County Court Claim Defence

Stew_B

Hi There,
I've read through all your pinned information and have followed the advice thus far.
My husband (as registered keeper) is in possession of a County Court Claim from Civil Enforcement Ltd for an unpaid PCN for failure to pay in a hotel car park. The hotel had assured us that they would get the ticket cancelled since the car user was visiting the hotel on business grounds and purchased a drink at the hotel. However, the letters have kept coming. We have been back in contact with the hotel and they are following it up again.
However, we would like to start putting a defence together for the court claim. We have acknowledged the claim online as per the instructions in order to give us the extra time to do this. I've read through the example defences you provide, all of which are great, but non of which set out similar scenarios to this one. I'm happy with setting it out, formatting etc., just some suggestions of wording would be helpful.
Thank you!

Coupon-mad

I've read through the example defences you provide, all of which are great, but non of which set out similar scenarios to this one.

Just copy any other CEL defence from recent weeks (there are zillions here) and adjust the introduction to set out some brief facts along the lines you said here:

The hotel had assured us that they would get the ticket cancelled since the car user was visiting the hotel on business grounds and purchased a drink at the hotel. However, the letters have kept coming. We have been back in contact with the hotel and they are following it up again.

I hope the keeper has never said who was driving. ''We'' is fine, did you only appeal saying ''we''?

Stew_B

Thanks for the response. There has been no official 'appeal' to our knowledge. The hotel haven't responded in the last couple of days so we suspect they haven't even done anything with it. Anyway, I've copied some previous defences, adding a bit in at the start about the circumstances. Could you please let me know if this is good to go?
In the County Court Business Centre
Between:
Civil Enforcement Limited
V
Defendant

I, Defendant, deny I am liable to the Claimant for the entirety of the claim for each of the following reasons:

1. The driver of the car was a visitor to and customer at the Red Lion Hotel at the time of the ticket being issued.

2. The Claim Form issued on the 12th 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”.

3. 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 sufficient detail. The Defendant is not clear why the charge arose, what the alleged contract was; 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. A copy of any contract it is alleged was in place (e.g. copies of signage)

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

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

iv. Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter

v. If charges over and above the initial charge are being claimed, the basis on which this is being claimed

vi. 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.

4. 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.

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) 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 £323.52 for outstanding debt and damages.

5. 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.

6. 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.

7. 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.


8. 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.

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 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.

11. The additional particulars of claim 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 Ltd but has since resigned. Mr. Cohen is therefore put to strict proof the capacity and authority he has in signing such statements.

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.

Defendant
4th July 2017

Coupon-mad

8. 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. Even if they satisfy the court that they do have a contract with the Hotel, there can be no 'legitimate interest' in pursuing a charge when the Hotel Manager had assured us that they would get the ticket cancelled, since the car user was visiting the hotel as a patron.

Stew_B

Brilliant - thanks Coupon-Mad. PDF copy about to be emailed! :-)

pvt

I'm not sure about your point #2. I believe a Limited Company is defined as a "legal person".

Quentin

pvt wrote: »

I'm not sure about your point #2. I believe a Limited Company is defined as a "legal person".

You are mistaken. -"legal entity", not "person"!

pvt

Quentin wrote: »

You are mistaken. -"legal entity", not "person"!

A quick search of the term "legal person" yields descriptions and dictionary definitions that seem to contradict that. What am I missing?

[Deleted User]

The claim form must be signed by an individual in their own name, a qualified lawyer (if an in-house legal team for a corporation), by legal representatives or by an identified individual in a position of authority at a corporation.

Since CEL are not lawyers the claim form and particulars must specify who signed it. This is fundamental CPR Part 22 PD22 Para 3 refers.

Arguably the document is unverified/not to be relied upon. It's a technical point, but some DJs will buy into it.

pvt

Not being argumentative here - just trying to get this point clear in my head:

So is the issue here that the document has not been signed by an individual/identifiable person, as required by the PD. It surely has been signed by a 'legal person', which is the faceless legal entity?

Am I missing something in the definitions here?

Grateful for clarity as it seems like a really useful point.

Umkomaas

I'd accept Johnersh's statement on this. He is a qualified lawyer!