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Civil Enforcement Ltd - Help & Guidance needed please
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Maxbrum1
Posts: 8 Forumite
Hi Guys
A big thanks to all the regular posters in advance, the wealth of knowledge you guys have is just amazing.
I'd like to post my defense with regards to a Claim Form issued by Civil Enforcement Ltd, for critique and to ensure that I have done it correctly.
I've looked through the NEWBIE thread and have already followed the Guide to MCOL & how to acknowledge service.
Received the claim form dated 11 Oct 2017 on the 17th Oct and acknowledged that i will be defending the claim, because that was the advice on the forum at that time.
Its 29th Oct and have not received the "draft particulars" yet as it says 14 days after service of the claim form, which is outside the 14 day period. Have read Loadsofchildren123 post on CEL today with lot of interest and anxiety, basically if i go with the option 2, then i can complain against CEL to the courts and have the dagger hanging over my head, in case the cobra comes back to bite in the next 6 years, which is way to dangerous in case you miss the post or not see it in time and get a CCJ and then having to go through the hassle to fight it.
As per the advice given on previous threads, I've searched for the latest CEL defence templates and adapted it to my requirements.
A few points to note:
1 – It is alleged that on the 5th Feb 2017 the driver went into a car park which was free for the first hour and then overstayed by few minutes for which the total sum claimed including costs is £323.78.
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 11th 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 8 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 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 11th 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.
A big thanks to all the regular posters in advance, the wealth of knowledge you guys have is just amazing.
I'd like to post my defense with regards to a Claim Form issued by Civil Enforcement Ltd, for critique and to ensure that I have done it correctly.
I've looked through the NEWBIE thread and have already followed the Guide to MCOL & how to acknowledge service.
Received the claim form dated 11 Oct 2017 on the 17th Oct and acknowledged that i will be defending the claim, because that was the advice on the forum at that time.
Its 29th Oct and have not received the "draft particulars" yet as it says 14 days after service of the claim form, which is outside the 14 day period. Have read Loadsofchildren123 post on CEL today with lot of interest and anxiety, basically if i go with the option 2, then i can complain against CEL to the courts and have the dagger hanging over my head, in case the cobra comes back to bite in the next 6 years, which is way to dangerous in case you miss the post or not see it in time and get a CCJ and then having to go through the hassle to fight it.
As per the advice given on previous threads, I've searched for the latest CEL defence templates and adapted it to my requirements.
A few points to note:
1 – It is alleged that on the 5th Feb 2017 the driver went into a car park which was free for the first hour and then overstayed by few minutes for which the total sum claimed including costs is £323.78.
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 11th 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 8 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 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 11th 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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Looks good, and I'm glad you found the CEL General advice thread by LOC123, too.
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 -
Hello guys,
It is 31st Oct and haven’t received the POC, claim form was issued on the 11th Oct which I received on the 17th, which said that POC would be sent in the next 14 days,
My question is how much longer do I wait to submit my defence? Could I not write to the court to dismiss the claim and also lodge my defence in the absence of POC?
Any comments or suggestions?0 -
you can and LOC123 posted about doing that today in another thread
you need to keep up with all her postings by clicking her username and selecting to show all recent posts (I doubt she is going to reply to 50 posts about the same topic)0 -
I need a holiday. I wish CEL would p*** off.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
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I really can't understand how them issuing, what must be, thousands of claims yet abandoning them when they are properly defended does not make them a 'vexatious litigant'I need a holiday. I wish CEL would p*** off.
Blatant abuse of the small claims system.0 -
I really can't understand how them issuing, what must be, thousands of claims yet abandoning them when they are properly defended does not make them a 'vexatious litigant'
Blatant abuse of the small claims system.
Numbers game just like issuing PCNs hoping that many will simply roll over and pay up.0 -
Hello guys,
It is 31st Oct and haven’t received the POC, claim form was issued on the 11th Oct which I received on the 17th, which said that POC would be sent in the next 14 days,
My question is how much longer do I wait to submit my defence? Could I not write to the court to dismiss the claim and also lodge my defence in the absence of POC?
Any comments or suggestions?
IF this was a normal run of the mill Claim with the PoCs included then with a court issue date of 11th October you would have until the 13th November to file the defence provided you had acknowledged service of the claim.
As you have not received the PoCs yet - you cannot submit the Defence you have outlined above.
However there is nothing to stop you filing a defence pointing out
a) The Claimant's failure to comply with Pre-action Protocol and issuing a compliant letter before claim meeting the new requirements.
b) That the Claim was issued on xxxx and by xxxx you had still not received the additional particulars of claim. Therefore these had not been received within the relevant 14 days of service
In view of the above, you believe this demonstrates unreasonable conduct by the Claimant. it is requested that the court considers striking out the claim ab initio under their case management powers under CPR 3.4
If the court is not minded to strike out the claim totally, then you invite the court to make any other directions it sees fit including the use of a suitable ADR such as POPLA.0 -
However there is nothing to stop you filing a defence pointing out
Except that's not the advice of the solicitor posters on this forum. So it should not be taken to be the advice to follow.
Newbies beware of advice from other *newbies* who are nothing of the sort and whose agenda and mindset is (and always has been) completely different than other posters here.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 -
Do not do as suggested in post #8.
If it doesn't work then you will have to apply to amend your defence to add actual defence points. Whilst you could ask the court to exercise its inherent powers to grant leave to amend the defence without a formal application, where you chose to proceed in this way (as opposed to doing it in error because you didn't understand the rules) the court is more likely than not to require a formal application (the fee would be £100).
It is a good idea to ask the court to strike out the claim for all the reasons stated, but do it in a letter. However, you need to include in your letter the court's power to make such an order without requiring you to make a formal application. I posted about this earlier today if you search my posts you'll find it. The court may require a formal application but it's worth having a go with the letter.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 -
I'll say it once, I'll say it again on this forum... Do NOT serve a defence until you have FULL particulars of claim. You are not required to even acknowledge service until you have them. A half-baked Defence is positively unhelpful.
As LoC123 says by all means please do write to the court for directions following the claimants non compliance. The least I'd hope for is an unless order, requiring the claimant to serve PoC within 7 days.
Finally, the court cannot direct use of ADR (i.e. compel you to go to the negotiation table) but only that the case appears suitable, so no good asking for that.0
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