Civil Enforcement Ltd!!!

nosferatu1001

No smart phone? That’s a good enough camera.

Loadsofchildren123

AJMorton wrote: »

Preliminary Matters: Strikeout

Amended Defence Statement

The defendant denies the claim on the following grounds:
1. The driver complied with the terms and conditions offered by the Claimant, save for a small and insignificant error in the entry of the vehicles VRN into the Claimants machine, to which the Doctrine Maxim de minimis non curat lex applies.

1.1 On the date of the parking, the driver complied with the terms and conditions of parking by purchasing a ticket and entering the vehicle registration number.
1.2 The keypad and display on the Claimants pay and display machine was poorly laid out and positioned for and the driver, whilst taking reasonable care to enter it correctly, made a small, insignificant and obvious error by inverting two letters of the VRN and duplicating one. It is common ground between the parties that the Claimant was aware of this error, and that the driver had in fact paid the relevant parking charge, before it choose to issue proceedings.
1.3 The “de minimis" doctrine “the law cares not for small things" provides that the court should refuse to consider trifling matters. This is a case where the court should apply the doctrine in order to avoid the resolution of trivial matters that are not worthy of judicial scrutiny.

1.4 The Lead Adjudicator of one of the two trade bodies for private parking companies has advised its members that such small errors should be forgiven, saying that motorists are being “unfairly penalised for the most trivial of mistakes when entering their vehicle registration numbers, where the mistake is so trivial that even someone applying their full attention might not realise their mistake, then it is unfair to endorse a charge." Therefore the driver of advancing years inadvertently made that insignificant error and had no knowledge of their error at the time and it is unreasonable to be penalised for such error.


2. The Defendant was not driving and cannot therefore be liable under any contract because there was no contract between the Claimant and the Defendant, but only between the Claimant and the driver. The Defendant admits that she is the registered keeper of the vehicle, but she cannot be liable as keeper because the strict requirements of POFA have not been complied with by the Claimant was not compliant with POFA.

The Defendant therefore asks the Court to strike out the claim as having no reasonable prospect success, under CPR Rule 3.4.

3. Other Matters.
3.1 Additional sums sought: Should it be decided that the defendant is liable for the charge, the Claimant is not entitled to recover the entire sum sought because it has added unrecoverable sums to the original parking charge which did not form any part of any contract between the driver and the Claimant. Furthermore, the Claimant is not entitled to £50 in respect of legal costs because it dies not use the services of a solicitor. The Defendant also denies that the Claimant is entitled to any interest whatsoever.
3.2 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. If no such consent was obtained then the Claimant was committing a criminal offence and cannot rely on a criminal act on which to found a claim.
3.3 The Claimant has no standing to bring a claim because it has not shown that it has the landowners authority to operate on the land in question or to bring proceedings in its own right.

The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to strike out the Claim because 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 compliant documentation.



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

Signed

................................................

Date:

I haven't compared this to the one I played around with, but this one makes all the points. You then expand on them in your WS by adding the facts.

Loadsofchildren123

I actually prefer something closer to your original version. I've gone back to that and incorporated the changes I made, which you seem to agree with from your new draft. it's slightly more formal and concise:




The Defendant denies the claim on the following grounds:

1. The driver complied with the terms and conditions offered by the Claimant, save for a small and insignificant error in the entry of the vehicle's VRN into the Claimant's machine, to which the doctrine Maxim de minimis non curat lex applies;


2. The Defendant was not driving and the Claimant has not produced any evidence to the contrary, and so the Defendant cannot be liable


3. The Defendant cannot be liable as the keeper of the vehicle because the provisions of Schedule 4 of the Protection of Freedoms Act 2012 ("POFA") have not been complied with]

1. Doctrine Maxim de minimis non curat lex

1.1 On the date of the parking, the driver (who for the avoidance of doubt was not the Defendant and is a person of advancing years), complied with the terms and conditions of parking by purchasing a ticket and entering the vehicle registration number.


1.2 The keypad and display on the Claimant's pay and display machine was poorly laid out and positioned and the driver, whilst taking care to enter it correctly, made a small, insignificant and obvious error by inverting two letters of the VRN and duplicating one. It is common ground between the parties that the Claimant was aware of this error, and that the driver had in fact paid the relevant parking charge, before it chose to issue proceedings.

1.3 The "de minimis" doctrine (literally "the law cares not for small things") provides that the the court should refuse to consider trifling matters. This is a case where the court should apply the doctrine in order to avoid the resolution of trivial matters that are not worthy of judicial scrutiny.


1.4 In fact, the Lead Adjudicator of one of the two trade bodies for private parking companies has advised its members that such small errors should be forgiven, saying that motorists are being "unfairly penalised for the most trivial of mistakes when entering their vehicle registration numbers.... where the mistake is so trivial that even someone applying their full attention might not realise.... then it is...unfair to enforce a charge".



2. The Defendant was not driving.
2.1 The Defendant cannot be liable for the sums sought as she was not the driver. As she was not the driver, there was no contract between the Claimant and Defendant, nor was the Defendant committing any acts of trespass, and there can be no cause of action against the Defendant.


2.2 The Defendant admits that she was at the relevant time the registered keeper of the vehicle. However, there can be no presumption made that the Defendant, as the keeper, was the driver on the day in question. The burden of proof rests with the Claimant to show that the Defendant was driving, and it cannot do so.

3. The Defendant cannot be liable as keeper


In order to be liable as keeper, the Claimant must have complied with the strict terms and conditions set out in Schedule 4 of POFA. The Claimant has not complied.

The Defendant therefore asks the Court to strike out the claim as having no reasonable prospect of success, under CPR Rule 3.4.

4. Other matters


4.1 Additional sums sought: Should it be decided that the Defendant is liable for the charge, the Claimant is not entitled to recover the entire sum sought because it has added unrecoverable sums to the original parking charge which did not form any part of any contract between the driver and the Claimant. Furthermore, the Claimant is not entitled to £50 in respect of legal costs because it does not use the services of a solicitor. The Defendant also denies that the Claimant is entitled to any interest whatsoever.


4.2 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. If no such consent was obtained then the Claimant was committing a criminal offence and cannot rely on a criminal act on which the found a claim.

4.3 The Defendant puts the Claimant to full proof that it has any legal standing to bring a claim because it has not shown that it has the landowner's authority to operate on the land in question or to bring proceedings in its own right.

The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to strike out the Claim because 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 compliant documentation.



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




The spacing needs a bit of attention, but you can sort that out.

AJMorton

Thank you again for your help, time and patience .

Merry Christmas 🎅and Happy New Year to you!!

Loadsofchildren123

There’s some bold in para 3 that needs to be unbolded (is that even a word?)

AJMorton

Hi guys

Quick update, we have received today a letter from the courts, informing us a court date has been set but will only go ahead as long as the Claimant pays the court admin fee by a certain date.

Thanks

Umkomaas

AJMorton wrote: »

Hi guys

Quick update, we have received today a letter from the courts, informing us a court date has been set but will only go ahead as long as the Claimant pays the court admin fee by a certain date.

Thanks

Standard CEL behaviour.

DoaM

Don't be surprised if they withdraw the claim at the 11th hour.

Redx

AJMorton wrote: »

Hi guys

Quick update, we have received today a letter from the courts, informing us a court date has been set but will only go ahead as long as the Claimant pays the court admin fee by a certain date.

Thanks

that is true in all these MCOL cases

they pay a fee to set the claim in motion, then a court hearing fee once a judge has decided it should go to the court itself, usually your local court

if they fail to pay the court hearing fee , it is struck out

the BARGEPOLE timeline of events explains the procedures

AJMorton

Hi
Great news, letter has arrived case has been withdrawn by CEL!!!!

Thank you to everyone who helped us.