CEL PCN - Court Papers!!!

Coupon-mad

Should I include section 2.d, as I have responded previously, therefore I would be aware what the claim is about?

Yes because the POC are sparse, anyway, and at this point that's all that has been declared in support of this claim. The first Judge to cast an eye over the case (once it is allocated locally to you) will only see the POC at first, and might agree with you and strike it out.

Should I state I tried to pay via the Phone App after 20 odd minutes. even though I have no evidence of this?

Yes you should say what you told us/POPLA, you need to say what occurred and why it is unfair due to their own app failing (not your failure).

Should I state I cost them no loss in profit, even though I didn't pay within the first 30 minutes per terms and conditions.

Nope. Do not mention 'no loss', it walks straight into an easy rebuttal using the Beavis case.

Is section 4 & 5 relevant to my claims, due to there being plenty of clear signs?

Yes. Always complain about unclear signs. Do not even begin to tell me that CEL had the £100 in LARGE LETTERING the same size as the tariff...nope. They did not!

I have heard people mention a 'letter before court'. I did receive a letter before the court papers, warning me they would issue court proceedings. What is the importance of this letter and is the one I received official/acceptable?

Not compliant if it didn't give you 30 days to respond and enclose reply forms, and details/evidence/photos about the claim.

PinkFlamingo16

Thanks for the response Coupon-mad, really helpful.

Once I include the other points, is the draft above to a good enough standard?

Coupon-mad

Yes, CEL ones are easy!

Now read the thread re the press release & witness statement letter, so you know what to expect.

PinkFlamingo16

This is my final draft defence. Could you please double-check it? I have included a new point in paragraph 11. Thanks


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 XXX March 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.
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 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 £328.64. 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.

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

5. 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.
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

6. 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.

7. 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.

8. 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.

9. 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

10. 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 XXXXXXX 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.

11. Within 30 minutes of entering City Plaza Car Park, Market Parade, Gloucester, GL1 1RL, on 6th April 2017; I made an attempt via 'Phone & Pay' app to pay for 2 hours parking. I entered the location number (4658), however, an error message occurred, preventing me from completing the payment. I then made a second attempt before exiting the car park, successfully completing the payment on this occasion.

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.



xxxxxx
XXXXX April 2018

PinkFlamingo16

Also, how should I submit my defence?

Should I complete the defence form sent by the court and then print my defence and send a letter to the court?

Should I email them my defence?

Shoudl I reply on MCOL?

Thanks.

nosferatu1001

You do as post 2 of the newbies thread, which you surely have bookmarked by now, tells you
Print, sign, scan to PDF and EMAIL to court.

KeithP

Your new additional point 11. should be in your Witness Statement rather that your Defence.

Also, it is written in the first person instead of the third person.

Coupon-mad

11. Within 30 minutes of entering City Plaza Car Park, Market Parade, Gloucester, GL1 1RL, on 6th April 2017; I made an attempt via 'Phone & Pay' app to pay for 2 hours parking. I entered the location number (4658), however, an error message occurred, preventing me from completing the payment. I then made a second attempt before exiting the car park, successfully completing the payment on this occasion.

Write this in the third person, starting:

'The Defendant avers that payment was made and any delay was in fact caused by the Claimant's own system failure. A Claimant cannot gain a profit or penalty from a consumer due to an occurrence or system failure within the control of the Claimant, and not within the control of the consumer.

...(blah blah) ...the Defendant made an attempt via 'Phone & Pay' app to pay for 2 hours parking, entering the location number (4658), however, an error message occurred, preventing the payment from completing. The Defendant then..blah blah'

See this example, use (copy and add) the point #6 about reasonable endeavours/Jolley v Carmel:

http://forums.moneysavingexpert.com/showthread.php?p=73667607#post73667607

I also think this, plus your new point #11, should be MUCH higher up the defence, not an afterthought at the end.

HTH

PinkFlamingo16

In the County Court

Claim No: XXXXXX

Between:

Civil Enforcement Limited (Claimant)

-and-

Joe Bloggs (Defendant)


1. The Claim Form issued on the XXX March 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.
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 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 £328.64. 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.

4. The Defendant avers that payment was made and any delay was in fact caused by the Claimant's own system failure. A Claimant cannot gain a profit or penalty from consumer due to an occurrence or system failure within the control of the Claimant, and not within the control of the consumer.

a. Payment for parking was made via mobile phone app using a cashless system provided by Phone&Pay app.

b. This is a distance contract which requires certain information to be supplied in advance.

c. The service makes no provision for the printing of a ticket to display.

d. The Defendant followed the Phone&Pay instructions exactly as shown on the signage within the car park.

e. The Defendant made an attempt via Phone & Pay app to pay for 2 hours parking, entering the location number (4658), however, an error message occurred, preventing the payment from completing. The Defendant then made a second attempt via Phone&Pay app to pay for 2 hours parking, successfully completing payment on this occasion

f. The failure of the payment service to accept payment is not the Defendants responsibility. It is not reasonable in these circumstances for the driver to assume any more obligations for making the payment.
In Jolley v Carmel Ltd [2000] 2 !!!8211;EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

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 without having been furnished with the alleged signage, 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.
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

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.

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.

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

11. 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 XXXXXXX 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.

STATEMENT OF TRUTH

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



xxxxxx
XXXXX April 2018

Coupon-mad

f. The failure or delay of the payment service to accept payment is not the Defendants responsibility. It is not reasonable in these circumstances for the driver to assume any more obligations for making the payment.

Maybe just add 'or delay' above, then it looks ready to print, sign, date and scan so that it can be attached to an email to the CCBCAQ email address. Job done for now, but read other CEL defence threads to be ready for the DQ, and to laugh at CEL's latest desperate letter with a 'press release' and early 'witness statement' offering to settle for less!

You will settle for paying nothing, when they discontinue in the end, before any hearing.