CEL Small court claim

Redx

I would say its sometime around there, so you have 2 weeks to get this defence sorted out

at the moment we are not sure when an AOS should be done when its POC to follow within 14 days

this is easy to adapt

https://forums.moneysavingexpert.com/discussion/5729157

trymedo

Here's my draft so far... as I'm not yet sure who owns the land (I've tried contacting Halfords and Homebase in that area to no avail) - should I take out point 7?
I'm also a little unsure about how feasible it is to use the BPA CoP regulations for this - if I recall correctly, the sign was pretty small but I'm not sure what the exact regulations are. I'll have to double check that.

Is there anything in this template that I should pay particular attention to? And should I add that no response was given to my initial appeal? All I received was another letter, essentially stating the same as the first, but saying that the amount had risen due to me not paying the initial fine/invoice.


In the County Court Business Centre
Claim Number: ########

Between:

Civil Enforcement Limited v ########.

Defence Statement

I am ########, the defendant in this matter and registered keeper of vehicle #### ###. 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 5th 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)”.

2. 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.

a. There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.

b. This is a speculative serial litigant, issuing a large number of identical '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. The Claim form Particulars did not contain any evidence of contravention or photographs.

e. The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.

f. Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply 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 reasonable time to file another defence.

3. 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 the defendant 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 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 £355.28 for outstanding debt and damages.

4. 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. The defendant denies the Claimant is entitled to any interest whatsoever.

5. 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.

6. 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.

a. 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.

b. In the absence of strict proof the defendant 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. Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.

iii. It is believed the signage 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.

iv. 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.

v. 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.

7. 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.

8. No legitimate interest - this distinguishes this case from the Beavis case:
This Claimant files serial claims regarding sites where they have lost the contract, known as revenge claims and it believed this is one such case. This is not a legitimate reason to pursue a charge out of proportion with any loss or damages the true landowner could pursue.

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.
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 5th October 2017.

b. 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.

Signed
Date

Coupon-mad

https://forums.moneysavingexpert.com/discussion/comment/73310273#Comment_73310273

See Johnersh's recent post.

And your dates (POC) are exactly the same as this poster, how odd, almost as if CEL are sitting on some post for a week:

https://forums.moneysavingexpert.com/discussion/5730490

trymedo

In regards to the post you linked to, this comment:

Assuming PoC are eventually served, I cannot stress strongly enough that if the delay is significant you should be writing to the defendant and telling them to apply for relief from sanction.

What does that actually mean? Should I apply for relief of sanction?
I'll be honest, I'm not even 100% sure what that means I'm trying to learn, but I struggle to understand these legal terms. (sorry!)

[Deleted User]

CPR 7 states that the last date for service of the PoC is 14 days after the claim form. Thus they are out of time if served later.

Since the sanction for failure to serve is automatic, only the Court can put this right and permit them to rely on PoC out of time. Obviously the period of breach and your attitude to the failure have a bearing on whether this is resolved quickly by letter or whether a hearing is needed.

What is unclear from many of these posts is what the total delay was.

In order to get permission for late service of particulars, the claimant must apply to court for relief from the sanction (CPR 3.9). The test is that in Denton referred to in my other thread.

One may consider that a delay of several days is more than trivial and, in the context of a claimant professionally represented with volume claims before the court, compliance with the court timetable is an imperative. The delay in serving may now mean DQs are not sent out before the New Year.

I would write to the claimant pointing out that in breach of CPR 7.4 their particulars appear to have been served out of time. Accordingly whilst you consider the position you require a copy of the certificate of service filed at court verified with a statement of truth from a named individual confirming the date of service.

In default of service, the claimant is in breach and should apply for relief from sanction in accordance with CPR 3.9.

Let us know what they come back with. You should also phone the court to see if they have the certificate of service.

trymedo

Considering that I only have about 2 weeks to process my defence, is it even worth sending CE a letter? I can't imagine they're going to get back to me in time. I'm starting to worry that I just don't understand this area enough to fight it, despite really wanting to - I get confused by the terminology in the letters, in the template I'm using and even in your responses For example, what is a DQ and CPR 3.9?

Loadsofchildren123

trymedo, the regulars on here are very busy trying to help lots and lots of people. I know it is overwhelming the amount of information there is, and it takes time to digest and understand it, and that in itself can make you panic.


As a minimum, you're asked and expected to read the newbies thread so that you understand the terminology and what this is all about. You are then expected to have a go at drafting your own stuff, and when you've shown that willing, we then come on here and make constructive comments/suggestions. I can see you've done that, so you've made a really good start.


But you need to also start understanding the frequently used acronyms:


Eg CPR is the Civil Procedure Rules. They are on the web if you google them and 3.9 means rule 3.9.
A DQ is a Directions Questionnaire. it's what the court sends out for you to fill in after it's received your defence.


Sorry for being a bit short, but you need help and if you're going to get it you need to "man up" a bit and do a bit more of your own homework! We don't have time to do the amount of hand holding you seem to want!


Jonersh has explained that where they have served the PoC out of time, technically the court should refuse to accept them unless the PPC makes an application for what is known as "relief from sanctions" under R3.9. He's given you the exact wording to use in a letter to the court.

Loadsofchildren123

But yes, in the meantime you should get on with your defence. But the letter Jonersh suggests will take you only a matter of minutes to send!

nosferatu1001

If you acknowledged the claim, you have 28 days from when the PoC were served on you

The period for filing a defence
15.4
(1) The general rule is that the period for filing a defence is –
(a) 14 days after service of the particulars of claim; or
(b) if the defendant files an acknowledgment of service under Part 10, 28 days after service of the particulars of claim.
(Rule 7.4 provides for the particulars of claim to be contained in or served with the claim form or served within 14 days of service of the claim form)

trymedo

Loadsofchildren123 wrote: »

He's given you the exact wording to use in a letter to the court.

Forgive me, I wasn't aware that what he'd written was the letter I should send... I read it as information for me and was confused by it all. I've just typed it up and will send tomorrow if this looks correct to you:

---

Dear Sir/Madam,

I am writing to you in regards to a money claim put on me by Civil Enforcement Ltd.

Claim No. ###########

I have just received the Particulars of Claim today (24/10/2017), which should have been sent to me by 17/10/2017 at the latest (or 22/10/2017 if we are to offset this by 5 days from when the claim was first served as stated in the original document).

In order to get permission for late service of particulars, the claimant must apply to court for relief from the sanction (CPR 3.9).

One may consider that a delay of several days is more than trivial and, in the context of a claimant professionally represented with volume claims before the court, compliance with the court timetable is an imperative. The delay in serving may now mean DQs are not sent out before the New Year.

I would write to the claimant pointing out that in breach of CPR 7.4 their particulars appear to have been served out of time. Accordingly whilst you consider the position you require a copy of the certificate of service filed at court verified with a statement of truth from a named individual confirming the date of service.

In default of service, the claimant is in breach and should apply for relief from sanction in accordance with CPR 3.9.

Sincerely,