PCN - CEL - AOS done - Defence Letter next

y2cjr

Hi all,

I, the keeper, have received a claim form from Civil Enforcement Ltd, I have completed the acknowledgement of service part, just need to do the defence letter now.

The claim form is dated 10/10/2017.

The driver went to KFC in Lowestoft on the 23rd of December 2016. The driver parked the vehicle in the KFC car park for 1 hour, 30 minutes and 19 seconds.

Apparently the driver was only allowed to park there for an hour. The driver immediately called KFC and they were useless. So the driver left it and received letters such as PCN letters, a couple of letters from ZZPS Limited and then a solicitors letter with photocopied signature from Wright Hassall.

The keeper then received the claim form on the 10th of October 2017.

The keeper called KFC in Lowestoft again and asked to speak to a manager, he said the 1 hour limit had recently been increased to 1 hour 30 minutes, as a lot of people were getting done by it!

At the moment the keeper has no defence letter and am unsure which template to use.

Any help would be much appreciated!

Redx

edit the above if you have not informed them of who was driving

THE DRIVER went to that eatery

THE DRIVER parked the vehicle

THE DRIVER may have overstayed etc

THE KEEPER received the paperwork from CEL and from the courts

those are the only 2 entities in this matter, and the keeper is now the defendant

post #2 of the NEWBIES sticky thread has all the info you require

as for the defence draft, read a dozen recent ones on here, find one with a similar overstay issue and use that as your template

also bear in mind the words written about the lack of POC and that they should have sent them within 2 weeks of the date of service

so check what was received and when too, plus ask yourself what is missing due to the new 01 oct 2017 protocols

ps:- there is NO WAY this happened this xmas coming , possibly last xmas ? (hint)

and the keeper was foolish in not appealing and then not going to popla, a judge might decide the same

y2cjr

Thanks for your reply Redx.

I was going to use the letter on the poste entitled 'CEL Claim Defence - Almost ready to submit I think' and reword it to suit.

It is odd that the claim letter says that POC will be sent within 14 days of the SOC form but I've had nothing through.

Thanks for pointing out that Christmas 2017 hasn't happened yet! ;-)

Ive never heard of POPLA, didn't even know that was an option.

Redx

popla has been an option since october 2012 , since POFA2012 came into force , so 5 years (4 years last xmas and counting)

you still havent edited the correct words into post #1 , please do so as parking companies read forums and take screenshots (dont be naive in this pedantry)

yes that is a good starter defence , I often refer people to it

sounds like you have done the AOS after being misled and if they said POC TO FOLLOW and they have not arrived you should phone the CCBC tomorrow and also complain by email about it

see the letters and posts written by LOC123 and johnnersh

links in post #2 of that NEWBIES sticky thread

ie:- the AOS should have been done when the POC arrived, not before

y2cjr

Thanks again for your reply and help Redx.

Is the first post ok now?

The keeper will call CCBC tomorrow. The keeper hasn't had any particulars of claim through. No photos, no evidence, nothing. All the keeper has had are PCN letters with times and dates on that detail the car registration and make/model.

The claim form says on the left side in the 'Particulars of Claim' box:

Outstanding debt and damages
DATE-DESCRIPTION-AMOUNT-DUE DATE
23/12/16-REFxxxxxxx-236.00-23/12/16




Total due- 236.00
(Ref:CEL website address here or Tel:01158225020)
The claimant claims the sum of 251.00 for
Outstanding debt and damages
including 15.00 interest pursuant to
S.69 of the County Courts Act 1984
Rate 8.0% pa from dates above to- 9/10/17
Some rate to Judgement or (sooner) payment
Daily rate to Judgement- 0.05
Total debt and interest due- 251.00
I will provide the defendant with separate
detailed particulars within 14 days after service of claim form.



The keeper's acknowledgment of service was submitted on 28/10/2017 at 12:39:24
The keeper's acknowledgment of service was received on 30/10/2017 at 01:07:09

So I suppose they have 5 days to send the keeper the particulars of claim? Longer than the keeper has to write and submit their defence!

Redx

yes post #1 is correct now

as for the AOS , by doing the AOS you have confirmed that the POC have arrived, yet they have not arrived

you have 14 days to complete the defence once the POC have arrived (I think) and the AOS has been done after those papers have arrived

this was all explained by LOC123 and johnnersh in recent threads

hence why I said phone the court and try to get it on file that NO POC HAVE BEEN RECEIVED YET and to put a hold on the AOS until they have arrived

check with the CCBC when the actual defence is due by date actually is

meanwhile draft your defence so its ready to go

I repeat , no POC have been received so the AOS should not have been done , so you do not actually KNOW when the due date is

[Deleted User]

No defence is due until the PoC turn up. Definitely worth writing to the Court after the 14 days. If they've not had a copy you want to invite the Court to strike it out.

y2cjr

Hi Johnersh, thanks for your reply and help.

The keeper will call the CCBC tomorrow and complain that the PoC have not turned up.
As for the defence letter, is the following looking any good would you say?:

I, Christopher XXXXXXXX, 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 10/10/2017 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. 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.
The Claim Form Particulars did not contain any evidence of contravention or photographs. These documents, and the ‘Letter before County Court Claim’ should have been produced, pursuant to paragraph 6 of the Practice Direction – Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to “take stock”, pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:

i. ‘early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute
ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure
iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and
iv. support the efficient management of proceedings that cannot be avoided.’

e. The Defence therefore asks the Court to strike out the claim as disclosing no cause of action and having no reasonable prospect of success as currently drafted.
f. Alternatively, the Defendant asks that the Claimant is required to file Particulars 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.

3. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.

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 £236 for outstanding debt and damages.

4. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs’ were incurred.

5. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. As far as I can ascertain, based upon the very vague particulars of claim and complete lack of evidence and photographs, and without having been furnished with the alleged signage 'contract', none of this applies in this material case.

6. In the absence of any proof of adequate signage 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.
b. In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.
c. Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:

i. Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum.
ii. It is believed the signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from by an authorised party using the premises as intended.
iii. No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
iv. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.

d. BPA CoP breaches - this distinguishes this case from the Beavis case:
i. the signs were not compliant in terms of the font size, lighting or positioning.
ii. the sum pursued exceeds £100.
iii. there is / was no compliant landowner contract.

7. No standing - this distinguishes this case from the Beavis case:
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.

8. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.

9. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.

10. Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable 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.

11. Increase in time allotment at the restaurant car park. It has come to the keepers knowledge that the time period allowed for customers to park at the restaurant has been increased since the driver's stay to 1 hour and 30 minutes due to customer complaints and unreasonable time rules.

12. 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:

i. ‘early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute
ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure
iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and
iv. support the efficient management of proceedings that cannot be avoided.’


The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

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

2. 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.

Coupon-mad

The keeper will call the CCBC tomorrow and complain that the PoC have not turned up.

No-one said to phone.

Examples of emails to send to CEL and to the CCBC (even after AOS was done) are on every current CEL thread from the past 3 weeks, and in the NEWBIES thread post #2, in a link to posts by Johnersh and LoadsofChildren123.

That's the first step, no defence yet until the POC arrive, probably late. Then complain. Then defend.

Redx

well, TBH I said phone them up but I also told the OP to read what LOC123 and johnnersh have said in recent threads because I know some people have emailed or written to the CCBC about these late POC issues and early AOS errors

so I was trying to cover both bases

there is no way that this OP has had the time to study the LOC123 and johnnersh comments on late POC , in the short time they have been on here tonight

those recent posts and complaint letters/emails etc should be closely studied , especially as no POC have been served to this OP at this time , but the AOS clock could be ticking

y2cjr

Hi Coupon,

Thanks for your reply, Redx said in post #4 to call CCBC:

"sounds like you have done the AOS after being misled and if they said POC TO FOLLOW and they have not arrived you should phone the CCBC tomorrow and also complain by email about it"

Should the keeper not call then? Just email?