CEL parking defence help!?

RustyRascal

Quentin wrote: »

You don't pay £255, as already advised in #87 - £255 is for a hearing.


The fee being asked for is £100

I had already written my email to Lucy when LOC posted the numbers. But thats one area she can call me about to discuss my misunderstanding! Happy to defer my rant till she has cleared this up early on in the call!

777ade777

I'm still going to send my defence to CCBC tomorrow, even though they've taken the email complaint about late POC as the actual defence! Lets see how this pans out.

I'll post my defence tomorrow lunchtime, for anyone to help with the last touches, ready to send that evening.

Loadsofchildren123

777 yes you must just carry on as normal.
The next stage is you get an order saying it's been provisionally allocated to the small claims track, and telling you a date by which you must complete and return the DQ (this can take a few weeks).


You complete this and then when the court has received a DQ from both parties it sends the whole file to your local court.


I think you should do another version of the same complaint letter and attach it to your DQ. When the file is received at your local court, a DJ looks at the claim, defence and DQs, and it and issues another order (called the Notice of Allocation) confirming the small claims allocation and setting out the date of the final hearing and the timetable for service of the evidence, documents etc. That is your one real chance to get a judge to look at this issue (without a formal application).


The letter needs to include reference to (and copies of) your previous complaint to MCOL, and your concern that MCOL treated these as your defence (when they clearly weren't), and that you are assuming that your proper Defence, as it was served in time, is accepted as such.


The letter also needs to be expanded a bit to point out that the court can and should deal with the issue under its inherent case management powers rather than requiring you to formally apply (when it is your case that it is CEL who should be applying under R3.9 [assuming your PoC were late that is, I can't remember off the top of my head]), and quoting the relevant rule.


That's what I would do now (and all other posters in your position).

Loadsofchildren123

RustyRascal wrote: »

I have written back to Lucy (who appears to have taken the reins from Amanda..)

Good afternoon Lucy,

I am confused as to how it is possible you are not in a position to manage a complaint about a company blatantly and routinely abusing the processes which are set out to ensure a fair and just outcome?

If I understand correctly, the ONLY way in which the malpractices being carried out by Civil Enforcement will be investigated, and possibly stopped, is if I were to pay you £255. To me, this feels like extortion!

I would appreciate it if you were to call me personally to discuss this matter further in case i have misunderstood you.

If you could call me on XXXXXXXXXXX

I look forward to speaking to you in due course,

Regards

Rusty, could you make sure you update your own thread? It's helpful to comment on other threads, but not if your own thread is then not up to date (particularly as we are referring all CEL defendants to your thread and advising them to keep abreast of your progress).


I think the next two points to make are:


1. this is not YOUR application to make. The breach is CEL's. it is CEL who should be requested to apply (if the PoC were late that is - not sure off the top of my head if they were in your case).


2. These are the court rules, MCOL's own rules, that you are expecting MCOL to require litigants to comply with. They cannot pick and choose which ones they expect users of the court to abide by - for instance, they expect you to be on time with your AoS and Defence, otherwise they allow judgment in default. They should enforce their own rules, particularly where a serial litigator is breaching them on a mass scale, and where this is potentially extremely prejudicial (lots of defendants must be putting in defences before they even receive the PoC).

777ade777

Loadsofchildren123 wrote: »

777 yes you must just carry on as normal.
The next stage is you get an order saying it's been provisionally allocated to the small claims track, and telling you a date by which you must complete and return the DQ (this can take a few weeks).


You complete this and then when the court has received a DQ from both parties it sends the whole file to your local court.


I think you should do another version of the same complaint letter and attach it to your DQ. When the file is received at your local court, a DJ looks at the claim, defence and DQs, and it and issues another order (called the Notice of Allocation) confirming the small claims allocation and setting out the date of the final hearing and the timetable for service of the evidence, documents etc. That is your one real chance to get a judge to look at this issue (without a formal application).


The letter needs to include reference to (and copies of) your previous complaint to MCOL, and your concern that MCOL treated these as your defence (when they clearly weren't), and that you are assuming that your proper Defence, as it was served in time, is accepted as such.


The letter also needs to be expanded a bit to point out that the court can and should deal with the issue under its inherent case management powers rather than requiring you to formally apply (when it is your case that it is CEL who should be applying under R3.9 [assuming your PoC were late that is, I can't remember off the top of my head]), and quoting the relevant rule.


That's what I would do now (and all other posters in your position).

Thanks LOC!

Appreciate the help as always. If i get stuck I'm sure I'll be back :')

ruffneck247

Wow LOC123, you are on a roll. Would it help if someone were to draft a letter of complaint about MCOL practices, the flouting of CCBC rules and CCBC's reluctance to get involved. Then send it to the MP, CCBC, the press and maybe get Martin Lewis involved?

[Deleted User]

this is not YOUR application to make. The breach is CEL's. it is CEL who should be requested to reply (if the PoC were late that is - not sure off the top of my head if they were in your case).

This, exactly. Point one of the defence should be that C has failed to serve particulars of claim timeously and the defence is prepared without prejudice to the defendants primary case that there is no claim to defend where the particulars are out of time and no application for relief from sanction has been filed.

You can now rely on all that correspondence with the court, which is now on file for the DJ to read

Coupon-mad

Point one of the defence should be that C has failed to serve particulars of claim timeously and the defence is prepared without prejudice to the defendants primary case that there is no claim to defend where the particulars are out of time and no application for relief from sanction has been filed.

Do exactly that as your first point, 777ade777.

777ade777

Coupon-mad wrote: »

Do exactly that as your first point, 777ade777.

In the County Court Business Centre
Between:
Civil Enforcement Limited

Claim Number: *******

I am **********, the defendant in this matter and was the registered keeper of vehicle (Model, make and registration). I currently reside at ************.

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

1. The Claim Form issued on the 11th October 2017 by Civil Enforcement Ltd was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by “Civil Enforcement Limited” (Claimant’s Legal Representative)”.

2. The Claimant has failed to serve particulars of claim timeously and the defence is prepared without prejudice to the defendants primary case that there is no claim to defend where the particulars are out of time and no application for relief from sanction has been filed.

The Claimant has made a poor attempt to conceal the actual date on which it served the further Particulars by backdating them by 16 days, together with the covering letter. Breach by the Particulars of Claim and the covering letter being backdated 11th October, whereas they were only posted on the 1st November and received on 2nd November. This is clearly demonstrated by the post mark on the envelope they arrived in, which shows the date of posting as 1st November, a copy of which can provide as evidence.

This is a commercial Claimant pursuing many other claims of this nature. It must therefore have knowledge of, and understand, the Civil Procedure Rules and these sorts of blatant breaches should not be allowed because they prejudice Litigants in Person who are not versed in court procedures and the court rules. It is with some difficulty that I have understood the various obligations and time limits set out in the Civil Procedure Rules, as a Litigant in Person, whereas the commercial Claimant has no such excuse.

3. 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.

a. There was no compliant “Letter before County Court Claim”,
b. This is a speculative serial litigant, issuing a large number of “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 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. Furthermore, the Claim Form Particulars did not contain any evidence of contravention or photographs. 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:
i. “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
ii. 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

iii. 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
iv. support the efficient management of proceedings that cannot be avoided”.
e. The Defence therefore asks the Court to strike out the claim as disclosing no cause of action and having no reasonable prospect of success as currently drafted
f. Alternatively, the Defendant asks that the Claimant is required to file Particulars with Practice Directions and include at least the following information:
i. 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
ii. A copy of any contract it is alleged was in place (e.g. copies of signage)
iii. How any contract was concluded (if by performance, then copies of signage maps in place at the time)
iv. Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
v. Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
vi. If charges over and above the initial charge are being claimed, the basis on which this is being claimed
vii. 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 a 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.

a. 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.


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 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. 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.


7. In the absence of any proof of adequate signage contractually bound the Defendant then therefore cannot have been no contract and the Claimant has no case
a. The Claimant is put to strict proof 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. 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
iii. 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
iv. 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:
a. It is believed Civil Enforcement Ltd 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.

11. It was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who clarified the fact that a registered keeper can only be held liable for parking events on private land if the parking operator fully complies with the POFA, Schedule 4, and not by presumption or any other legal argument.

The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:
• Failed to disclose any cause of action in the incorrectly filed Claim Form issued on 11th October 2017.
• 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 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.


I'm sure number 2 will need correcting or adding to, but I've had a good go!

Please have a read and advise me what to alter, I'll be sending this tomorrow night.

I've left out that the parking officer gives permission for workers from my company to park there and that i have witness statements because it was advised that i leave that till later. I was working in that area as a one off. Also have evidence of me trying to contact the officer on a screen print on text message sending him the PCN, but he didn't reply.

Many thanks

nosferatu1001

You cannot leave a legal argument "until later". You MUST include it in your defence. If you dont, you will likely have to apply to add it in.

When they said" point 1", Im pretty sure they meant it! It must be the FIRST item - which is that there is NO defence that needs submitting.