Parking Charge Notice incurred by ex-wife

vkrishna11

Quentin wrote: »

You must start your own thread to get any advice

Please don't hijack another thread, you just cause confusion

thank you. I had trouble yesterday figuring out how to create a new thread, all I could manage was add it to an existing thread.
But all sorted out now. I'll post in a new thread.

Cheers.

Rover_Driver

theargumentbydesign wrote: »

So basically the defense that I wasn't responsible for the vehicle at the time of the offense is useless? They will just keep coming and not alter the claim to be that of the person I name as the driver?

There is a possibility that you may not be considered to be the keeper within the meaning of the Protection of Freedoms Act, although you are the registered keeper.


From Sch 4, 2, (1), Protection of Freedoms Act 2012:


“keeper” means the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed, unless the contrary is proved, to be the registered keeper.

Coupon-mad

theargumentbydesign wrote: »

So basically the defense that I wasn't responsible for the vehicle at the time of the offense is useless? They will just keep coming and not alter the claim to be that of the person I name as the driver?

Don't name the driver.

Stick with the plan, these defences get CEL to stop.

hoohoo

theargumentbydesign wrote: »

So, if I use this defense - even though it's nothing to do with the actual circumstances - that's my best bet? I have updated some of the details in the template that I found in other posts... DO I keep all the arguments ? Or remove some if unknown to be true...



I am ____ the defendant in this matter and registered keeper of vehicle ____. I currently reside at ____.

The Claim Form issued on the 12 June 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 “The Legal Team”.

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

1/ This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an un-denied 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.

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 covering letter merely contains a supposed PCN number with no contravention nor photographs. The defendant, who is the registered keeper is not identified as the driver at the alleged time.

(b)The initial County Court Claim Form only contains the claimants name, address and amounts of money identified as debt and damages, with a notice that detailed particulars will be provided within 14 days.

(c)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.

It does not detail
1. Proof or confirmation of the driver at the time of the alleged incident.
2. Proof of the vehicle being there at the alleged time.
3. How long or proof that the car was actually parked
4. The vehicle type and colour
5. Why the charge arose

3/ I put the Claimant to strict proof that it 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.

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. 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 £322.59 for outstanding debt and damages.

4/ Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:

(a) Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.

(b) Sporadic and illegible (charge not prominent nor large lettering) 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.

(c) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.

(d) It is believed the terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the UTCCRs (as applicable at the time).

(e) 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.

(f) Absent the elements of a contract, there can be no breach of contract.

5/ POFA 2012 breach and the Defendant was not the driver - this distinguishes this case from the Beavis case:

No keeper liability can apply, due to this Claimant's PCN not complying with Schedule 4. The driver has not been evidenced and a registered keeper cannot otherwise be held liable. In cases where a keeper is deemed liable, where compliant documentation was served, the sum pursued cannot exceed the original parking charge, only if adequately drawn to the attention of drivers on any signage.

6/ 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.

(d) The charge is not based upon a genuine pre-estimate of loss (a condition at the time).

7/ No standing - this distinguishes this case from the Beavis case:

It is believed Civil Enforcement do not hold a legitimate contract at this lcoation. 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.

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 claimant has added unrecoverable sums to the original parking charge. It is not credible that £50.00 legal costs were incurred so the Claimant is put to strict proof it has incurred them. I deny the Claimant is entitled to any interest whatsoever.

11/ If the court believes there was a contract (which is denied, due to unlit signage) this is just the sort of 'simple financial contract' identified at the Supreme Court as one with an easily quantifiable loss (the tariff) where any sum pursued for breach must still relate to a genuine pre-estimate of loss.

The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant:

(a) Failed to disclose any cause of action in the Claim Form issued on 12th June 2017.
(b) Has not to date provided a Particulars of Claim and if they do not do so well within 14 days of the date of service of the Claim Form, it will be impossible for the Defendant to prepare any form of defence.

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.

In the alternative, the Defendant is willing for the matter to be decided by POPLA (Parking on Private Land Appeals) which will decide the dispute and limits any further costs to this claimant to £27, with no legal costs. This is the bespoke ADR for BPA members, is available at any time (not just the first 28 days) and has been used to settle private parking court claims on multiple occasions even after proceedings have commenced. POPLA has not been undertaken in this case nor was it mentioned in the recent sparse communications from this Claimant.

The Defendant invites the Court to use its discretion to make such an order, if not striking out this claim.

"I believe the facts contained in this Defence Statement are true."

This is a better defence, but sadly you are now out of time. Having filed a defence, you cannot now change this.

Luckily for you CEL do not issue notices to keeper which are compliant with the protection of freedoms act 2012, schedule 4. This means keeper liability does not apply, so you, the keeper are not liable. Only the driver is liable.

You therefore still have enough defence points (or point) to win the claim. In your witness statement you will need to show how their NTK is not compliant, and to prove as best you can you were not the driver.

theargumentbydesign

OK - here is my draft Defence - would be grateful for any comments - it's an amalgamation of several in these forums plus some rewording of my own.

In the County Court Business Centre
Claim Number: XXXX
Between:
Civil Enforcement Limited (Claimant)
v
XXX (Defendant)
Defence Statement

I deny that I am liable for the entirety of the claim for each and every one of the following reasons:

1. The Claim Form issued on the 12 June 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. The Claimant has not complied with pre-court protocol. This prevents a full defence being filed as parking charges can be claimed 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. Additionally:

a. The Defendant received no compliant ‘Letter before Court Claim’, under the practice Direction.

b. The initial County Court Business Centre Claim Form only contains the claimants name, address and amounts of money identified as debt and damages, with a notice that detailed particulars will be provided within 14 days. The claim particulars were extremely sparse and divulged no cause of action nor sufficient detail. The form did not contain any evidence of a contravention or photographs, and the Defendant had no idea what the claim referred to. It did not detail:

i. Proof or confirmation of the driver at the time of the alleged incident.

ii. Proof of the vehicle being in the location at the alleged time.

iii. How long, or proof that the car was actually parked

iv. The vehicle type and colour

v. Why the charge arose

c. The additional Particulars of Claim form which is dated the 13 June 2017 but did not arrive with the Defendant until 23 June are signed purportedly by Ashley Cohen. Mr Cohen was reported to sign off witness statements under London Councils POPLA on behalf of Landowners, for CEL POPLA cases falsely stating authority. It is submitted that he is a director of another company, Bemrose Mobile Limited which supplies the pay by phone payment methods for parking. Mr Cohen was a former director of Creative Contracts Limited but has since resigned. Mr Cohen is therefore put to strict proof the capacity and authority he has in signing such statements.

8. In the Particulars of Claim form, CEL suggests that Beavis sets a precedent. This is only true if the facts of the case are similar. In this case, none of the exceptions to disengage the penalty apply.

ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) was dependent upon an un-denied 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.

The Beavis case also confirmed the fact that, if it is a matter of trespass (not breach of contract - which has not been established in this case), a parking firm has no standing as a non-landowner to pursue even nominal damages.

9. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. In the absence of 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.

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. 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 £322.59 for outstanding debt and damages.

No keeper liability can apply, due to this Claimant’s PCN not complying with Schedule 4. The driver has not been evidenced and a registered keeper cannot otherwise be held liable. In cases where a keeper is deemed liable, where compliant documentation was served, the sum pursued cannot exceed the original parking charge, only if adequately drawn to the attention of drivers on any signage.

11. The Claimant has added unrecoverable sums to the original parking charge. If the Claim form signatory ‘Civil Enforcement Limited (Claimant’s Legal representative)’ is an employee then the Defendant suggests he/she is remunerated. It is likely that the particulars of claim dated 13 June 2017 are templates, so it is not credible that £50 ‘legal costs’ were incurred. Additionally, I deny the Claimant is entitled to any interest whatsoever.

12. 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.

13. The Claimant is a serial abuser of the courts, filing many thousands of claims in the last few years. In a preliminary hearing of several cases in Bristol, HHJ Denayer expressed his concern at the way Civil Enforcement Limited were conducting their cases and described correspondence issued by them as a disgrace. Additionally, it is widely reported that the Claimant fails to turn up to defended cases, wasting both the Court’s and Defendants’ time.

14 . The Defendant therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted. Alternatively, the Defendant asks that the Claimant is 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 (e.g. copies of signage)

c. How any contract was concluded (if by performance, then copies of signage maps in place at the time)

d. Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to
Keeper

e. 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. The basis on which interest charges are being claimed

Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

15. In the event the claim progresses, then as an unrepresented litigant in person, I reserve the right to alter, vary and add to this defence or reply to any further particulars of claim/documents the Claimant may provide.

I confirm that the above facts contained in this Defence statement are true.

Signed:

Name:

Date:

[Deleted User]

Personally, i'd go with the Shaggy Defence - "It wasn't me" - especially if your ex has provided written correspondence effectively saying that she was, which can be provided to the Court. The below is quite crude, but should be effective. This obviously infringes the usual approach to not name the driver and to duck payment of any charge, but it seems to me that this is not the O/P primary concern here.

The fact that the Claimant has failed to Particularise their Claim correctly allows you to run any Defence you wish to within reason.

1. The Particulars of Claim served in this matter lack specificity and are enbarrassing. The Defendant can identify no proper legal basis upon which the Claimant seeks payment from him.

2. The Defendant avers that the Claimant has failed to comply with CPR Part 16 PD 7.2 and 7.5 - on the assumption that the Claimant, a parking provider, alleges that there was some form of contractual entitlement to charge the Defendant. Accordingly, the Defendant has prepared this Defence on that assumption as to the Claimant's case and without prejudice to any argument that the Claimant has no such entitlement. It is neither admitted nor denied that the Claimant has any contractual entitlement(s). The Claimant will be put to strict proof.

3. The Defendant reserves the right to serve an Amended Defence should the Claimant advance his case on an alternative basis to that pleaded.

4. The Defendant at all material times has been the owner and registered keeper of vehicle [type], registration [number]. The Defendant is estranged from his wife, Mrs Shaggy, who at all material times has had sole use of the vehicle. The Defendant has not used the vehicle for [1 year]. The Defendant and his wife are undergoing divorce proceedings; the above mentioned vehicle remains registered to the Defendant by reason of the financial matrimonial proceedings not having been resolved.

5. On [date] the matter of an outstanding parking charge notice came to the attention of the Defendant who does not reside at the address to which the above mentioned vehicle is registered. All pre-action correspondence has been been Mrs Shaggy, the driver of the vehicle. The Defendant understands that the Claimant refused to engage in pre-action correspondence with Mrs Shaggy as she was not the registered keeper of the vehicle. The Defendant avers that this was a failure on the part of the Claimant to attempt to recover any losses that they claim to be entitled to from the driver of the vehicle and a failure to comply with the Practice Directions on pre-action conduct.

6. On [date] the Claimant became aware of issued court proceedings and took steps to notify was the Defendant that he was not the party responsible for using the vehicle and that Mrs Shaggy was the driver. The Claimant has been provided with correspondence to confirm that this is the case.

7. The Defendant avers that the Claimant has no lawful basis to pursue the registered keeper of the vehicle because the Claimant is on on notice as to whom the driver was, has correspondence from the driver to confirm that this is the case and is not prejudiced from pursuing the driver, being within all limitation dates to pursue the correct party.

8. In all the circumstances the Defendant denies any liability for the Claimant. If the proceedings are further pursued the Defendant will apply for summary Judgment pursuant to Part 24 CPR and seek the costs of that application from the Claimant.

STATEMENT OF TRUTH
I believe the facts set out in this witness statement are true.

theargumentbydesign

Thanks Johnersh - I really just want to do whatever will be most effective at stopping the action. If that's the above then great - it seems much more targeted than the broader defence I had posted earlier which aims to cover all points - including the issue about the identity of the driver not having been established. However - I now have a choice of 2 defences - does anyone have any opinion as to which will be more likely to succeed?

Umkomaas

I now have a choice of 2 defences - does anyone have any opinion as to which will be more likely to succeed?

Johnersh is a lawyer.

theargumentbydesign

That's good to know...

[Deleted User]

The template on the forum works for a lot of forumites here.

My take is that here, the easiest way out is to demonstrate to the court that it would be unconscionable to find against you where there is an obvious "proper Defendant." If you have letters from your wife which admit that she was driving then you are in a strong position. Rather than have a judge "hunt" for your best argument through a number of points, some of which are more relevant than others, i'd serve up your best point - blame someone else who CEL can enforce against. They will need to re-issue proceedings against the correct Defendant or apply to substitute your ex as Defendant.

Step 2 is to persuade the court as to why POFA 2012 should not be utilised to come after you as keeper, to which the correct answer is that they refused to correspond with the ex as far as you are aware and that they have the correct correspondence address to contact her. I assume that you have written to CEL to advise them of the correct Defendant (i.e. your ex-) if not, I would do so.