CEL claim letter Feb 2018

magikarpaccio

This is what I think I have to go with. I'm kicking myself for my stupidity over the last year, if this ever happens again I'm keeping all the letters I receive.

I've removed the schedule reference and redundant text while adding the johnersh paragraph on inadequate signage.

I'm leaving the letter before county court stuff in, mainly because if I don't have it my understanding is that I can't bring it up later? It must be in all the CEL defences for a reason. I just didn't recognise it for what it was and this is a frustrating way to learn.

Thanks very much for all the responses, you all do a great public service on here.

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.

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 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. The Defendant avers that the parking signage in this matter was inadequate.
6.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation
6.2. The signage did not comply with the requirements of the Code of Practice of the British Parking Association’s ("BPA") Accredited Operators Scheme, an organisation to which the Claimant was a signatory

7. 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.

magikarpaccio

Loadsofchildren123 wrote: »

If you've already had the photos you can't complain you haven't had them, and documents like this are not required to be attached to PoC.


This has probably already been raised, but can you confirm that at the end of your Claim Form it doesn't say "further Particulars to follow in 14 days"?

For some reason my browser didn't show me this response until after I posted my 'final' defence. I'll remove reference to photos.

magikarpaccio

Is 2d completely shot then and should be removed? They say it's for breach of Ts&Cs but don't provide them. If they provided them in a previous letter does that negate the point?

Coupon-mad

No, leave 2d as it is.

Then the named Defendant on the claim form must sign & date this defence and email it to the ccbcaq email address (easy to find here or on the CCBC contact us page) with 'DEFENCE' and the CLAIM NUMBER in the subject line.

Loadsofchildren123

Yes just leave it in. Technically even though they sent you photos with the NtK they should produce all their core evidence with the letter before claim (precisely because you may not have retained the documents sent early on).

magikarpaccio

Thanks everyone for all your help, I have submitted my defence. If this ever happens again I know that I will be a lot more diligent throughout the course of the process.

nosferatu1001

Rememebr this is not the end of the process, just the start
Bookmark post 2 of the Newbies thread, and read read read it.

DQ is next, then allcoation to local court and filing yoru WS and evidence with them. Almost certainly, just before they need to pay the hearing fee, they will discontinue, but you CANNOT assume that. You must act as live until told it is not.

Coupon-mad

magikarpaccio wrote: »

Thanks everyone for all your help, I have submitted my defence. If this ever happens again I know that I will be a lot more diligent throughout the course of the process.

Some work to do yet, before the hearing, stick around and read some other threads and the NEWBIES thread section by bargepole about 'what happens when' and how to fill the next form in.

magikarpaccio

Hi All!

So this has moved on, I now have to complete the directions questionnaire which has been easy enough when following the advice from the newbies threads but for a few uncertainties on my part.

I have until the 29th May to return it so I'd like to clear these up in case they bite me later. In the order they appear on the form:

1. There's a blank box in the top left corner, "to be completed by, or on behalf of" I assume I should fill this in and that it's not an error that this is blank.
2. The same box has "who is the [1st][2nd][3rd][ ] " then all but defendant crossed out underneath it. Should I leave the numbers untouched as there is only 1 defendant? Or should I cross all but 1st?
3. The same type of box is at the end for signing with "[Legal representative for the][1st][2nd][3rd][ ][Claimant][Defendant][part 20 claimant]. Do I strike any of these out or leave them as I am representing myself?
4. Last one, not part of the form but They say serve copies on all other parties. They haven't given me an address for CEL in the letter so I can only assume I'm good to use one from other correspondence/the original claim?

I know they're pretty dumb questions but this has me sweating the small stuff, especially as I don't want to lose just because I made a mistake on the form. Any advice is appreciated.

Thanks

[Deleted User]

The form is generic. You write in the details and cross out the bits that don't apply.

Gladstones will complete as claimant solicitor you are simply defendant.

Always use the address on the claim form (or nominated email address if that is your preferred method)