Civil Enforcement Ltd!!!

Coupon-mad

In his forward he stated that:

should be 'foreword'

And I am confused as this is written like a POPLA appeal, you've even written 'I am appealing'.

But isn't this your defence (amended, having now seen the full POC at last) which should be written by getting your original defence and crossing things out and/or adding to it, AFAIK.

The above format is not right for this stage. It is NOT an appeal.

Loadsofchildren123

I’ll have a look at this tomorrow

AJMorton

Thanks again....New defence below, I'm running out of time so rushed my previous info I have to get this in the post today to meet the deadline due to last Xmas post date .

In the County Court Business Centre
Claim Number:

Between:

Civil Enforcement Limited v xxxxx

Amended Defence Statement

I am xxxx the defendant in this matter and registered keeper of vehicle xxxxxx, registration xxxxx I currently reside at xxxxxxxxxx

My amended defence against the amended particulars of the claimant are on the following grounds and I respectfully ask that all points are taken into consideration:

1. The Notice to Keeper is not compliant with Protection of Freedoms Act 2012.
2. Doctrine Maxim de minimis non curat lex
3. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.

1. The Notice to Keeper is not compliant with Protection of Freedoms Act 2012

The Notice to Keeper is not compliant with Protection of Freedoms Act 2012 (POFA) for the following reasons:-

a) The Notice to Keeper (NTK) was delivered outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)
b) The Notice to Keeper does not warn the keeper that, if after a period of 28 days, Civil Enforcement Limited has the right to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012 (POFA)
a) The Notice to Keeper is not compliant with Protection of Freedoms Act 2012

The Notice to Keeper (NTK) was delivered outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)

Sub-paragraph 9 (5) specifies that the relevant period for delivery of the Notice to Keeper for the purposes of sub-paragraph 9 (4) is a period of 14 days beginning with the day after that on which the specified period of parking ended. According to the PCN, the specified period of parking ended on XX/XX/2016. The relevant period is therefore the 14 day period from XX/XX/2016 to XX/XX/2016 inclusive. Sub-paragraph 9 (6) states that a notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose, “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales. The “Letter Date” stated on the PCN is XX/XX/2016 and in accordance with sub-paragraph 9 (6) is presumed to have been “given” on XX/XX/2016, 16 days outside of the relevant period.
b) The Notice to Keeper does not warn the keeper that, if after a period of 28 days, Civil Enforcement Ltd has the right to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012 (POFA)

POFA 2012 requires that an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle, if certain conditions are met. As sub-paragraph 9 (2) (f) highlights a NTK must adhere to the following points:
The notice must—
warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii) the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 14 days beginning with the day after the parking event. As this operator has evidently failed to serve a POFA compliant NTK, in accordance with paragraph 9, they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory documents with paragraph 9 wording and prescribed warning about 'keep liability' we're not properly given.

2. Doctrine Maxim de minimis non curat lex

An abbreviated form of the Latin maxim de minimis non curat lex, "the law cares not for small things." A legal doctrine by which a court refuses to consider trifling matters.
In a lawsuit, a court applies the de minimis doctrine to avoid the resolution of trivial matters that are notworthy of judicial scrutiny. Its application sometimes results in the dismissal of an action.
The driver of advancing years inadvertently inputted a letter in the incorrect place and duplicated a number of the vehicle registration number, due to the poor display of keys on the pay and display machine.

The Lead Adjudicator , Bryn Holloway (Barrister) , of the IAS has published his annual report for 2016/2017. In his forward he stated that:

A commitment to continuous improvement must be a prerequisite for any service that seeks to provide truly independent redress for consumers. While the IAS has continued to grow since the 2015/2016 report, it is significant that we have also taken every opportunity to ensure the service evolves and develops to provide the best possible service to the Consumer. One example involved a growing concern that motorists were being unduly penalised for the most trivial of mistakes when entering their vehicle registration numbers as they are registering for parking. Of course, it is incumbent upon the motorist to take reasonable care in entering their details, and when they fail to do so properly very often a charge may be justified. However, where the mistake is so trivial that even someone applying their full attention might not realise - such as entering a ‘0’ instead of a ‘O’ or a ‘1’ instead of an ‘I’ - then it is, in my view, unfair to enforce a charge.
As a consequence, I released guidance to all the adjudicators that they should have regard to the nature and extent of such mistakes in determining whether a charge is lawful. I am pleased to say that, since issuing the guidance, there has been a visible reduction in the amount of cases where operators pursue such parking charges and far fewer (justifiably) frustrated motorists as a result.

It is impossible to differentiate between a 0 (zero) and the letter O on a vehicle registration mark and feel it is unfair to penalise customers for such a trivial mistake. The fact that a ticket had been purchased meant that there could be no loss for Civil Enforcement Ltd and the fact that a zero was used instead of the letter O is a minimal error.

3. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4 of the PAFA 2012.

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

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. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''


The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of a claim.


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. I deny the Claimant is entitled to any interest whatsoever.!

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.

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 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.

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.

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.!

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.

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 12th June 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.

(C) Sent amended particulars under Doctrine Maxim de minimis non curat lex


I confirm that the above facts and statements are true to the best of my knowledge and recollection.

Signed

Date:

nosferatu1001

Print sign scan to pdf and email!!! Don’t use post.

Loadsofchildren123

you need to divide it up more with para numbers and sub-numbers. I'd add headings, with a summary at the start. The Defendant puts forward 3 defences, as follows:
x
x
x
and then put a heading at the start of each defence.


At the start put this heading, so it's clear to whoever reads it where this part is going: Preliminary matters: strikeout.


Defence should be in third person, so he/she, not I/me.

AJMorton

Thanks, will do.

I've just realised we didn't mention mil wasn't driving shall I add this and also what do you think of the statement?

Thanks again for your help, mil really appreciates it

nosferatu1001

Defendant was not driving you mean. Get used to the terminology. Of course you state that.

AJMorton

In the County Court Business Centre
Claim Number:

Between:

Civil Enforcement Limited v xxxxxx
Preliminary Matters: Strikeout

Amended Defence Statement

Xxxxxx the defendant in this matter and registered keeper of vehicle registration xxxxxxx currently residing at xxxxxxxc

The amended defence against the amended particulars of the claimant are on the following grounds and respectfully ask that all points are taken into consideration:

1. Doctrine Maxim de minimis non curat lex
2. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.

1. Doctrine Maxim de minimis non curat lex

An abbreviated form of the Latin maxim de minimis non curat lex, "the law cares not for small things." A legal doctrine by which a court refuses to consider trifling matters.
In a lawsuit, a court applies the de minimis doctrine to avoid the resolution of trivial matters that are notworthy of judicial scrutiny. Its application sometimes results in the dismissal of an action.
The driver of advancing years inadvertently inputted a letter in the incorrect place and duplicated a number of the vehicle registration number, due to the poor display of keys on the pay and display machine.

The Lead Adjudicator , Bryn Holloway (Barrister) , of the IAS has published his annual report for 2016/2017. In his forward he stated that:

A commitment to continuous improvement must be a prerequisite for any service that seeks to provide truly independent redress for consumers. While the IAS has continued to grow since the 2015/2016 report, it is significant that we have also taken every opportunity to ensure the service evolves and develops to provide the best possible service to the Consumer. One example involved a growing concern that motorists were being unduly penalised for the most trivial of mistakes when entering their vehicle registration numbers as they are registering for parking. Of course, it is incumbent upon the motorist to take reasonable care in entering their details, and when they fail to do so properly very often a charge may be justified. However, where the mistake is so trivial that even someone applying their full attention might not realise - such as entering a ‘0’ instead of a ‘O’ or a ‘1’ instead of an ‘I’ - then it is, in my view, unfair to enforce a charge.
As a consequence, I released guidance to all the adjudicators that they should have regard to the nature and extent of such mistakes in determining whether a charge is lawful. I am pleased to say that, since issuing the guidance, there has been a visible reduction in the amount of cases where operators pursue such parking charges and far fewer (justifiably) frustrated motorists as a result.

It is impossible to differentiate between a 0 (zero) and the letter O on a vehicle registration mark and feel it is unfair to penalise customers for such a trivial mistake. The fact that a ticket had been purchased meant that there could be no loss for Civil Enforcement Ltd and the fact that a zero was used instead of the letter O is a minimal error.

2. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.
The Claimant cannot confirm the defendant was the driver on the day of the event.

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and can confirm that they were, but they are exercising there right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. Appellant throughout (as entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

The keeper of the vehicle, has a right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4 of the PAFA 2012.

The burden of proof rests with the Operator to show that (the individual) has personally not complied with terms in place on the land and show that personally not liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

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. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''


The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of a claim.


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. I deny the Claimant is entitled to any interest whatsoever.!

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.

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 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.

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.

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.!

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.

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 12th June 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.

(C) Sent amended particulars under Doctrine Maxim de minimis non curat lex


I confirm that the above facts and statements are true to the best of my knowledge and recollection.

Signed

Date:

AJMorton

Hi
Please would someone cast there eye over this please.

Many thanks

nosferatu1001

That it’s far too long. You don’t insert evidence (ie the IAS statement )