KFC parking, CEL & county court

JohnTee2017

Hi all
Ive reached my limit and would appreciate any advice with a County Court Claim.

in response to a Letter of Claim i wrote to Wright Hassall earlier this year mentioning:

Address is accurate but the name is misspelled albeit by one letter, and if genuine people know how to spell my name their letter could be a Scam or Junk Mail.
I requested confirmation that I am then intended recipient.
i confirmed that I am the registered keeper.
I asked for evidence of the alleged offence at KFC car park, Stockport early morning and copies of any previous correspondence.
I asked that proceeding be stopped until ive had time to assess content.

I receive a letter confirming that its on hold and has been referred to the client.
I have not received anything further.

Now i receive Court Claim
I have today completed AOS with MCOL

Im confused with what to do next in my defence. I read references to Beavis and to a recent change in Law.
Any help appreciated.

Redx

read post #2 of the NEWBIES sticky thread, especially the BARGEPOLE walk through

once the AOS is done , you have extended the deadline from 14 days to 28 days to submit the defence

read about a dozen similar threads posted over the last 2 weeks, so you understand the process and advice

it is unlikely that you will be using any of the paperwork you were sent as the defence will be emailed as a completed pdf once completed and sanctioned for submission

JohnTee2017

Hi again,
I realise that you are busy helping many people like me and I hope not to burden you.
Using previous defence as suggested I have drafted my response. Whilst it is mainly “copy & paste” I believe it to be applicable to my case and accurate because previously sanctioned.
Any advice is gratefully received.
Also, I am not sure whether to omit two points:
1-Part of my defence is the absence of detailed POC therefore I have not included further detail ie location or time. - The claim form only states a Ref No, date and amount.
2- I have not referred to my earlier letter to Wright Hassall requesting detailed information.


Civil Enforcement Limited
V
Defendant

I, Defendant, deny I am liable to the Claimant for the entirety of the claim for each of the following reasons:

1. The Claim Form issued on the 11/10/2017 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”.
Also, the claimant has not provided detailed “Particulars of Claim” as stated on “Claim Form”.

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 sufficient detail. The Defendant is not clear 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. A copy of any contract it is alleged was in place (e.g. copies of signage)

ii. How any contract was concluded (if by performance, then copies of signage maps in place at the time)

iii. Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper


iv. Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter

v. If charges over and above the initial charge are being claimed, the basis on which this is being claimed

vi. 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 me liable under the strict ‘keeper liability’ provisions.

There can be no 'presumption' by the claimant that the keeper was the driver. Henry Greenslade, lead adjudicator of POPLA in 2015 and an eminent barrister and parking law expert stated that “However keeper information is obtained; there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort.”

Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and relevant contract' fairly and adequately communicated, which there was not) is the sum on a Notice to Keeper.

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.

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 I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into.

c) Inadequate signs - 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 was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed 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 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. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.


9. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.

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 11 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.

Defendant

Loadsofchildren123

did your claim form say that further particulars of the claim were to follow? If so you have more time to file your defence.

JohnTee2017

it says " i will provide the defendant with separate particulars within 14 days after service of the claim form"
Claim Form date of issue is 11/10/17
AOS date 18/10/17

Loadsofchildren123

Have you received the further particulars yet?
They should have been received by you by today I think (date of claim + 5 days + 14 days).


Normally PPCs don't provide separate particulars. However, all current CEL claims we are seeing are promising further separate particulars. The advice to have sent in your AoS was out of date - with further particulars you don't have to do ANYTHING until the further particulars are served.


Wait now until you get the further PoCs to see if you need to change your defence.


It doesn't matter that you did return the AoS, it just means you have 14 days from service of the new particulars to serve a defence, rather than 28.


The timing now is that you file your Defence 14 days after the PoC are served.


CEL are serving them about 2 weeks late on other forum users. Technically they are not allowed to do that - if they do then under rule 3.8 they aren't allowed to rely on them unless they make an application for relief under rule 3.9. If they are a few days late, if they were to make an application it would be likely to succeed. But you could still try and put them to the trouble of it.


At the end of the week, write to the court and CEL to complain that they are out of time to serve the further PoC under Rule 7.4(1)(b), that they should have been served by 30 October, and that if they now want to serve them then Rules 3.8 and 3.9 require them to apply for relief from sanctions before they can do so, and as they have not, you will be asking the court to strike out the claim under its case management powers contained in Rule 3. Then write at the same time to the court asking it to strike out the claim and enclose a copy of your letter to CEL.

JohnTee2017

This is great information and reduces stress, thanks.
I will do as suggested.

JohnTee2017

Hello again,
2nd Nov I wrote to CEL and Court re late filing of further PoC and invited them to strike off the case. I await their response.
I have since receive the PoC dated 11th Oct. Although the envelope is post marked 1st Nov. I have retained the envelope.

Summary of PoC:
The car park is privately owned.
Claimant manages the car park
Claimant uses ANPR that show a 15 minute use of car park early morning
Claimant states that the signage constitutes an offer to enter into a contract by the driver
Their summary: Maximum 90 mins while store open
They state that the defendant parked their vehicle and therefore accepted the conditions ref: Vine v Waltham Forest Council 2000 4 AAll ER 169
Defendant is liable for £331
Claimant uses Parking Eye cv Beavis as justification
Claimant left with no alternative to escalate the matter due to non-payment.
Signed by Ashley Cohen

My initial thoughts:
Although not mentioned, presumably the alleged breach is “Car park use when store NOT open”.
I need to find information and update my defence re Vine v Waltham
Is it safer to submit a defence rather than wait for a response from Court re my late PoC letter? And if so when is the deadline?
Re Ashley Cohen, I have found in a previous defence and intend to include in my own:
The additional particulars of claim are signed purportedly by Ashley Cohen, Mr Cohen was reported to sign off witness statements under London Councils POPLA on behalf of landowners, for CEL POPLA cases falsely stating authority. It is submitted that he is a director of another company, Bemrose Mobile Limited which supplies the pay by phone payment methods for parking. Mr. Cohen was a former director of Creative Contracts Ltd but has since resigned. Mr. Cohen is therefore put to strict proof the capacity and authority he has in signing such statements.

Any help appreciated.
Thanks.

Loadsofchildren123

Yes, stick to your defence date because the court is more likely than not to just ignore your letter. It was worth a try, plus it was vital to record the true date of service of the PoC to stop them pretending you were late and getting judgment in default against you. Nothing lost by writing it, but just assume the timetable continues for your defence.

JohnTee2017

Thanks
I hope to submit my defence this week at least that way they'll be no issue with deadlines.
Prior to submission I will post the defence for critique
I will include a paragraph re Cohen.
I'm not sure what I should do re Vine v Waltham Forest reference? All I've found so far is a ref to wheel clamping! Any advice?
Thanks

Loadsofchildren123

File the defence on the deadline, in case the court does wake up about CEL's shenanigans - they are now habitually sending out PoCs past the 14 day deadline, all dated 11 October. You never know!