CEL claim letter Feb 2018

magikarpaccio

Hi all, think I've done the right thing by starting a new thread, apologies as there's been a lot to take in and I'm not sure if I have my head around it all, if any.

I received a claim form dated 22nd Feb from CEL for a parking charge from late march 17. I'm the registered keeper and the first letter I recieved (which I thought I'd kept but seem to have mislaid) was the £100 charge itself rather than a notice to keeper asking for any driver details. This was from an ANPR system showing my car entering and exiting the car park about 12 minutes apart, not sure if this is relevant but the car park in question allows a drop off/pick up free stay for 10 minutes.

I didn't respond to any letters and received several, some of which I thought I had kept, some I know I tossed out, threatening legal action and an increase in the amount owed. In hindsight I should have been more diligent but I honestly didn't think it would go this far.

The particulars of claim state the following:

"Claim for monies relating to a parking charge for parking in a private car park managed by the claimant in breach of t&cs. Drivers are allowed to park in accordance with t&cs of use. ANPR and/or manual patrols are used to monitor vehicles entering & exiting."

Debt + damages claimed, Violation date, time in, time out, PCN ref. number, car reg and car park is all listed as well as an explanation of the interest rate applied.

My view on this (and someone please correct me if I'm wrong) is that I should not pay and fight this for the following reasons:

1. The keeper is not liable for any charge that may have been incurred by the driver at the time unless they reached out to the keeper for the driver's details within 14 days with a properly worded notice to keeper and this was ignored.

2. The terms & conditions for parking are not clearly stated on entering the car park. I can get photos of the signage but this should be on them to prove adequacy right? Any reference to a £100 charge is tiny and not readable from a car.

3. The claim form itself is not up to snuff. It's signed by CEL rather than a person, they haven't included a copy of the t&cs and they also haven't provided any imagery of my car to show it was there.

There are probably other points for example I admit I don't understand what relevance CEL being a suspected serial litigator has. The fact that the damages are not transparent or the fact that legal fees can be added for a person who is on the normal payroll have been cited by other people too.

Clock's ticking for me to respond and I think I should be disagreeing with the claim with the following actions:

Step 1, send an acknowledgement of service within the 14 days.
Step 2, write a defense and send that off within 28 days from date of service.

My one concern in all this is that if I have to go in to court I will need to take unpaid leave, this could potentially cost me nearly as much as the amount they are asking for. Is this reclaimable? On pricipal I feel like I need to take the unpaid leave and swallow the loss but doubling down will hurt. If anyone sees a reason why my case is weak (like my lack of response and loss of the original letter) I'd appreciate the heads up.

Very sorry for my long rambling post and thanks very much in advance.

Quentin

Loss of earnings for attending the hearing can be claimed (if you win), capped at £95/day

Redx

CEL rarely go as far as a courtroom if a claim is well defended

you can expect a discontinuance once they see they have to pay the hearing fee, so get a strong defence in, there are scores on here over the last 6 months you can crib from

magikarpaccio

Thanks Redx and Quentin. I'll send the response and start working on a defence

magikarpaccio

Hi All, I've cribbed from a recent defence that didn't have any major objections in the comments however I have questions on the relevance of certain portions (I've removed some parts that I definitely think aren't relevant). Any and all feedback/suggestions would be greatly appreciated.

2. I've seen a lot of defences with this. Does the fact that they've mentioned Ts&Cs in the PoC nullify this point? Should I reword as they haven't provided a copy of them or is it still a valid generic point?

2a. I can't remember if I received a letter before claim and if I did I don't know if it was compliant. Should this be removed?

2c. I can't see a schedule of information in the claim. What does this refer to?

3d No "cause of action", is this not the statement in PoC that says breach of T&Cs? If so can/should I still use it as a copy of the terms and imagery of the signage wasn't provided?

7 & 8. Re: no legitimate standing. Is there any way I can know if this is true? Should I use it even if it isn't as it will require them to prove they do have a legit contract?

I apologise if I've made any newbie mistakes. There is so much information floating around that I am struggling to sift through it all.

Defence is as follows:

In the County Court Business Centre
Claim Number:

---

Between:

Civil Enforcement Limited v

---

I am

---

, the defendant in this matter and 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 XX/02/2018 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. And 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.

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

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 neither the signs, nor the NTK mentioned a possible £328.28 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 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) 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. 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.

10. 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.

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 28th Feb 2018.

(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.

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.

denchgang9

Good luck with this mate - I'm in pretty much an identical situation to yourself, I just received my Claim Form today and it would be useful to see how you go about this.

Like yourself, pretty overwhelmed by the masses of info on this forum, it's great there's so much help, just information overload due to the unique nature of most cases!! Yours seems to be similar to my own.

If i come across anything useful, I'll share it with you as I begin to draft my defence too.

Just to clarify, did you respond to the claim letter and send this off saying you'll dispute the entirety of the claim?

(I hope this isn't breaching forum etiquette, by no means am I trying to hijack your thread! simply joining you on the journey to avoid duplication of responses to similar queries, and hopefully we can be of assistance to each other!)

Umkomaas

Looks like a new round of CEL speculative court proceedings - the last lot was 3 months ago (leading up to Christmas) where a fairly generic template defence emerged and used extensively.

Even with a strong defence and Witness Statement, CEL will run things right up to the wire in an attempt to make the motorist blink first and pay up to avoid court. Go through all the required motions, remain strong and their recent history suggests they will bail out last minute to avoid paying the hearing fee.

The worst scenario is for people to ignore the court papers as that is likely to result in a default judgment and a CCJ.

Coupon-mad

Just to clarify, did you respond to the claim letter and send this off saying you'll dispute the entirety of the claim?

You don't send off anything (not by post) when doing the AOS online, as per the newbies thread, post #2 of the sticky thread tells you what to do and when and how.

magikarpaccio

Hi All, I'm assuming no comments about my defence above is good news I'll be submitting tomorrow unless I hear otherwise.

Lamilad

Hi All, I'm assuming no comments about my defence above is good news I'll be submitting tomorrow unless I hear otherwise.

See this comment I just made on another CEL thread using the same defence

https://forums.moneysavingexpert.com/discussion/5800624

magikarpaccio

Thanks, I've taken a look at your other comment and following that decided to delay by a few days. I've updated the defence as I also found what looked like another good post, there's a couple of highlighted points I would appreciate if someone could clarify for me.

2nd draft is as follows:

I am xxx, the defendant in this matter and the registered keeper of vehicle xxx.

I deny I am liable for the entirety of the claim on the following grounds:

1. The Claim Form issued on the 22 February 2018 by Civil Enforcement Ltd was not correctly filed under The Practice Direction as it was not signed by a legal person. The claim does not have a valid signature and is not a statement of truth. It states that it has been issued by Civil Enforcement Limited as the Claimant’s Legal Representative. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer.

2. This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017) and 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 ‘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. 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

3. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012 (POFA 2012). Such a notice was not served within 14 days of the parking event and when the notice was served, did not fully comply with statutory wording. The Claimant is therefore unable to hold the defendant liable under the strict keeper liability provisions:

The Claimant did not comply with POFA 2012 and give the registered keeper opportunity, at any point, to identify the driver. A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered no later than 14 days after the vehicle was parked. No ticket was left on the windscreen and no notice to keeper was sent within the 14 days required to comply with POFA 2012, only a speculative invoice entitled Parking Charge Notice which was sent outside of the 14 day period, which did not comply with POFA 2012. This would exclude the registered keeper being liable for any charges.

Henry Greenslade, lead adjudicator of POPLA in 2015 and an eminent barrister and parking law expert, stated that “However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort.” 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 neither the signs, nor the NTK mentioned a possible £328.28 for outstanding debt and damages. The additional costs, which the defendant contests have not been incurred, are none of its concern.

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 costs were incurred. The Defendant believes that Civil Enforcement Ltd has artificially inflated this claim. They are claiming legal costs when not only is this not permitted (CPR 27.14) but the Defendant believes that they have not incurred legal costs. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost. The Defendant denies that the Claimant is entitled to any interest whatsoever. The claimant has not explained how the claim has increased from the original parking notice to £328.28. If the Claimant alleges that they claim the cost of its in-house administration, these cannot be recovered - they are staff performing the task that they have been employed for and essential to the Claimant's business plan.

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 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 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.
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. 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.

Remove as it’s redundant? It's included in a lot of defences but I've also seen comments saying that it needs to go.

10. The Defendant has reasonable belief that the Claimant sent a letter claiming to be a final letter before court action, but then instead sent this to more debt collectors. As such the Claimants have artificially inflated the claim value by claiming to involve further debt collectors, the Defendant puts the Claimant to strict proof that all claimed costs were invoiced and paid.

Is this relevant to me?

11. 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 11 months later. The burden rests with the Claimant to identify the driver, who is the only party potentially liable in cases where a parking firm is unable to rely upon the POFA.

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 22 February 2018.

(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.

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.


STATEMENT OF TRUTH

I confirm that the contents of this Defence are true to the best of my knowledge and recollection.