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CCBC defence letter for CEL parking fines
Jaimee_1987
Posts: 5 Forumite
Hi all,
Firstly, apologies as I am having a hard time getting my head around all the information on these threads so please bare with me.
I have received 3 CCBC letters ordering me to pay around £350 for each one due to apparent unpaid parking (all 3 are over a year ago and therefore I do not have evidence or payment). I have responded to the first one and have begun to pay in monthly instalments (I know, very naïve of me but was not aware of my rights at the time). I'm under the impression that by agreeing to pay the first one, CEL have backdated anything else they could find in the hope that I will pay those also. I have acknowledged receipt of the CCBC letters and unfortunately only have until 12/11/2017 (4 days) to compile a defence for both and submit them. I have found 2 template letters amongst these threads that appear to be specific to CEL (obviously require editing to be specific to my case) but the problem is I have no idea what parts are relevant are which are not. If anyone can help in any way I would be extremely grateful! In hindsight I wish I had found this thread sooner but genuinely believed I had not choice but to pay.
These are the 2 templates I have found:
In the County Court Business Centre
Between:
Civil Enforcement Limited
V
XXXXXXXXXXX
Claim Number: XXXXXXXX
I, XXXXXXXXXXXXX, deny I am liable to the Claimant for the entirety of the claim for each of the following reasons:
The Claim Form issued on 11/10/2017 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”.
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.
There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.
This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.
The Schedule of information is sparse of detailed information.
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.
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:
‘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
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
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
support the efficient management of proceedings that cannot be avoided.’
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;
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
A copy of any contract it is alleged was in place (e.g. copies of signage)
How any contract was concluded (if by performance, then copies of signage maps in place at the time)
Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
If charges over and above the initial charge are being claimed, the basis on which this is being claimed
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.
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 it is believed that neither the signs, nor any NTK mentioned a possible additional £149.66 for outstanding debt and damages.
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.
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.
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.
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.
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.
Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
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.
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.
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.
The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
BPA CoP breaches - this distinguishes this case from the Beavis case:
the signs were not compliant in terms of the font size, lighting or positioning.
the sum pursued exceeds £100.
there is / was no compliant landowner contract.
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.
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.
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.
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 10 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 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.
and the 2nd one:
Civil Enforcement Ltd v ******
Statement of Defence
I am xxxxxxx xxxxx , defendant in this matter and deny liability for the entirety of the claim.
1/ 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.
2/ This Claimant has not complied with pre-court protocol:
(a) There was no compliant ‘Letter before County Court Claim’, under the Practice Direction, despite the Defendant's requests for this and further information.
(b) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents only contain two pieces of individual information: the name of the defendant and the name of the car park. The covering letter merely contains a supposed PCN number, but no date of event, no details, no VRN, no contravention nor photographs. – not sure this applies as I have received a letter prior to the court claim forms with Reg, PCN, date and location but no details of what had happened but this is on the original from over a year ago – an overstay
The original letter stated that I owed them £100. For some reason this has jumped to £140 with no explanation – sure this breaks some rule.
(c) 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 - what the date of the parking event was, what the vehicle was, why the charge arose, what the original charge was, what the alleged contract was; nothing that could be considered a fair exchange of information.
(d) The claim is signed by 'Michael Schwartz' who is and was under investigation by the SRA and has practising certificate conditions currently imposed. It is believed he can act as a solicitor only in employment, the arrangements for which must be pre-approved by the SRA and I have no evidence that this is the case, nor that he is an employee of the Claimant.
3/ Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
(a) Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
(b) Sporadic and illegible (charge not prominent nor large lettering) 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.
(c) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
(d) 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 UTCCRs (as applicable at the time).
NOTE: The sign on entry to the car park is on the opposite side of the road (which I didn’t see) and there were no signs in front of where I parked.
(e) 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.
(f) Absent the elements of a contract, there can be no breach of contract.
4/ POFA 2012 breach and the Defendant was not the driver - this distinguishes this case from the Beavis case:
No keeper liability can apply, due to this Claimant's PCN not complying with Schedule 4. The driver from three years ago has not been evidenced and a registered keeper cannot otherwise be held liable. In cases where a keeper is deemed liable, where compliant documentation was served, the sum pursued cannot exceed the original parking charge, only if adequately drawn to the attention of drivers on any signage.
5/ BPA CoP breaches - this distinguishes this case from the Beavis case:
(a) no grace period was allowed - I overstayed 21mins and 7 secs according to original invoice but they have not provided evidence of that.
(b) the signs were not compliant in terms of the font size, lighting or positioning.
(c) the sum pursued exceeds £100.
(d) there is/was no compliant landowner contract. – Not sure about this.
(e) the charge is not based upon a genuine pre-estimate of loss (a condition at the time).
6/ 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.
7/ 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.
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, neither based upon a genuine pre-estimate of loss nor any 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/ The claimant has added unrecoverable sums to the original parking charge. If Mr Schwartz is an employee then the Defendant suggests he is remunerated and the claim/draft claim are templates, so it is not credible that £50 legal costs were incurred. Nor it is believed that a £40 fee was paid to any debt recovery agency so the Claimant is put to strict proof it has. I deny the Claimant is entitled to any interest whatsoever.
11/ In the Beavis case the £85 was deemed the 'quid pro quo' for the licence granted to park free for two hours and there was no quantified loss. Not so in this case where it is believed the location is one with a small tariff after a grace period.
12/ If the court believes there was a contract (which is denied, due to unlit signage) this is just the sort of 'simple financial contract' identified at the Supreme Court as one with an easily quantifiable loss (the tariff) where any sum pursued for breach must still relate to a genuine pre-estimate of loss.
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 Claim Form issued on 4th March 2016
(b) failed to provide Particulars of Claim within 14 days of the date of service of that Claim Form, thus making it impossible for the Defendant to prepare any form of defence; and
(c) failed to respond to a letter from the Defendant dated 14 March 2016 requesting further information and details of the claim.
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.
The Defendant invites the Court to use its discretion to make such an order, if not striking out this claim.
Firstly, apologies as I am having a hard time getting my head around all the information on these threads so please bare with me.
I have received 3 CCBC letters ordering me to pay around £350 for each one due to apparent unpaid parking (all 3 are over a year ago and therefore I do not have evidence or payment). I have responded to the first one and have begun to pay in monthly instalments (I know, very naïve of me but was not aware of my rights at the time). I'm under the impression that by agreeing to pay the first one, CEL have backdated anything else they could find in the hope that I will pay those also. I have acknowledged receipt of the CCBC letters and unfortunately only have until 12/11/2017 (4 days) to compile a defence for both and submit them. I have found 2 template letters amongst these threads that appear to be specific to CEL (obviously require editing to be specific to my case) but the problem is I have no idea what parts are relevant are which are not. If anyone can help in any way I would be extremely grateful! In hindsight I wish I had found this thread sooner but genuinely believed I had not choice but to pay.
These are the 2 templates I have found:
In the County Court Business Centre
Between:
Civil Enforcement Limited
V
XXXXXXXXXXX
Claim Number: XXXXXXXX
I, XXXXXXXXXXXXX, deny I am liable to the Claimant for the entirety of the claim for each of the following reasons:
The Claim Form issued on 11/10/2017 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”.
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.
There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.
This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.
The Schedule of information is sparse of detailed information.
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.
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:
‘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
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
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
support the efficient management of proceedings that cannot be avoided.’
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;
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
A copy of any contract it is alleged was in place (e.g. copies of signage)
How any contract was concluded (if by performance, then copies of signage maps in place at the time)
Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
If charges over and above the initial charge are being claimed, the basis on which this is being claimed
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.
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 it is believed that neither the signs, nor any NTK mentioned a possible additional £149.66 for outstanding debt and damages.
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.
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.
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.
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.
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.
Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
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.
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.
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.
The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
BPA CoP breaches - this distinguishes this case from the Beavis case:
the signs were not compliant in terms of the font size, lighting or positioning.
the sum pursued exceeds £100.
there is / was no compliant landowner contract.
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.
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.
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.
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 10 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 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.
and the 2nd one:
Civil Enforcement Ltd v ******
Statement of Defence
I am xxxxxxx xxxxx , defendant in this matter and deny liability for the entirety of the claim.
1/ 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.
2/ This Claimant has not complied with pre-court protocol:
(a) There was no compliant ‘Letter before County Court Claim’, under the Practice Direction, despite the Defendant's requests for this and further information.
(b) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents only contain two pieces of individual information: the name of the defendant and the name of the car park. The covering letter merely contains a supposed PCN number, but no date of event, no details, no VRN, no contravention nor photographs. – not sure this applies as I have received a letter prior to the court claim forms with Reg, PCN, date and location but no details of what had happened but this is on the original from over a year ago – an overstay
The original letter stated that I owed them £100. For some reason this has jumped to £140 with no explanation – sure this breaks some rule.
(c) 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 - what the date of the parking event was, what the vehicle was, why the charge arose, what the original charge was, what the alleged contract was; nothing that could be considered a fair exchange of information.
(d) The claim is signed by 'Michael Schwartz' who is and was under investigation by the SRA and has practising certificate conditions currently imposed. It is believed he can act as a solicitor only in employment, the arrangements for which must be pre-approved by the SRA and I have no evidence that this is the case, nor that he is an employee of the Claimant.
3/ Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
(a) Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
(b) Sporadic and illegible (charge not prominent nor large lettering) 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.
(c) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
(d) 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 UTCCRs (as applicable at the time).
NOTE: The sign on entry to the car park is on the opposite side of the road (which I didn’t see) and there were no signs in front of where I parked.
(e) 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.
(f) Absent the elements of a contract, there can be no breach of contract.
4/ POFA 2012 breach and the Defendant was not the driver - this distinguishes this case from the Beavis case:
No keeper liability can apply, due to this Claimant's PCN not complying with Schedule 4. The driver from three years ago has not been evidenced and a registered keeper cannot otherwise be held liable. In cases where a keeper is deemed liable, where compliant documentation was served, the sum pursued cannot exceed the original parking charge, only if adequately drawn to the attention of drivers on any signage.
5/ BPA CoP breaches - this distinguishes this case from the Beavis case:
(a) no grace period was allowed - I overstayed 21mins and 7 secs according to original invoice but they have not provided evidence of that.
(b) the signs were not compliant in terms of the font size, lighting or positioning.
(c) the sum pursued exceeds £100.
(d) there is/was no compliant landowner contract. – Not sure about this.
(e) the charge is not based upon a genuine pre-estimate of loss (a condition at the time).
6/ 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.
7/ 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.
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, neither based upon a genuine pre-estimate of loss nor any 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/ The claimant has added unrecoverable sums to the original parking charge. If Mr Schwartz is an employee then the Defendant suggests he is remunerated and the claim/draft claim are templates, so it is not credible that £50 legal costs were incurred. Nor it is believed that a £40 fee was paid to any debt recovery agency so the Claimant is put to strict proof it has. I deny the Claimant is entitled to any interest whatsoever.
11/ In the Beavis case the £85 was deemed the 'quid pro quo' for the licence granted to park free for two hours and there was no quantified loss. Not so in this case where it is believed the location is one with a small tariff after a grace period.
12/ If the court believes there was a contract (which is denied, due to unlit signage) this is just the sort of 'simple financial contract' identified at the Supreme Court as one with an easily quantifiable loss (the tariff) where any sum pursued for breach must still relate to a genuine pre-estimate of loss.
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 Claim Form issued on 4th March 2016
(b) failed to provide Particulars of Claim within 14 days of the date of service of that Claim Form, thus making it impossible for the Defendant to prepare any form of defence; and
(c) failed to respond to a letter from the Defendant dated 14 March 2016 requesting further information and details of the claim.
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.
The Defendant invites the Court to use its discretion to make such an order, if not striking out this claim.
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Comments
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Discard the second one - it's too old. The mention of 'Michael Schwartz' tells us that.
This CEL defence got the 'nod' only yesterday:0 -
Excellent! Thanks for your help0
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I am in the process of submitting my defence but unfortunately the text doesn't fit in the box on the MCOL website (122 lines max). If I post it, it will not arrive in time and am becoming extremely concerned about what to do. If anyone can advise me I would be extremely grateful.0
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Jaimee_1987 wrote: »I am in the process of submitting my defence but unfortunately the text doesn't fit in the box on the MCOL website (122 lines max). If I post it, it will not arrive in time and am becoming extremely concerned about what to do. If anyone can advise me I would be extremely grateful.
Don't try to fit it in that box!
Surely you read in Bargepole's walkthrough linked from the NEWBIES thread
that submitting your defence via MCOL destroys all formatting and makes it difficult for the judge to read - not something you want.
Send it by email as described here:
Post #7 on that thread has the email address.0 -
Thank you.
So do I respond via MCOL at all? And if yes, do I put anything in the box?
**sorry, just read the rest of you post (overlooked because of panicking)0 -
No - do nothing on MCOL.Jaimee_1987 wrote: »Thank you.
So do I respond via MCOL at all? And if yes, do I put anything in the box?
If you were to put anything in that defence box it would be taken as your defence. :eek:
Clearly you have not read and fully understood post #2 of the NEWBIES thread.
I refer again to Bargepole's walkthrough where it says:Do NOT put anything in the 'Defence and Counterclaim' text box, not even a full stop.0 -
Jaimee_1987 wrote: »Thank you.
So do I respond via MCOL at all? And if yes, do I put anything in the box?
**sorry, just read the rest of you post (overlooked because of panicking)
It saves us a lot of time, and you a lot of angst, if you read all the other threads about CEL each day:
https://forums.moneysavingexpert.com/discussion/comment/73401546#Comment_73401546
Literally said this to a poster less than an hour ago. Please don't stay on isolation on your thread asking the same questions already covered all over the forum. Doesn't help either of us!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 -
Jaimee_1987
How did this end up. Were you able to defend the others?This is a system account and does not represent a real person. To contact the Forum Team email forumteam@moneysavingexpert.com0 -
The op hasn't logged in here for some months
Maybe a pm might alert him/her to your post here0 -
I think IaE is on a mission. I'm sure all will be revealed in due course. He knows what he's doing.
It is starting to highlight just how many milk the forum for all its worth, yet don't have the courtesy of quickly popping back to say if our advice has worked for them.
And the ones he seems to be following up are just the court cases; I shudder to think how many at basic PCN/POPLA level we never see the results of.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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