CEL Defence Help

Tuvaisfairequoi

Thank you for your help so far again,

I have now drafted a defence using various other defences on the forum as reference and added some relevant to my case. any help would be greatly appreciated on how to improve.

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I am xxx, the defendant in this matter and the registered keeper of vehicle xxx.

I deny I am liable for the entirety of the claim on the following grounds:

1/ The Claim Form issued on the 21st November 2018 by Civil Enforcement Ltd was not correctly filed under The Practice Direction as it was not signed by a legal person. The claim does not have a valid signature and is not a statement of truth. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position within the company and state their position, yet the form only states that it has been issued by Civil Enforcement Limited as the Claimant's Legal Representative. 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 (as outlined in the new Pre-Action Protocol for Debt Claims, 1 October 2017) 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. These three scenarios would be treated differently within the law and require the defendant to prepare a different defence for each. 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.

3/ Due to the length of time, the Defendant has little recollection of the day in question. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car over 7 months after an alleged offence. The burden rests with the Claimant to identify the driver, who is the only party potentially liable in cases where a parking firm is unable to rely upon the POFA.

4/ Due to the sparse details on the PCN and the equally lacking Particulars of Claim (POC) and the lack of any Letter before Claim, this Claimant afforded the Defendant no opportunity to take stock, obtain data, copy letters, and images of the contract on signage. There has been no chance to even understand the allegation, let alone discuss or dispute it prior to court action, as should have been the case under the October 2017 pre-action protocol for debt claims.

4.1/ The Defendant avers that the claim was pre-mature and the Claimant is put to strict proof of the letters they say were sent and where they were posted to, after the PCN itself, and evidence from their case status data that a Letter before Claim and attachments required under the Protocol, were issued, and when/where they were sent.

4.2/ The Defendant requires a copy of the contract (the signage terms on the material date) and a full and detailed explanation of the cause of action and on what basis they purport to hold the Defendant liable. The POC alleges that the Defendant was 'the registered keeper and/or the driver' of the vehicle, indicating a failure to identify a Cause of Action. The Claimant is simply offering a menu of choices and failed to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the POC do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

4.3/ The Defendant has subsequently sent a subject access request (SAR) to the Claimant, for response during December 2018, and will expand upon the denial of breach in the witness statement and evidence, once the Defendant has seen the details from the SAR and/if the Court orders the Defendant/Claimant to file & serve better particulars.

5/ 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' Also Schedule 4 of the POFA 2012 states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not) is the sum on the Notice to Keeper. The Notice to Keeper (NTK) letter used by this Claimant is routinely worded in a way that can only hold a driver liable and/or the NTK will have been served outside the mandatory 14 day period set within Schedule 4 of the POFA. Whilst this is a choice any private parking firm can make; effectively to serve a Parking Charge Notice (PCN) document like those that existed pre-POFA, it means they can hold known drivers liable, but never registered keepers.

5.1/ It is not accepted that the Claimant has fully complied with the strict requirements of the POFA to hold the Defendant liable as registered keeper (and for this they are put to strict proof) and nor is it accepted that £182 can be claimed instead of 50 pence in this case, but either way, the additional sum of £50 on top, appears to be a shameless attempt at way over double recovery.

6/ The Claimant has added unrecoverable sums to the original PCN. At #22, in Beavis, the Supreme Court explored Lord Dunedin's speech in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] UKHL 1: ‘as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was unconscionable or extravagant. [...] The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.’

6.1/ And at #32 in Beavis: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest {of ParkingEye} [...] In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.''

6.2/ The Court will be aware that Lord Dunedin's four tests for a penalty include the principle - which went unchallenged in the free car park considerations in the Beavis case - that: “it will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid''.

6.3/ Even if the court decided to accept that the terms were adequate and clear, the 'parking charge' tariff was indisputably a 'standard contract', which would be subject to a simple damages clause to enable recovery of the sum that 'ought to have been paid' which was believed to be 50 pence and no more.

6.3.1/ No complicated manipulations of the penalty rule can apply to a small and standard contract like this one with quantified damages, otherwise any trader could massage any £5 bill to suddenly become £500.

6.3.2/ In the Beavis case it was held that the claim could not have been pleaded as damages, as that would have failed. It was accepted that £85 was the sum for parking, and that was the 'parking charge' for want of any other monetary consideration in a free car park. It was not pleaded in damages, unlike here, where the sum for parking was 50 pence and the Claimant is trying to claim damages of £182. The defence can only assume the claimant is hoping for a Judge who cannot properly interpret the intricacies of the Beavis case.

6.4/ In addition to the original parking charge, for which liability is soundly denied, the defendant strongly believes the Claimants have artificially inflated the value of the Claim by adding purported Legal representative costs of £50, which have not actually been incurred by the Claimant.

6.4.1/ Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, Civil Enforcement Ltd have not expended any such sum in this case. This Claimant has a Legal Team with in-house Solicitors (it files many similar 'cut & paste' claims per month, not incurring any legal cost per case.) The Defendant puts the Claimant to strict proof to the contrary, 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.

7/ The alleged overstay was under 4 minutes but this was time spent arriving, driving to find a parking space, parking, locking the car, reading the signs, and at the end, a reasonable period of grace, to leave. This is not a 'period of parking' (under the POFA definition) that was in any way exceeded. Any contravention of allowed parking time is denied.

7.1/ Even if the Claimant can demonstrate that the car was indeed 'on site' and in the car park for a proven and synchronised 4 minutes in addition to the 20 minutes of free parking, this would have been entirely within the grace periods appertained in the set out in paragraph 13 of BPA Code of Practice (BPA CoP).

7.2/ The version of mandatory CoP rules applicable at the time of this parking event allowed the driver two periods either side of allowed parking time. The first was a reasonable 'observation period' in which to decide if they were going to stay or go (which would have included driving in, looking for a space, parking & locking the car, then reading T&Cs displayed in the signage). The second was an additional stand-alone 'grace period' at the end of the parking period which the BPA CoP stated was to be a minimum of 10 minutes.

7.3/ It is averred that this Claimant has failed to pay regard to the mandatory CoP which was considered effectively 'regulation' by the Judges at the Supreme Court. The Claimant's case appears to be based on the inherently flawed position that a driver can be penalised for taking just 4 minutes upon arrival to read the full terms and conditions, find a suitable parking space, park and lock a car.

8/ No standing, this distinguishes this case from the Beavis case: It is believed Civil Enforcement Ltd 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.

9/ The Claimant has continued to post important documents (including the claims form) to a previous address of the Defendant, even after the defendant’s previous landlord send a letter to inform of a new address.

9.1/ The Claimant could’ve easily established the correct address of the Defendant before court action by simply sending a ‘signed-for’ letter to establish if the Defendant was still living there.

9.2/ The Claimant would then establish that the Defendant had in fact moved address, they could’ve taken reasonable steps -by using the DVLA’s advice and used a Tracing agent- to establish the correct address of the Defendant) Pre-court letters could have been send there.

9.3/ The Defendant strongly believes that by ignoring the letter by a landlord regarding a change of address the Claimant purposely send the Court Form to the wrong address hoping it wouldn’t reach the Defendant, thus achieving a simple verdict in court through a no-show. Luckily the defendant’s landlord has been helpful in this case by forwarding the mail on to the Defendant.

10/ 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 Claim Form, which disclosed no Particulars of Claim that can give rise to a cause of action, or any claim in law at all, against this registered keeper Defendant.

11/ If Directions are given rather than the court acting of its own volition to strike the case out due to a lack of properly pleaded Particulars, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is widely known that, where a claim is robustly defended, this particular Claimant routinely discontinues at Witness Statement stage and never pays the court hearing fee.

12/ It is an unfair burden and a complete waste of time for the Courts, and for a Defendant to spend hours on their own Witness Statement against a vexatious litigant who invariably discontinue and are clearly in pursuit of default judgements and abusing the court process as an aggressive form of debt collection with no intention of paying for or attending a hearing.

13/ Given that in 2017 and 2018 it has been observed in the public domain - and hopefully by the Courts, who cannot have missed the fact - anyone who defends robustly against this Claimant receives a notice of discontinuance, the Court is asked to act at an early stage, using its case management powers to prevent this abuse.

14/ The Defendant asks that the court considers striking out the claim on the Court's own initiative, as having no merit, no particulars of claim, no reasonable prospects of success, and given that the claim is based on an alleged contractual parking charge of £100. The amount claimed is £267.45 and the Defendant avers that this inflation of the considered amount is a gross abuse of process.

STATEMENT OF TRUTH

I confirm that the contents of this Defence are true to the best of my knowledge and recollection.

KeithP

You haven't mentioned it... please confirm that you have done the AoS.


It has now been confirmed that County Courts are closed on Christmas Eve and open again on Thursday 27th December.

So theoretically you have until 4pm on Thursday 27th December to file your Defence.

But you may not want to be thinking about that over the festive period, so my advice remains - get the Defence filed on or before Friday 21st December.

Tuvaisfairequoi

Hi KeithP,

I will be filling the online form out tonight.

Redx

you dont do the AOS by email

you login online and do the AAOS on the MCOL website, as detailed in the NEWBIES FAQ sticky thread post #2 , with a walkthrough


KeithP wants you to confirm that thge AOS has been logged by MCOL , you said it would be done on the 27th

Tuvaisfairequoi

My mistake both, the abbreviations are getting too much for my little brain :rotfl: I got it mixed up with SAR. AoS will be done shortly!

Redx

ok , do the AOS online on the MCOL site, as per the walkthrough, and do the SAR ASAP by contacting the PPC DPO if you havent done so already


the defence can be drafted once the other stuff is done

Tuvaisfairequoi

AOS is complete on the MCOL site, and the SAR has been emailed.

I guess my next step is the defence draft and wait for the SAR?

Thanks again.

KeithP

Yes, but don't let a delayed response to a SAR allow you to miss the Defence filing deadline.

Tuvaisfairequoi

KeithP wrote: »

Yes, but don't let a delayed response to a SAR allow you to miss the Defence filing deadline.

Correct, I was concerned this wouldn't reach me in time so I added this to the defence - '4.3/ The Defendant has subsequently sent a subject access request (SAR) to the Claimant, for response during December 2018, and will expand upon the denial of breach in the witness statement and evidence, once the Defendant has seen the details from the SAR and/if the Court orders the Defendant/Claimant to file & serve better particulars.'

Coupon-mad

So are you saying you have actually submitted a defence, not just done the AOS? Or are you merely thinking about and drafting a defence as we speak?