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CEL Defence Help please! - Sense of Urgency have to file in next few days!

Hi Everyone,

I have been reading for days, struggling a bit to navigate and have limited time to submit everything in time for my court hearing.

A quick run down, I got a Parking Charge Notice for overstaying in a car park which I was using the facilities, I had moved and got told I received mail, however ignored as I figured all important documents I'd arranged to come to my new address (obviously forgot to change my log book.)
In a nut shell by the time I collected the post it was at the County Court Business Stage, I had to rush a defence (not ideal) and now have a court hearing day.
The company is the infamous CEL, they did send a letter last week offering to accept one final payment of £100 before paying the court fee of £25. I refuse to pay them a penny so I'm quite happy to go to court ready for battle. I have limited time to submit this as I'm away when the 14 day deadline hits.

It is my understanding from previous threads that I need a Witness Statement (I have copied and amended one please see below - happy for critique / feedback / and help!
Do I also need:
- A copy of the Beavis Case, and if so where would I obtain one?
- Photographic proof of inadequate signage (I already have this)
- A copy of Schedule 4 of the POFA - if so where would I obtain one?
- A copy of Henry Greenslade's wording from the POPLA Annual Report 2015 'Understanding Keeper Liability'
- BPA codes of Practice? Again, obtained from? Their website I would assume if it has relevance

Please see below for draft WS:
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 18 April 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 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 £322.43 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 representatives 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 £322.43. 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.

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 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


Many Thanks in advance for anyones help!
«1

Comments

  • Redx
    Redx Posts: 38,084 Forumite
    Eighth Anniversary 10,000 Posts Name Dropper Photogenic
    if you are relying on POFA2012 and have not named the driver, then edit post #1 and remove any hint of it

    ie:-- no "MY , ME , MYSELF & I" , classic rookie mistake to make

    use the DRIVER for what happened on the day and the KEEPER for everything since that day (I would have thought you would have picked up on this in your research)

    also post your DEFENCE , so people can see what was actually written at that stage too


    however, a lot of the above looks like a defence, not a WS
  • I'm pretty sure I never confirmed who the driver was, the main crux was that the signage was inadequate, by post 1 are you referring to:
    '1. The Claim Form issued on the 18 April 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.'

    If this is looking more defence like, do you have any links / suggestions to what a WS should consist of?

    Attached is the initial defence:

    The Particulars of Claim lack specificity and are embarrassing.
    The Defendant is prejudiced and is unable to prepare a full and
    complete Defence. The Defendant reserves the right to seek from
    the Court permission to serve an Amended Defence should the
    Claimant add to or expand his Particulars at a later stage of
    these proceedings and/or to limit the Claimant only to the
    unevidenced allegations in the Particulars.
    The Claimant has provided no evidence (in pre-action
    correspondence or otherwise) that the Defendant was the driver.
    The Defendant avers that the Claimant is therefore limited to
    pursuing the keeper in these proceedings under the provisions set
    out by statute in the Protection of Freedoms Act 2012 (POFA)
    Before seeking to rely on the keeper liability provisions of
    Schedule 4 POFA the Claimant must demonstrate that:
    There was a relevant obligation either by way of a breach of
    contract, trespass or other tort; and that it has followed the
    required deadlines and wording as described in the Act to transfer
    liability from the driver to the registered keeper.
    It is not admitted that the Claimant has complied with the
    relevant statutory requirements.
    Civil Enforcement LTD are not the lawful occupier of the land. I
    have the reasonable belief that they do not have the authority to
    issue charges on this land in their own name and that they have no
    rights to bring action regarding this claim.
    The Claimant is not the landowner and is merely an agent acting on
    behalf of the landowner and has failed to demonstrate their legal
    standing to form a contract.
    The claimant is not the landowner and suffers no loss whatsoever
    as a result of a vehicle parking at the location in question.
    The Claimant is put to 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.
    The Claimant has at no time provided an explanation how the
    parking charge has been calculated, the conduct that gave rise to
    it or how the amount has escalated to £322.43.
    This appears to be an added cost with apparently no qualification
    and an attempt at double recovery, which the POFA Schedule 4
    specifically disallows.
    The Protection of Freedom Act Para 4(5) states that the maximum
    sum that may be recovered from the keeper is the charge stated on
    the Notice to Keeper.
    The driver did not enter into any 'agreement on the charge', no
    consideration flowed between the parties and no contract was
    established.
    The Defendant denies that the driver would have agreed to pay the
    original demand of £100 to agree to the alleged contract had the
    terms and conditions of the contract been properly displayed and
    accessible.
    Failure to set out clear parking terms
    The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015)
    UKSC 67 insofar as the Court were willing to impose a penalty in
    the context of a site of commercial value and where the signage
    regarding the penalties imposed for any breach of parking terms
    were clear - both upon entry to the site and throughout.
    The Defendant avers that the parking signage in this matter was,
    without prejudice to his/her primary defence above, woefully
    inadequate.
    At the time of the material events the signage was deficient in
    number, distribution, wording and lighting to reasonably convey a
    contractual obligation;
    The signage did not comply with the requirements of the Code of
    Practice of the Independent Parking Committee (IPC) Accredited
    Operators Scheme, an organisation to which the Claimant was a
    signatory; and the signage contained particularly onerous terms
    not sufficiently drawn to the attention of the visitor as set out
    in the leading judgment of Denning MR in J Spurling v Bradshaw
    [1956] EWCA Civ 3.
    The signage where the vehicle was parked has not been disclosed
    and photographic evidence has not been submitted, there is no
    clarfication of parking restrictions.
    The Code of Practice of the Independent Parking Committee (IPC)
    Accredited Operators Scheme, an organisation to which the Claimant
    is a signatory, states that should be of such a size and in a font
    that can be easily read by a motorist having regard to the likely
    position of the motorist in relation to the sign. The signage in
    the area does not meet this requirement.
    It is therefore denied that the signs used by this claimant could
    have formed a fair or transparent contract with a driver or was
    capable of being formed in any event. The signs were insufficient
    in terms of their distribution, wording and lighting hence
    incapable of binding the driver.
  • Redx
    Redx Posts: 38,084 Forumite
    Eighth Anniversary 10,000 Posts Name Dropper Photogenic
    edited 7 October 2018 at 11:25AM
    I wont be giving you any legal advice here, just common sense, nor will I be doing your job of finding suitable WS posts to crib from, that is your job, but start by looking at post #2 of the NEWBIES FAQ sticky thread at the top of this forum


    post #1 is your first post in this thread , designated by the hash and a number on the right , so your last post was #3 and my post is #4

    as you have not identified the driver so far, edit your first post accordingly , learn to speak as if narrating a story by a third party, not a biography

    so no "MY , ME , MYSELF & I" , seems a simple enough request, so edit your posts accordingly and do not use those 4 words again without an extremely good reason , ie:- this is court, not a gcse english exam (hint)

    put some paragraphs into your posts too, nobody is going to read a great wall of text like post #3 above, especially if they are using smartphones or tablets to view this thread (another simple request, ie:- make it easier for people to read and they may help you)

    these are just basics of forum life, nothing to do with your WS, just a shame I am having to point out simple errors which detracts from getting the job done

    but a WS is nothing like a defence, and your initial WS looks like a defence and not a WS and I have not bothered to read your defence due to what I have said


    plus your thread title EVEN mentions DEFENCE, not WS


    the DEFENCE has already been filed so cannot be altered without paying out lots of money to the court , it says
    CEL Defence Help please!

    I hope you understand ?
  • Redx - you may understand 'forum life' a lot more than I do as you're on 19,461 posts whereas after posting this I'll be on 3. This may be common sense to you, to a lot of other people it's a new topic and a lot to take in, especially in a short space of time.
    I hope you understand that there is no need to be condescending or rude.
  • Redx
    Redx Posts: 38,084 Forumite
    Eighth Anniversary 10,000 Posts Name Dropper Photogenic
    I agree, and I am not being rude, I am pointing out the basic facts on how to use the forum and not incriminate yourself on the internet at the same time

    if you take my matter of fact bluntness for being rude , then you need to develop a thicker skin because this court fest is going to mean that you need to "toughen up"

    my posts are matter of fact, if you do not like what I have said that is your problem, but you have bigger issues then my writing style (an engineer by trade that wrote reports without emotion) and so blabbing about who did what by publishing those details on the internet is foolhardy as CEL can screenshot your posts and use them against you in court

    but its your funeral
  • Redx
    Redx Posts: 38,084 Forumite
    Eighth Anniversary 10,000 Posts Name Dropper Photogenic
    DNASavvy wrote: »
    happy for critique / feedback / and help!


    you said this in your first post, yet its clear you do not like critique or feedback or help
  • 'and so blabbing about who did what by publishing those details on the internet is foolhardy as CEL can screenshot your posts and use them against you in court

    but its your funeral'

    Bit excessive isn't it?
  • Redx
    Redx Posts: 38,084 Forumite
    Eighth Anniversary 10,000 Posts Name Dropper Photogenic
    not when you think that we have had people on here like Lamilad whose posts on here and on pepipoo were screenshot and the PPC tried to use them against him in court


    5 years of being here means I know a lot that you dont, but instead of taking the critique and advice onboard you seem more interested in fighting anyone who replies, which will put others off from helping you


    I wont bother replying any further as its clear your blinkers are on and the shutters are up meaning you wont even take good basic advice onboard
  • Coupon-mad
    Coupon-mad Posts: 153,313 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    OK let's breathe and work on this WS and evidence.
    Do I also need:
    - A copy of the Beavis Case, and if so where would I obtain one? No.

    - Photographic proof of inadequate signage (I already have this) Yes.

    - A copy of Schedule 4 of the POFA - if so where would I obtain one? In the NEWBIES thread 1st post, it's linked, or Google it.

    - A copy of Henry Greenslade's wording from the POPLA Annual Report 2015 'Understanding Keeper Liability' Yes, you can Google it.

    - BPA codes of Practice? Again, obtained from? Their website I would assume if it has relevance - Yes of course, or Google BPA Code of Practice.

    Why not go back the the NEWBIES FAQS thread and hit control & F and find the word 'witness' like you would find a section in any PDF or webpage? The sticky thread is where the example WS and evidence are linked & explained.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top or bottom of any page where it says:
    Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • Why not go back the the NEWBIES FAQS thread and hit control & F and find the word 'witness' like you would find a section in any PDF or webpage? The sticky thread is where the example WS and evidence are linked & explained.

    Apologies for the belated response I have been manic at work, thank you for the control & F tip ( I had no idea!), thanks for the clarification.
    I have received CEL's bundle now so just drafting my Witness Statement in response to theirs.
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