong test for imbalance (para 34 and also para 37, 38). The judge held that the term did not cause a significant imbalance in the parties' rights and obligations because the charge was no greater than that which a motorist could expect to pay for overstaying in a municipal car park.
ii) It is submitted that the European Court of Justice definition of imbalance must take precedence.
iii) However, in any case the instant case is not saved from being unfair by Beavis. In this particular location council charges for overstay are £50 discounted to £25, not £100 discounted to £60. As the charge is 100% greater than that which a motorist could expect to pay for overstaying in a municipal car park there is a clear imbalance
(Are these points worth making??)
11. Repeat users of an ANPR managed 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.
Can Civil Enforcement Limited provide evidence that this did not occur on this occasion?
12. Can Civil Enforcement Limited provide evidence that the vehicle was actually parked for the alleged time frame and the driver was not sat waiting for a space to become free for a substantial amount of time?
The court is invited to strike out the claim of its own volition for failure to include valid Statement of Truth or disclose cause of action or order particulars that comply with Practice Directions and having no merit and no reasonable prospects of success.
I believe the facts in this defence statement are true and correct
I am so relieved to have found this forum and really hope you can help me in this situation (also posted on pepipoo too.)
The PCN arose last June from the driver of said vehicle (but not the RK) overstaying in a free 60 min for customer only car park (by 35 mins) Driver was heavily pregnant and had a toddler in tow. Sent a letter in response as PCN received 28 days after the incident date however appeal rejected and then letters commenced from ZZPS, wright Hassall, Gladstones and now the county court claim has arrived.
We have commenced a draft letter but would be grateful of any assistance to try and overturn this.
With regards to the first point the management team were spoken with who agreed that this has become an issue with the store and that they regularly put in requests to have the PCN's stopped or cancelled in appropriate circumstances. As the PCN has now escalated to the small claims court, they report they are unable to view the PCN on their 'system'. Is it even worth mentioning this point, or does it become too wishy/washy and better to be to the point. As from reading lots of other threads, we have the same letters as everyone else with dodgy POC, not signed by the guy who's been struck off etc??
I will attach pictures taken today to show the signage in place, initial entry sign on entering the car park 'FREE CAR PARK' but then signs on every fourth bay.
Thank you in advance :-)
(We have until the 10th May to submit our defence.
DRAFT ****
In the County Court Business Centre
Claim Number XXXXX
Between:
Civil Enforcement Limited v XXXXXXXXXXXX
Defence Statement
I am XXXXX registered keeper of vehicle registration XXXXXXXX. I can confirm that I was not driving the vehicle (XXXXXXX) on the 07/6/2016 and I deny any liability of the claim on the following grounds, any of which is fatal to the claimant’s case:
1.The Manager of Mamas and Papas, Southampton (car park signage states that car park is for Mamas & Papa’s customers only) told the driver of XXXXXX that they would put a request in for the PCN xxxxxx to be removed from the system. The driver was informed they 'do this all the time' for their customers and was happy to do so on this occasion also. Unfortunately the PCN number was not appearing on their system so they couldn’t process the request. With this in mind any penalty or damages suggested by Civil Enforcement Limited are not existent, and the Defendant requests the court to strike out the claim.
This extract is taken from the creative car park who manage the car park’s APNR -
“Of course, the most important thing is ensuring that customers benefit from the same high levels of customer service in your car park as they receive inside your store. We understand that your customers are as important to you as our clients are to us. We understand that parking enforcement is less important than customer loyalty and that you need the flexibility to cancel a ticket or stop it being produced. “
2. The claim does not have a valid signature and is not a statement of truth. It states that it has been issued by “Civil Enforcement Limited” as the Claimant’s Legal Representative. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer. The claim should therefore be struck out as the claimant has not complied with pre-court protocol.
It is therefore denied that the £50 solicitor’s fee can be claimed. Also the full claim is denied as the claim has not been signed by either the landowner or the landowner’s solicitor.
3. The letter before action which was not signed but was sent from Mr Michael David Schwartz of Civil Enforcement on the 6th September 2016. On the 9th September 2016 Mr Michael David Schwartz was suspended from practising as a solicitor for five years by the Solicitors Disciplinary Tribunal (SDT) after twice being fined for previous accounts rule breaches.
The claimant did not advise in writing a change to Claimant’s Legal Representative following the suspension of Mr Michael David Schwartz which as stated occurred 3 days after the letter before action dated 6th September 2016 from the Claimant’s Legal Representative named; Mr Michael David Schwartz. The Defendant requests the court to strike out the claim as the claimant did not advise that they were appointing a legally practising Legal Representative following Mr Michael David Schwartz on the 9th September 2016.
4. The Defendant does not know what action by the driver they are defending. The Particulars of Claim are generic and the Schedule of Information only states the location, date, parking time and a summary of the terms of parking. The Defendant requests the court to strike out the claim for failure to disclose a cause of action and failure to comply with CPR 16.4 Contents of the particulars of claim and Practice Direction 16 paras 7.3 – 7.5
The Particulars of Claim do not meet the requirements of CPR 16. In particular it does not include a concise statement of the facts on which the Claimant relies as it must do under CPR 16.4(1)(a) Neither are they compliant with practice direction 16 7.5.
5. This Claimant has not complied with pre-court protocol: There was no compliant ‘Letter before County Court Claim’. This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information, the letter is unfinished and therefore misleading ‘Additional costs / recovery charges will be incurred if payment is not received’. The covering letter merely contains a supposed PCN number with no contravention nor clear photographs of the vehicle in question given that ANPR is mentioned in the Claimant’s case.
6. The Particulars of Claim state that it concerns a debt that was due on 7/06/16. No debt could
possibly have existed on this date. The Claimant did not issue a parking Notice on this date and the PCN issue date is 30/06/2016, exceeding the 14 day limit. No debt could have been outstanding on the date stated in the Particulars of Claim that are therefore untrue.
7. Civil Enforcement Limited failed to meet the requirements of POFA schedule 4 to hold the keeper liable. Namely, but not limited to, failed to deliver the notice to registered keeper within 14 days. The claimant did not comply with the Protection of Freedoms Act 2012 (“POFA 2012”) and give the registered keeper opportunity at any point to identify the driver. A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered no later than 14 days after the vehicle was parked.
No ticket was left on the windscreen and no notice to keeper was sent within the 14 days required to comply with POFA 2012 only a speculative invoice which was sent outside of the 14 day period, which did not comply with POFA 2012. This would exclude the registered keeper being liable for any charges. The following are some of the reasons the speculative invoice was not a notice to keeper and did not comply with
POFA 2012:
a) It was not a notice to keeper but a “Parking Charge Notice” as detailed in the title of the invoice.
b) It did not advise that the driver is liable for the parking charge and that it has not been paid in
full.
c) It did not warn the keeper that if the parking charges remains outstanding after 28 days and the
name and address of the driver has not been given, or otherwise known to the person entitled to the
parking charge, that “creditor” will be entitled to recover the parking charge from the registered
keeper.
d) It did not invite the registered keeper to pay the outstanding parking charge or, if he was not the
driver, to provide the name and address of the driver and to pass a copy of the notice on to that
driver.
e) It did not state the means of how the parking ticket was issued, it simply quoted
dates, times of the alleged offence and that signage stated “Authorised Vehicles Only”.
f) It was a speculative invoice titled “Parking Charge Notice” and not a notice to keeper and was not
sent within the 14 day period to comply with POFA 2012 even if it was deemed to comply with
POFA 2012 (which it did not).
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.”
I put to the claimant strict proof that they complied with POFA 2012 in issuing a valid notice to keeper to pursue a claim to the registered keeper and a copy of any notices or letters.
The PCN that was issued 23 days and received 28 days (05/07/2016) after the alleged offence took place which included a picture of XXXX however the picture was too small to confirm the driver. As I the registered keeper did not drive vehicle XXXX on the 07/06/2016 can I please request evidence of the vehicle/driver (a zoomed in photo) to establish the driver and registration as they are illegible in all evidence provided by the claimant.
8. Civil Enforcement Limited did not employ a legal representative and cannot claim its £50 fee. The Defendant believes that Civil Enforcement Limited has artificially inflated this claim. The claimant has added unrecoverable sums to the original parking charge. They are claiming legal costs when not only is this not permitted (CPR 27.14) but the Defendant believes that they have not incurred legal costs as, the claimants legal representatives are themselves, Civil Enforcements Limited so it is not credible that £50 legal costs were incurred and hence cannot charge the standard £50 fee.
According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost. The Defendant denies that the Claimant is entitled to any interest whatsoever. The claimant has not explained how the claim has increased from the original £100 parking notice to £251.67
If the claimant alleges that they the cost of its in-house administration, these cannot be recovered - they are staff performing the task that they have been employed for and essential to the claimant's business plan. I deny the Claimant is entitled to any interest whatsoever.
9. The Unfair Terms in Consumer Contract Regulations 1999 applies
It is asserted that the Claimant’s charges are unlawful, as they are in breach of the Unfair Terms in Consumer Contract Regulations 1999, specifically regulation 8(1) of the Regulations and article 6(1) of the Unfair Terms Directive (in providing that an unfair term is not to be binding on the consumer), which is to redress the imbalance between the contracting parties’ bargaining power, and to re-establish equality between them, so that the contract terms which bind the parties are such as the parties would have agreed if they had negotiated the contract on equal terms.
It is asserted that no reasonable person, of whatever means, would willingly agree to pay a charge of £100 as a consequence of staying over free time, if they had the opportunity to negotiate the contract on equal terms with the other contracting party.
10. The Claimant relies on the Court of Appeal judgment in the case of ParkingEye v Beavis. However, in that case the court applied the wrong test for imbalance (para 34 and also para 37, 38). The judge held that the term did not cause a significant imbalance in the parties' rights and obligations because the charge was no greater than that which a motorist could expect to pay for overstaying in a municipal car park.
ii) It is submitted that the European Court of Justice definition of imbalance must take precedence.
iii) However, in any case the instant case is not saved from being unfair by Beavis. In this particular location council charges for overstay are £50 discounted to £25, not £100 discounted to £60. As the charge is 100% greater than that which a motorist could expect to pay for overstaying in a municipal car park there is a clear imbalance
(Are these points worth making??)
11. Repeat users of an ANPR managed 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.
Can Civil Enforcement Limited provide evidence that this did not occur on this occasion?
12. Can Civil Enforcement Limited provide evidence that the vehicle was actually parked for the alleged time frame and the driver was not sat waiting for a space to become free for a substantial amount of time?
The court is invited to strike out the claim of its own volition for failure to include valid Statement of Truth or disclose cause of action or order particulars that comply with Practice Directions and having no merit and no reasonable prospects of success.
I believe the facts in this defence statement are true and correct
0
Comments
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I would not mention that, it's not important.With regards to the first point the management team were spoken with who agreed that this has become an issue with the store and that they regularly put in requests to have the PCN's stopped or cancelled in appropriate circumstances. As the PCN has now escalated to the small claims court, they report they are unable to view the PCN on their 'system'. Is it even worth mentioning this point, or does it become too wishy/washy and better to be to the point.As from reading lots of other threads, we have the same letters as everyone else with dodgy POC, not signed by the guy who's been struck off etc??
Read some more recent ones (not older Schwartz ones) find all the ones from last month, which are signed like yours!
https://forums.moneysavingexpert.com/discussion/5644373
https://forums.moneysavingexpert.com/discussion/5632464
https://forums.moneysavingexpert.com/discussion/5570102
https://forums.moneysavingexpert.com/discussion/5621819
https://forums.moneysavingexpert.com/discussion/5642743
https://forums.moneysavingexpert.com/discussion/5642659
https://forums.moneysavingexpert.com/discussion/5641961
https://forums.moneysavingexpert.com/discussion/5640955
https://forums.moneysavingexpert.com/discussion/5620993
https://forums.moneysavingexpert.com/discussion/5594720
In fact those are all cases updated in the past week alone! You WILL get this stayed, I am confident it will be 'scam over'.
HTHPRIVATE '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 -
Ok have rejigged and tweaked from another successful letter that was recently posted, thank you Coupon-Mad. Can I ask is a letter before county claim and a letter before action, the same?
We received a letter before action with the poor draft particulars of claim, with Mr. Schwatrz printed name, but unsure if this is the same. Only as it relates to one of the pre-court protocol points, so wanted to be sure?0
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