Civil Enforcement Limited Claim Form

blaser24nig

nosferatu1001 wrote: »

Wait, did you not want us to have a look at it, in case you made some errors???

My apologies - I’ve already made the mistake but will post my defence anyway. I am embarrassed now.

STATEMENT OF DEFENCE

I am the defendant in this matter and was the registered keeper of vehicle *******.
I deny I am liable for the entirety of the claim for each of the following reasons;

1. The Claim Form issued on the 26th January 2018 by Civil Enforcement Ltd 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 contained sufficient details.The Defendant has no idea what the claim is about, why the charge arose or what the alleged contract was; nothing that could be considered a fair exchange of information. Furthermore, 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 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.

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, i.e, the breakdown of damages incurred and evidence of such damages.

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 a 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 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 add that on as well when it is believed that neither the signs, nor the NTK mentioned a possible £326.36 for outstanding debt and damages.

4 . 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 this 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.

5. 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 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 an authorised party using the premises as intended.

iii. No promise was made by the driver that could constitute consideration because there was no offer neither known nor accepted. No consideration flowed from the Claimant.

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

6. No evidence has been supplied by this claimant as to who parked the vehicle. Under the Protection of Freedoms Act 2012 there is no presumption in law as to who parked a vehicle on private land nor does there exist any obligation for a keeper to name the driver. The Defendant in this case is defending the claim as the registered keeper of the vehicle, not the driver of the vehicle at the time of the alleged contravention as is their right. The Defendant asks the Claimant to prove that the defendant was in fact driving the vehicle at the relevant time.

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

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.

10. Due to the length of time, the Defendant has 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. 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.

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 26th January 2018.
(b) Sent a template, well-known to be a generic cut and paste of the Particulars of claim relying on irrelevant case law (Beavis/Vine v Waltham Forest) 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.

In the alternative, the Defendant is willing for the matter to be decided by POPLA (Parking on Private Land Appeals) which will decide the dispute and limits any further costs to this claimant to £27, with no legal costs. This is the bespoke ADR for BPA members and is available at any time (not just the first 28 days) and has been used to settle private parking court claims on multiple occasions even after proceedings have commenced. POPLA has not been undertaken in this case nor was it mentioned in the recent sparse communications from this Claimant. The Defendant invites the Court to use its discretion to make such an order if not striking out this claim.

I believe the facts contained in this Defence Statement are true.

blaser24nig

And just to add - the email address to send your defence to has changed to;

ccbcaq@hmcts.gsi.gov.uk

And you do get an acknowledgement email back.

blaser24nig

Hi, I have received a notice of proposed allocation to the small claims track this morning which also talks about mediation. Do I ignore this or fill it in ?

nosferatu1001

You do not ask for mediation.
Is this form N180? Directions Questionnaire?

Why would you ignore a court document? That doesnt sound a sensible action to take. What does the newbuies thread, post 2, tell you about this document?

blaser24nig

Thanks for the reply. I shall visit that thread at once...

nosferatu1001

You will visit there now, read and read again, and then bookmark it
You need to know EVERY STAGE

Coupon-mad

blaser24nig wrote: »

And just to add - the email address to send your defence to has changed to;

ccbcaq@hmcts.gsi.gov.uk

And you do get an acknowledgement email back.

That's not a change, that's the email we always tell people to use.

blaser24nig wrote: »

Hi, I have received a notice of proposed allocation to the small claims track this morning which also talks about mediation. Do I ignore this or fill it in ?

You really do need to read bargepole's thread, linked in the NEWBIES thread post #2.

blaser24nig

Coupon-mad wrote: »

That's not a change, that's the email we always tell people to use.

I actually got the wrong email from a page, will try and find it.

And thanks for everything else, really appreciated...

blaser24nig

UPDATE:

I have just received a letter called !!!8220;GENERAL FORM OF JUDGEMENT OR ORDER!!!8221;
Upon reviewing the courts file; unless the claimant does by 4pm on 26th june 2018 send to court the basis in law on which the claim is founded, it shall be struck out.

NB: There were other wordings but that was the main one.

System

Wait until 27th June and see what the court says.