CEL parking defence help!?

777ade777

nosferatu1001 wrote: »

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.

I've included that the POC was late in point 2.

So your basically saying put it as point number 1 and that will be fine then yes!?

777ade777

I've confused now. Are you saying i don't need to submit a defence? Other than raising that the POC was late?

nosferatu1001

Yes, move point 2 to point 1. It is literally the very first thing the judge should read, because essentially you're saying "I've put in a defence but none was needed, and the claim should be struck out".

No, i did not say that at all. I actually said the opposite. If you are relying upon the legal concept of "promissory estoppel", i.e. the driver was told they could park there by someone you reasonably believe had authority to do so, then you MUST include that legal defence in your defence. If you want to "use it later" it will cost you £100 , at least, to formally amend your defence

while technically you DONT need to submit a defence, unless the claimant applies for relief from sanction (the sanction being that the claim is struck out, ie dismissed) - youre being pragmatic, which is that the CCB C seem to be utter incompetents who dont actually follow their own damned rules.

777ade777

nosferatu1001 wrote: »

Yes, move point 2 to point 1. It is literally the very first thing the judge should read, because essentially you're saying "I've put in a defence but none was needed, and the claim should be struck out".

No, i did not say that at all. I actually said the opposite. If you are relying upon the legal concept of "promissory estoppel", i.e. the driver was told they could park there by someone you reasonably believe had authority to do so, then you MUST include that legal defence in your defence. If you want to "use it later" it will cost you £100 , at least, to formally amend your defence

while technically you DONT need to submit a defence, unless the claimant applies for relief from sanction (the sanction being that the claim is struck out, ie dismissed) - youre being pragmatic, which is that the CCB C seem to be utter incompetents who dont actually follow their own damned rules.

That's a lot clearer for me thank you.

I'll amend and re-send when I've done it, again thank you.

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 (make model and reg). I currently reside at (first line of address).

I deny that the driver is liable for the entirety of the claim for each of the following reasons:

1. The Claimant has failed to serve particulars of claim timeously and the defence is prepared without prejudice to the defendant’s 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.

2. There is a long standing arrangement between the employees of the driver’s retail establishment, Unit 3 The Gerrard Centre, Ashton In Makerfield, Wigan, and the car park regulator. The agreement which was that employees from this establishment were allowed to park on this car park when on their shift because of limited parking in the area. The driver made every effort before the date in question to ensure that the driver was allowed to park on that car park. Relevant details were sent across to the car park regulator to ensure that he/she was aware that the driver was parking there on that day for the drivers shift which was 15:00 – 22:00. The driver was confident that all reasonable steps had been taken to ensure the agreement was fulfilled.

3. 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)”.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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



9. 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.

10. 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.

11. 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.

12. 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.


How does this look please??

Also is the font Arial 11 okay?

KeithP

777ade777 wrote: »

Also is the font Arial 11 okay?

The NEWBIES thread says:

double line-spaced in Times New Roman font 12

Why would you want to do different?

Loadsofchildren123

para 1: rather than timeously, say they didn't serve their PoC "in time" and at the end of the para say when, under the relevant rule (previously quoted) they should have been served and when the actually were. You need to include enough detail in this para for a judge to consider striking out.

777ade777

Loadsofchildren123 wrote: »

para 1: rather than timeously, say they didn't serve their PoC "in time" and at the end of the para say when, under the relevant rule (previously quoted) they should have been served and when the actually were. You need to include enough detail in this para for a judge to consider striking out.

Just confirming is this the correct rule LOC? >> Rule 7.4 (1)(b)

After reading your previous comments it is served 2 business days after it was posted.

Mine was posted on the 1st of Nov which means it was served on the 3rd Nov and the deadline is post my defence is the 17th Nov, is this correct LOC?

Thanks in advance

777ade777

1. The Claimant has failed to serve particulars of claim in time and the defence is prepared without prejudice to the defendant’s 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. When under Rule 7.4(1)(b) the Particulars of Claim should have been served 14 days after the Service of Claim form. The actual date the Particular of Claims was received was 2nd November, as such, according to Rule 6.3(b) they were served on the 3rd November 2017.

How does this look??

ruffneck247

L Webb has bounced an email back to me again saying that unless I post an N244, they will not deal with my complaint. Has anyone got any further with Amanda Beck as yet?