CEL County Court form

wth_2

Coupon-mad wrote: »

If you do the AOS, you then have longer (28 days) to respond with the defence, well into May.

See the NEWBIES thread and follow the AOS walk through in pictures. Do it now.

KeithP wrote: »

By doing the AoS you are buying yourself another two weeks to formulate your Defence. Well worth doing.

Do the AoS and you have until 4pm on Monday 21 May 2018 to file a Defence.

Instructions on doing the AoS are in a dropbox file linked from post #2 of the NEWBIES FAQ thread. It's in pictures - very easy to do.

AOS Completed

The_Deep

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

Hospital car parks and residential complex tickets have been especially mentioned.

The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas.

wth_2

ok, here is my defence!! Any suggestions?

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

Preliminary

I deny I am liable for the entirety of the claim for each of the following reasons:

1. The Claim Form issued on the XXx by Civil Enforcement Ltd 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. 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

f. Alternatively, the Defendant asks that the Claimant is required to file Particulars 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. Once these Particulars have been filed, the Defendant asks for a reasonable time to file another defence.

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.'

Signage

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 complete lack of evidence and photographs, and without having been furnished with the alleged signage 'contract', 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 is this applicable in my case,
I'm unaware of whether the driver of this vehicle could see any adequate/illegible signage, having revisited the site recently, they may well have changed the signs since the "incident" in xxx

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 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

No Standing

6. No standing - this distinguishes this case from the Beavis case:

a. 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. Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable expect a registered keeper to be able to recall the potential driver(s) of the car 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 a registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.

The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

* Failed to disclose any cause of action in the incorrectly filed Claim Form issued on xxx
* Sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis/Vine v Waltham Forest) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.

In addition to the conduct regarding the lack of good service of the claim, the purported cause of action was meritless and misconceived. Given the fact that this Claimant does not rely on the Protection of Freedoms Act 2012, Schedule 4, and cannot claim 'keeper liability' under that law due to the wording of its notice, the action of pursuing a registered keeper with no evidence as to who was driving on the material date, is vexatious and wholly unreasonable. From the outset, this Claimant's claim was without merit and had no prospects of success.

Should the claim continue to trial, the Defendant submits that, for any or all of the reasons stated above, the Claimant is not entitled to the relief in the sum claimed, or at all, and invites the Court to dismiss the claim in its entirety, and to award such Defence witness costs as are permissible pursuant to CPR 27.14.

STATEMENT OF TRUTH

I confirm that the contents of this Defence are true.

xxx

Loadsofchildren123

I think you've missed out the most crucial point. Which is that, if any contract was formed, driver DID comply with it by remaining for under 60 minutes and being a surgery user during this entire period.


Get written confirmation from surgery that driver was seeing the dr that day, the appointment time and confirmation that dr was running late.


Get confirmation that driver did whatever they were supposed to do (eg provide reg details at the front desk).


If surgery manage won't assist, I'd get an appointment with the GP they saw and explain the problem to them. They're wasting your time, you waste theirs. Also ask practice manager for details of their independent complaints procedure. They won't like that. If it's their carpark, and it's offered to patients, then they ARE responsible for CEL's actions in wrongly targeting a genuine patient.


The good bit is that the claim acknowledges driver was parked for precisely 59 minutes, so under the allowed hour. All you have to show is that driver was a patient during that period.


CEL always back down anyway, the reason we say this is posted on a CEL thread literally every day.

wth_2

Thanks for that, I've added the following as point 1 and renumbered the rest.

1. The Claim refers to parking in a car park that is only to be used for whilst visiting xxx and has a time limit of 1 hour, the claim form itself states that the entry and exit times captured by the ANPR cameras are for a total time of 59 minutes.
a. if this claim is being pursued as a breach of contract then the defendant struggles to understand how the contract was breached by staying within the time limits.

I need to submit this defence by the end of the week but the point about not being able to submit a full defence until they clarify what they are actually taking me to court for will surely allow me to add information should they decide to pursue it?

Coupon-mad

g. Once these Particulars have been filed, the Defendant asks for a reasonable time to file another defence.

Search the forum for that entire sentence and find the comments I've made about that awful defence section, several times over.

Loadsofchildren123

I'd do this instead of your para - you need to be very specific. about what you admit, deny or put them to full proof of.


If the claim is for a breach of contract, and should it be determined that a contract was entered into by the driver, the Defendant denies that the terms of such contract were breached. The Defendant understands from the Claim Form and the Schedule of Information thereto that the terms and conditions of any contract were that the car park may only be used by visitors to xxxx surgery, for a maximum of 60 minutes. The driver of the vehicle was on the relevant date and throughout the period of parking a visitor to xxxx surgery, and the Particulars of Claim acknowledge that such use was for under 60 minutes and was therefore within the time limits allowed. The Defendant puts the Claimant to full proof of its claim.