CEL Defence Help

Tuvaisfairequoi

Hi Coupon-mad, Sorry about the confusion here. (I suspect like most here) this is all new to me!

For clarification, The AoS was completed last night, as was the SAR request. Above is a draft defence I was working on based off many defences I’ve read on here plus some extra points I feel are relevant to my case, no defence has been submitted.

I was aiming to submit a defence in a few weeks once I’ve received some advice on my draft!

Tuvaisfairequoi

Hi all, the cut off date looms closer, I’d like to get my defence in pretty soon! Could anyone take a look at the defence I drafted above please and critique it? Thanks in advance

Le_Kirk

It seems very long, even to my non-lawyerly eye. Look at the concise defence(s) posted recently by Bargepole and use one of those as the basis for your defence adding in bits that actually answer what it is the claimant alleges you've done to attract the PCN.

Redx

I agree with the above comment, too long, some stuff is off topic, incorrect header and footer , start with the BARGEPOLE concise defence and add stuff in that is relevant, you have had a few weeks to get this honed but seem to have done nothing for over 2 weeks, we wont do it for you

Tuvaisfairequoi

Thanks for the replies, I will try to shorten it and use bargepoles as a basis, I do feel like everything written is relevent but I will take some stuff out. Regarding nothing being done in the past 2 weeks, the reason is twofold, I posted the draft and wanted to give time for critique without bumping it up the forum and annoying everyone and also I’ve been away in France on business for a week.

I will send through draft no2 tonight, and again, eternally greatful for the amazing help I’ve received so far!

Tuvaisfairequoi

Also, any advice on what is considered off-topic would be helpful.... it’s all new to me and honestly I’m lost at the moment.

I felt my best defence point would be the grace periods not being adhered to, should I leave this in?

Thanks again

Tuvaisfairequoi

IN THE COUNTY COURT

CLAIM No:

BETWEEN:

XXXXXXX (Claimant)

-and-

XXXXXXX (Defendant)

________________________________________
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 XXXXXXX, of which the Defendant is the registered keeper, was parked on the material date in a marked bay at XXXXXXX.

3/ Due to the sparse details on the PCN, the equally lacking Particulars of Claim (PoC) and the absence 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/ The Particulars of Claim also state that the driver of the vehicle incurred the parking charges for breaching the terms of parking on the land. 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.

5/ Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

The terms on the Claimant's signage are displayed on the side of a tight entrance in which a vehicle turns from a busy road into the car park. It is located in such a place which would be difficult to read from a turning vehicle, and is in such a position that anyone attempting to stop the vehicle and read the font would be unable to do so without blocking the entrance/exit.

5.1/ 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/ The Defendant still hasn’t received proof and/or photographs to show the Defendant's car entering and exiting the car park, with Automatic Number Plate Recognition (ANPR) timings. But even if the Claimants timings are to be believed, the vehicle had stayed for 23 minutes 43 seconds (an overstay time of under 4 minutes). In this case, the Claimant has not allowed a reasonable observation period and grace period (either side of paid-for time) in blatant disregard for parking governing body they align them self to (The British Parking Association)’s (BPA) Code of Practice.

The BPA Code of Practice states the following regarding grace periods:
“13.2 and 30.2 If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes.”

“13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”

7/ 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. There is no public data available to confirm that the Claimant has applied for planning permission from the Council to erect signage and ANPR cameras on the site.

8/ 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. (£100)

8.1/ The claimant may rely on the ruling obtained In ParkingEye v Beavis, this case differs as in the Beavis Case, only the parking charge itself (£85) was pursued and the sum was scrutinised by the Supreme Court and held to already include a significant sum in profit; being a sum set in advance which was already significantly over and above the very minimal costs of operating an automated ticketing regime. Damages could not be added; it was held that a claim from a parking firm agent could not have been pleaded as damages, and would have failed because the claimant suffered no loss.

9/ 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 believe that the facts stated in this Defence are true.

………………………………………………………. (Defendant)
………………………(Date)

KeithP

You are clearly defending this as the driver, so paragraph 8 is not relevant.
POFA is all about transferring liability to the keeper and there is no need for that with a driver Defendant. The maximum that can be recovered from the keeper is unimportant.

Para 8.1 should remain - renumbered as para 8.

Tuvaisfairequoi

Thank you KeithP, I have edited to change based on your advice. Although I will add, I am only the alleged driver, at no point has the driver been named.

KeithP

Tuvaisfairequoi wrote: »

Thank you KeithP, I have edited to change based on your advice. Although I will add, I am only the alleged driver, at no point has the driver been named.

Oh, I felt sure that paragraph 2 of your Defence in post #28 mentioned the driver.

You have now edited your post.

The Defence now seen in post #28 is not clearly a driver's Defence.

You might want to consider re-instating paragraph 8 as it was.