Civil Enforcement Defence

MoreFish

Afternoon everyone. First up, many thanks to al the people on here who share their experiences and knowledge.

I've received a claim form and particulars from CEL. I've got a couple of weeks to get the defence in and have drafted it using material from this forum.

I've redacted some information so that the lurkers from CEL can't jump the gun on me (hi guys).

Any feedback would be extremely well received.

Cheers, A

IN THE COUNTY COURT BUSINESS CENTRE
CLAIM NO: ********

BETWEEN

CIVIL ENFORCEMENT LIMITED
Claimant

AND


***********
Defendant
___________________________________________________

DEFENCE
___________________________________________________

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

2. The Claim Form issued on ****** 2017 by the Claimant was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by “Civil Enforcement Limited”.

3. This Claimant has not complied with Pre Action Protocol in respect of their invalid letter before action dated *******. Nor have they complied with the Pre Action Protocol for Debt Claims in respect of their Claim Form dated ******* or Particulars of Claim dated ******. 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.

4. The letter sent by the Claimant dated ******** does constitute a letter before action for the following reasons as set out in the Practice Direction on Pre Action Conduct:

• Paragraph 2.1(1) - despite numerous requests, the Defendant has continuously spelled the name of the Claimant incorrectly.
• Paragraph 2.1(2) - In the letter, the Claimant failed to state the basis upon which the claim was made.
• Paragraph 2.1(3) - The letter contained vague, generic boilerplate arguments and did not refer specifically to this Claim.
• Paragraph 2.1(5) - No explanation was offered as to how the Claimant’s loss is calculated save for an interest calculation on the amount of £2**.**. No explanation as to how the original loss of £2** is offered.
• Paragraph 2.2(1) - The Claimant has provided no document on which they intend to rely on. The Claimant has provided no evidence of visible signs to which they refer and has not provided any evidence or explanation as to the terms to which these (if any) signs refer.
• Paragraph 2.2(2) - There was no offer of ADR put forward by the Claimant.

5. The above points were made to the Claimant following their letters ****** and ******. The Defendant invited the Claimant to send a letter before action which complied with the practice directions, however none has been forthcoming.

6. This is a speculative serial litigant, issuing a large number of identical invoices, non-compliant letters before action and sketchy, vague particulars of claim. The badly mail-merged documents contain very little information and offer no guidance to the Court. The Particulars of Claim are clearly a standard, boilerplate document which fail to refer to the matter in any way save for referring to a schedule of information which, in itself, does not set out any reasons as to why the Defendant is liable or how any loss has been calculated.

7. Proceedings were issued on ** October 2017, accordingly, the Claimant is to have regard to the Pre Action Protocol for Debt Claims which came into force 1 October 2017. The Claimant has failed to adhere to the Protocol for the following reasons:

• Paragraph 3.1(a)(iii) and 3.1(a)(iv) - the Claimant has failed to state the details of any agreement, oral or written, to which they rely. Indeed, in Paragraph 4 of the Particulars of Claim, the Claimant states “The key terms of the signs are summarised in the attached Schedule of Information.” However no terms are described in any manner whatsoever in the Schedule of Information.
• Paragraph 5.1 - There has been no disclosure of documents by the Claimant to establish liability or loss. Furthermore, there has been no disclosure by the Claimant as to how the sum of £2** has been calculated.
• Paragraph 5.2 - In the Defendant’s letters dated ****** and ****** he requested a letter of claim from the Claimant in accordance with the Practice Direction. The Defendant was helpful enough to point out to the Claimant why the letter dated ****** did not constitute a valid attempt at a letter before action, however no valid letter was received.
• Paragraph 7.1 - The Claimant is a serial litigant with a series of standard template letters, invoices, claim forms and particulars. Each case deserves to be tested on its own merits and this cannot be achieved with the Claimant’s budget, boilerplate approach. Such infringements can not be considered minor as they fail to address the substance of the matter in hand or offer the Defendant an opportunity to adequately defend the case.

8 With regard to paragraphs 4, 5, 6 and 7 of this defence, The Practice Directions are there to ensure matters are dealt with in a just and efficient manner. The Claimant’s blatant contempt for the Rules by issuing claims on a scattergun basis cannot be excused on the basis of the value of the claim or the issues at hand. In order for a case to be tested on its merits, the Claimant must have significantly better regard for the spirit and substance of the Rules in order for the Defendant to formulate a Defence and for the Court to decide on the matter. In allowing a Claimant to behave in this manner, the Court would be enabling the Claimant to continue this approach which would only serve to intimidate and bully vulnerable potential defendants into settling claims.

9 The Defendant therefore asks the Court to strike out the claim as the Claimant has disclosed no cause of action and therefore this claim no reasonable prospect of success.

10. Without prejudice to the generality of the foregoing, the Defendant asks that the Claimant is required to file amended Particulars of Claim which comply with Practice Directions and include at least the following information;

• 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
• A copy of any contract it is alleged was in place (e.g. copies of signage)
• How any contract was concluded (if by performance, then copies of signage maps in place at the time)
• Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
• If charges over and above the initial charge are being claimed, the basis on which this is being claimed
• If Interest charges are being claimed, the basis on which this is being claimed.

11. Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

12. The Claimant has failed to provide to the Court the original invoice for the parking charge. It is believed that the Claimant has added irrecoverable sums to the original parking invoice. If this is the case, it is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates. The Claimant is therefore asked to distinguish these charges from the Legal representative’s costs of £50 claimed on the Claim Form. The Defendant does not believe that the additional sums outside of the £50 Legal representative’s costs are recoverable.

13. 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. Accordingly, the Claimant’s case is 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.

14. 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.

15. 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.


16. The Claimant has failed to provide evidence of clear signage, this, in turn, distinguishes this case from the Beavis case:

• 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 stated sum.
• 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.
• 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.
• The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
• It is believed the Claimant does 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.
• 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.
• 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.

17. 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.

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



Signed ______________________ Date____________
*************
Defendant


x

Redx

I tend to link this recent oct2017 one

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

because it contains information about the new oct2017 protocols and can be easily adapted

I suggest you compare the two and decide

MoreFish

Hi,

Thanks for the reply. References to the Oct17 directions are in there and I did use that (very helpful) post to formulate the defence.

Cheers, A

Coupon-mad

Good! That's a start.

Now read ahead in the NEWBIES thread post #2 re what happens when. No asking what to do with the DQ N180 form!

We will assist you again when you actually need it, at Witness Statement stage.

MoreFish

That's great. So the defence is good to go?

A

nosferatu1001

Yep, otherwise C-M wouldnt say that

MoreFish

Excellent. Many thanks to all who have gone before me, and the help they received for posting their advice to get me to this stage.

I'll be sure to report back.

A

Loadsofchildren123

We've seen a lot of recent CEL claims where they were supposed to serve separate PoC but didn't.
What did your claim form say? If you're waiting for PoC you don't have to serve a defence (I can see from you posts on other threads you are aware of this but just wanted to double check). It just seems a little odd that all the other CEL claims say "PoC to follow" but yours didn't (if that's the case)...

MoreFish

I received separate claim form and particulars. Just like the others, the Claim Form was signed 'Civil Enforcement Ltd' and the POC followed later. The POC are garbage: definitely a standard PoC which simply refers to a schedule of information which contains staggeringly little information (Date, Address, registration plate). They clearly do this just to bully people into paying knowing tat anyone who wants to defend it will be successful. My wife is in full panic! They should not be allowed to do this.

Loadsofchildren123

It's a mystery why they are bothering to serve separate PoC then!

Loadsofchildren123

I think you are missing a "not" in paragraph 4 of that defence


You also need to make it clear which parts of the claim you admit, which you deny and which you put them to full proof of. Eg do you admit that you are the RK but deny being the driver the relevant time? In the event that the claim is based on a breach of contract, do you put them to full proof that a contract was entered into, what its terms were and that it has been breached?
There's a lot of focus on breaches of pre-action obligations, but the court may not be very fussed by this, and I think you need to focus more on the actual defence parts.