Assistance with defense for county court - passed the 14 day period but not my fault!

Quentin

You can find out now if a default ccj has been ordered against you by checking at trustonline website

Use the address they used to issue the Claim to

If you find a CCJ there then a set aside application is your next job (assuming that you want to fight this)

Todd91

Coupon-mad wrote: »

You DO NOT have no option but to pay. But do not wait till tomorrow.

Get a defence in NOW - today - emailed to the CCBC, no hanging around till tomorrow as CEL could claim a default judgment before your email reaches the CCBC if not.

Simple to do IMHO, just copy another CEL one from recent weeks, any October result that comes up when you search for keywords like:

Civil Enforcement defence true

and change the facts to this, but in the third person:



Do that forum search RIGHT NOW and show us your draft within a couple of hours, it won't take long.

If your previous appeals already blabbed that the Defendant WAS the driver, then remove any paragraph in a copied draft, that asserts there can be 'no keeper liability'. Do not worry about this, but be aware that an admitted driver cannot use the POFA.

I am attempting this now, but find it quite difficult. it all seems a lot of information that i don't really understand!

will post ASAP!

Coupon-mad

No it is easy, you MUST be searching wrong.

YOU ARE DOING AN ADVANCED SEARCH AND CHANGED IT TO 'SHOW RESULTS AS POSTS'?

Don't search for/read entire rambling threads!!

Quentin

Todd91 wrote: »

I am attempting this now, but find it quite difficult. it all seems a lot of information that i don't really understand!

will post ASAP!

Bear in mind if you already got a ccj then this is not your priority!


See #12 above on how to find out now!

Todd91

so here are 2 defences as I am unsure which is best

i am going to apologise as i have struggled immensely with this

i have noted from other threads that this is a keeper defence as in the previous communications to CEL the person driving has not been named - i understand that this means i need to go through the previous posts to remove and me, I and my etcs.

the second defence has more legal in it which baffles me, you may not think it is legal but its like a word puzzle to me, not sure where to put the facts about this specific case in this one

i can post the previous communications sent to CEL on here if that helps?

please be kind...

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

Civil Enforcement Ltd (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Particulars of Claim are sparse. There is no information regarding the alleged contract, or breach, or what the terms on signage actually said on the material date, or what the alleged breach was, or why/how the Claimant purports that the registered keeper is liable, given the facts that this Claimant has failed to evidence the identity of the driver and they do not use the keeper liability provisions in the Protection of Freedoms Act 2012 (the 'POFA').

2.1. Further, the Claim Form issued was not correctly filed under the Practice Direction, as it was not signed by any legal person but signed/printed as a company name only: “Civil Enforcement Limited” (Claimant’s Legal Representative).

3. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper but which more than one person was authorised and insured to drive, was parked at the car park stated, however the ticketing machine was out of order. Upon realising this, the defendant questioned the closest shop to the car park, thinking it belonged to them. When the defendant was informed that it in fact did not, the defendant went back to the ticket machine and noticed payment could be made over the phone. The defendant then commenced payment and set up a new card payment. Since the ticketing machine did not work, additional time should be added on, or the ‘payment within 10 minutes’ statement should be null and void.
3.1 Payment was made as soon as possible and the vehicle was not left unattended during this period, other than to speak to the shop attendant to question how to pay.
3.2 No loss of earning can be proved, as mentioned payment for the parking period was paid and adhered to.

4. 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.

4.1. However, it is denied that the vehicle was - by any reasonable interpretation - unauthorised, or that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

I believe point 4 and 4.1 may not be needed as the particulars state that the claim is for a breach of Ts&Cs

7. The Claimant will no doubt hope to convince the court that a 'relevant contract' existed and was breached. As this would be a consumer contract, it must be 'fair' and 'transparent' as set out in the Consumer Rights Act 2015, given the facts of the case. The Defendant avers that this punitive charge had no reasonable legitimate interest, with no fair deterrent value against gym members and fails in all respects to disengage the penalty rule.

8. The Claimant is likely to rely upon the completely different Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67. However, the Defendant avers that decision confirms the assertion that this charge is unconscionable, given the facts. To quote from the decision in Beavis:

Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

8. By contrast, this penalty represents neither a necessary deterrent, nor an understandable ingredient of a scheme serving legitimate interests, and the Beavis case is distinguished.

9. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation. Issuing claims now for parking events dating back to 2016 at this site, is untimely, vexatious and a matter of revenge against the landowner for giving notice that the contract is to be terminated due to the volume of complaints. It is in the public domain that this Claimant is a serial offender in this regard, having stored DVLA data for years then issued proceedings against thousands of Co-op employees and customers when that contract ended.

10. The POFA states that the maximum sum that may be potentially recovered from the keeper (subject to full compliance by the parking operator, which is not the case) is the charge stated on the Notice to Keeper, in this case £100. This claim attempts more than triple recovery by adding purported but unsupported damages, admin, debt collector or other costs, which the Defendant submits have not actually been incurred at all. The Defendant avers that this inflation of the considered amount to some £330.04 is a gross abuse of process.

11. Further, the Defendant notes with alarm that the Claimant is pursuing £19.04 in interest. Whilst it is accepted that in general terms, the court process can allow for interest to be charged on established debts, this Claimant has provided no evidence of any such liability, has no cause of action against a registered keeper and has inexplicably and unreasonably delayed this claim by over two years. The Defendant questions why the Claimant believes that their own excessive DVLA data storage, unreasonableness and negligence in 'sitting on' stored data to use much later as leverage against a landowner wanting to end the contract, should earn 8% interest, to the imbalance of an individual consumer Defendant's rights and interests.

12. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.



signed..............................

date...............


OR


The defandant denies liability 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 £236.00 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 £50 “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.

Can I say this? I don’t know if they hold a legitimate contact here?

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 despite being challenged to provide one.

I also am not sure about the above paragraph

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 11th 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.

These are the points I would like to make but I am unsure where to place these throughout this defence
• The ticket machine for the car park was not functioning – this should mean that the ‘payment within 10 minutes’ should be null and void as it meant payment could be made in the quickest fashion
• It is the claimants responsibility to ensure payments can be made promptly
• The vehicle was not left unattended until payment was made
• No loss of earnings can be proven due to payment being made as soon as possible
• Payment had to be made through an automated service which cannot be sped through to meet the 10 minute requirement

Quentin

Have you checked to see if you are in time to enter a defence (see #15 above)


Sending a defence will be a waste of time if you already have a CCJ!

Todd91

I haven't, sounds ridiculous but is there a way to check for free?

Todd91

Okay so checked clear score and currently no CCJs but that report was done on 10th October and a new report is due 8 days...

KeithP

Todd91 wrote: »

I haven't, sounds ridiculous but is there a way to check for free?

Todd91 wrote: »

Okay so checked clear score and currently no CCJs but that report was done on 10th October and a new report is due 8 days...

It was suggested that you check trustonline simply because it is updated instantly (or as near as makes no difference).

All the 'free' sites take up to a month to reflect the real situation.

Todd91

KeithP wrote: »

It was suggested that you check trustonline simply because it is updated instantly (or as near as makes no difference).

All the 'free' sites take up to a month to reflect the real situation.

just checked and it says there are no records and is in green - i think this is good?