CEL Court Defence - Permit holders only

richardadc

Hi,

CEL have sent me a claim form back on 17th October and Ive only just had a chance to get something together (as below). My main defences I believe are:

- That there was no contract in place as the sign was for "Permit holders only". The sign can be seen at https://photos.app.goo.gl/dLNv7J3gw6VqCMYQ6
- The NTK was issued after 14 days so the keeper can not be held liable
- The amount claimed in unfair

Please let me know if I've covered this below or if I need to amend/add anything. Any help is much appreciated!

Please see the defence below:

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

Civil Enforcement Ltd (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

I xxx, defendant in this matter was the authorised registered keeper of the vehicle in question at the time of the alleged incident. I deny liability for the entirety of this claim for the following reasons:

1. The Claim Form issued on 17/10/18 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”. 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 Direct 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. The Particulars of Claim are sparse and provide 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 conform to the keeper liability provisions in the Protection of Freedoms Act 2012 (the 'POFA').
2.1. Furthermore, it is unclear as to what the legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass.
2.2. 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.

3. The facts are that the vehicle, registration XXXXXX, of which that while the Defendant is the registered keeper more than one person is authorised to drive the vehicle. It is impossible to be certain 9 months later, which driver allegedly 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.

4. CEL is not the land-owner and has no capacity to bring the claim unless its contract grants it. In the absence of written authority from the land-holder in accordance with the BPA Code of Practice Para 7.2, “If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.”, has no legal capacity to bring the claim. If the display of signs was sufficient, the BPA would have had no need to include this condition in its Code of Practice.

5. 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 £323.41 is a gross abuse of process.

6. 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. In the statement of fact, CEL’s own staff issued the claim and the Legal Representative fee is false.

7. This case can be distinguished from Parking Eye 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.

8. The signs in the car park state “Permit holders only” which would suggest the signs are prohibited and is only making an offer to permit holders. If a driver is not authorised to park in the car park due to it being permit holders only then a non-permit holder cannot be offered a contract. The only claim would be for trespass which only the landholder can claim, and only for a nominal sum. Furthermore:
8.1. There were inadequate signs (at the time of the offence) incapable of binding the driver into the contract - this distinguishes this case from the Beavis case:
8.2. It is believed the signage and any terms were not transparent or legible; this is an unfair contract, not agreed to by the driver.
8.3. 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.

9. 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.

10. 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.
10.1. Furthermore it is noted that the date of the alleged offence was on a Sunday in an office car park where few cars if any would be parked and the surrounding offices were closed. As such there would have been no commercial loss to these businesses as a result and therefore no justification for such a high fee.

11. When Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) or alternatively, for the hearing fee to be ordered to be paid before exchange of documents between the parties, because where a claim from this serial Claimant is robustly defended, this Claimant routinely discontinues after seeing a Defendant's Witness Statement and never pays the court hearing fee.

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 confirm that the above facts and statements are true to the best of my knowledge and recollection.

KeithP

With a Claim Issue Date of 17th October, you needed to have done the Acknowledgement of Service by Monday 5th November. Did you do that?

If you have not done the AoS yet then do it now, this evening, by following 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 19th November 2018 to file your Defence.

Only a few days to go now, 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.

Coupon-mad

Change all mention of 'CEL' (which is our own forum acronym!) to 'the Claimant'.

or whether this was a case of two visits to the site,

Remove that bit as that's only relevant if they alleged an overstay, not in your case?

You cannot say this, interest is potentially able to be claimed, but only if they win - hahaha!:

I deny the Claimant is entitled to any interest whatsoever.

...and you need to remove any use of ''I'' and change it to 'the Defendant'.


I would remove or adapt this, and it should be higher up in the FACTS point:

10.1. Furthermore it is noted that the date of the alleged offence was on a Sunday in an office car park where few cars if any would be parked and the surrounding offices were closed. As such there would have been no commercial loss to these businesses as a result and therefore no justification for such a high fee.

The reason I say 'remove or adapt' is because I'd say NEVER use the words 'no loss'. Change it to 'no commercial justification' and no legitimate interest to support a punitive charge of (£100?) which in fact seems to be an attempt to twist the landowner's right to damages for any act of trespass, to dress it up as if it was a contractually agreed fee.

Read PACE v Lengyel, where the Judge puts that bit well (see the Parking Prankster's Case Law pages for the transcript to that one which seems to lend itself to your case as evidence for the later WS stage).

Also read PCM v Bull about forbidding signs and search this forum for those words to read a defence that's also referred to that, and add that bit in.

richardadc

Many thanks to you both. The AoS has been completed. Please find the amended defence below with most changes in section 8.

Do I need to mention why the NTK doesn't confirm to PoFA or will that be for a later stage?

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

Civil Enforcement Ltd (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

I xxx, defendant in this matter was the authorised registered keeper of the vehicle in question at the time of the alleged incident. I deny liability for the entirety of this claim for the following reasons:
1. The Claim Form issued on 17/10/18 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”. 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 Direct 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. The Particulars of Claim are sparse and provide 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 conform to the keeper liability provisions in the Protection of Freedoms Act 2012 (the 'POFA').
2.1. Furthermore, it is unclear as to what the legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass.
2.2. 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.

3. The facts are that the vehicle, registration XXXXXX, of which that while the Defendant is the registered keeper more than one person is authorised to drive the vehicle. It is impossible to be certain 9 months later, which driver allegedly parked the car that day, 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.
3.1. Furthermore it is noted that the date of the alleged offence was on a Sunday in an office car park where few cars if any would be parked and the surrounding offices were closed. As such there would have been no commercial justification and no legitimate interest to support a punitive charge of £100 which in fact seems to be an attempt to twist the landowner's right to damages for any act of trespass and dress it up as if it was a contractually agreed fee.

4. The Claimant is not the land-owner and has no capacity to bring the claim unless its contract grants it. In the absence of written authority from the land-holder in accordance with the BPA Code of Practice Para 7.2, “If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.”, has no legal capacity to bring the claim. If the display of signs was sufficient, the BPA would have had no need to include this condition in its Code of Practice.

5. 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 £323.41 is a gross abuse of process.

6. 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. In the statement of fact, the Claimant own staff issued the claim and the Legal Representative fee is false.

7. This case can be distinguished from Parking Eye 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.

8. The Claimant's signage with the largest font at this site states 'PERMIT HOLDERS ONLY'. It is submitted that if this notice is attempting to make a contractual offer, then as it is forbidding they do not fulfil the basic requirement of a contract, which is that each party to the contract must offer valuable consideration to the other party, on clear terms capable of acceptance. In this case neither the Claimant, nor their principal the landowner, is offering anything to motorists. The notices cannot, therefore, reasonably be construed as having created a contractual relationship between the Claimant and the Defendant.
8.1. The above point was tested in the County Court at High Wycombe, in the case of Parking Control Management (UK) Ltd v Bull & 2 Others (B4GF26K6, 21 April 2016), where District Judge Glen dismissed all three claims, stating in his judgment that: "If the notice had said no more than if you park on this roadway you agree to pay a charge then it would have been implicit that PCM was saying we will allow you to park on this roadway if you pay £100 and I would agree with Mr Samuels' first analysis that essentially the £100 was a part of the core consideration for the licence and was not a penalty for breach. The difficulty is that this notice does not say that at all. This notice is an absolute prohibition against parking at any time, for any period, on the roadway. It is impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway. All this is essentially saying is you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass."
8.2. Furthermore, the claimant denies that the sign makes it clear that the driver of the vehicle is entering into a contract. The signs used were not dissimilar to those in the case Pace v Lengyel. Where District Judge Iyer dismissed the claim noting that:

“Nowhere on this sign does it inform the reader that by parking in this car park, he is entering into a contract with the Claimant. Indeed the words “contract” or “agreement” do not appear at all within the sign it merely refers to the driver “accepting liability for a charge”. The phrase “Terms and conditions” are not synonymous with a contract. Further, the opening words of the sign appear to be designed more to ward off trespassers than to enter into a contract with the driver.”
8.3. There were inadequate signs (at the time of the offence) incapable of binding the driver into the contract - this distinguishes this case from the Beavis case.

9. 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.

10. 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.

11. When Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) or alternatively, for the hearing fee to be ordered to be paid before exchange of documents between the parties, because where a claim from this serial Claimant is robustly defended, this Claimant routinely discontinues after seeing a Defendant's Witness Statement and never pays the court hearing fee.
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 confirm that the above facts and statements are true to the best of my knowledge and recollection.

richardadc

Just confirming that all seems good with the above? I'd ideally like to send this over today.

Thanks for your help again.

richardadc

I submitted by defence earlier today and now the MCOL site states "A bar has been put in place on this claim. You cannot respond to the claim at this time.". Does this sound like they've received my defence?

The_Deep

Complain to your MP.

https://en.wikipedia.org/wiki/De_minimis

KeithP

richardadc wrote: »

I submitted by defence earlier today...

Before 4pm?

You need to phone the CCBC in the morning and ask them what's going on.

When did you do the Acknowledgement of Service?
If you did not do the AoS, then your Defence was due on Monday 5th November.

Coupon-mad

richardadc wrote: »

I submitted by defence earlier today and now the MCOL site states "A bar has been put in place on this claim. You cannot respond to the claim at this time.". Does this sound like they've received my defence?

Please ring the CCBC, hang on the phone, get a real person, and ask.

A bar on a claim seems like a step taken AGAINST CEL. I hope so.

richardadc

KeithP wrote: »

Before 4pm?

You need to phone the CCBC in the morning and ask them what's going on.

When did you do the Acknowledgement of Service?
If you did not do the AoS, then your Defence was due on Monday 5th November.

I submitted the defence to ccbcaq@justice.gov.uk with the claim number in the subject line at 11am and got an automated response. History is as below:

A claim was issued against you on 17/10/2018
Your acknowledgment of service was submitted on 01/11/2018 at 20:35:51
Your acknowledgment of service was received on 02/11/2018 at 08:02:53

I'll call them tomorrow.

Castle

richardadc wrote: »

I submitted by defence earlier today and now the MCOL site states "A bar has been put in place on this claim. You cannot respond to the claim at this time.". Does this sound like they've received my defence?

It should mean that a defence has been filed and the "bar" prevents CEL asking for "judgement in default", which they could have done on the 20th, (i.e tomorrow).