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CEL County Court Defence
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PerranDriver
Posts: 19 Forumite
So I've been ignoring CEL since August last year (only discovered this amazing forum earlier this year)
The driver parked on Porthleven CIC car park on 11th June 2017. Overstayed by 35 minutes due to driver's pregnant partner feeling ill and neither realising it.
PCN was issued on 5th July 2017 - from looking through other threads on here, it seems a late NTK should be enough on it's own to get this cancelled.
After receiving letters from ZZPS and Wright Hassel chasing, I wrote an email to the landowner. Heard nothing for weeks, then received a non-compliant final warning before court action from CEL.
Not being a compliant LBCCC, I ignored it again. Now I have received court papers. Having done a fair bit of research on here and looked through other, similar CEL defences, I have adapted one that seems the most relevant and succinct. I would hugely appreciate your critique:
In the County Court Business Centre
Claim Number
Between:
Civil Enforcement Limited (Claimant) v (Defendant)
Defence Statement
I am ____, the Defendant in this matter and the registered keeper of vehicle ____. I currently reside at ___.
I deny I am liable to the Claimant for the entirety of the claim on the following grounds, any of which are fatal to the Claimant’s case:
1. The Claim Form issued on the 1st October £335.52 as the Claimant’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. 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. The Claim form Particulars did not contain any evidence of contravention or photographs. Furthermore, the due date of the purported £260.52 sum is listed as due on 11th June 2017, but the alleged debt did not exist on that date as the PCN was not issued until 5th July 2017 (exceeding the 14 day limit) and was for £100. No sum could have been outstanding on the date stated in the Particulars of Claim that are therefore untrue
e) The additional particulars of claim are signed purportedly by Ashley Cohen, Mr Cohen was reported to sign off witness statements under London Councils POPLA on behalf of landowners, for CEL POPLA cases falsely stating authority. It is submitted that he is a director of another company, Bemrose Mobile Limited which supplies the pay by phone payment methods for parking. Mr Cohen was a former director of Creative Contracts Ltd but has since resigned. Mr Cohen is therefore put to strict proof the capacity and authority he has in signing such statements.
f) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.
g) Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply 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
h) Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.
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 me 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 £335.52 for outstanding debt and damages.
4. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee, Ashley Cohen, who drew up the paperwork is remunerated by Civil Enforcement Ltd and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) 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 £100 parking notice to £260.52 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. None of this applies in this material case.
6. In the absence of any proof of adequate signage that 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 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 - 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) Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
(iii) 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.
(iv) 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.
(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 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.
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 1st October 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.
c) failed to issue a compliant notice to keeper within 14 days under Schedule 4 of the Protection of Freedoms Act 2012 such that Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.
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.
Signed
Date
Is there anything else you would suggest to include?
I have until Sat 3 Nov to submit my defence. Is it best to email it to MCOL?
Massive thanks in advance.
The driver parked on Porthleven CIC car park on 11th June 2017. Overstayed by 35 minutes due to driver's pregnant partner feeling ill and neither realising it.
PCN was issued on 5th July 2017 - from looking through other threads on here, it seems a late NTK should be enough on it's own to get this cancelled.
After receiving letters from ZZPS and Wright Hassel chasing, I wrote an email to the landowner. Heard nothing for weeks, then received a non-compliant final warning before court action from CEL.
Not being a compliant LBCCC, I ignored it again. Now I have received court papers. Having done a fair bit of research on here and looked through other, similar CEL defences, I have adapted one that seems the most relevant and succinct. I would hugely appreciate your critique:
In the County Court Business Centre
Claim Number
Between:
Civil Enforcement Limited (Claimant) v (Defendant)
Defence Statement
I am ____, the Defendant in this matter and the registered keeper of vehicle ____. I currently reside at ___.
I deny I am liable to the Claimant for the entirety of the claim on the following grounds, any of which are fatal to the Claimant’s case:
1. The Claim Form issued on the 1st October £335.52 as the Claimant’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. 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. The Claim form Particulars did not contain any evidence of contravention or photographs. Furthermore, the due date of the purported £260.52 sum is listed as due on 11th June 2017, but the alleged debt did not exist on that date as the PCN was not issued until 5th July 2017 (exceeding the 14 day limit) and was for £100. No sum could have been outstanding on the date stated in the Particulars of Claim that are therefore untrue
e) The additional particulars of claim are signed purportedly by Ashley Cohen, Mr Cohen was reported to sign off witness statements under London Councils POPLA on behalf of landowners, for CEL POPLA cases falsely stating authority. It is submitted that he is a director of another company, Bemrose Mobile Limited which supplies the pay by phone payment methods for parking. Mr Cohen was a former director of Creative Contracts Ltd but has since resigned. Mr Cohen is therefore put to strict proof the capacity and authority he has in signing such statements.
f) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.
g) Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply 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
h) Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.
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 me 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 £335.52 for outstanding debt and damages.
4. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee, Ashley Cohen, who drew up the paperwork is remunerated by Civil Enforcement Ltd and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) 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 £100 parking notice to £260.52 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. None of this applies in this material case.
6. In the absence of any proof of adequate signage that 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 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 - 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) Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
(iii) 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.
(iv) 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.
(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 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.
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 1st October 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.
c) failed to issue a compliant notice to keeper within 14 days under Schedule 4 of the Protection of Freedoms Act 2012 such that Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.
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.
Signed
Date
Is there anything else you would suggest to include?
I have until Sat 3 Nov to submit my defence. Is it best to email it to MCOL?
Massive thanks in advance.
0
Comments
-
you can remove the word STATEMENT, its just DEFENCE , nothing more
read the BARGEPOLE examples to see the layout and what the header and footer are, because I am sure hios statement of truth may be different
yes we suggest emailing a signed and dated copy as a pdf attachment to the CCBC email address, read many of the posts by KeitherP recently where he tells others how to do this
you can either add a digital signature, or print, sign and date, and scan instead
I suspect that it wont be a saturday deadline, as they are not open0 -
What is the Date of Issue on your Claim Form?0
-
-
PerranDriver wrote: »I'll have a look at Bargepole's examples, ta.
1 October 2018
are you saying that you have not even looked at recent defences honed or rewritten by member BARGEPOLE ?
dearie me
I think you will find that any of the other defences dont set out certain facts etc, so you may well be on a rewrite0 -
With a Claim Issue Date of 1st October, please confirm that you did the Acknowledgement of Service before 20th October.PerranDriver wrote: »1 October 2018
If you have not yet done the the Acknowledgement of Service, then do it now - tonight.
To do the AoS, follow the guidance offered in a Dropbox link from post #2 of the NEWBIES FAQ sticky thread.
Having done the AoS, you then have until 4pm on Monday 5th November 2018 to file your Defence.
Less than a week, but don't leave it to the very last minute.
When you are happy with the content, your Defence should be filed via email as described here:
1) Print your Defence.
2) Sign it and date it.
3) Scan the signed document back in and save it as a pdf.
4) Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
5) Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
6) Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
7) Wait for your Directions Questionnaire and then re-read post #2 of the NEWBIES thread to find out exactly what to do with it.0 -
KeithP - yes, AOS submitted on 5 October (as per NEWBIES thread), received on 8 October.
Thanks for the advice, I'll get the defence submitted by Wednesday.0 -
That's a really old defence template. Did you also post on pepipoo where I said the same?
Start again, search the forum for Civil Enforcement defence £350 true as keywords, and you get ones like this:
https://forums.moneysavingexpert.com/discussion/comment/74969375#Comment_74969375
Just change the facts, remove stuff about the gym, add your own facts and hey presto, you have a defence that covers the bases.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 THREAD0
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