CEL defence letter help

0123courtney

Here's the basics. Not sure whether or not to include dates but have taken them out anyway. More than happy to include them if needs be.
The situation is a little odd as the person was at a party in a hotel. the signs are pretty obvious to say give your registration but being only young at the time they just went straight in the party excited to see their friends, they forgot to give the registration plate in. Bad move. The hotel have said they did have full right to park there, currently in the process of getting that in writing. This was March last year. Of course the driver ignored all the letters and now have a court claim. AOS part has been done and now defence part. please be aware that the photograph parts have been removed as when first PCN came in they did have photos of the vehicle arriving and leaving.



I XXXXX the defendant, deny I am liable to the Claimant for the entirety of the claim for each of the following reasons

• The Claim Form issued on xxxxx 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!!!8217;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.
• 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 !!!8216;Letter before County Court Claim!!!8217;, 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 Claim form Particulars did not contain any evidence of contravention or photographs. Furthermore, the due date of the purported £329.62 sum is listed as due on xxxxx , but the alleged debt did not exist on that date as the PCN was not issued until xxxxx (exceeding the 14 day limit). No sum could have been outstanding on the date stated in the Particulars of Claim that are therefore untrue. These documents and the !!!8216;Letter before County Court Claim!!!8217; 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 !!!8216;take stock!!!8217;, 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 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

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 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



(g) 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



(h) Sporadic and illegible of site - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum.


i. 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.


ii. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract



(i) Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.




(j) Henry Greenslade, lead adjudicator of POPLA in 2015 and an eminent barrister and parking law expert, stated that !!!8220;However keeper information is obtained, there is no !!!8216;reasonable presumption!!!8217; in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. !!!8221;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 !!!8216;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 £329.62 for outstanding debt


(k) 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!!!8217;s (or even admin) costs!!!8217; were incurred.


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 without having been furnished with the alleged signage 'contract', none of this applies in this material case.


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 £329.62. 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.



(l) 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. 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.





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.





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 over 10 months later. 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 registered keeper, can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.



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 12 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 13 March 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 contents of this Defence are true to the best of my knowledge and recollection.