CEL defense please anyone check for me if this is ok?

bboylost

STORY: In February the driver parked the owner's car to a private apartment to delivery an item which someone has purchased from the driver on gumtree, there was a sign in front of the apartment car park: "authorised vehicles only". The driver ignored it since it was 8 pm at night, the car park was dark and empty, and the driver believed that he was 'authorised" by the guy who bought the item from gumtree anyway cause he asked the driver to park there. Now the CAR KEEPER received a claim form, (the car keeper was not the driver )

I have completed the defense and ready to send it , could you guys have a check up for me ?

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:

0. The driver on the day was actually invited and authorized to park there by one of the resident from the apartment in Vector Point. However I, as the keeper of the vehicle do not feel the need to provide any details regarding this matter, unless it is specifically requested by the judge / court.

1. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012 (POFA 2012). Such a notice was not served within 14 days of the parking event and when the notice was served, did not fully comply with statutory wording. The Claimant is therefore unable to hold the defendant liable under the strict keeper liability provisions:!

The Claimant did not comply with POFA 2012 and give the registered keeper opportunity, at any point, to identify the driver. A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered no later than 14 days after the vehicle was parked. No ticket was left on the windscreen and no notice to keeper was sent within the 14 days required to comply with POFA 2012 only a speculative invoice entitled Parking Charge Notice which was sent outside of the 14 day period, which did not comply with POFA 2012. This would exclude the registered keeper being liable for any charges.

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. Schedule 4 also 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, nor the permit information mentioned a possible £xxx for outstanding debt and damages (including the court fee and legal representative’s costs). The additional costs, which the defendant contests have not been incurred, are none of its concern.

2. 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.

3. This case can be distinguished from ParkingEye 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. As far as I can ascertain, based upon the very vague particulars of claim and complete lack of evidence and photographs, and without having been furnished with the alleged signage contract, none of this applies in this material case.

4. In the absence of any proof of adequate signage contractually bound the Defendant then there can have been no contract and the Claimant has no case

a. The Claimant is put to strict proof 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 this distinguishes this case from the Beavis case:

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 was not lit 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 by 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 neither 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.
v. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.

d. BPA CoP breaches this distinguishes this case from the Beavis case:
i. The signs were not compliant in terms of the font size, lighting or positioning
ii. The sum pursued exceeds £100
iii. There is/was no compliant landowner contract.

5. 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.

6. 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.

7. The Defendant denies any liability whatsoever to the Claimant in any matter and asks the court to note that the Claimant has:

(a) Failed to disclose any cause of action in the incorrectly filed claim form issued on 21st November 2018.

(b) Sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.

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.




STATEMENT OF TRUTH

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



xxx
xxth December 2018


P.S , is it necesssary for me to put this on the defense ? or the defendant should win the case just by the no keeper liability?

"0. The driver on the day was actually invited and authorized to park there by one of the resident from the apartment in Vector Point. However I, as the keeper of the vehicle do not feel the need to provide any details regarding this matter, unless it is specifically requested by the judge / court. "

Many thanks !

bboylost

KeithP

[STRIKE]What is the Issue Date on your Claim Form?

Did the Claim Form come from the County Court Business Centre in Northampton, or from somewhere else?

There is no S in Defence.[/STRIKE]

Scrap that. What a waste of effort.

I see we have already covered that ground in your earlier thread.

Please copy your above post on to your other thread and replace the text above with something like:

Duplicate thread - please ignore.

bboylost

KeithP wrote: »

[STRIKE]What is the Issue Date on your Claim Form?

Did the Claim Form come from the County Court Business Centre in Northampton, or from somewhere else?

There is no S in Defence.[/STRIKE]

Scrap that. What a waste of effort.

I see we have already covered that ground in your earlier thread.

Please copy your above post on to your other thread and replace the text above with something like:

Duplicate thread - please ignore.

I tried to delete the old post but, cant .

bboylost

anyway, my old post is so bottom that no one would ever see that .... whats the point of me posting on there ?

KeithP

bboylost wrote: »

anyway, my old post is so bottom that no one would ever see that .... whats the point of me posting on there ?

As you have now seen, as soon as you post on it, it magically springs right to the top again.

Clever innit? :Dnderstanding.