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CEL defence draft
Snagger
Posts: 19 Forumite
Hi everyone,
A few details about my case:
- 2015 I went over the 2 hours free parking at a parade of shops by about 2 hours.
- I received a NTK a few weeks later, which I ignored.
- 2016 I received a letter from 'Wright Hassle' demanding a sum of money - which I ignored
- October 2017 I received a 'N1' Claim form from County Court Business Centre for the sum of £352.29 which includes £25 court fee and £50 legal representative's costs.
- I'm now writing my defence.
Thanks for taking the time to read my draft defence letter to CEL. After a few hours of reading (including the Newbie sticky) I've came up with the following...
Does this look ok?
IN THE COUNTY COURT
CLAIM NO. XXXXXXXXXX
BETWEEN :
Civil Enforcement Limited
Claimant
AND
XXXXXXXXXXX
Defendant
DEFENCE
Introduction
1. I am_________ , the defendant in this matter. My address for service is _________
2. This is my statement of truth and my defence.
3. As an unrepresented litigant-in-person I seek the Court's permission to amend and supplement this defence as may be required upon disclosure of the claimant's case.
4. For the avoidance of doubt on the relevant date I was the driver of a _____, registered number _________.
5. It is believed that it will be a matter of common ground that the purported debt arose as the result of the issue of a parking charge notice in relation to an alleged breach of the terms and conditions by the driver of the above vehicle when it was parked at________ on ________.
Purported Basis of Claim
6. Further based upon the scant and deficient details contained in the Particulars of Claim and correspondence, it appears to be the claimant's case that:
a. There was a contract formed by the defendant and the claimant on ________.
b. There was an agreement to pay a sum or parking charge
c. That there were Terms and Conditions prominently displayed around the site that meet the test laid down in ParkingEye v Beavis
d. That in addition to the Parking charge there was an agreement to pay additional but unspecified additional sums.
e. The claimant company fully complied with their obligations within the British Parking Association
Code of Practice of which they were member at the time.
f. Further that the defendant has not paid the alleged debt.
Rebuttal of Claim
7. It is denied that:
a. A contract was formed
b. There was an agreement to pay a parking charge.
c. That there were Terms and Conditions prominently displayed around the site.
d. That in addition to the Parking charge there was an agreement to pay additional but unspecified additional sums.
e. The claimant company fully complied with their obligations within the British Parking Association
Code of Practice of which they were member at the time. f. That the defendant is liable for the purported debt.
8. It is further denied that the defendant owes any debt to the claimant or that any debt is in fact owed or that any debt exists or could ever exist or has ever existed. That in any event the claimant has failed to comply with the requirements of the Civil Procedure Rules and that their claim is both unfounded and vexatious.
9. The claimant is put to the strictest proof of their assertions.
My Defence
My defence will rely principally upon the following points:
10. The Claim Form issued on the 2 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 (Claimant’s Legal Representative)’.
11. 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.
12. That the signs erected on site are incapable of forming the basis of a contract and indeed make it clear that that is not the case. Further it is trite law that a term that is forbidding cannot also constitute an offer. It is therefore denied that any contract was formed or was capable of being formed.
13. Should the claimant rely on the case of ParkingEye v Beavis, I wish to point out that there is a test of good faith.
Para 205: “The requirement of good faith in this context is one of fair and open dealing. Opennes
requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”
14. Underlining that is Section 18.3 of the BPA Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs that are used to form contracts. It says:
18.3 You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.
15. The defendant refutes that there were clear and visible signs, with Terms that formed the basis of a contact and which met the specifications above.
16. Section 7 of the British Parking Association Code of Practice outlines to operators some of the common law principles of operating on someone else's land as a licensee. One such item is written authority - a written contract - to be there. It defines the elements of this written authority as follows:
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all the aspects of the management and enforcement of the site that you are responsible for.
In particular, it must say that the landowner requires you to keep to the Code of Practice and that either you have the authority to pursue outstanding parking charges, through the courts if necessary or that you have the authority to pursue outstanding parking charges and, with their permission, through the courts if necessary.
7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.
7.3 The written authorisation must also set out:
a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined.
b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation.
c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) who has the responsibility for putting up and maintaining signs.
e) the definition of the services provided by each party to the agreement.
17. If in the alternative it is the claimant's case that his claim is founded in trespass (which is in any event denied) then in a car park setting any damages in trespass can only be assessed based on a
calculation of the proportion of income lost based on the time of the alleged occupation. Any sum sought could therefore only be minimal and de-minimis.
18. That the amount demanded is therefore excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £50 or £25 if paid within 14 days.
19. In the alternative, the attention of the court is drawn to para. 4(5) Schedule 4 Protection of Freedoms Act 2012 which sets out that the maximum amount recoverable from the registered keeper (in lieu of the driver), where the keeper liability provisions have been properly invoked (which is expressly denied in this case) is that amount specified in the Notice to Keeper (whether issued in accordance with paras 8(2)c; 8(2)d, 9(2)c or 9(2)d of the Act).
20. In view of all the foregoing the court is invited to strike the matter out of its own motion.
21. The claimant is put to strict proof of the assertions they have made or may make in their fuller claim.
This statement is true to the best of my knowledge and belief.
Signed
Dated 16-10-2017
A few details about my case:
- 2015 I went over the 2 hours free parking at a parade of shops by about 2 hours.
- I received a NTK a few weeks later, which I ignored.
- 2016 I received a letter from 'Wright Hassle' demanding a sum of money - which I ignored
- October 2017 I received a 'N1' Claim form from County Court Business Centre for the sum of £352.29 which includes £25 court fee and £50 legal representative's costs.
- I'm now writing my defence.
Thanks for taking the time to read my draft defence letter to CEL. After a few hours of reading (including the Newbie sticky) I've came up with the following...
Does this look ok?
IN THE COUNTY COURT
CLAIM NO. XXXXXXXXXX
BETWEEN :
Civil Enforcement Limited
Claimant
AND
XXXXXXXXXXX
Defendant
DEFENCE
Introduction
1. I am_________ , the defendant in this matter. My address for service is _________
2. This is my statement of truth and my defence.
3. As an unrepresented litigant-in-person I seek the Court's permission to amend and supplement this defence as may be required upon disclosure of the claimant's case.
4. For the avoidance of doubt on the relevant date I was the driver of a _____, registered number _________.
5. It is believed that it will be a matter of common ground that the purported debt arose as the result of the issue of a parking charge notice in relation to an alleged breach of the terms and conditions by the driver of the above vehicle when it was parked at________ on ________.
Purported Basis of Claim
6. Further based upon the scant and deficient details contained in the Particulars of Claim and correspondence, it appears to be the claimant's case that:
a. There was a contract formed by the defendant and the claimant on ________.
b. There was an agreement to pay a sum or parking charge
c. That there were Terms and Conditions prominently displayed around the site that meet the test laid down in ParkingEye v Beavis
d. That in addition to the Parking charge there was an agreement to pay additional but unspecified additional sums.
e. The claimant company fully complied with their obligations within the British Parking Association
Code of Practice of which they were member at the time.
f. Further that the defendant has not paid the alleged debt.
Rebuttal of Claim
7. It is denied that:
a. A contract was formed
b. There was an agreement to pay a parking charge.
c. That there were Terms and Conditions prominently displayed around the site.
d. That in addition to the Parking charge there was an agreement to pay additional but unspecified additional sums.
e. The claimant company fully complied with their obligations within the British Parking Association
Code of Practice of which they were member at the time. f. That the defendant is liable for the purported debt.
8. It is further denied that the defendant owes any debt to the claimant or that any debt is in fact owed or that any debt exists or could ever exist or has ever existed. That in any event the claimant has failed to comply with the requirements of the Civil Procedure Rules and that their claim is both unfounded and vexatious.
9. The claimant is put to the strictest proof of their assertions.
My Defence
My defence will rely principally upon the following points:
10. The Claim Form issued on the 2 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 (Claimant’s Legal Representative)’.
11. 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.
12. That the signs erected on site are incapable of forming the basis of a contract and indeed make it clear that that is not the case. Further it is trite law that a term that is forbidding cannot also constitute an offer. It is therefore denied that any contract was formed or was capable of being formed.
13. Should the claimant rely on the case of ParkingEye v Beavis, I wish to point out that there is a test of good faith.
Para 205: “The requirement of good faith in this context is one of fair and open dealing. Opennes
requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”
14. Underlining that is Section 18.3 of the BPA Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs that are used to form contracts. It says:
18.3 You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.
15. The defendant refutes that there were clear and visible signs, with Terms that formed the basis of a contact and which met the specifications above.
16. Section 7 of the British Parking Association Code of Practice outlines to operators some of the common law principles of operating on someone else's land as a licensee. One such item is written authority - a written contract - to be there. It defines the elements of this written authority as follows:
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all the aspects of the management and enforcement of the site that you are responsible for.
In particular, it must say that the landowner requires you to keep to the Code of Practice and that either you have the authority to pursue outstanding parking charges, through the courts if necessary or that you have the authority to pursue outstanding parking charges and, with their permission, through the courts if necessary.
7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.
7.3 The written authorisation must also set out:
a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined.
b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation.
c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) who has the responsibility for putting up and maintaining signs.
e) the definition of the services provided by each party to the agreement.
17. If in the alternative it is the claimant's case that his claim is founded in trespass (which is in any event denied) then in a car park setting any damages in trespass can only be assessed based on a
calculation of the proportion of income lost based on the time of the alleged occupation. Any sum sought could therefore only be minimal and de-minimis.
18. That the amount demanded is therefore excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £50 or £25 if paid within 14 days.
19. In the alternative, the attention of the court is drawn to para. 4(5) Schedule 4 Protection of Freedoms Act 2012 which sets out that the maximum amount recoverable from the registered keeper (in lieu of the driver), where the keeper liability provisions have been properly invoked (which is expressly denied in this case) is that amount specified in the Notice to Keeper (whether issued in accordance with paras 8(2)c; 8(2)d, 9(2)c or 9(2)d of the Act).
20. In view of all the foregoing the court is invited to strike the matter out of its own motion.
21. The claimant is put to strict proof of the assertions they have made or may make in their fuller claim.
This statement is true to the best of my knowledge and belief.
Signed
Dated 16-10-2017
0
Comments
-
bear in mind that as this is an oct 2017 claim the claim should conform to the new protocols that came in on 01 oct 2017
therefore it should have those POC with it or say they will be supplied by tha claimant within 14 days
I assume this claim has nothing like that ?
in which case the scant details part should be beefed up stating that they have failed under the new protocols blah blah etc
and clause #13 of the BPA CoP has 2 periods , one before and one after the event , so the one after allows for OVER 10 minutes to leave the car park, never mind the park up and read the rules etc prior to "parking"
so beef up any clause #13 sections too0 -
I would leave out section 6 in its entirety.
it isn't for you to state the claimant's case.
Leave that to them.0 -
Thanks to both of you, I've followed both your advice and amended my defence to this:
How does this look?
Thanks in advance
IN THE COUNTY COURT
CLAIM NO. __________
BETWEEN :
Civil Enforcement Limited
Claimant
AND
____________
Defendant
DEFENCE
Introduction
1. I am _________, the defendant in this matter. My address for service is ____________
2. This is my statement of truth and my defence.
3. As an unrepresented litigant-in-person I seek the Court's permission to amend and supplement this defence as may be required upon disclosure of the claimant's case.
4. For the avoidance of doubt on the relevant date I was the driver of a ______, registered number ______.
5. It is believed that it will be a matter of common ground that the purported debt arose as the result of the issue of a parking charge notice in relation to an alleged breach of the terms and conditions by the driver of the above vehicle when it was parked at _____ on ________.
Rebuttal of Claim
6. It is denied that:
a. A contract was formed
b. There was an agreement to pay a parking charge.
c. That there were Terms and Conditions prominently displayed around the site.
d. That in addition to the Parking charge there was an agreement to pay additional but unspecified additional sums.
e. The claimant company fully complied with their obligations within the British Parking Association Code of Practice of which they were member at the time.
f. That the defendant is liable for the purported debt.
7. It is further denied that the defendant owes any debt to the claimant or that any debt is in fact owed or that any debt exists or could ever exist or has ever existed. That in any event the claimant has failed to comply with the requirements of the Civil Procedure Rules and that their claim is both unfounded and vexatious.
8. The claimant is put to the strictest proof of their assertions.
My Defence
My defence will rely principally upon the following points:
9.Further based upon the scant and deficient details contained in the Particulars of Claim and correspondence, the claimant has failed to supply separate detailed particulars within the 14 days stated. Therefore failing their obligation to comply with the new protocols which came into force as of October 1st 2017.
10. The Claim Form issued on the 2 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 (Claimant’s Legal Representative)’.
11. 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.
12. That the signs erected on site are incapable of forming the basis of a contract and indeed make it clear that that is not the case. Further it is trite law that a term that is forbidding cannot also constitute an offer. It is therefore denied that any contract was formed or was capable of being formed.
13. Should the claimant rely on the case of ParkingEye v Beavis, I wish to point out that there is a test of good faith.
Para 205: “The requirement of good faith in this context is one of fair and open dealing. Opennes
requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”
14. Underlining that is Section 18.3 of the BPA Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs that are used to form contracts. It says:
18.3 You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.
15. The defendant refutes that there were clear and visible signs, with Terms that formed the basis of a contact and which met the specifications above.
16. Section 7 of the British Parking Association Code of Practice outlines to operators some of the common law principles of operating on someone else's land as a licensee. One such item is written authority - a written contract - to be there. It defines the elements of this written authority as follows:
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all the aspects of the management and enforcement of the site that you are responsible for.
In particular, it must say that the landowner requires you to keep to the Code of Practice and that either you have the authority to pursue outstanding parking charges, through the courts if necessary or that you have the authority to pursue outstanding parking charges and, with their permission, through the courts if necessary.
7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.
7.3 The written authorisation must also set out:
a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined.
b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation.
c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) who has the responsibility for putting up and maintaining signs.
e) the definition of the services provided by each party to the agreement.
17. If in the alternative it is the claimant's case that his claim is founded in trespass (which is in any event denied) then in a car park setting any damages in trespass can only be assessed based on a calculation of the proportion of income lost based on the time of the alleged occupation. Any sum sought could therefore only be minimal and de-minimis.
18. That the amount demanded is therefore excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £50 or £25 if paid within 14 days.
19. In the alternative, the attention of the court is drawn to para. 4(5) Schedule 4 Protection of Freedoms Act 2012 which sets out that the maximum amount recoverable from the registered keeper (in lieu of the driver), where the keeper liability provisions have been properly invoked (which is expressly denied in this case) is that amount specified in the Notice to Keeper (whether issued in accordance with paras 8(2)c; 8(2)d, 9(2)c or 9(2)d of the Act).
20. In view of all the foregoing the court is invited to strike the matter out of its own motion.
21. The claimant is put to strict proof of the assertions they have made or may make in their fuller claim.
This statement is true to the best of my knowledge and belief. Signed
Dated 16-10-20170 -
Why are you admitting to being the driver, against a Notice to Keeper that's incapable of holding a registered keeper defendant liable? I wouldn't. It's one of the biggest points in favour of a registered keeper who never appealed, v CEL.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Thank you for your help, I've taken that section out.
If anyone has any other suggestions Id really appreciate the help, or even a 'that looks ok to me'.
This is how my defence now reads...
IN THE COUNTY COURT
CLAIM NO. _________
BETWEEN :
Civil Enforcement Limited
Claimant
AND
_________
Defendant
DEFENCE
Introduction
1. I am ____________, the defendant in this matter. My address for service is _________
2. This is my statement of truth and my defence.
3. As an unrepresented litigant-in-person I seek the Court's permission to amend and supplement this defence as may be required upon disclosure of the claimant's case.
Rebuttal of Claim
4. It is denied that:
a. A contract was formed
b. There was an agreement to pay a parking charge.
c. That there were Terms and Conditions prominently displayed around the site.
d. That in addition to the Parking charge there was an agreement to pay additional but unspecified additional sums.
e. The claimant company fully complied with their obligations within the British Parking Association
Code of Practice of which they were member at the time. f. That the defendant is liable for the purported debt.
5. It is further denied that the defendant owes any debt to the claimant or that any debt is in fact owed or that any debt exists or could ever exist or has ever existed. That in any event the claimant has failed to comply with the requirements of the Civil Procedure Rules and that their claim is both unfounded and vexatious.
6. The claimant is put to the strictest proof of their assertions.
My Defence
My defence will rely principally upon the following points:
7.Further based upon the scant and deficient details contained in the Particulars of Claim and correspondence, the claimant has failed to supply separate detailed particulars within the 14 days stated. Therefore failing their obligation to comply with the new protocols which came into force as of October 1st 2017.
8. The Claim Form issued on the 2 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 (Claimant’s Legal Representative)’.
9. 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.
10. That the signs erected on site are incapable of forming the basis of a contract and indeed make it clear that that is not the case. Further it is trite law that a term that is forbidding cannot also constitute an offer. It is therefore denied that any contract was formed or was capable of being formed.
11. Should the claimant rely on the case of ParkingEye v Beavis, I wish to point out that there is a test of good faith.
Para 205: “The requirement of good faith in this context is one of fair and open dealing. Opennes
requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”
12. Underlining that is Section 18.3 of the BPA Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs that are used to form contracts. It says:
18.3 You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.
13. The defendant refutes that there were clear and visible signs, with Terms that formed the basis of a contact and which met the specifications above.
14. Section 7 of the British Parking Association Code of Practice outlines to operators some of the common law principles of operating on someone else's land as a licensee. One such item is written authority - a written contract - to be there. It defines the elements of this written authority as follows:
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all the aspects of the management and enforcement of the site that you are responsible for.
In particular, it must say that the landowner requires you to keep to the Code of Practice and that either you have the authority to pursue outstanding parking charges, through the courts if necessary or that you have the authority to pursue outstanding parking charges and, with their permission, through the courts if necessary.
7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.
7.3 The written authorisation must also set out:
a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined.
b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation.
c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) who has the responsibility for putting up and maintaining signs.
e) the definition of the services provided by each party to the agreement.
15. If in the alternative it is the claimant's case that his claim is founded in trespass (which is in any event denied) then in a car park setting any damages in trespass can only be assessed based on a
calculation of the proportion of income lost based on the time of the alleged occupation. Any sum sought could therefore only be minimal and de-minimis.
16. That the amount demanded is therefore excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £50 or £25 if paid within 14 days.
17. In the alternative, the attention of the court is drawn to para. 4(5) Schedule 4 Protection of Freedoms Act 2012 which sets out that the maximum amount recoverable from the registered keeper (in lieu of the driver), where the keeper liability provisions have been properly invoked (which is expressly denied in this case) is that amount specified in the Notice to Keeper (whether issued in accordance with paras 8(2)c; 8(2)d, 9(2)c or 9(2)d of the Act).
18. In view of all the foregoing the court is invited to strike the matter out of its own motion.
19. The claimant is put to strict proof of the assertions they have made or may make in their fuller claim.
This statement is true to the best of my knowledge and belief. Signed
Dated 16-10-20170 -
You can't start ''further'' when you aren't building further on a previous point:My defence will rely principally upon the following points:
7. [STRIKE]Further[/STRIKE]
And you need to read a few other CEL defences and add the fact you are the registered keeper and the driver has never been identified by this Claimant (near the top where you removed the driver info) and you MUST state that the Claimant has not complied with the POFA 2012, Schedule 4. Look for one that cites Henry Greenslade of POPLA fame.
Search words would obviously be these, or a combination of some of these words:
Greenslade CEL defence keeper liabilityPRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Thank you Coupon Mad,
I appreciate all the help with writing this defence.
Below is my latest draft, I've included and removed all thats been suggested.
How does it look now?
Thanks in advance
IN THE COUNTY COURT
CLAIM NO. ________
BETWEEN :
Civil Enforcement Limited
Claimant
AND
________
Defendant
DEFENCE
Introduction
1. I am _________, the defendant in this matter. My address for service is _____
2. This is my statement of truth and my defence.
3. I am the registered keeper of a _____, registered number ________
4. As an unrepresented litigant-in-person I seek the Court's permission to amend and supplement this defence as may be required upon disclosure of the claimant's case.
Rebuttal of Claim
5. It is denied that:
a. A contract was formed
b. There was an agreement to pay a parking charge.
c. That there were Terms and Conditions prominently displayed around the site.
d. That in addition to the Parking charge there was an agreement to pay additional but unspecified additional sums.
e. The claimant company fully complied with their obligations within the British Parking Association Code of Practice of which they were member at the time.
f. That the defendant is liable for the purported debt.
6. It is further denied that the defendant owes any debt to the claimant or that any debt is in fact owed or that any debt exists or could ever exist or has ever existed. That in any event the claimant has failed to comply with the requirements of the Civil Procedure Rules and that their claim is both unfounded and vexatious.
7. The claimant is put to the strictest proof of their assertions.
My Defence
My defence will rely principally upon the following points:
8. Based upon the scant and deficient details contained in the Claim form and correspondence, the claimant has failed to supply separate detailed particulars within the 14 days stated. Therefore failing their obligation to comply with the new protocols which came into force as of October 1st 2017.
9. The driver has never been identified by the Claimant. The Claimant 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.”
10. The Claim Form issued on the 2 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 (Claimant’s Legal Representative)’.
11. 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.
12. That the signs erected on site are incapable of forming the basis of a contract and indeed make it clear that that is not the case. Further it is trite law that a term that is forbidding cannot also constitute an offer. It is therefore denied that any contract was formed or was capable of being formed.
13. Should the claimant rely on the case of ParkingEye v Beavis, I wish to point out that there is a test of good faith.
Para 205: “The requirement of good faith in this context is one of fair and open dealing. Opennes
requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”
14. Underlining that is Section 18.3 of the BPA Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs that are used to form contracts. It says:
18.3 You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.
15. The defendant refutes that there were clear and visible signs, with Terms that formed the basis of a contact and which met the specifications above.
16. Section 7 of the British Parking Association Code of Practice outlines to operators some of the common law principles of operating on someone else's land as a licensee. One such item is written authority - a written contract - to be there. It defines the elements of this written authority as follows:
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all the aspects of the management and enforcement of the site that you are responsible for.
In particular, it must say that the landowner requires you to keep to the Code of Practice and that either you have the authority to pursue outstanding parking charges, through the courts if necessary or that you have the authority to pursue outstanding parking charges and, with their permission, through the courts if necessary.
7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.
7.3 The written authorisation must also set out:
a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined.
b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation.
c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) who has the responsibility for putting up and maintaining signs.
e) the definition of the services provided by each party to the agreement.
17. If in the alternative it is the claimant's case that his claim is founded in trespass (which is in any event denied) then in a car park setting any damages in trespass can only be assessed based on a calculation of the proportion of income lost based on the time of the alleged occupation. Any sum sought could therefore only be minimal and de-minimis.
18. That the amount demanded is therefore excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £50 or £25 if paid within 14 days.
19. In the alternative, the attention of the court is drawn to para. 4(5) Schedule 4 Protection of Freedoms Act 2012 which sets out that the maximum amount recoverable from the registered keeper (in lieu of the driver), where the keeper liability provisions have been properly invoked (which is expressly denied in this case) is that amount specified in the Notice to Keeper (whether issued in accordance with paras 8(2)c; 8(2)d, 9(2)c or 9(2)d of the Act).
20. In view of all the foregoing the court is invited to strike the matter out of its own motion.
21. The claimant is put to strict proof of the assertions they have made or may make in their fuller claim.
This statement is true to the best of my knowledge and belief. Signed
Dated 16-10-20170 -
Are you saying in #9 that the issued a compliant NTK? Surely you're claiming it's non-compliant?0
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8. Based upon the scant and deficient details contained in the Claim form and correspondence, the claimant has failed to supply separate detailed particulars within the 14 days stated. Therefore failing their obligation to comply with the new protocols which came into force as of October 1st 2017.
It looks like the N1 claim form promised 'more detailed particulars of claim within 14 days'.
Is that right?
Have you received those more detailed PoCs?
You cannot possibly submit a defence if you have not received the detailed PoCs.
To do so is to admit the scant documentation you already have is sufficient.
You have 14 days after receiving the PoCs to submit your defence.
Read other threads about CEL defences in just this week - it is being discussed everywhere.0 -
It looks like the N1 claim form promised 'more detailed particulars of claim within 14 days'.
Is that right?
Yes, on the N1 Form it has a box on the bottom left of the 1st page which reads:
Particulars of Claim
Outstanding debt and damages
DATE--DESCRIPTION--AMOUNT--DUE DATE
XX/XX/15 RefXXXXXXX 236.00 XX/XX/15
Total Due - 236.00
(Ref:web.ce-service .couk or Tel:01158225020) < (Newbie cant put web links)
The Claimant claims the sum of 277.69 for
Outstanding debt and damages
including 41.69 interest pursuant to
S.69 of the Coutny Courts Act 1984
Rate 8.00% pa from dates above to XX/XX/17
Same rate to Judgement or (sooner) payment
Daily rate to Judgement- 0.05
Total debt and interest due- 277.69
I will provide the defendant with seperate
detailed particulars within 14 days after
service of the claim form.Have you received those more detailed PoCs?
NoYou cannot possibly submit a defence if you have not received the detailed PoCs.
To do so is to admit the scant documentation you already have is sufficient.
I've already acknowledged service on MCOL0
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