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County Court Claim - Civil Enforcement Ltd, Defence help!
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Marley13
Posts: 4 Newbie
Hello,
I'd like to post my defence with regards to a Claim Form issued by Civil Enforcement Ltd just to ensure I have done it all correctly.
I've looked through the NEWBIE thread and have already followed the Guide to MCOL & how to acknowledge service.
As per the advice given on previous threads, I've searched for the latest CEL defence templates and adapted it to my requirements. Is it better to email this or send it recorded post?
A few points to note:
1 - I never received the original PCN, just a letter from ZZPS dated 4 May 2016 (date of PCN issue was 30th October 2015)
2 - I am no longer the registered keeper of the car, I got a new one this year - I have changed the wording in the defence to I was the registered keeper - is this correct?
3 - I have not received the "draft particulars" yet as it says 14 days after service of the claim form, I am assuming this will be next week sometime but I wanted to get the ball rolling with this so it isn't hanging over my head! Their claim form is dated 9th October but I did not actually receive it until 17th October - is this standard practice?
My Defence: - please note I have this in Word, Times New Roman, 12 (1.5 lines spaced)
In the County Court Business Centre
Between:
Civil Enforcement Limited V xxxx
Claim Number: xxxx
I am xxxx, the defendant in this matter and was the registered keeper of vehicle xxxx. I currently reside at xxxx.
I deny I am liable for the entirety of the claim for each of the following reasons:
1. The Claim Form issued on the 9th October 2017 by Civil Enforcement Ltd was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by “Civil Enforcement Limited” (Claimant’s Legal Representative)”.
2. This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017). As an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.
a. There was no complaint “Letter before County Court Claim”, under the Practice Direction
b. This is a speculative serial litigant, issuing a large number of “draft particulars”. The badly mail-merged documents contain very little information
c. The Schedule of Information is sparse of detailed information
d. The Claim Form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has no idea what the claim is about – why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information. Furthermore, the Claim Form Particulars did not contain any evidence of contravention or photographs. These documents, and the “Letter before County Court Claim” should have been produced, pursuant to paragraph 6 of the Practice Direction – Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to “take stock”, pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:
i. “Early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute
ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure
iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and
iv. support the efficient management of proceedings that cannot be avoided”.
e. The Defence therefore asks the Court to strike out the claim as disclosing no cause of action and having no reasonable prospect of success as currently drafted
f. Alternatively, the Defendant asks that the Claimant is required to file Particulars with Practice Directions and include at least the following information:
i. Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
ii. A copy of any contract it is alleged was in place (e.g. copies of signage)
iii. How any contract was concluded (if by performance, then copies of signage maps in place at the time)
iv. Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
v. Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
vi. If charges over and above the initial charge are being claimed, the basis on which this is being claimed
vii. If interest charges are being claimed, the basis on which this is being claimed.
g. Once these Particulars have been filed, the Defendant asks for a reasonable time to file another defence.
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.
a. Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a “relevant obligation” and “relevant contract”, fairly and adequately communicated, which there was not) is the sum on the Notice to Keeper.
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 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. 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 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 at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs
b. In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant
c. Inadequate signs incapable of binding the driver – this distinguishes this case from the Beavis case:
i. Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum
ii. It is believed the signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as “compensation” from by an authorised party using the premises as intended
iii. No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant
iv. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
d. BPA CoP breaches – this distinguishes this case from the Beavis case:
i. The signs were not compliant in terms of the font size, lighting or positioning
ii. The sum pursued exceeds £100
iii. There is/was no compliant landowner contract
7. No standing – this distinguishes this case from the Beavis case:
a. It is believed Civil Enforcement Ltd do not hold a legitimate contract at this car park. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.
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.
10. Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable expect a registered keeper to be able to recall the potential driver(s) of the car nearly 2 years 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 a 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:
• Failed to disclose any cause of action in the incorrectly filed Claim Form issued on 9th October 2017.
• Sent a template, well-known to be generic cut and paste “Particulars” of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.
The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.
I confirm that the above facts and statements are true to the best of my knowledge and recollection.
I'd like to post my defence with regards to a Claim Form issued by Civil Enforcement Ltd just to ensure I have done it all correctly.
I've looked through the NEWBIE thread and have already followed the Guide to MCOL & how to acknowledge service.
As per the advice given on previous threads, I've searched for the latest CEL defence templates and adapted it to my requirements. Is it better to email this or send it recorded post?
A few points to note:
1 - I never received the original PCN, just a letter from ZZPS dated 4 May 2016 (date of PCN issue was 30th October 2015)
2 - I am no longer the registered keeper of the car, I got a new one this year - I have changed the wording in the defence to I was the registered keeper - is this correct?
3 - I have not received the "draft particulars" yet as it says 14 days after service of the claim form, I am assuming this will be next week sometime but I wanted to get the ball rolling with this so it isn't hanging over my head! Their claim form is dated 9th October but I did not actually receive it until 17th October - is this standard practice?
My Defence: - please note I have this in Word, Times New Roman, 12 (1.5 lines spaced)
In the County Court Business Centre
Between:
Civil Enforcement Limited V xxxx
Claim Number: xxxx
I am xxxx, the defendant in this matter and was the registered keeper of vehicle xxxx. I currently reside at xxxx.
I deny I am liable for the entirety of the claim for each of the following reasons:
1. The Claim Form issued on the 9th October 2017 by Civil Enforcement Ltd was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by “Civil Enforcement Limited” (Claimant’s Legal Representative)”.
2. This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017). As an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.
a. There was no complaint “Letter before County Court Claim”, under the Practice Direction
b. This is a speculative serial litigant, issuing a large number of “draft particulars”. The badly mail-merged documents contain very little information
c. The Schedule of Information is sparse of detailed information
d. The Claim Form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has no idea what the claim is about – why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information. Furthermore, the Claim Form Particulars did not contain any evidence of contravention or photographs. These documents, and the “Letter before County Court Claim” should have been produced, pursuant to paragraph 6 of the Practice Direction – Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to “take stock”, pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:
i. “Early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute
ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure
iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and
iv. support the efficient management of proceedings that cannot be avoided”.
e. The Defence therefore asks the Court to strike out the claim as disclosing no cause of action and having no reasonable prospect of success as currently drafted
f. Alternatively, the Defendant asks that the Claimant is required to file Particulars with Practice Directions and include at least the following information:
i. Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
ii. A copy of any contract it is alleged was in place (e.g. copies of signage)
iii. How any contract was concluded (if by performance, then copies of signage maps in place at the time)
iv. Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
v. Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
vi. If charges over and above the initial charge are being claimed, the basis on which this is being claimed
vii. If interest charges are being claimed, the basis on which this is being claimed.
g. Once these Particulars have been filed, the Defendant asks for a reasonable time to file another defence.
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.
a. Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a “relevant obligation” and “relevant contract”, fairly and adequately communicated, which there was not) is the sum on the Notice to Keeper.
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 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. 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 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 at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs
b. In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant
c. Inadequate signs incapable of binding the driver – this distinguishes this case from the Beavis case:
i. Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum
ii. It is believed the signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as “compensation” from by an authorised party using the premises as intended
iii. No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant
iv. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
d. BPA CoP breaches – this distinguishes this case from the Beavis case:
i. The signs were not compliant in terms of the font size, lighting or positioning
ii. The sum pursued exceeds £100
iii. There is/was no compliant landowner contract
7. No standing – this distinguishes this case from the Beavis case:
a. It is believed Civil Enforcement Ltd do not hold a legitimate contract at this car park. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.
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.
10. Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable expect a registered keeper to be able to recall the potential driver(s) of the car nearly 2 years 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 a 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:
• Failed to disclose any cause of action in the incorrectly filed Claim Form issued on 9th October 2017.
• Sent a template, well-known to be generic cut and paste “Particulars” of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.
The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.
I confirm that the above facts and statements are true to the best of my knowledge and recollection.
0
Comments
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once it is complete and ready to go , you should
date it and save it as a pdf
print it
sign and date the signature part at the bottom, below the statement of truth
scan the signed defence back to pc as a pdf
attach the signed pdf to your email
add the name and mcol ref in the header
add the above plus address etc in the email body
email to the CCBC
then phone them and check its been added to your file
normal practice is to leave it as KEEPER, which you were at the time
its not necessary to change it to RK
its irrelevant that you no longer have the vehicle
5 days is the usual difference in time , but they are busy so not really of any importance
you need to WAIT for those particulars of claim , then amend the above defence as required , so definitely WAIT the 14 days
make sure you have completed the online AOS on the CCBC site
post #2 of the newbies thread has a walkthrough by BARGEPOLE0 -
Have they actually sent you the separate 'POC' yet? If not, wait the 14 days for them.Sent a template, well-known to be generic cut and paste “Particulars” of claim
Your defence looks good - nice research - and you've mentioned the recent 1st October update to the CPR.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 the advice
I am still waiting for the draft particulars... I am getting a bit anxious that time is running out to submit the defence. The date on the county court letter is 9th October and I acknowledged it on 19th October when do I need to submit the defence by?0 -
Not draft, FULL particulars.
As per CPR15, your 14 / 28 days starts from when the PoC are 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)
Until the actual PoC arrive, they have not been served, so your clock doesnt start ticking
You have, I presume, spotted the Jonnersh / Loads_of_money posts on how to request the court strikes the claim for late service?0 -
once it is complete and ready to go , you should
date it and save it as a pdf
print it
sign and date the signature part at the bottom, below the statement of truth
scan the signed defence back to pc as a pdf
attach the signed pdf to your email
add the name and mcol ref in the header
add the above plus address etc in the email body
email to the CCBC
then phone them and check its been added to your file
normal practice is to leave it as KEEPER, which you were at the time
its not necessary to change it to RK
its irrelevant that you no longer have the vehicle
5 days is the usual difference in time , but they are busy so not really of any importance
you need to WAIT for those particulars of claim , then amend the above defence as required , so definitely WAIT the 14 days
make sure you have completed the online AOS on the CCBC site
post #2 of the newbies thread has a walkthrough by BARGEPOLE
Hello,
Are the particulars received 14 days after the AOS?0 -
I have since received a notice of allocation to the small claims track (no hearing), I have looked through a couple of threads and cannot see any mention of this document. I found the wording quite confusing so wanted to double check to see if I had to do anything? At the top of the document Civil Enforcement Ltd is the claimant and I am the defendant.
This is what it says at the start of the document:
The judge has considered the statements of case and directions questionnaire filed and allocated the claim to the small claims track.
Unless the claimant does by 4pm on the 28th February 2018 pay the court the trial fee of £25.00 or file a properly completed application (i.e. one which provides all the required information in the manner requested) and help with fees, then the claim will be struck out with effect from 28 February 2018 without further order and, unless the course orders otherwise, you will also be liable for the costs which the defendant has incurred.
The judge proposes to deal with the claim without a hearing, that is, on papers alone but can only do this if all parties agree.
Please tell the court whether or not you agree to your case being dealt with in this way by completing the lower half of this form and returning a copy to the court on or before 22 December 2017.0 -
You DON'T want this to be dealt with on papers alone - you want a hearing.
So complete the form and send it back pronto to meet the deadline0 -
yes, tell them you want an oral hearing, and object to the matter being dealt with on the papers.Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.0
-
OK, standard stuff about the other side (not you) paying £25 to proceed, then this bit that is NOT standard, and you MUST object in good time - do not let it get there late:The judge proposes to deal with the claim without a hearing, that is, on papers alone but can only do this if all parties agree.
Please tell the court whether or not you agree to your case being dealt with in this way by completing the lower half of this form and returning a copy to the court on or before 22 December 2017.
Object and make it clear you require an oral hearing and will wish to question their witness and raise issues with their evidence, in person, given the facts about their woeful signs at this location, and added fact that it is not possible for this Claimant using the very basic (non-POFA) Notice to Keeper that they did, to hold a registered keeper liable in law.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
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