Civil Enforcement Limited Defence

TheFatManRunnin

Hi, I have read the Newbies thread and then put together a draft of a defence. Am just wondering if there is anything I should change or add? Thanks in advance!

Just a little about the situation, the car was apparently parked in a McDonald's car park for over an hour whilst the driver was in the restaurant.


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 03/10/17 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 as there is no explanation as to what the alleged debt refers to. 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. 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 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 me 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 £348.55 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. I deny 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. 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.

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 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 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.
(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 no such evidence has been submitted. 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.

11. Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car over 24 months later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under 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:

(a) Failed to disclose any cause of action in the incorrectly filed Claim Form issued on 03 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.

Redx

add the statement of truth paragraph at the bottom for starters

TheFatManRunnin

oops, had missed that off when copying from my word doc, thanks!

TheFatManRunnin

Anything else anyone else can spot or do you think I’m good to send it off tonight?

Loadsofchildren123

You need to say near the beginning that you deny being the driver. This is implicit in the rest of the defence, but you must specifically say it.


What does the signage there say? You say driver was parked for an hour and was a legitimate user of the restaurant. Do the t&cs on the signage not allow for an hour?


Has the driver attempted to speak to MacDonalds to try to get this withdrawn? They were a legitimate paying McD customer.


In para 2 you're confusing incoherent PoCs with an absence of pre-action information. You need to separate the two.

Loadsofchildren123

TheFatManRunnin wrote: »

I am ****** ****** the defendant in this matter and registered keeper of vehicle **** ***. I currently reside at **************************************** no need for this in a defence

The Defendant admits that (s)he is the registered keeper of the vehicle xxxxxxx but denies being the driver on [date] and denies that (s)he is I deny I am liable for the entirety of the claim for each of the following reasons:


1. The Claim should be struck out at this initial stage because:


1.1. The Claim Form issued on the 03/10/17 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)”, in breach of CPR xxxxx.

1.2. This Claimant failed to comply with its pre-action obligations set out in the Practice Direction - Pre-Action Conduct, because it has failed to provide any has not complied with pre-court protocol as there is no meaningful explanation as to what the alleged debt refers to or how it arose or any evidence to back up the claim (a breach of paragraphs 3, 6(a) and 6(c) of the Practice Direction). This puts the Defendant at a serious disadvantage because (s)he is unable to file a full and proper defence - for example, . As an example as to why this prevents a full defence being filed at this time, a claim in respect of 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. In addition, if the claim is brought under contract, the Defendant is entitled to know and understand the terms of the contract relied upon and how it is alleged the driver entered into it (Practice Direction 16, paragraph 7 also provides that these matters must be included in the Particulars of Claim). The wording of any contract will naturally be a key element in this matter, and Claimant has never explained this nor provided a copy of the alleged contract, leaving the Defendant unaware of its terms or how the driver is alleged to have entered into it has never been provided to the Defendant.

a) There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.[I've already dealt with this above]

b) The Claimant is known to be a speculative serial litigant, issuing a large number of identical claims with Particulars of Claim so sparse as to be incoherent (as in this case). 'draft particulars'. The badly mail-merged documents contain very little information. The Claimant is in fundamental breach of CPR 16.4 and paragraph 3.6 of Practice Direction 16 in failing to provide adequate particulars of the Claim. If the claim is for a breach of contract, no details have been provided about how the driver is alleged to have entered into a contract, or what its terms were (CPR Rule 16.4 and Practice Direction 16, paragraph 7).

c) The Schedule of information is sparse of detailed information.[I have no idea what a Schedule of Information is! The Claim form contains only a box for Particulars of Claim, doesn't it?]

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 Claimant has never provided the Defendant, either in the Particulars of Claim nor in any Letter Before Claim, any information about how the claim is alleged to have arisen nor any evidence, such as 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: [This para is essentially repeating para 2, look at combining them to remove the repetition]

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 pursuant to CPR Rule 3.4 by exercising its inherent powers under CPR Rule 1.4(2)(c) and Practice Direction 26, paragraph 5.1 as disclosing no cause of action and having no reasonable prospect of success as currently drafted.

f) Alternatively, the Defendant asks that the Court orders a stay of these proceedings until the Claimant has complied properly with its pre-action obligations (pursuant to paragraph 15(b) of the Practice Direction - Pre-Action Conduct) and providing for the Defendant to file an Amended Defence once it has done so


g) alternatively the Defendant asks the court to order the Claimant is required to file Particulars which comply with the clear requirements of the CPR Practice Directions and include at least the following information, and providing for the Defendant to file an Amended Defence once it has done so;

(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 the Defendant is being pursued as driver or as keeper liability is being claimed, and if the latter that it produces 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 as granting it such authority
(vi) If charges over and above the initial charge are being claimed, the basis on which this is being claimed and how the charges have been calculated
(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 Defendant denies that (s)he can be liable as Registered Keeper of the vehicle because the Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012 [set out the relevant paragraph number]. 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 as Registered Keeper me 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. The Claimant is not at liberty to 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 £348.55 for outstanding debt and damages.

4. [there's unnecessary repetition between this para and the one above]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 that I deny the Claimant has incurred such costs and puts it to full proof thereof. The Defendant also denies that the Claimant is entitled to any interest whatsoever.

5. The charges claimed are an unrecoverable penalty. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) in which it was held that the penalty rule was disengaged - that Claim 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 held to be paramount and the Defendant 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 the Defendant 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.

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. the Defendant puts the Claimant to full proof thereof.

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) Without such consent, 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

7 [this should be a para on its own] The Claimant has provided no information about what signage was displayed on the land at the relevant time. The Defendant puts the Claimant to full proof thereof and it is his defence that any such signage was inadequate and incapable for forming a contract nor of signs incapable of binding the driver for the following reasons (this again distinguishes this case from the Beavis case):

(i) Sporadic and illegible site/entrance signage (restrictions and any charge not prominent nor in large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 [I'm not sure POFA says anything about signage!!!] and the BPA compulsory Code of Conduct 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 adequately illuminated 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.
(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. The Claimant has no legal standing to bring this Claim No standing - this again distinguishes this case from the Beavis case:
The Defendant does not believe that the Claimant is party to It is believed Civil Enforcement do not hold a legitimate contract to operate at this car park as it has provided no such evidence has been submitted. 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.what are you basing this on? If this is true, it is REALLY important and you need to particularise this properly eg The Defendant believes that on x date the Claimant had no rights to operate on the site and that any prior rights had been withdrawn by the landowner [do you know when?]. The Defendant believes that this is nothing other than a "revenge claim" in which the Claimant is seeking to profit from the Defendant via a claim it has no right to pursue. The Defendant puts the Claimant to full proof of its right to operate on the land in question on the date of the alleged parking.

9. Unless it has contractual authority, the Claimant has no right to pursue this claim. Otherwise, it is a simple trespass claim and only a landowner may pursue such a claim. The Defendant denies that the Claimant is the landowner of the relevant land. 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.this is repeating a paragraph where you've already said something similar

11. Due to the length of time which has passed since the claim allegedly arose, the Defendant has little to no recollection of the day in question. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car over 24 months later. In any case, there is no such obligation in law for a Registered Keeper to name a driver, something which and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under 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:

(a) Failed to disclose any cause of action in the incorrectly filed Claim Form issued on 03 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.
this is just repeating what you've already said at the start
I confirm that the above facts and statements are true to the best of my knowledge and recollection.

Some comments
You need to make your paragraph numbering easy to follow. you've got numbers, roman numerals and alphabetical ones. I'd adopt something like this for main paras and sub-paras:
1.
1.1
1.1.1, 1.1.2 etc
1.1.1.1, 1.1.1.2 etc
As it is, it's difficult to follow each separate issue with reference to the numbering.
You also need to quote CPR in order to demonstrate the court's ability to make the orders you are asking it to and the breaches you say it's making (I haven't looked up the rule that says about who can sign a claim form but I've put the others in for you).


You're claiming that their contract had been ended - what are you basing this on? This is really crucial to your case. Are you guessing or is this based on fact? If fact, then put in the relevant dates.

Loadsofchildren123

You also need to think about and address the points in my previous post #5.
Eg if the signage says 2 hours then say that the driver only stayed for 1
Eg if the signage says only for restaurant users, say that the driver was using the restaurant and therefore can't be in breach of any contract which may have been offered (can you/they prove this at the witness evidence stage?)


You are saying signage was inadequate. Was it also forbidding and not capable of offering any contract? In which case you need to add this in .

TheFatManRunnin

Thanks for all the help! Have made the majority of the changes you recommended but also left a couple in. Will post the updated defence below, Hopefully this one is looking a lot better!

Formatting is a little off on here but fits neatly on my word doc.

TheFatManRunnin

In the County Court Business Centre
Claim Number:

Between:
Civil Enforcement Limited v

Defence Statement

The Defendant admits that he is the registered keeper of the vehicle ******* but denies being the driver on 7/10/15 and denies that he is liable for the entirety of the claim for each of the following reasons:

1.1. The Claim should be struck out at this initial stage because:
1.2. The Claim Form issued on the 03/10/17 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)”.

1.3. This Claimant failed to comply with its pre-action obligations set out in the Practice Direction - Pre-Action Conduct, because it has failed to provide any meaningful explanation as to what the alleged debt refers to how it arose or any evidence to back up the claim (a breach of paragraphs 3, 6(a) and 6(c) of the Practice Direction). This puts the Defendant at a serious disadvantage because he is unable to file a full and proper defence – for example a claim in respect of parking can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. In addition, if the claim is brought under contract, the Defendant is entitled to know and understand the terms of the contract relied upon and how it is alleged the driver entered into it (Practice Direction 16, paragraph 7 also provides that these matters must be included in the Particulars of Claim). The Claimant has never explained this nor provided a copy of the alleged contract, leaving the Defendant unaware of its terms or how the driver is alleged to have entered into it.

1.4. The Claimant is known to be a speculative serial litigant, issuing a large number of identical claims, each with Particulars of Claim so sparse as to be incoherent (as in this case). The Claimant is in fundamental breach of CPR 16.4 and paragraph 3.6 of Practice Direction 16 in failing to provide adequate particulars of the Claim. If the claim is for a breach of contract, no details have been provided about how the driver is alleged to have entered into a contract, or what its terms were (CPR Rule 16.4 and Practice Direction 16, paragraph 7).
1.5. 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 Claimant has never provided the Defendant, either in the Particulars of Claim nor in any Letter Before Claim, any information about how the claim is alleged to have arisen nor any evidence, such as photographs. 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:

1.5.1. 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.

1.5.2. 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.

1.5.3. 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).

1.5.4. Support the efficient management of proceedings that cannot be avoided.’

1.6. The Schedule of information is sparse of detailed information.

2.1. The Defence therefore asks the Court to strike out the claim pursuant to CPR Rule 3.4 by exercising its inherent powers under CPR Rule 1.4(2)(c) and Practice Direction 26, paragraph 5.1 as disclosing no cause of action and having no reasonable prospect of success as currently drafted.

2.2. Alternatively, the Defendant asks that the Court orders a stay of these proceedings until the Claimant has complied properly with its pre-action obligations (pursuant to paragraph 15(b) of the Practice Direction - Pre-Action Conduct) and providing for the Defendant to file an Amended Defence once it has done so.

2.3. Alternatively, the Defendant asks that the Claimant to file Particulars which comply with the clear requirements of the CPR and include at least the following information, and providing for the Defendant to file an Amended Defence once it has done so;

2.3.1. 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.

2.3.2. A copy of any contract it is alleged was in place (e.g. copies of signage).

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

2.3.4. Whether the Defendant is being pursued as driver or as keeper, and if the latter, that it produces copies of any Notice to Driver / Notice to Keeper.

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

2.3.6. If charges over and above the initial charge are being claimed, the basis on which this is being claimed and how the charges have been calculated.

2.3.7. If interest charges are being claimed, the basis on which this is being claimed

3.1. The Defendant denies that he can be liable as Registered Keeper of the vehicle because 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 as Registered Keeper under the strict ‘keeper liability’ provisions.

3.2. 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. The Claimant is not at liberty to 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 £348.55 for outstanding debt and damages.

4.1. 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 that the Claimant is entitled to any interest whatsoever.



5.1. The charges claimed are an unrecoverable penalty. 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 held to be paramount and the Defendant 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 the Defendant 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.

6.1. 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. The Defendant puts the Claimant to full proof thereof.

6.1.1. 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.

6.1.2. Without such consent 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.

7.1. The Claimant has provided no information about what signage was displayed on the land at the relevant time. The Defendant puts the Claimant to full proof thereof and it is his defence that any such signage was inadequate and incapable for forming a contract nor of binding the driver for the following reasons (this again distinguishes this case from the Beavis case):

7.1.1. Sporadic and illegible site/entrance signage (restrictions and any charge not prominent nor in large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA compulsory Code of Conduct and no contract formed to pay any clearly stated sum.

7.1.2. Non-existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.

7.1.3. It is believed the signage and any terms were not adequately illuminated 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.

7.1.4. 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.

7.1.5. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.

7.2. BPA CoP breaches - this distinguishes this case from the Beavis case:

7.2.1. The signs were not compliant in terms of the font size, lighting or positioning.

7.2.2. The sum pursued exceeds £100.

7.2.3. There is / was no compliant landowner contract.

8.1. The Claimant has no legal standing to bring this Claim – this again distinguishes this case from the Beavis case:

8.1.1. The Defendant does not believe that the Claimant is party to a legitimate contract to operate at this car park as it has provided no such evidence. 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.

9.1. Unless it has contractual authority, the Claimant has no right to pursue this claim. Otherwise, it is a simple trespass claim and only a landowner may pursue such a claim. The Defendant denies that the Claimant is the landowner of the relevant land.

10.1. 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.

11.1. Due to the length of time which has passed since the claim allegedly arose, the Defendant has little to no recollection of the day in question. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car over 24 months later. In any case, there is no such obligation in law for a Registered Keeper to name a driver, something which was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.
12.1. The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

12.2. Failed to disclose any cause of action in the incorrectly filed Claim Form issued on 03 October 2017

12.3. 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.

I confirm that the above facts and statements are true to the best of my knowledge and recollection.

Coupon-mad

Does the claim form say the Particulars of Claim are ''to follow'' and if so, have you had that letter?

TheFatManRunnin

Yes it did, the claim form said they would deliver them within 14 days, they actually only arrived today but were dated the 11th Oct.