PCN recieved from CEL now County Court

Dropedit

I have my case set for 31st August, I know I have to send my defense papers to the Court in advance of the hearing, I have copied and drafted this effort for your consideration, Any advice will be truly appreciated.

IN THE COUNTY COURT

CLAIM No:

Between:

CEL (Claimant)

and

xxxxxx (Defendant)



I, XXXXXXXX of XXXXXXXXXX. Am the defendant in this matter, and will say as follows;


County Court Business Centre
Claim No. xxxxxxxxx
Claimant: Civil Enforcement Limited
PCN:xxxxxxxxxx
Defendant: xxxxxxxx

xxxxxxxx



I am xxxxxxx the defendant in this matter and the registered keeper of vehicle. XXXXXXX

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

1. The Claim Form issued on the 28 February 2017 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 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. 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 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:!


Henry Greenslade, lead adjudicator of POPLA in 2015 and an eminent barrister and parking law expert, stated that Schedule 4 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, nor the permit information mentioned a possible £236.00 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 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.£331.12 The claimant has not explained how the claim has increased from the original parking notice to 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 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 by 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 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 sum pursued exceeds £100



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.



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 28 February 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.

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.

My recollection of the day is that I entered the car park, there were a number of empty spaces, I chose one and parked.
I had intended to pay at the machine, I read the instructions that it only accepted coins and gave no change.
I read the instructions of how to pay by mobile phone and this is what I did, buying two hours parking.
After making the transaction I was expecting to receive a text confirming the time of arrival and departure also the cost, a receipt in fact, this did not happen.
I made a note of the time I needed to leave the car park.
Returning to the car park I left the with some fifteen minutes to spare.

I have my mobile phone receipt for this transaction.

STATEMENT OF TRUTH

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

sausage_fingers

I assume that's not your real name, Sid?

KeithP

Dropedit, as well as your real name, you would be wise to remove your Claim Number from your latest post.

11/04/2018

1. The Claim Form issued on the 13 March 2018...

Claim Form issued on 26 March 2018

None of those dates are correct.

...mentioned a possible £331.12 for outstanding debt...

Is that the figure mentioned on your Claim? I suspect not.

Please present a fully proof read draft.


But hang on...

Dropedit wrote: »

I have my case set for 31st August, I know I have to send my defense papers to the Court in advance of the hearing, I have copied and drafted this effort for your consideration, Any advice will be truly appreciated.

If you have a court date, then you must have already filed a Defence.
We can see your draft Defence in post #7.

Is it perhaps a Witness Statement that you are now trying to create?

Dropedit

You are of course correct KeithP. I should not try to do this when I am tired.
So now I will construct my Witness Statement.
Thanks.

Dropedit

Does this look okay for my Witness Statement ? Please anyone !!

In the County Court at XXXXX
Claim No. XXXXXX
Between
Civil Enforcement Ltd (Claimant)
and
XXXXXX(Defendant)

Witness Statement

1. I am [Name], of [ Address].[Postcode], the Defendant in this matter. I will say as follows:

2. On [DATE], I parked my vehicle reigistration No. [XXXXX] in the car park at the rear of XXX
The XXXXX [Postcode]

3. I parked in a marked parking bay and after reading the payment instructions used my mobile phone to pay for my two hours of parking.

4. No text message was received to confirm the transaction, so I wrote the time to vacate the parking site on my wife!!!8217;s hospital appointment letter.

5. I returned to the car park and left in my vehicle with some fifteen minutes to spare.

6. Upon receipt of a parking charge notice from the Claimant I contacted them and pointed out that I had made payment and had proof.

7. I have a statement from my mobile phone company showing that I had made payment to park, attached as Exhibit A.

8. The Claimant sent me a letter asking me to give them details of my mobile phone. I thought this odd as they should have this information to hand, I did not respond.

9.The Claimant has never explained to me why they believe I am at fault, it could be any of the conditions they impose: If you (a) do not pay within 10 minutes of arrival; or (b) overstay the purchased parking time; or (c) do not enter your full, exact, registration number when making your payment, you agree to pay the standard fee of £100 to Civil Enforcement Limited. Disabled badge holders are not exempt from these conditions.

10. I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as is allowable pursuant to CPR 27.14

Statement of Truth

I believe that the facts stated in this Witness Statement are true.


Signature

Date