CEL Claim Form arrived after 7 months - Help with Defence!

System

26th Jun 18, 1:58 PM
Easy then.

Preamble about the Claimant having failed to comply with the Protocol's requirement to send D a Letter Before Claim providing an explanation of the claim, the evidence relied upon plus the various documents required to be included.

Admit you are the keeper.

Either deny or do not admit you were the driver, there is no legal basis for presuming that the registered keeper was driving, and put C to full proof thereof.

Set out keeper defences (POFA not complied with, no NtK served at all).

Then for good measure the driver defences: ie in any event, no contract formed with driver because no offer was made at all, because there was no signage displayed on the site at all and no terms were communicated via any other means.

Followed by the usual defences of putting C to full proof of its authority from the landowner to operate on the land and to pursue proceedings in its name.

Defending in a nutshell, step by step.

1. Who are the parties to the claim; the signs; the authority

2. Procedural issues - CPR, Code of Practice, POFA

3. Write it all up in a coherent form and try to get it to one A4 or less.

moreunsure

Thank you all for your input, it really is appreciated. I have searched the "CEL crayon" threads and put together the usual defence, adding in my details and taking out a small part that did not apply to my case. I don't want to waste your time as you will have read the below hundreds of times. All I want to double check is that all of Loadsofchildren123's suggestions are taken into account in this? To my mind they are, but please let me know if I'm missing anything! Thanks again to you all.

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 19 June 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!!!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.

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 !!!8220;draft particulars!!!8221;. 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

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 Claim Form; which was sent outside of the 14 day period, 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 !!!8220;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.!!!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 !!!8217;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 £246.66 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!!!8217;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 £321.66 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.
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
iii. There is/was no compliant landowner contract

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. 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 7 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 19 June 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.



xxx
XX June 2018

Coupon-mad

Yes that'll do the job and does follow LOC123's summary of what to include, albeit she preferred this one (post #16):

https://forums.moneysavingexpert.com/discussion/5848364/cel-court-letter

HTH

moreunsure

Hi all,

I need urgent help with this case against Civil Enforcement Ltd case.

Background is (to save you reading above): received a claim letter in the post back in June regarding an alleged parking issue with CEL from the November before. Sought advice on this forum (thank you again to all those who helped) and wrote up my defence. I followed all the next steps and eventually got a letter stating that it had been transferred to the local court. I was given a court date in November, and I also got a letter stating that: UNLESS CEL provided further information by 24 October the case would be struck out.

This was the last contact I had. 24 October came and went and I did not hear anything so I assumed the case had been struck out (as I sort of expected it to be as the very nature of the claim was not fair, given it was 7 months later and they'd given their classic one line description).

Unfortunately I have just received letter saying that I now owe CEL £200 for not appearing in court!!! I completely hadn't understood that the case was going ahead as last I'd heard it was up to CEL to provide more information and I never received confirmation this happened. I have 7 days to pay.

I just wanted to ask anyone on this forum if they have any advice on anything I can do? Or have I lost this one?

Thank you so much again for the help and info you provide on here - hope others have better luck than me. I can't believe the absolute scam that is being allowed to run.

KeithP

Who has sent this most recent letter?

Who has given you just seven days to pay?

moreunsure

Hi Keith

Letter was sent by the local court, who also issued the deadline.

(side note: sorry for opening new thread, am trying to edit it but at the moment it isn't letting me. Will keep trying)

Many thanks

KeithP

moreunsure wrote: »

(side note: sorry for opening new thread, am trying to edit it but at the moment it isn't letting me. Will keep trying)

Mobile telephone users often report that problem.

moreunsure

Is anyone able to help me?

Once the judge has ruled (I did NOT know the court case was going ahead, I was waiting to hear whether CEL had provided any further info on a frankly unwinnable case for them) have I no other option other than paying?

Many thanks in advance

KeithP

The last we heard from you was on 28 June when you showed us a Defence.

That same day Coupon-mad said "Yes that'll do the job...".

Then silence.

You say the court told you "UNLESS CEL provided further information by 24 October the case would be struck out".

I can understand why you might think the court should've written again to confirm the case was going ahead, but with hindsight it would've been better for you to have confirmed the position after 24th October passed.

It would be interesting to see that letter from the court that gave the 24/10 deadline. You really need some way to blame the court for this, and with what you've said so far, you may struggle.