No ticket/wrong address - PCN, debt collectors

Coupon-mad

Yes all of that is fine. It's not confusing, it's saying they can't add sums on top.

Daniellep64013

Right, I think this is everything?

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

CIVIL ENFORCEMENT LTD (Claimant)

-and-

XXXXXX XXXXXX XXXXXX (Defendant)

________________________________________
DEFENCE
________________________________________

1. The Defendant was the registered keeper of vehicle registration number XXX XXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration number XXX XXX which is the subject of these proceedings. The vehicle is sometimes used by family members who have their own insurance including any vehicle. Therefore, without any evidence from the Claimant, it is not known which driver was in charge of the car on the date in question.

3. Due to the length of time passed and the unremarkable local site, used often by the family, the driver(s) on each occasion are unknown and the Defendant knew nothing of the PCNs until months later. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver and the Claimant is therefore limited to pursuing the Defendant 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:

(i) there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
(ii) 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.

4. To the extent that the Claimant may seek to allege that any such presumption exists, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of Parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

5. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought. The particulars of claim state that the Defendant was in breach of the terms and conditions. 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.

6. 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. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

7. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £93.73, for which no calculation or explanation is given as to the basis of the increase.

8. The POFA, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case being a maximum of £100 depending on the Claimant's full compliance with the POFA and establishing a breach of a 'relevant obligation' and/or 'relevant contract'. This claim includes an additional £168.73 in an attempt at double recovery.

9. Regarding purported 'legal costs' of £50, 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 costs allegedly incurred by already remunerated clerical staff. Not only are such costs not permitted (CPR 27.14) but the Defendant believes that the Claimant has not incurred any case-specific legal costs, because no solicitor is likely to have supervised this current batch of cut & paste claims at all.

10. It is an abuse of process for the Claimant to issue a knowingly inflated claim that it is not entitled to recover. The acid test is whether the conduct permits of a reasonable explanation, but the Defendant avers it cannot. Claims such as this have recently been struck out by County Courts for reasons of: ''Substantial charge additional to the parking charge. Additional charge not recoverable under the POFA, Pre-action Protocol and CPRs...abuse of process.''

11. Debt collection agencies act on a no-win-no-fee basis for parking operators, so even if letters were sent by any third party, no costs have been incurred, in truth. Nor can a parking operator add any 'damages' to the PCN sum, not even if their member-biased Trade Body pretends they can in a Code of Practice, and not even if a further sum is mentioned on signage, because this would exceed the maximum parking charge, in a flagrant attempt at double recovery. Both law and case law regarding parking on private land, dictates that any additional charge for damages/indemnity costs (howsoever described) is not recoverable under the POFA Schedule 4, nor with reference to the judgment in ParkingEye Ltd v Beavis [2015] UKSC 67.

12. It was held in the Supreme Court in Beavis (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters. Thus, there can be no 'damages' to pile on top of any parking charge claim, and the Defendant asks that the Court takes judicial notice of this industry's repeated abuse of consumers' rights and remedies.

13. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial, the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

14. The Defendant has visited the Worksop Miners Welfare Inst since receiving this claim and notes that there are no Pay & Display Ticket (PDT) machines as far as the Defendant can ascertain, so the driver(s) would have been unable to purchase a ticket.

15. 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.

16. In summary, the Claimant’s particulars disclose no legal basis for the sum claimed, and the Court is invited to dismiss the claim in its entirety.

Statement of Truth:
I believe the facts contained in this Defence are true.

Name
Signature
Date

Coupon-mad

#14 would be better to be moved right up to be #3.

You seem to be missing the usual point from other defences, about landowner authority & the fact CEL do not own the land. Needs to be added.

Daniellep64013

Have moved no.14 up, I thought no. 15 was about the landowner authority?

Coupon-mad

So it is!

As I often do when checking defences I only have time to skim-read, I searched (control & F) for the word landowner.

If you've moved #14 up and re-numbered it, your defence looks fine.

Daniellep64013

Fab, thank you so much!! Will get it signed and scanned in and e-mail it across tomorrow!

Daniellep64013

I sent the data rectification notice to CEL via email and then had a letter through the post confirming they had updated our address. Then a few days after I had an email saying -

"As you have sent this request via an unverified email address that does not appear to be yours, we are required to verify your identity.! The easiest way to do this, is for you to submit your request via www.ce-service.co.uk"

I emailed them back and questioned it saying we had already received confirmation that they had changed our address on their system so should they not have confirmed identity before changing it.

This might be completely irrelevant but thought I'd post it incase I could use it against them??

Coupon-mad

Useless, aren't they!

Daniellep64013

Our circumstances have changed and in a nut shell we are going to have to pay the fines. My other half is dyslexic, can't remember a lot and doesn't actually have a clue about what he's doing with any of this. I'm currently pregnant and can really do without the stress of this process for him to then lose in court and end up with a CCJ because he just hasn't got a clue.

We have recieved the Small Claims Directions Questionnaire are are looking at going for mediation to now keep it out of court. Is there any advice anyone can give on where we go from here? How much we arrange to pay and how often, the actual amount etc.

Thanks.

Coupon-mad

You are not left with any CCJ if you lose then pay within 30 days!

THERE IS NO DANGER OF A CCJ UNLESS YOU IGNORE COURT PAPERWORK OR DON'T TURN UP.

These are not fines, you do NOT have to give up and pay a scammer, how bad an example is that in life to your young family (harsh but true). I would never give in to a scammer or aggressor, partly because that's not how my children were brought up and I want to be a role model Mum, and not give up when idiots bother me (and a couple of idiots have tried to bother me).

We have lots of pregnant posters who go to court! And a 99% win rate and almost NO losses, ever, to CEL.

We have recieved the Small Claims Directions Questionnaire are are looking at going for mediation to now keep it out of court.

No you aren't. No-one here will tell you to even try mediation with a parking firm, it doesn't work like that. Guess what? You will feel more intimidated and under pressure in a Mediation phone call to pay hundreds of pounds, than you will at your local hearing:

https://forums.moneysavingexpert.com/discussion/comment/70242827#Comment_70242827

A typical example above, the lady mediator tried to bully and worry the Defendant.

Is there any advice anyone can give on where we go from here? How much we arrange to pay and how often, the actual amount etc.

Stop wobbling and don't go there. In court the Judge will listen to you.

Read bargepole's post on Court Procedures, for how to complete the DQ and breathe!