claim form from CEL he;p needed on how to play it

koby83

done!
would you include time looking for a space arguement or is that complicating the issue?

Redx

you can add someting about GRACE PERIODS and study the relevant CoP to see what is said about them, stating that you believe the driver had problems looking for a space etc, or maybe something you can expand on in the witness statement later

BUT, a judge is more likely to give weight to driver testimony, rather than a keeper, hence why some defences are better put by the driver

but for POFA2012, its a defence by the KEEPER, who may know some details about what happened on the day to the driver

its a quandary isnt it ? but bear in mind that a WS comes later in this process, a few weeks before any court case, so it can be expanded upon then, as long as grace periods are mentioned now

koby83

yes and im really unsure on which to use
maybe i should just leave it as is and then it wont complicate matters as it did take 29 days for them to issue the pcn so therefore i have a definitive arguement

koby83

also the signs at the carpark are really shody and faded. should i include a picture of this in the pdf or do i save that for if and when i go to court?

Redx

evidence and WS are a few weeks before the court date, not now

have you read the walkthrough by member BARGEPOLE ? , posted on here 2 years ago and still valid now ?

POFA2012 compliance is a powerful argument as you rightly say, so if they failed it then the keeper is in theory not regarded as liable

if they decide to throw the towel in it may not even get as far as sending in the WS and signage pics

koby83

well the alleged pcn was for the 1/8/16 the issue date was 30/8/16 so it seems that they failed but when pointed out in a response to them they said "there is no legal requirement to send out the pcn within 14days of the incident day as there is no referencr to POFA on this ticket, your interpretation of the Act is incorrect"

Redx

they are right , if they were telling this to the driver

but as they are telling this to the KEEPER, then the KEEPER has no liability and is under no obligation to name the driver

so they can go swivel so stick to the KEEPER defence , lol

POFA2012 is not mandatory, but if they fail to adhere to POFA then they cannot expect to beat a keeper appeal or keeper defence


basically you are saying , "look , I am the keeper and am not legally responsible for your invoice , so F R O !!" LOL

koby83

ahhh get it now, they dont make this easy!!!

koby83

I am sending this off tomorrow to the email that you suggested.
does this look/sound ok i am hoping to defend as keeper. Have i worded it ok?(missed the top bit off with the claim no and cel v me as it has all my details on)
also do i just send it via email or should i send a registered post copy also?
many many thanks

the defendant in this matter and registered keeper of vehicle ....

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

1. The Claim Form issued on 01/10/2018 by Civil Enforcement Limited 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. 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 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 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.


3. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold a registered keeper defendant liable under the strict keeper liability provisions.
4. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.
Schedule 4 of the Protection of Freedoms Act 21012 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 mentioned a possible £276.76 for outstanding debt and damages. It also states that charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken.
Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.
5. 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 £60 “legal representative’s (or even admin) costs” were incurred. I deny the Claimant is entitled to any interest whatsoever.
6. In the absence of any proof of adequate signage that contractually bound the driver then there can have been no contract and the Claimant has no case.
a) 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 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
(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 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 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.
The terms on the Claimant's signage are displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. They are also so faded they are barely readable. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.
Civil Enforcement Ltd breaches -:
(i) the signs were not compliant in terms of the font size, readability, lighting or positioning.
(ii) the sum pursued exceeds £100.
(iii) there is / was no compliant landowner contract.

7. 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.

8. This Claimant files serial claims regarding sites where they have lost the contract, known as revenge claims and it believed this is one such case. This is not a legitimate reason to pursue a charge out of proportion with any loss or damages the true landowner could pursue.
The Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.
On contacting the landowner the defendant was informed that the landowner was trying to terminate their current parking control contract with Civil Enforcement Ltd due to numerous problems with complaints from customers regarding unfair and unjust fines. Thus said the defendant is a long standing customer of the site in question as they hold a gym membership for a business on this site. The defendant is not aware if Civil Enforcement Ltd still hold a parking control contract for this site or ever had one as no proof of the matter has been provided despited being challenged to provide one.

9. The charge is an unenforceable penalty based upon a lack of commercial justification.
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 1st October 2018.

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 above facts and statements are true to the best of my knowledge and recollection.

Coupon-mad

do i just send it via email or should i send a registered post copy also

Email only, to the CCBC AQ email address posted by KeithP.

Put URGENT DEFENCE - CLAIM XXXXXXX in the subject line and attach a SIGNED & DATED copy.

Thing is, do not rush - you should work on this more over the weekend.

I say you have copied an old template. It doesn't even tell the Judge what the situation was/what the fact are, and what your defence is, and it does not reply to the allegations in the particulars.

Someone using that (or a very similar) CEL defence this Summer had their defence struck out - without even getting a hearing date, initially - by a Judge who could not see a defence in there...he had to work very hard to get the case back on, pointing out the POFA/no keeper liability issue that a Judge didn't see.

8. This Claimant files serial claims regarding sites where they have lost the contract, known as revenge claims and it believed this is one such case.

Really? Or have you just copied an old template defence?

I have been off forum and without looking back to the start of your thread (no time) I have no idea what your defence is about. I don't know the location, the contravention alleged, or what may have happened or why you are not liable. So a Judge won't, either.

Have a look at the concise defence examples written by bargepole, in the NEWBIES thread 2nd post.

Why not use one of those and insert the facts & admit/deny the allegations in the Particulars of Claim?