CEL court defence - urgent help please

oldnfat

I have spent the last 2 weeks trying to read all the relevant threads relating to CEL PCN's on here and other forums. I have some mental health issues and, I'm now suspecting, some intelligence problems as well because I'm struggling to understand a lot of things and how things relate to my situation. I'm hoping someone will be able to help me.

Bit of background - I rarely leave my house but am occasionally coerced to go out on short trips by my son. On one of these trips we went to a large retail park where we shopped in Home Bargains and B&Q (I have the receipts still), had lunch in B&Q and went around SCS looking at carpets and suites. My son then received a £100 PCN from CEL as the RK for an overstay of 30mins. I told him to ignore it and pass all paperwork to me - stupidly I now know but that was the advice when I was still able to drive a good few years ago and I didn't think to check if things had changed - all the paperwork still seems as amateurish and badly mailmerged as it used to.

I also have some mobility problems - takes me ages getting in and out of cars, can't walk too far without having to take regular sit down breaks on my walking stick seat etc etc but even with me shopping at a snail's pace, I still think 3 hours is not enough time for a retail park of this size with the amount of shops in it but I'm guessing that's not a defence?

Anyway, fast forward 8 months during which we received the usual solicitors/debt collectors letters and then the N1SDT claim form which I initially thought was fake - it looked like a photocopy, didn't have a signature on it and I'd never heard of MCOL. I eventually googled it and realised it was legit , set up an account and completed the AOS which eventually led me to this forum and the wonderful people on it who go out of their way to help numbskulls like me!!

Unfortunately, I've been faffing about for so long trying to follow links, losing track of many many open tabs and retain information that I totally lost track of the date the defence needed to be in for which I think is tomorrow hence the urgent request for help.

Particulars of claim : claim for monies relating to a Parking Charge for parking in a private car park managed by the Claimant in breach of the T&Cs. Drivers are allowed to park in accordance with T&Cs of use. ANPR cameras and/or manual patrols are used to monitor vehicles entering and exiting the site. Time in 9:28 Time out 12:59 Debt + damages claimed the sum of 236.00 (it then goes on about interest incl of 12.98). They've added a court fee of £25, legal costs of £50 making the total amount £323.98

From the draft defences I've read, I assume I can use the following parts (apologies if I'm wrong) :
1. Not correctly filed coz it wasn't signed
2. Failure to meet Notice to Keeper obligations
3. Unrecoverable sums included

I'm unsure whether I should include:
1. The Beavis argument (many apologies but I've read and read it and I still can't wrap my head around when it applies and when it doesn't!)
2. Data Protection Code of Practice for Surveillance Cameras and Personal Information
3. That the claimant is CEL not the landowner
4. My mental and physical problems or should that only be as a witness statement if it ends in court?

Apologies for the lengthy post but I wanted to try to cover everything as best I could without giving too much away ….I've become quite paranoid that they'll be able to identify me after reading what some of these people/companies will stoop to!! I would be extremely grateful if someone could help me …..please be gentle!!

Quentin

First thing is to establish your deadline so you don't end up with a default judgment

Tell us the date of issue on the claim.

Coupon-mad

Search this forum for 'CEL crayon' and see how easy it is to just copy a defence about CEL.

Quentin wrote: »

Tell us the date of issue on the claim.

oldnfat

Sorry - I didn't put that as part of my paranoia in "them" trying to identify me lol. Date of issue was 29th May

Coupon-mad

OK now show us your defence based on copying any of the others.

You should have this done by lunchtime (not joking, it is that easy).

oldnfat

Oh dear I'm afraid I don't find anything easy. My original post took me all night to put together ...I haven't been to bed yet!! Do you mean that CEL will take no notice of what the defence actually says even if parts don't seem to be applicable to me?

Coupon-mad

I mean a child with a crayon could copy a CEL defence and win...no need to WRITE anything!

Search this forum for 'CEL crayon' and see how easy it is to just copy a defence about CEL.

The bottom line is - if a solid defence against a CEL court claim is produced, CEL, every time (on current performance), will withdraw. Those defences are littered across this forum. It's just a matter of seek and ye shall find!

HOW TO USE THE FORUM SEARCH FUNCTION:

Use the Forum Jump button (one near the top and one near bottom of this page) to get back to the forum thread list. Just above the threads, on the right, is a heading along a line, next to forum tools, called 'Search this Forum'.

Put your key word(s) in and change the default search from 'Show Threads' to 'Show Posts'.

Umkomaas

Try these, they all contain defences that should be enough for now for you to get something out by your deadline.

https://forums.moneysavingexpert.com/discussion/comment/74345570#Comment_74345570

https://forums.moneysavingexpert.com/discussion/comment/74266983#Comment_74266983

https://forums.moneysavingexpert.com/discussion/comment/74184821#Comment_74184821

https://forums.moneysavingexpert.com/discussion/comment/74167009#Comment_74167009

Have a read through these defences and copy and paste from them to form your own.

oldnfat

Sorry I've just realised I copied the wrong one and that it should only be in the third person etc. Will do it again ...will delete last one if I'm able

oldnfat

Would this be ok?

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

1. The Claim Form issued on the 29th May 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 Claimants 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 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 Parking Charge Notice 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 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. 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 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 £323.98 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'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 £323.98 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. 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

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 15 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.

Coupon-mad

As long as that is signed and dated by your son, not you.

I would add a section near the start, putting it as number 3 (move the other numbered paragraphs down) about the mobility issue:

3. Whilst 3 hours may be enough for able-bodied shoppers at this busy retail park with several outlets sprawling over a large site, it is not sufficient for disabled patrons and the Claimant has made available no 'reasonable adjustment' method of claiming extra time for people who need it for medical reasons.

3.1. The driver was with their mother as a passenger, who suffers from significant mobility problems. It takes her ages getting in and out of cars, she cannot walk too far without having to take regular sit-down breaks and she uses a walking stick/seat. Shopping is done at a snail's pace and she undoubtedly meets the definition of disability under the Equality Act 2010, having mobility-related 'protected characteristics'.

3.2. There is no lawful excuse for the conduct of the Claimant, which amounts to disability discrimination at the outset. At the very point of the 3 hour 'offer' being made it is unfair and discriminatory, due to making no policy available and advertised clearly at the disabled bays, to extend time for disabled people. This is 'indirect discrimination' by failure to adhere to the Claimant's statutory duty to consider and make adjustments of fixed time limits, in readiness for the significant number of the disabled population at large, who may wish to shop.

3.3. Under the Equality Act 2010; the concepts of 'indirect' and 'direct discrimination' are completely different things and the former does not allow a service provider to justify their blanket policy of 3 hours by any excuse that they ''didn't know'' about an individual's disability. A Service Provider does not have to know about individual needs, but they must make provision for the expected numbers of disabled people at large. Making provision does not stop at painting a few disabled bays on the tarmac, because whilst this assists physical access, it does not adjust the inflexible time limit.

Hope you did the AOS in his name, not yours?

This is not your claim to defend, if it's his name on the claim form.