CEL Claim Defence

[Deleted User]

ANPR shows vehicle arrival and exit. It's not infallible if, for example, you visited twice in the same day and it does not prove anything relating to a parking event.

For overstays what it does do is introduce a rebuttable presumption presumption that you were continuously parked for the entire period. Normally the entry/exit photos are on the NTK.

dan10k

The NTK has never been issued, which I still believe is one of my strongest arguments, and photos have never been provided - another strong argument.

dan10k

Okay, I've elaborated on some points, added more and tried to clean it up a bit. I hope this is more of less ready to go - though I'm unsure as to whether point 23 is overkill. I've done a little to make the formatting look right on here but in reality the spacing is a lot better.

Your opinions appreciated, and have greatly been thus far. Thanks again in advance.

In the County Court
Between:
Civil Enforcement Limited
V
XXXXXXXXXXX




Claim Number: XXXXXXXX

Amended Defence


I, XXXXXXXXXXXXX, 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 05/10/2017 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”.
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.
3. There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.
4. This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.
5. The Schedule of information is sparse of detailed information.
6. The Claim Form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. [STRIKE]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. [/STRIKE]
7. 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:

a) ‘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
b) 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
c) 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
d) support the efficient management of proceedings that cannot be avoided.’

8. 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.
9. Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;

[STRIKE]a) 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[/STRIKE]
b) A copy of any contract it is alleged was in place (e.g. copies of signage)
c) [STRIKE]How any contract was concluded[/STRIKE] (if by performance, then copies of signage maps in place at the time)
d) Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
e) Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
f) [STRIKE]If charges over and above the initial charge are being claimed, the basis on which this is being claimed
g) If Interest charges are being claimed, the basis on which this is being claimed.[/STRIKE]
10. 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) 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 £353.57 for outstanding debt and damages.
11. 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.
12. 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.
13. 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. 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.
iii. 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.
14. 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.
[STRIKE]15. 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.[/STRIKE]
16. 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. 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 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 registered keepers can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.
18. The claimant lists £96 in debt recovery costs. As such agencies often work on a "no-collection, no-fee" basis, the defendant disputes the substance of such claims without receipt of an official invoice proven to be paid.
19. The claimant lists administrative costs of £40, which is not only unsubstantiated, but should not be claimable as such costs will be part of normal duties.
20. The defendant disputes the infallibility of ANPR technology, and the data quoted, which does not definitively prove that any contravention has taken place.
21. The claimant has failed to supply proof that they have standing in this case, and expects the defendant to trust in their "say-so" within the Amended Particulars of Claim.
22. The claimant has failed to prove that signage existed at the location on the date in question, and that any so-called "contract" was verbatim to their claim, which can otherwise be deemed speculative.
23. The defendant denies agreeing to or being aware of any contract or pricing structure set by the claimant.
24. The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

a) Failed to disclose any cause of action in the incorrectly filed Claim Form issued on 5th October 2017.
b) Sent a template, well-known to be generic cut-and-paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.
c) Failed to send the Particulars of Claim within the 14 day period following the Claim Form required. It is believed that the claimant is doing so knowingly in order to prompt a weakened and rushed defence from defendants. These are dated the 11th October 2017, but stamped with a post-date of 26th October 2017. The date on the claim form was 5th October 2017. Additionally, the Claim Form did not state that Particulars of Claim would be sent at all. At a minimum the defendant asks the court to dismiss the claim on this basis.
d) Failed to send the amended Particulars of Claim within the timeframe advised by the court. Their correspondence is dated and stamped 19th January 2018, which was the date this was instructed to be received by the defendant. It is believed that this is another attempt to limit the response time for the defendant to lodge a meaningful response, and that sanctions should apply.
e) Failed to prove that the defendant was the driver in question.

I believe the facts stated in this Defence Statement are true.

dan10k

Just bumping this for a response. I'd like to try and make tonight's late post if possible.

Cheers!

Coupon-mad

No overkill there.

It's long but if it's a true copy of your old defence, simply amended, then that should be fine and CEL are discontinuing all over the place now.

dan10k

Very quickly - do I send the amended defence back to the same Northampton address as the original defence or to the designated court?

nosferatu1001

Send it to the court that asked for it.

CCBC Is just a processing centre. Once allocated to a local court they do nothing more.

dan10k

I’ve today received a witness statement from CEL but haven’t yet received Notice of Allocation from the court. Is this unusual?

I will contact the court on Monday to check that I’ve not missed any post, but I’m the meantime shall I share their statement here?

Coupon-mad

Have you not got a court hearing date then? IF THIS IS THE COURT VERSION FORMAL WS AND EVIDENCE* then ring the court, because otherwise how come CEL have known to submit a WS.

Yes you can show it here, host on dropbox and 'break' the URL link if MSE isn't yet letting you post links.

*EDITED TO ADD:

I suspect it's just this rubbish, NOT their court WS, just their new tactic to harass scared people:

https://forums.moneysavingexpert.com/discussion/5811819

Am I right?

[Deleted User]

Please post on here so we can see what you have.

Frankly it could be anything - the Amended Particulars of Claim are a farrago of pleading and witness statement with a bizarre statement of truth.

!!!!!! is a "Reply to an Order" as referred to by the Claimant? A Reply to a Defence exists in the CPR but they were supposed to be amending the Particulars! It's certainly a breach of the provisions of the CPR which make clear how Amendments to the Statement of Case should be prepared (unlike the Defence, which is an example of how it should be done)

If they have served a statement early, there's nothing to stop them doing so, but I would resist the temptation to serve yours in the absence of any Court order. They may simply serve a second further statement once they see what you say.

I would check asap that no court correspondence has gone astray given that it is now more than 28 days from service of the amended pleadings.