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CEL Defence after CCJ set aside
Syd2017
Posts: 3 Newbie
Hello,
I was recently successful in having a CCJ from CEL set aside (I am one of the many people caught out by CEL's abuse of the court system in obtaining default CCJ's years after an alleged incident as a result of moving home and being completely unaware of the claim). The judge set aside the CCJ but gave CEL a short time to send the court full details of the claim. They submitted these to the court on the deadline provided by the Judge. The 'full details' constitute a photocopy of their standard template Particulars of Claim and a short Schedule of Information.
I was not the driver of the vehicle at the time of the alleged incident. I have done a lot of reading through the threads containing defences put together by other people here on the forum, and I wonder if any experts would be so kind as to take a quick look over my defence and let me know if there are any glaring errors? Any advice/help would much appreciated. Thank you in advance for any help
In XXXX County Court
Claim Number: XXXX
Between:
Civil Enforcement Limited v XXXX
Defence Statement
I am XXX, the defendant in this matter and I was the registered keeper of vehicle XXX at the time of the alleged incident. I currently reside at XXXX.
I deny I am liable for the entirety of the claim for each of the following reasons:
1. The Particulars of Claim (POC) issued in July 2016 by Civil Enforcement Limited was not
correctly filed under The Practice Direction as it was not signed. It merely states the name of a member of the legal team of Civil Enforcement Limited (Michael Schwartz). Mr Schwartz was suspended from practice as a solicitor for five years in September 2016 by the Solicitors Regulation Authority (SRA). At the time the POC was originally issued in July 2016 Mr Swchartz was under investigation by the SRA and was practicing under restrictions. He could only act as a solicitor in employment, the arrangements for which had to be pre-approved by the SRA. I have no evidence that this was the case, or that he was/is an employee of the Claimant.
The photocopy of the POC sent to the Defendant in October 2017 is not signed by any legal person, but by an unidentified person on behalf of the Claimant’s Legal Team.
2. The Claimant states that there were many clear and visible signs in the Car Park at the time but provides no evidence to support this. The Defendant has visited the car park referred to and the only parking signs which are evident ALL clearly state that users of the car park are allowed FOUR hours free parking, not THREE hours as stated by the Claimant in their ‘Schedule of Information’. Please see attached photographs. Nevertheless, it is reiterated that the Claimant has provided no evidence whatsoever of any signs in the car park at the time of the alleged incident.
3. The Claimant has not complied with pre-court protocol. 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 Particulars of Claim 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 Particulars of Claim did not contain any evidence of contravention or photographs.
e) The Defence therefore asks the Court to strike out the claim as 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.
4. The Claimant has failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. In the absence of 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 under the strict ‘keeper liability’ provisions.
The Claimant states that the Defendant parked the vehicle at the place and between the times shown on the Schedule of Information. The Defendant is the registered keeper of the vehicle. No evidence has been provided to show that they were driving at the time of the alleged incident. Therefore, the Claimant is unable to hold the Defendant liable under the terms of the POFA 2012.
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 £xxxx for outstanding debt and damages.
5. 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 excessive additional 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. None of this applies in this material case.
7. 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. It is a criminal offence to display signage in contravention of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended).
b) In the absence of strict proof I submit that the Claimant was committing a criminal 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 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.
8. 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.
9. 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.
10. 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.
11. 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.
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 12th June 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.
Signed: XXXXX
Date: XXXX
I was recently successful in having a CCJ from CEL set aside (I am one of the many people caught out by CEL's abuse of the court system in obtaining default CCJ's years after an alleged incident as a result of moving home and being completely unaware of the claim). The judge set aside the CCJ but gave CEL a short time to send the court full details of the claim. They submitted these to the court on the deadline provided by the Judge. The 'full details' constitute a photocopy of their standard template Particulars of Claim and a short Schedule of Information.
I was not the driver of the vehicle at the time of the alleged incident. I have done a lot of reading through the threads containing defences put together by other people here on the forum, and I wonder if any experts would be so kind as to take a quick look over my defence and let me know if there are any glaring errors? Any advice/help would much appreciated. Thank you in advance for any help
In XXXX County Court
Claim Number: XXXX
Between:
Civil Enforcement Limited v XXXX
Defence Statement
I am XXX, the defendant in this matter and I was the registered keeper of vehicle XXX at the time of the alleged incident. I currently reside at XXXX.
I deny I am liable for the entirety of the claim for each of the following reasons:
1. The Particulars of Claim (POC) issued in July 2016 by Civil Enforcement Limited was not
correctly filed under The Practice Direction as it was not signed. It merely states the name of a member of the legal team of Civil Enforcement Limited (Michael Schwartz). Mr Schwartz was suspended from practice as a solicitor for five years in September 2016 by the Solicitors Regulation Authority (SRA). At the time the POC was originally issued in July 2016 Mr Swchartz was under investigation by the SRA and was practicing under restrictions. He could only act as a solicitor in employment, the arrangements for which had to be pre-approved by the SRA. I have no evidence that this was the case, or that he was/is an employee of the Claimant.
The photocopy of the POC sent to the Defendant in October 2017 is not signed by any legal person, but by an unidentified person on behalf of the Claimant’s Legal Team.
2. The Claimant states that there were many clear and visible signs in the Car Park at the time but provides no evidence to support this. The Defendant has visited the car park referred to and the only parking signs which are evident ALL clearly state that users of the car park are allowed FOUR hours free parking, not THREE hours as stated by the Claimant in their ‘Schedule of Information’. Please see attached photographs. Nevertheless, it is reiterated that the Claimant has provided no evidence whatsoever of any signs in the car park at the time of the alleged incident.
3. The Claimant has not complied with pre-court protocol. 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 Particulars of Claim 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 Particulars of Claim did not contain any evidence of contravention or photographs.
e) The Defence therefore asks the Court to strike out the claim as 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.
4. The Claimant has failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. In the absence of 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 under the strict ‘keeper liability’ provisions.
The Claimant states that the Defendant parked the vehicle at the place and between the times shown on the Schedule of Information. The Defendant is the registered keeper of the vehicle. No evidence has been provided to show that they were driving at the time of the alleged incident. Therefore, the Claimant is unable to hold the Defendant liable under the terms of the POFA 2012.
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 £xxxx for outstanding debt and damages.
5. 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 excessive additional 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. None of this applies in this material case.
7. 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. It is a criminal offence to display signage in contravention of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended).
b) In the absence of strict proof I submit that the Claimant was committing a criminal 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 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.
8. 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.
9. 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.
10. 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.
11. 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.
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 12th June 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.
Signed: XXXXX
Date: XXXX
0
Comments
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Can't be right, the details were not signed by Schwartz?
You should read more up to date threads:
https://forums.moneysavingexpert.com/discussion/5731457
and read the new 'General Advice' thread about CEL, by a solicitor poster (DO NOT POST THERE):
https://forums.moneysavingexpert.com/discussion/5735738
HTHPRIVATE '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 -
Coupon-mad wrote: »Can't be right, the details were not signed by Schwartz?
You should read more up to date threads:
https://forums.moneysavingexpert.com/discussion/5731457
and read the new 'General Advice' thread about CEL, by a solicitor poster (DO NOT POST THERE):
https://forums.moneysavingexpert.com/discussion/5735738
HTH
Hi CM, I think the OP is referring to the original court document from June 2016 when, from memory, Schwartz was still employed. This is a set-aside, followed by a requirement to defend the original claim, not one of the current rash of new CEL claims.
Hope I’ve got this right and not misunderstanding/misinterpreting the point you were making?Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
Hello, thank you for your responses. Sorry if I wasn't clear in my post. Yes, Unkomaas, I am referring to the original claim which was issued in June 2016. In the set aside order issued this September the Judge ordered that CEL must send the defendant full particulars of the claim. The name on the PoC is Michael Schwartz, although he didn't sign it. I'm not sure if this is relevant though and whether I should mention it?
As far as I'm aware, because this claim is pre Oct 2017 and I am only in a position where I am now having to defend it as a result of the set aside, the new protocols won't apply? Is this correct?
Any advice on whether this is the correct time to refer to the signage currently n place in the car park, in terms of it stating 4 hours free, not 3 - as stated in the claimants schedule of info, would be welcome. The alleged incident refers to an 11 minute overstay beyond 3 hours. I obviously have no knowledge at all of what signage was in place back in 2012 (or even if there was any).
Thank you for your help.0 -
As far as I'm aware, because this claim is pre Oct 2017 and I am only in a position where I am now having to defend it as a result of the set aside, the new protocols won't apply? Is this correct?
I am not a lawyer, so can’t give you a definitive answer, but I think I read some advice from Johnersh (who is a lawyer) a few days ago, that if the case is still to be heard the new PaP applies. Can’t lay my hands on it, but why not give the cage a rattle and ask CEL for more detailed particulars, quoting the new protocol. It surely can’t harm your case and puts pressure on CEL.
If you can’t recall what the signage (if any) said in 2012, then I think it would be reasonable to take photos of today’s signs, show the 4 hour free parking and let CEL get themselves out of that one. Remember, it is for them to prove their case, and I bet they don’t have time-stamped photos of signs from that car park to prove otherwise.Any advice on whether this is the correct time to refer to the signage currently n place in the car park, in terms of it stating 4 hours free, not 3 - as stated in the claimants schedule of info, would be welcome. The alleged incident refers to an 11 minute overstay beyond 3 hours. I obviously have no knowledge at all of what signage was in place back in 2012 (or even if there was any).
As I said, IANAL, so, if there’s time, wait to see what others might say.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
All protocols are superseded since the claim is live.
I would ask C for supporting documents anyway on the basis that the court now expects them to be provided pre-action (see the protocol) and so please provide by return.
I assume that the order was that the claimant must send full and detailed particulars (rather than the single sentence on the claim form. You could write to the court and allege non compliance and ask for directions on the basis that you cannot prepare a defence and any lack of information now sets up trial by ambush.
If you had the cash to risk you could apply with reasonable prospects, but I'm aware you've already put £255 on the line.
If the PoC are unsigned technically speaking they may not rely on them (Google CPR documents verified with statements of truth)
If you Google "CPR Particulars of Claim" you'll find the court rules. In the practice directions section you'll see it's a requirement to both serve any contract with the particulars and to plead the details of any contract formed by conduct (eg if merely parking = agreement to terms). If details are scant, there is material non compliance with the CPR and the order.
MCOL has an exemption where claimants don't have to provide detailed contracts. That won't apply here as the Claimant is preparing and serving themselves separate PoC.0 -
What puzzles me is why the PPC is persisting with the original claim. CEL must surely realise that their chances of success are slim, especially as Michael Schwattz is involved. Surely they must realise that consistent failure in court will only lead to more failure. Is there no-one with a brain cell in CEL?You never know how far you can go until you go too far.0
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I do wonder whether there is anyone in CEL. A complete ‘smoke and mirrors’ operation. The only name I associate with CEL is ‘Ashley Cohen’ and there’s doubt as to whether he is actually employed by them.Is there no-one with a brain cell in CEL?
From the BMPA:Civil Enforcement Limited also t/as Starpark & Creative Car Park & Parksolve
One of the bigger BPA member companies run and owned by QA Nominees. This in turn is reported as controlled by Graham Cowan who has over 1000 Directorships. Who really has control of Civil Enforcement is in some doubt.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0
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