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Civil Enforcement again
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waaalaura
Posts: 5 Forumite
Good afternoon,
just wanted a bit of help with my draft defence for another Civil Enforcement case.
initially i ignored all the correspondence (bad idea, i know) and am at the stage where i have been sent the particulars of claim etc. i have been online and acknowledged the claim on MCOL, and am now drafting my defence. I found a brilliant draft and have tried to adapt it.
only thing is, the car is a company car so the company have had the initial letter and given them my details, however i have tried to read up on this and from what i can gather i still count as the keeper of the car? i have left the defence draft to read as though, to be honest i doubt they would recall enough to know otherwise?
the postcode they sent the letter to is incorrect, but from what ive read elsewhere here i gather that doesnt make too much difference if the letter still found its way to me? so all i have done to address it is mention it briefly with one of the other points.
i have also added two extra reasons as to why the Beavis case doesnt apply. thought that would be useful.
I, DEFENDANT, 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 XXXX2017 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”.
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, and were posted to a non-existent address. The Defendant has no idea what the claim is about - why the charge arose, what the alleged contract was, nor who they are claiming against; 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 £326.88 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.
5.i. This case can further be distinguished from the Beavis case as the rationale behind upholding the decision in Beavis was to encourage turnover of customers for the shop, whereas in this instance the contravention was 8:57pm after the shop has closed.
5.ii. This case can be distinguished further from Beavis as another rationale in that judgement stated it was fair to uphold the judgement on the basis that if one was parking on a council street at the same time then they could reasonably expect to pay a Penalty Charge Notice. As the contravention happed at 8:57pm, it was not during the hours whereby a council would issue a PCN.
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:
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.
8. 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.
9. 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 XXXX2017
(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.
Signed
Date
any advice would be much appreciated!
Thank you :money:
just wanted a bit of help with my draft defence for another Civil Enforcement case.
initially i ignored all the correspondence (bad idea, i know) and am at the stage where i have been sent the particulars of claim etc. i have been online and acknowledged the claim on MCOL, and am now drafting my defence. I found a brilliant draft and have tried to adapt it.
only thing is, the car is a company car so the company have had the initial letter and given them my details, however i have tried to read up on this and from what i can gather i still count as the keeper of the car? i have left the defence draft to read as though, to be honest i doubt they would recall enough to know otherwise?
the postcode they sent the letter to is incorrect, but from what ive read elsewhere here i gather that doesnt make too much difference if the letter still found its way to me? so all i have done to address it is mention it briefly with one of the other points.
i have also added two extra reasons as to why the Beavis case doesnt apply. thought that would be useful.
I, DEFENDANT, 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 XXXX2017 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”.
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, and were posted to a non-existent address. The Defendant has no idea what the claim is about - why the charge arose, what the alleged contract was, nor who they are claiming against; 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 £326.88 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.
5.i. This case can further be distinguished from the Beavis case as the rationale behind upholding the decision in Beavis was to encourage turnover of customers for the shop, whereas in this instance the contravention was 8:57pm after the shop has closed.
5.ii. This case can be distinguished further from Beavis as another rationale in that judgement stated it was fair to uphold the judgement on the basis that if one was parking on a council street at the same time then they could reasonably expect to pay a Penalty Charge Notice. As the contravention happed at 8:57pm, it was not during the hours whereby a council would issue a PCN.
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:
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.
8. 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.
9. 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 XXXX2017
(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.
Signed
Date
any advice would be much appreciated!
Thank you :money:
0
Comments
-
Looks good to me! These are easy!PRIVATE '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 -
Thanks for replying,
slight issue though, logged on to MCOL and it only gives me 122 lines to state my defence. that doesnt even let me get a third of it in..
do i need to post it or is there a way around it?
thanks again
0 -
We don't tell you to submit the defence that way.
Seeing as these templates are used day in, day out, yes there's a way round it. Email! Covered on umpteen hundred threads.PRIVATE '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 -
apologies, I've not come across the actual 'how to respond' while I've been reading threads and I am at a loss to find an email address anywhere on my paperwork from the County Court Business Centre.
I shall continue to look0 -
It's online and also easy to find on here, search 'CCBC defence email'.PRIVATE '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 -
@ the OP
try the MCOL website
like all websites, it has info on contacting the website owner
yes it really is that easy
lol 0 -
Send you defence as neatly drafted, correctly formatted PDF document (as shown in the examples in the newbies thread) to
ccbcaq@hmcts.gsi.gov.uk0 -
The subject line should say
"Claim no xxxxxxxx defence attached"0 -
Lamilad you're a star, thank you!
it's been boggling my mind for ages!0 -
Lamilad you have the patience of a saint.
People only need to Google 'CCBC contact'. How is that difficult...?PRIVATE '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
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