CEL Defence

DeBanker

Ok I have my first draft/basis. What could I add into point 10 and how could I introduce the term of Minimis at point 9?

The below is currently on word in the correct format as advised in the 'Newbies' section:

In the County Court Business Centre
Between:
Civil Enforcement Limited
V
XXXXXX


Claim Number: XXXXXX



I, XXXXXX, 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”.
[/LIST]


2.)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


3.) 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.

4.) 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.

5.) 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

6.) No standing – this distinguishes this case from the Beavis case:
a. It is believed Civil EnforcementLtd 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.

7.) 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.

8.) 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.

9.) The claimant is pursuing an inflated amount that is clearly not reflective of any costs or damages incurred as a result of being within 2minutes maximum of the supposed allocated time; despite an all-day ticket being purchased and as such all dues where paid.


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.

[Deleted User]

Amend para 8.

The Claimant has sustained no loss. Parking was paid for over the entire period in which the vehicle was parked. The charge is an unenforceable penalty based upon the arbitrary imposition of a 10 minute period to buy a ticket, return to the vehicle and display the same. The defendant took 11 minutes. The defendant avers that if a breach, it is de minimis.

New 9.
If, which is denied, the court finds that the breach was more than de minimis there is a lack of commercial justification to levy the penalty sought. The supreme court authority in Beavis is distinguishable from the present instance. In Beavis the court held that the penalty rule is engaged in private parking charge claims. The charge was not a penalty only because the commercial need to ensure parking was available for shop customers. The defendant in that claim had also remained in the car park for nearly 1 hour longer than allotted. The penalty sought in this claim is the sum of £100 plus additional costs (totalling X) for a period of 1 minute overstay at the outset of a parking period which was fully paid for as an "all day ticket."

DeBanker

Johnersh wrote: »

Amend para 8.

The Claimant has sustained no loss. Parking was paid for over the entire period in which the vehicle was parked. The charge is an unenforceable penalty based upon the arbitrary imposition of a 10 minute period to buy a ticket, return to the vehicle and display the same. The defendant took 11 minutes. The defendant avers that if a breach, it is de minimis.

New 9.
If, which is denied, the court finds that the breach was more than de minimis there is a lack of commercial justification to levy the penalty sought. The supreme court authority in Beavis is distinguishable from the present instance. In Beavis the court held that the penalty rule is engaged in private parking charge claims. The charge was not a penalty only because the commercial need to ensure parking was available for shop customers. The defendant in that claim had also remained in the car park for nearly 1 hour longer than allotted. The penalty sought in this claim is the sum of £100 plus additional costs (totalling X) for a period of 1 minute overstay at the outset of a parking period which was fully paid for as an "all day ticket."

Cheers, thanks for the input I have added it and will repost below:

In the County Court Business Centre
Between:
Civil Enforcement Limited
V
XXXXXX


Claim Number: XXXXXX



I, XXXXXX, 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.)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


3.) 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.

4.) 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.

5.) 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

6.) No standing – this distinguishes this case from the Beavis case:
a. It is believed Civil EnforcementLtd 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.

7.) 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.

8.) 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 Claimant has sustained no loss. Parking was paid for over the entire period in which the vehicle was parked. The charge is an unenforceable penalty based upon the arbitrary imposition of a 10 minute period to buy a ticket, return to the vehicle and display the same. The defendant took 11 minutes. The defendant avers that if a breach, it is de minimis.

9.) If, which is denied, the court finds that the breach was more than de minimis there is a lack of commercial justification to levy the penalty sought. The supreme court authority in Beavis is distinguishable from the present instance. In Beavis the court held that the penalty rule is engaged in private parking charge claims. The charge was not a penalty only because the commercial need to ensure parking was available for shop customers. The defendant in that claim had also remained in the car park for nearly 1 hour longer than allotted. The penalty sought in this claim is the sum of £236 plus additional costs (totalling £361.02) for a period of 1 minute overstay at the outset of a parking period which was fully paid for as an "all day ticket."


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 believe the facts stated in this Defence are true.

DeBanker

Going to print off, sign and rescan as PDF and email it through.

Do you get an email confirmation? The lines calling through to the CCBC are atrocious, called 5x over past 2 days for 10mins a time for the line to disconnect.

claxtome

Do you get an email confirmation?

Yes you do

claxtome

Can I ask you a question as have read and re-read so have maybe missed it.
How did they know that the driver didn't buy a ticket until 11.5 minutes later after they arrived?
(I assume there were Automatic Number Plate Recognition cameras in place which record your entry AND you have to enter your number plate when paying for parking)

DeBanker

claxtome wrote: »

Can I ask you a question as have read and re-read so have maybe missed it.
How did they know that the driver didn't buy a ticket until 11.5 minutes later after they arrived?
(I assume there were Automatic Number Plate Recognition cameras in place which record your entry AND you have to enter your number plate when paying for parking)

Yes this is true, cameras on site of driving on.

DeBanker

Johnersh wrote: »

Amend para 8.

The Claimant has sustained no loss. Parking was paid for over the entire period in which the vehicle was parked. The charge is an unenforceable penalty based upon the arbitrary imposition of a 10 minute period to buy a ticket, return to the vehicle and display the same. The defendant took 11 minutes. The defendant avers that if a breach, it is de minimis.

New 9.
If, which is denied, the court finds that the breach was more than de minimis there is a lack of commercial justification to levy the penalty sought. The supreme court authority in Beavis is distinguishable from the present instance. In Beavis the court held that the penalty rule is engaged in private parking charge claims. The charge was not a penalty only because the commercial need to ensure parking was available for shop customers. The defendant in that claim had also remained in the car park for nearly 1 hour longer than allotted. The penalty sought in this claim is the sum of £100 plus additional costs (totalling X) for a period of 1 minute overstay at the outset of a parking period which was fully paid for as an "all day ticket."

Do you think I should mention anything about when I first called them? As that is how I knew about the 1/2 minute overstay to pay for the ticket. As I feel without it comes across as if I knew about the 10 minute window.

Coupon-mad

No, because the phone call might not be logged and why would you blab about who parked?

DeBanker

Coupon-mad wrote: »

No, because the phone call might not be logged and why would you blab about who parked?

Of course, I understand. I will keep it as it is.

I am formatting the defence a we speak and will keep the thread updated for the next due Directions Questionnaire.