Deadline for my defence is this Sunday! CEL county claim cheats

Beat_the_Cheat

(information removed)

Umkomaas

if any mods can help with this please?

I'm not a 'mod' (none on here as such), but here you go:

http://i68.tinypic.com/uv6zm.jpg

http://i68.tinypic.com/2eutk6o.jpg

http://tinypic.com/m/k9g804/1

http://i68.tinypic.com/14vs4l3.jpg

Beat_the_Cheat

Ah, thank you so much! I re-edited my post before I read your reply. Cheers!

KeithP

With a Claim Issue Date of 17th October, and having done the AoS in a timely manner, you have until until 4pm on Monday 19th November 2018 to file your Defence.

Still a few days to go, 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 FAQ sticky thread to find out exactly what to do with it.

Chimichanga

You submit your 'skeleton ' defence online but not too early. You have 28 days plus 5 more from the issue date of the claim. Do not file too early.

Keep it brief, cover all the main points...unclear signage, no planning permission, no contract, unclear particulars of claim etc. You can always add to it in your witness statement (if it goes that far).

You'll also need to get a CPR 31.14 request in the post ASAP before the case is allocated to the small claims track. There's lots of examples online of a cpr req letter covering the main points.

I'm no expert but have just won a court case so I'm new to giving advice. I'm sure Coupon-mad et al will be along shortly to advise also.

Beat_the_Cheat

Chimichanga wrote: »

I'm no expert but have just won a court case so I'm new to giving advice. I'm sure Coupon-mad et al will be along shortly to advise also.

Well done on your case! That certainly gives me hope. I shall read through your posts to see if I can utilise any of the info for my circumstances
This sort of activity by these thieves have no place in 2018. Thank God for the internet and online communities that can provide people like us with the legal knowledge to fight them at their own (rigged) game. Surely they realise that their days are numbered!

Beat_the_Cheat

Hello again, would any kind soul be willing to help (or suggest exactly where I could look) in regards to my defence.
I'm trying to ensure it is not too flimsy/concise, and not too long and confusing!

Many thanks all

Beat_the_Cheat

Hello again this is my updated defence. Would anyone please be kind enough to let me know if I should submit this now?

DEFENCE
_________________________ _______________

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

2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked for a period of time on the date stated by Civil Enforcement Ltd. It is not possible to say the length of time the vehicle was parked for as the Claimant alleges their ANPR camera only took a picture of the defendants number plate on entering and leaving the site. There has been no consideration of time spent looking for a space, queuing to leave the site or any grace period taken into account.

2. The Particulars of Claim are sparse and embarrassing. 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).

4. 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. It is impossible to be certain a year later, which driver parked the car that day or whether this was a case of two visits to the site, and the Claimant is put to strict proof of a single parking event by an identified driver. It is admitted that the Defendant was the registered keeper of the vehicle but the driver has not been identified and any 'violation' or 'breach of terms' is denied.

5. 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. It is not known whether the Claimant is suggesting that the vehicle, at all material times at this location being used by restaurant customers, was 'unauthorised' or allegedly overstayed an arbitrary time period.

5.1. 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.

6. It is denied that the claimant's signage set out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. Further, having contacted the restaurant where the car park is located, it has been claimed that the signage is indeed confusing and genuine restaurant patrons were routinely and unfairly penalised, despite the signage/restriction changes not being prominent or drawn to the clear attention of patrons.

6.1. 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 genuine restaurant customers and fails in all respects to disengage the penalty rule.

7. The Defendant does not believe that this operator has any proprietary interest in the land such that it has no standing to make contracts with drivers or to pursue charges for breach in its own name. The Defendant contends that they merely hold an agreement to maintain signs and to issue 'tickets' as a deterrent to car park users. The Defendant puts the operator to strict proof otherwise because it cannot be assumed that any agent on site has any more than a bare licence. The Defendant requires an unredacted, contemporaneous copy of the landowner contract (including the User Manual which forms a vital part of that contract). This is required so that the Defendant may see the definition of services provided by each party to the agreement, as well as any exclusions (e.g. exempt vehicles, users, days or times) as well as defined grace periods; the land boundary and the areas or specific bays enforced; the various contraventions and confirmation of the agreed ‘charge’ which may or may not be £100.

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.''

8.1. 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 'terms' on the Claimant's signage were 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.


10. 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. The defendant is not aware if the Claimant still holds 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.

11. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) 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, adminicon, debt collectoricon 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 £327.50 is a gross abuse of process.

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.



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Note:
I have not received any response to my SARicon or CPR request.
I did however receive a reply back from the DVLA.