Another CEL claim form

scorpi06

Hi all, thanks in advance for sharing your knowledge.

The car park in question had notices stating that it was free for one hour and £1 / hr thereafter. Payment had to be made within 10mins of entering the car park. The car park was monitored by automated cameras (not known at the time of parking). The driver parked the car and called the number to pay by phone. Having not previously used this system, they entered all information asked for (reg, debit card details) and then when finished, hung up, expecting that they had done what was required to pay for parking (but having simply registered to use the service, no money was debited). The pay by phone company have confirmed that a call was made on the day - please see their email below. The car park signs did say the "location number" had to be entered, but having followed the instructions on the automated pay by phone service, the driver presumed they had successfully paid for parking. The driver stayed over the "free hour" by 14 minutes and was sent this PCN.

Incident – 27/01/2017
Parking charge notice issued – 03/02/2017
Final reminder before action – 06/03/2017
Letter before action - 24/04/2017
Letter from ZZPS – 24/05/2017
2nd letter from ZZPS – 12/06/2017
Letter from Write Hassall solicitors – 03/07/2017
Claim form dated 11/10/2017 therefore served 17/10/2017
AOS filed on 30/10/2017
POC dated 11/10/2017, post mark 01/11/2017 therefore served 02/11/2017


Email from pay by phone;

Hi Xxxxx,

Thank you.

Our records show that on 27/01/17 you made a call to the automated line at 11:42.
We can see that you entered your card payment details and then terminated the call without proceeding to book parking.
Please note that in order to make a payment customers need to also enter the 4 digit location code and select and confirm the desired length of their parking. As you did not complete all the steps required no booking was made on this date.
We can, however, see that you did attempt to book a parking session on 27/01/17 and advise you to appeal against the parking charge notice by contacting the car park operator directly.

Kind Regards,

Customer Support
Phone and Pay Parking

Before having read LOC's posts re the POCs, I sent my AOS on 30/11/17.

Here is the letter I have copied from other users in the same position to send to the CCBC and copy to CEL;

10th November 2017

Dear Sirs

Claim number: XXXXXXXX

Regarding Claim Form XXXXXXXX, I am writing to complain that the Claimant has deliberately backdated the Particulars Of Claim which were served separate to the claim form pursuant to CPR Rule 7.4 (1)(b).

The Claim form was issued on 11th October, stating that the detailed Particulars of Claim would be provided to me within 14 days after service of the claim form.

The further Particulars of Claim and covering letter were sent on 1st November 2017. As such, according to Rule 6.3(b) they were served on the 2nd November 2017. However they were dated the 11th October 2017. These dates mean that my defence is therefore not due until 16th November 2017 (Rule 15.4(1)(a)).

The Claimant has made a poor attempt to conceal the actual date on which it served the further Particulars by backdating them by 21 days, together with the covering letter. This is clearly demonstrated by the post mark on the envelope they arrived in, which shows the date of posting as 1st Nov, a copy of which I have provided as evidence.

The Civil Procedure Rules are quite clear – under Rule 3.8 the court should apply the sanctions unless the Claimant has applied for relief under 3.9.

I cannot fathom any reason for the Claimant having backdated its further Particulars of Claim, other than to try to gain an advantage by making it appear that I have filed my defence late, or by confusing me into having to rush to file my defence prematurely. This is a serious matter and I ask that this is formally noted on the court file.

This is a commercial Claimant pursuing many other claims of this nature. It must therefore have knowledge of, and understand, the Civil Procedure Rules and these sorts of blatant breaches should not be allowed because they prejudice Litigants in Person who are not versed in court procedures and the court rules. It is with some difficulty that I have understood the various obligations and time limits set out in the Civil Procedure Rules, as a Litigant in Person, whereas the commercial Claimant has no such excuse.

Yours Faithfully,

XXXXXXXXXX



- After reading this forum I am still unsure whether my defence is due 14 days post AOS as I filed it early or 14 days post the POC being served.
- Do you think, considering the pay by phone issue, the defence should come from a named driver or still from the keeper?

Thanks in advance. Apologies for yet another CEL thread.

KeithP

The case must be defended by, and the defence come from, whoever is named as the defendant on the claim form.

There is no choice.

scorpi06

Thanks for your reply. I worded my question badly, I meant to ask whether I should acknowledge who the driver was. I guess I don't have to mention a name, but in using the paybyphone issue in my defence it will be clear that I (the keeper) know who the driver was.

Coupon-mad

Make sure you email your complaint to Amanda Beck at the CCBC with proof of the backdating and posting of the POC (attach a scan of the envelope if you have it):

https://forums.moneysavingexpert.com/discussion/comment/73392369#Comment_73392369

Amanda Beck's email is there - email her a serious complaint.

Head the email with your Claim Number and 'This is NOT my defence - this is a formal complaint about abuse of process by Civil Enforcement Ltd' and mark it for the personal attention of Amanda Beck:

bulkcentre.helpdesk@hmcts.gsi.gov.uk

I think these dates need changing by one day further, as the date of service is 2 working days, not one:

The further Particulars of Claim and covering letter were sent on 1st November 2017. As such, according to Rule 6.3(b) they were served on the 2nd November 2017. However they were dated the 11th October 2017. These dates mean that my defence is therefore not due until 16th November 2017 (Rule 15.4(1)(a)).

scorpi06 wrote: »

Thanks for your reply. I worded my question badly, I meant to ask whether I should acknowledge who the driver was. I guess I don't have to mention a name, but in using the paybyphone issue in my defence it will be clear that I (the keeper) know who the driver was.

No and no, not against CEL. They can't hold a keeper liable, so BE THE KEEPER, as long as you are the named Defendant (the claim must be defended by that person, no-one else).

The fact you used the pay by phone thing just means you were an occupant of the car.

scorpi06

Thanks, I will send this email with the dates amended and envelope copy attached.

Should I still send my defence 14 days post AOS (sent before POC received) or am I safe sending it 14 days after POC served?

Coupon-mad

14 days after POC. You don't count from your AOS.

scorpi06

Hi all, below is a draft of my defence - please could you have a look. Thank you!



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 is not adequate and does not offer a contract with the motorist.
3. Late particulars of claim – a breach of CPR 7.4
4. Failure to comply with pre-action protocol.
5. Claim not correctly filed under The Practice Direction
6. Falsified solicitor costs
7. Claimant failed to meet Notice to Keeper obligations
8. The Defendant made all reasonable efforts to make payment for parking by using an approved payment channel.


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. For example, in the case of ParkingEye Vs Cargius it was held that the Beavis case did not apply since parking was paid for rather than free for a limited period. The judge distinguishes it by reasoning that in Beavis the charge was justifable as it was their only income, whereas in a paid car park, only the hourly charge is being lost by overstaying (e.g. £2); anything above that is clearly a penalty. In the case of the car park referred to in this case, the Claimant is charging motorists £1 per hour following the first free hour to park. To cover the cost of the overstay, the defendant would have needed to pay £1. As the claimant would have been satisfied with the payment of a further £1, had this been paid prior to leaving the car park, the subsequent charge of £100 is disproportionate to the loss suffered by the claimant. It is therefore a penalty and unenforceable in this case.

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 there can have been no contract and the Claimant has no case.

a. In the absence of strict proof that at the time of the alleged event the claimant both advertisement consent and the permission from the site owner to display the signs 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.

b. The signage at the sign entrance is sparse, with no mention of the terms and conditions of the car park or the penalty of breaching the terms, violating POFA 2012 Schedule 4 and the BPA Code of Practice.

c. The small print on the signage does not allow the driver of any vehicle to read the terms and conditions of the car park until they are already in the car park and have been photographed by the Automatic Number Plate Recognition camera. There is no opportunity to make a decision not to enter the car park after reading the signs.

d. Non-existent ANPR 'data use' signage at the entrance of the car park - breach of ICO rules and the BPA Code of Practice.

e. The alleged contract is unfair, not agreed by the driver, and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation'.

f. 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.

g. 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.

3. Particulars of Claim were served to the defendant 4 days late. In their claim form, The Claimant committed to providing the Defendant with detailed particulars within 14 days of the date of service (16/10/17). These were posted 01/11/2017 and so were served on 03/11/17 – though were deliberately backdated to the 11/10/17. This is 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 Defence 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) by;
a. Not providing a copy of the alleged contract to the Defendant. This prevents a full defence being filed at this time as 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.

b. Failing 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 the Defendant liable under the strict ‘keeper liability’ provisions.

c. Issuing a sparse, mail-merged and non-compliant ‘Letter before County Court Claim’, under the Practice Direction. 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 contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017).

d. A Schedule of information sparse of detailed information.

5. The Claim Form issued on 11/10/2017 by Civil Enforcement Limited was not correctly filed under The Practice Direction as;

a. It was not signed by a legal person but signed by “Civil Enforcement Limited” (claimants legal representative).

b. It failed to disclose any cause of action in the incorrectly filed Claim Form issued on 11th October 2017.

e. It was followed, late, by a template, well-known to be poorly mail-merged, copy and pasted ‘Particulars of claim’.

f. 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.

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

h. 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 includes a sum of £50, described as ‘Legal representative’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.

7. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absence of such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold the defendant liable under the strict ‘keeper liability’ provisions. Additionally, the Claimant has been known in other cases to specifically state during the appeal period, that they would not be relying on the Protection of Freedoms Act 2012, waiving their right to seek keeper liability. The Defendant is not therefore liable for the claim and invites the court to strike it out. 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 a registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.

8. The Defendant made all reasonable efforts to make payment for parking by using an approved payment channel.
a. Payment for parking was made via telephone using a cashless system provided by PayByPhone.
b. This is a distance contract which requires certain information to be supplied in advance.
c. The service makes no provision for the printing of a ticket to display.
d. The Defendant followed the PayByPhone instructions exactly as shown on the signage at the payment machine.
e. On telephoning the payment provider and following the touch tone service, the Defendant was asked to input vehicle and payment card details.
f. The payment channel did not indicate any failure to make payment and responded as if payment had been made. As such the Defendant believed the necessary payment had been made.
g. The failure of the payment service to accept payment is not the Defendants responsibility. It is not reasonable in these circumstances for the driver to assume any more obligations for making the payment. In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

I confirm that the above facts and statements are true to the best of my knowledge and recollection.

scorpi06

Sorry for the late post but my defence is due tomorrow - its mostly a standard CEL defence. If someone can have a look that would put my mind at ease before I send it. Thank you.

scorpi06

Hi all, going to email my defence before 4pm, anyone around to have a read?

scorpi06

Hello all

I've had a hearing date allocated in mid March and witness statement is due this week.

I received a covering letter from CEL with their witness statement sent to my home which states;

!!!8220;Unless matters are resolved within the next 14 days we will be forced to incur further legal costs, as we will be required to pay a hearing fee, and there will be costs for preparation, attendance and travel.

Notwithstanding that costs have already escalated, we are prepared to accept £175 within the next 14 days in full and final settlement. Whilst we accept that this sum is high, this represents a significant reduction given the time and expenses already incurred.!!!8221;

I am planning on writing back to them saying I will be incurring further costs to go to court too and that I will settle out of court for the sum of £1 which their pay by phone system failed to allow me to pay for my parking time. I'll email them to the email address I originally sent my DQ. Comments?

Lamilad

Unless matters are resolved within the next 14 days we will be forced to incur further legal costs, as we will be required to pay a hearing fee, and there will be costs for preparation, attendance and travel.!

Notwithstanding that costs have already escalated, we are prepared to accept £175 within the next 14 days in full and final settlement. Whilst we accept that this sum is high, this represents a significant reduction given the time and expenses already incurred

That wouldn't have been in their WS. Was it in an accompanying cover letter?

It's total rubbish anyway. They can't claim anymore than the amount stated in the PoC, with the exception of reasonable travel costs for their rep