Help - Claim form

Northerner_lad

Thanks Coupan Mad....

Can you or someone advise please...

The court order that I received states that by 4 Jan 2018 I have permission to file at court and serve CEL an amended further defence setting out by reference to the further POC what is admitted, what is disputed and why? Am I right in thinking this is not a witness statement? If so, what is it? (I've received the further POC although this was sent late).

Also the order states that "this order has been made without a hearing" and that any party has the right to apply to have the order set aside, varied or stayed.

Please can someone advise. I am getting slightly confused, many thanks.

KeithP

Without reading the rest of your thread again, it means that as you wrote your defence before the PoC was available, you have the opportunity to revise your defence in light of the new information supplied by the claimant. You are right - it is not a witness statement.

I cannot think of any reason you might want to object to that order.

Northerner_lad

Thanks Keith. So, I can just resubmit my initial defence? All the points mentioned in my initial defence are still valid I think.

Northerner_lad

Please can someone have a look at this and advise any changes:

This is my second defence (following receiving the further POC, which was late). I've just ammended a few details from my first defence.
______________________________________________________________

[FONT=Times New Roman, serif]In the County Court of
[/FONT]

[FONT=Times New Roman, serif]Claim Number:

Between:

Civil Enforcement Limited v [/FONT][FONT=Times New Roman, serif]XXX[/FONT][FONT=Times New Roman, serif]

Defence Statement[/FONT]


[FONT=Times New Roman, serif]I, [/FONT][FONT=Times New Roman, serif]XXX[/FONT][FONT=Times New Roman, serif], deny I am liable to the Claimant for the entirety of the claim for each of the following reasons:

[/FONT][FONT=Times New Roman, serif]1.[/FONT][FONT=Times New Roman, serif] The Claim Form issued on 03 October 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.”

[/FONT][FONT=Times New Roman, serif]2. [/FONT][FONT=Times New Roman, serif]This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017). 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.

[/FONT][FONT=Times New Roman, serif](a)[/FONT][FONT=Times New Roman, serif] There was no compliant ‘Letter before County Court Claim’, under the Practice Direction. [/FONT][FONT=Times New Roman, serif]

[/FONT][FONT=Times New Roman, serif](b)[/FONT][FONT=Times New Roman, serif] This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.

[/FONT][FONT=Times New Roman, serif](c)[/FONT][FONT=Times New Roman, serif] The Schedule of information is sparse of detailed information.

[/FONT][FONT=Times New Roman, serif](d)[/FONT][FONT=Times New Roman, serif] 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. The Claim Form Particulars did not contain any evidence of contravention or photographs. [/FONT][FONT=Times New Roman, serif]These documents, and the ‘Letter before County Court Claim’ should have been produced, pursuant to paragraph 6 of the Practice Direction – Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to “take stock”, pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are: [/FONT]


[FONT=Times New Roman, serif] (i) [/FONT][FONT=Times New Roman, serif]early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute[/FONT]
[FONT=Times New Roman, serif] (ii)[/FONT][FONT=Times New Roman, serif] enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure[/FONT]
[FONT=Times New Roman, serif] (iii)[/FONT][FONT=Times New Roman, serif] encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and[/FONT]
[FONT=Times New Roman, serif] (iv) [/FONT][FONT=Times New Roman, serif]support the efficient management of proceedings that cannot be avoided.’[/FONT]
[FONT=Times New Roman, serif]
[/FONT][FONT=Times New Roman, serif](e)[/FONT][FONT=Times New Roman, serif] The [/FONT][FONT=Times New Roman, serif]Defence[/FONT][FONT=Times New Roman, serif] therefore asks the Court to strike out the claim as disclosing no cause of action and having no reasona[/FONT][FONT=Times New Roman, serif]ble prospect of success as currently drafted.

[/FONT][FONT=Times New Roman, serif](f) [/FONT][FONT=Times New Roman, serif]Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;

[/FONT][FONT=Times New Roman, serif](i)[/FONT][FONT=Times New Roman, serif] 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

[/FONT][FONT=Times New Roman, serif](ii)[/FONT][FONT=Times New Roman, serif] A copy of any contract it is alleged was in place (e.g. copies of signage)

[/FONT][FONT=Times New Roman, serif](iii)[/FONT][FONT=Times New Roman, serif] How any contract was concluded (if by performance, then copies of signage maps in place at the time)

[/FONT][FONT=Times New Roman, serif](iv)[/FONT][FONT=Times New Roman, serif] Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper

[/FONT][FONT=Times New Roman, serif](v)[/FONT][FONT=Times New Roman, serif] Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter

[/FONT][FONT=Times New Roman, serif](vi)[/FONT][FONT=Times New Roman, serif] If charges over and above the initial charge are being claimed, the basis on which this is being claimed

[/FONT][FONT=Times New Roman, serif](vii)[/FONT][FONT=Times New Roman, serif] If Interest charges are being claimed, the basis on which this is being claimed

[/FONT][FONT=Times New Roman, serif](g)[/FONT][FONT=Times New Roman, serif] Once these Particulars have been filed, the Defendant asks for reasonable time to file another [/FONT][FONT=Times New Roman, serif]defence[/FONT][FONT=Times New Roman, serif].[/FONT][FONT=Times New Roman, serif]

[/FONT][FONT=Times New Roman, serif]3. [/FONT][FONT=Times New Roman, serif]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. [/FONT]
[FONT=Times New Roman, serif]They cannot pluck another sum from thin air and bolt that on as well when [/FONT][FONT=Times New Roman, serif]it is believed that n[/FONT][FONT=Times New Roman, serif]either the signs, nor the NTK, mentioned a possible £236.52 for “outstanding debt and damages.”

[/FONT][FONT=Times New Roman, serif]4.[/FONT][FONT=Times New Roman, serif] 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.

[/FONT]5. This case can be distinguished from ParkingEye Ltd 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. As far as I can ascertain, based upon the very vague particulars of claim and complete lack of evidence and photographs, and without having been furnished with the alleged signage 'contract', none of this applies in this material case.
[FONT=Times New Roman, serif]
[/FONT][FONT=Times New Roman, serif]6. [/FONT][FONT=Times New Roman, serif]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.[/FONT]
[FONT=Times New Roman, serif]
[/FONT][FONT=Times New Roman, serif](a) [/FONT][FONT=Times New Roman, serif]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.[/FONT]
[FONT=Times New Roman, serif]
[/FONT][FONT=Times New Roman, serif](b)[/FONT][FONT=Times New Roman, serif] 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. [/FONT]


[FONT=Times New Roman, serif](c)[/FONT][FONT=Times New Roman, serif] Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:[/FONT]


[FONT=Times New Roman, serif] [/FONT][FONT=Times New Roman, serif](i)[/FONT][FONT=Times New Roman, serif] 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.[/FONT]


[FONT=Times New Roman, serif] [/FONT][FONT=Times New Roman, serif](ii)[/FONT][FONT=Times New Roman, serif] 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.[/FONT]


[FONT=Times New Roman, serif] [/FONT][FONT=Times New Roman, serif](iii)[/FONT][FONT=Times New Roman, serif] 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.[/FONT]


[FONT=Times New Roman, serif] (iv)[/FONT][FONT=Times New Roman, serif] The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.[/FONT]


[FONT=Times New Roman, serif](d)[/FONT][FONT=Times New Roman, serif] BPA CoP breaches - this distinguishes this case from the Beavis case:[/FONT]
[FONT=Times New Roman, serif]
[/FONT][FONT=Times New Roman, serif](i)[/FONT][FONT=Times New Roman, serif] the signs were not compliant in terms of the font size, lighting or positioning.
[/FONT][FONT=Times New Roman, serif](ii)[/FONT][FONT=Times New Roman, serif] the sum pursued exceeds £100.
([/FONT][FONT=Times New Roman, serif]iii) [/FONT][FONT=Times New Roman, serif]there is / was no compliant landowner contract.

[/FONT][FONT=Times New Roman, serif]7. [/FONT][FONT=Times New Roman, serif]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.

[/FONT][FONT=Times New Roman, serif]8.[/FONT][FONT=Times New Roman, serif] 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.

[/FONT][FONT=Times New Roman, serif]9.[/FONT][FONT=Times New Roman, serif] 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.[/FONT]


10. Due to the length of time, the Defendant has no recollection of the day in question (03 July 2015). It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car some years later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.
[FONT=Times New Roman, serif]
The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

[/FONT][FONT=Times New Roman, serif](a)[/FONT][FONT=Times New Roman, serif] failed to disclose any cause of action in the incorrectly filed Claim Form issued on 03 October 2017

[/FONT][FONT=Times New Roman, serif](b)[/FONT][FONT=Times New Roman, serif] 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 [/FONT][FONT=Times New Roman, serif]further[/FONT][FONT=Times New Roman, serif] 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.[/FONT]


[FONT=Times New Roman, serif]The Claimants failed to send the defendant this by 4pm on 18 December 2017, as outlined by the court order. The further Particulars of Claim was dated 18 December 2017, which was sent on the same day. I have the envelope as proof and this was received on late afternoon on the 20 December 2017. The defendant emailed the claimant who failed to respond. The defendant believes this is a deliberate attempt by the claimant to prejudice and disadvantage the defence. [/FONT][FONT=Times New Roman, serif]

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

[/FONT][FONT=Times New Roman, serif]Signed:[/FONT][FONT=Times New Roman, serif]
[/FONT]



[FONT=Times New Roman, serif]
[/FONT][FONT=Times New Roman, serif]Date: [/FONT]

Coupon-mad

Remove this from #5, because your case is also about overstaying free parking time:

after exceeding a licence to park free.

...so it makes no sense to leave that in, then say 'none of this applies to this case'!

Northerner_lad

Thanks CM - much appreciated.

Any more feedback would be helpful before I send it off this Wednesday.

Is it worth also mentioning in my defence that the signs have been changed since the original overstay in 2015? Would CEL then need to prove that there signs were properly displayed at the time of the alleged offence.

Cheers

KeithP

Northerner_lad wrote: »

Is it worth also mentioning in my defence that the signs have been changed since the original overstay in 2015? Would CEL then need to prove that there signs were properly displayed at the time of the alleged offence.

I would say so.

Perhaps you can phrase it in such a way that shows that, as CEL replaced the signs, they were clearly acknowledging that the signs that were present at the time of your incident were not adequate.

Coupon-mad

Yes agreed.

Northerner_lad

Thank you for that Keith and CP, but would I then not be hinting or admitting that I was the driver????

How does this sound...


The signage at the alleged car park has also recently been replaced since the date of the alleged incident over two years ago. This is in effect, CEL acknowledging that there signs at the time of the alleged incident were inadequate.

Please advise or reword.

Cheers

Coupon-mad

Sounds fine. No, it does not suggest who was driving, it just shows local knowledge as you would expect to have.