CEL overstay claim

cdwood

Hi all

The driver of my car overstayed in a carpark during 2015 by 10 minutes. Claim has come through for £359.62 inc costs from the county court business centre.

As per sticky #2 I have aknowledged the claim online and selected a full defence. I have spend many hours plodding through likewise template letters and have come up with the following for my circumstance:



In the County Court Business Centre
Claim Number XXXX
Between:
Civil Enforcement Limited v XXXX

Defence Statement

The Claim Form issued on the XXXX 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 “The Legal Team”.

I deny I am liable for the entirety of the claim for each and every one of the following reasons:

1/ 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.

2/ This Claimant has not complied with pre-court protocol:
(a)There was no compliant ‘Letter before County Court Claim’, under the Practice Direction, despite the Defendant's requests for this and further information.
(b) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information. The covering letter merely contains a supposed PCN number with no contravention nor photographs.
(c) 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.

3/ I put the Claimant to strict proof that it issued a compliant notice under 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.
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 as there was no clear, transparent information about how to obtain a permit either inside or outside the site) 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 £££££££ for outstanding debt and damages.

4/ Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
(a) 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.
(b) Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
(c) 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.
(d) 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.

5/ BPA CoP breaches - this distinguishes this case from the Beavis case:
(a) the signs were not compliant in terms of the font size, lighting or positioning.
(b) the sum pursued exceeds £100.
(c) there is/was no compliant landowner contract.

6/ 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.

7/ No legitimate interest - this distinguishes this case from the Beavis case:


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.

10/ The claimant has added unrecoverable sums to the original parking charge.

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 xxxx 2017
(b) failed to respond to a letter from the Defendant dated xxxxxx 2017 requesting further information and details of the claim

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 believe the facts contained in this Defence Statement are true.

Signed
Date


Any comments before i get this sent? Is this fit for purpose? It there any merit in getting this in ASAP or better to leave until closer to the deadline?

One question on 10.2 - do i need to write to CEL to get this? or should i simply remove this line from my defence.

Many thanks in advance for any help.
CD

Quentin

Throughout here you will have seen never to reveal who was the driver


You want to use POFA in your defence yet you have given details in your OP about who was driving! Are you sure you haven't done so in other correspondence/contact etc


If you are then edit your post to remove details of who was driving


Also if you have inadvertently used your real name as your forum name then ask MSE to change it to something anonymous - the ppcs monitor this forum and can use your posts against you

Redx

edit the above post and remove any hint of who was driving

ie:- it was THE DRIVER that may have overstayed

beamerguy

cdwood wrote: »

Hi all

The driver of my car overstayed in a carpark during 2015 by 10 minutes. Claim has come through for £359.62 inc costs from the county court business centre.

When was the claim dated and £359.62 is OTT for a parking
ticket. Have they given a breakdown ?

What about the grace period that should be allowed entering
and leaving a car park

cdwood

Thanks for the quick response. I have edited the post to say the driver.

The forum name is not my real name.

Thanks
CD

Umkomaas

What about the grace period that should be allowed entering
and leaving a car park

Date of the 2015 parking event may have been prior to the requirement being placed on operators by the BPA in the Autumn of 2015 (from memory!).

Redx

@ Beamer please edit the quote above to reflect the new wording in post #1

thank you

cdwood

the court claim was dated 5th oct 17 but the original claim was march 2015.

the 359 cost is inc of 284 costs plus court cost and legal. Total 359.

Thanks
CD

Quentin

cdwood wrote: »

Thanks for the quick response. I have edited the post to say the driver.

The forum name is not my real name.

Thanks
CD

You need to pm beamerguy and ask him to edit the quote he has inserted in his post #4

beamerguy

Umkomaas wrote: »

Date of the 2015 parking event may have been prior to the requirement being placed on operators by the BPA in the Autumn of 2015 (from memory!).

Good point, question is would a judge accept that £359.62
for 10 mins is reasonable ?

beamerguy

Redx wrote: »

@ Beamer please edit the quote above to reflect the new wording in post #1

thank you

done, is that ok