CEL CCBC - PCN for waiting in hotel car park

younasm

Hi All,

First of all, I would like thank all the people that contribute with really good advice and also occasional users who provide running commentary on their progress.

I've been reading the NEWBIE and other threads to help me with responding to claim logged by CEL at CCBC.

This is a parking charge for entering and waiting at hotel car park in Birmingham, two years ago, August 2015. My car was in the car park for 15-minutes.

The CCBC Claim form is dated : 09/10/2017, therefore Date of Service = 14/10/2017.

Under the Particulars of Claim, it had the last sentence : "I will provide the defendent with separate detailed particulars within 14 days after service of the claim form"

My first mistake (even though I had read some advice threads here) was that I completed AoS before getting the detailed PoC. AoS was done via MCOL on 23/10/2017.

On 28/10/2017, I got the detailed PoC in an envelope post marked 27/10/2017, but the PoC was back dated to 11/10/2017, signed by Ashley Cohen.

Unfortunately, due to family bereavement, I've not had chance to pay attention to defence (was almost hoping CEL will not post PoC - it came exactly 14-days after date of service).

I have a quick question about deadline for filing defence by email to ccbcaq@hmcts.gsi.gov.uk

I am assuming my deadline to submit defence is 14/10/2017 + 28-days = 11/11/2017 ? This falls on a Saturday. Do I submit on Friday 10/11/17 or can I submit it over the weekend?

I should have my defence ready by Friday (been looking at a few samples/templates )

Thanks,

younasm

My PoC is exactly the same another I saw on this forum (don't have the link :-( ) here it is again :

IN THE COUNTY COURT BUSINESS CENTRE (CCBC)

CLAIM NUMBER: *********

BETWEEN

CIVIL ENFORCEMENT LIMITED V **

PARTICULARS OF CLAIM

1. At all material times, the claimant managed the car park the address of which is stated on the attached Schedule of Information. The car part is private property.

2. By way of background, the claimant uses Automatic Number Plate Recognition (“ANPR”) camera at the entrance and exit of the Car Park, which identify time of arrival and departure of vehicles from the car park.

3. There are many clear and visible signs in the car park advising drivers of the terms and conditions of use. Drivers are permitted to park in the car park in accordance with the terms displayed on the signage, and these signs constitute an offer by the Claimant to enter into a contract with drivers.

4. The key terms of the signs are summarised in the attatched schedule of information

5. When the defendant parked their vehicle (on the date and time as set out in the attached schedule of information) in the car park they accepted, by their conduct, the terms and conditions of parking. See VINE v Waltham Forest London Borough Council (2000) 4 ALL ER 169

6. The defendant breached the terms and conditions of the site and, as such, is liable to pay the claimant the amounts as set out in the attached schedule of information.

7. The Supreme Court judgement in the case of ParkingEye Limted V Beavis has established that it is both legal and commercially justifiable for car park operators to implement a disincentive, such as the above, so as to efficiently manage the car park for the benefit of its users. Our charge is neither extravagant nor unconscionable, and falls within the British Parking Associations guidelines as stated in their Code of Practice.

8. The claimant (directly/through its agents) was left with no alternative but to escalate the matter as a result of their non-payment of the debt, which further increased the amount owed, in accordance with the terms of parking.

9. The Claimant claims the amounts owed, plus court and legal fees, and interest, pursuant to section 69 of the Country Courts Act 1984 on the amount found to be due to the claimant as such rate, and for such period, as the court thinks fit.

STATEMENT OF TRUTH

I believe that the facts stated in the Particulars of Claim are true.
I am authorised by the claimant to sign this document on its behalf

Dated this 11 October 2017

Signed ***************

Ashley Cohen, Civil Enforcement Limited, Horton house, Exchange Flags. Liverpool L2 3PF
Schedule of information

KeithP

If your deadline falls on a non-working day, then you have until 4pm on the next working day to file your defence.

younasm

Edited : 02:05AM 10/11/2017.
Below is my final version

In the County Court Business Centre
Claim Number: D8GM****

Between:

Civil Enforcement Limited v ***

I am xxxx, the defendant in this matter and the registered keeper of vehicle xxxx. I currently reside at xxxx.
I 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 09/10/2017 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 (Claimant’s Legal Representative)”.

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.

e) 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.’


f) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.

g) 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

h) 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 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 £352.12 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. 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.

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) 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) Tthe 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 two years 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:

a) Failed to disclose any cause of action in the incorrectly filed Claim Form issued on 9th October 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.

c) Back dated the Particulars of Claim letter to 11th October 2017, but the envelope stamped with a post-date of 27th October 2017. It is believed that the Claimant is doing so knowingly in order to prompt a weakened and rushed defence from defendants. The date on the claim form was 9th October 2017.

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 :


Date : 10th November 2017

nosferatu1001

It depends
Were the actual POC that were sent separately, received within 14 days of the date of service of the claim form? Simple yes or no.

If no, then you ask the court, directly, to strike the claim out, having asked them first if the claiant has asked for relief from sanction under CPR3.8

You tell CEl directly they are out of time and no defence need be filed, and you ask them to send a copy of their Cert of service of the PoC, an explanation for the backdating of the PoC, and to ask if they will apply for relief of sanction.

younasm

Yes, the PoC was received just in time on the 14th day after date of service.

Postmarked 27/10/2107, delivered to my address on 28/10/2017. The PoC inside was back dated as 11/10/2017.

nosferatu1001

Yes we know when they were dated, thats the point, CEL must be told to explain this.

SO you tell the court when you actually got the PoC, and as per CPR9 and 15.4, will serve your defence within 14 days of that date

Tell CEL to explain their backdating and supply a copy of their cert of service.

younasm

14-days from PoC receipt, and 28-days from Date of Service finish this weekend (technically, I have until 4pm Monday 13/11/2017? ). I will send my defence by email over the weekend.

Any views on my defence text? It's basically cut and paste from couple of other posters.

Thanks for all the help.

younasm

just bumping this up, while I am reading other threads to see if I can customise my defence text.

younasm

emailing my defence this afternoon - that way i can chase up receipt on Monday 13/11/2017, which is my final deadline to submit.

Loadsofchildren123

https://forums.moneysavingexpert.com/discussion/5742167
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