CEL Defence Critique

EggBasket

Hello MSE Forums. Looks like I'm another one of many who have received a CCBC claim from Civil Enforcement Ldt.

I've done a fair bit of reading around the subject on multiple forums and guides and I've peiced together a draft defence out of bits and peices I've found from recent cases. I've also added a few of my own touches in there for good measure - feel free to let me know if they're weak and should be removed/changed.

I appreciate that the forums are packed with these claims from CEL right now, but if anyone is kind enough to critique mine, I'd be very grateful.

Just some background:

• I, like many others, have recieved late PoC.
• I wrote to CEL to inform them of thier "error". Requested a copy of the service certificate. No reply. Looks like they're just straight-up ignoring these.
• I have emailed CCBC regarding the late claims and awaiting a response.

Here goes:

In the County Court Business Centre

Between:
Civil Enforcement Limited
vs
[Removed]

Regarding claim number [removed]

I [removed] deny that I am liable to the claimant for the entirety of this claim for each of the following reasons:
1: The Claimant has no standing to bring a case.
2: The signage does not offer a contract with the motorist.
3 Late particulars – a breach of CPR 7.4
4 Failure to comply with pre-court protocol.
5 Claim not correctly filed under The Practice Direction
6 No notice to keeper
7. Falsified solicitor costs
8. Claimant failed to meet Notice to Keeper obligations


1. The claimant has no standing to bring a case.

a. The particulars of claim state that “At all material times the Claimant managed the car park. They are therefore acting as agents of the landowner.

b. 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.

c. 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:

i. Failed to disclose any cause of action in the incorrectly filed Claim Form issued on 10th October 2017.

ii. Sent a template, well-known to be poorly mail-merged, copy and pasted ‘Particulars of claim’ which ignore the fact that this Claimant cannot hold registered keepers liable in in law, due to their own choice of non-POFA documentation.

iii. Failed to issue a compliant notice to keeper within 14 days under Schedule 4 of the Protection of Freedoms Act 2012 such that Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.


2. The claimant claims that “There are many clear and visible signs in the Car Park advising drivers of the terms and conditions of use” but has failed to provide any proof of this. 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. In the absence of any 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. It is believed that the claimant provided 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 transparent or legible – being deliberately placed several feet above the average person’s height; 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 neither known nor accepted. No consideration flowed from the Claimant.

3. Particulars of Claim were served to the defendant 3 days late. In their claim form, The Claimant committed to providing the defendant with detailed particulars within 14 days of the date of service (23/10/17) – these finally arrived on 27/10/17 - although they were deliberately backdated to the 11/10/17 – an obvious abuse of the county court system. As an unrepresented Litigant-in-Person, a delay of several days is more than trivial and, in the context of a claimant professionally represented with volume claims before the court, compliance with the court timetable is an imperative. By failing to provide detailed particulars in the allotted time, the Claimant has breached CPR 7.4 and has caused the Defense significant detriment.

4. 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 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 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.

e) The Claim Form Particulars did not contain any evidence of contravention or photographs.

f) 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. 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

ii. 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

iii. support the efficient management of proceedings that cannot be avoided.’

iv. 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


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.

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.

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

6 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”.

7 The claim includes a sum of £50, described as ‘Solicitor’s costs’. The Claimant is known to be a serial litigant. Given a standard working week, the claimant’s legal representative can spend no more than a few minutes per claim, hardly justifying the £50. Since these are fully automated, no intervention is required by a solicitor, and the Claimant is put to strict proof to show how this cost has been incurred. The Claimant maintains case notes for each person who has accessed the case, and it is suggested this would be sufficient. The Claimant cannot rely on Nossen’s Letter Patent (1969) to justify the charge, as this is part of their everyday routine, and no ‘expert services’ are involved. The £50 is not valid because it is not incurred by the claimant.

8 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.

EggBasket

Completely shameless self-bump.

Coral87

Did you get any feedback on your defence? I used it as a basis for my own and I am struggling for feedback

claxtome

Some suggestions:

Ensure the defence refers to the claimant and defendant not 'I' and 'me'.

a. The particulars of claim state that “At all material times the Claimant managed the car park. They are therefore acting as agents of the landowner.

There is an opening quote but no closing one.

2 c. It is believed that the claimant provided Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case

Suggest this needs rewording as doesn't read well

EggBasket

Recieved a letter from CEL today informing me that they're discontinuing their claim. I've begun drafting up a costs application for ~£500.

Many thanks to the regulars on here.

nosferatu1001

Make sure you major on uinreasonable behaviour
THe DEnton case is a good one to look at.