CEL - proposed defence

gareth5590

Hello all,


Pretty much usual story it would appear. Received a claim form from Northampton CCBC in relation to an application made by CEL. Stated I parked in one of their controlled car parks for 16 minutes late one night. I have researched these forums and have drafted the below. The car park is very dark so any signs cannot be clearly seen so will be my main defence.


Any thoughts or suggestions would be appreciated.


Thank you all.

• In the County Court Business Centre, Northampton
  
  CLAIM NO XXXX
  
  BETWEEN
  
  CIVIL ENFORCEMENT LIMITED
  V
  XXXX
  
  DEFENCE STATEMENT
  
  I am XXXX, the defendant in this matter and registered keeper of vehicle registration XXXX. I currently reside at XXXX.
• 
  I deny I am liable for the entirety of the claim for each of the following reasons:
  
  1. The Claim Form issued on the XXXX by Civil Enforcement Limited was not correctly filed under The Practice Direction as it was not signed by a legal representative but signed by “Civil Enforcement Limited” (Claimant’s Legal Representative)
  
  2. This Claimant has not complied with pre-court protocol, 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. All these are treated differently in law and require a different defence. 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
  
  a) There was no compliant ‘Letter before County Court Claim’, received by the Defendant under the Practice Direction. The last letter received was advising that the defendant’s account had been ‘returned’ to ZZPS limited.
  
  b) No Parking Charge Notice was ever received from the claimant; therefore there was no chance or offering for the Defendant to appeal the charge.
  
  c) This is a speculative serial litigant, issuing many identical 'draft particulars'. The badly mail-merged documents contain very little information
  
  d) The Schedule of information is sparse of detailed information
  
  e) The Claim Form Particulars were extremely sparse, and divulged no cause of action nor sufficient detail. The Defendant has no idea what the alleged contract was on this incident date; nothing that could be considered a fair exchange of information. The Claim Form Particulars did not contain any evidence of contravention or photographs
  
  f) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted
  
  g) Alternatively, the Defendant asks that the Claimant is required to file particulars which comply with Practice Directions and include at least the following information;
  
  i. Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
  
  ii. A copy of any contract it is alleged was in place at the time (e.g. copies of signage)
  
  iii. How any contract was concluded (if by performance, then copies of signage maps in place at the time)
  
  iv. Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
  
  v. Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
  
  vi. If relying on Automatic Number Plate Recognition (ANPR) data, then Installation record of the ANPR system with location, showing the height and angle of the camera and a record of maintenance of the system along with details to show the recorded times provided are accurate and the machine was correctly calibrated
  
  vii. If charges over and above the initial charge are being claimed, the basis on which this is being claimed
  
  viii. If Interest charges are being claimed, the basis on which this is being claimed
  
  ix. Why the original parking charge amount before incurring further charges was the sum of £XXX
  
  x. Why all correspondence received from ZZPS and QDR Solicitors never stated the breach of the car parks terms, no entry/exit time specified, only a time regarding the issue date.
  
  Once these have been filed, the Defendant asks for reasonable time to file another defence.
  
  3. 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
  
  4. 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. The defendant did not see the signs on the date of incident and therefore did not enter a contract. A 'parking charge' can only be binding where that charge was agreed/the bargain made, at the time the contract was formed.
  
  5. In the absence of any proof of adequate signage that 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 that 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, between the driver and the Claimant
  
  c) Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
  
  i. It is believed the signage 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
  
  ii. 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
  
  iii. The signs are believed to not be clear, poorly lit and inadequate for the area. The date of this particular incident was late at night in April when the sun would have set and therefore sufficiently lit clear signs would certainly be necessary in this case.
  
  d) BPA CoP breaches - this distinguishes this case from the Beavis case:
  
  i. the sum pursued, £XXX is manifestly excessive
• ii. there is / was no compliant landowner contract known to the defendant
• iii. the signs were not compliant in terms of the font size, lighting or positioning
  
  6. No legitimate interest – no proof has been given that Civil Enforcement have a contract with this land. This distinguishes this case from the Beavis case: This Claimant files serial claims regarding sites where they have lost the contract, known as revenge claims. It is not a legitimate reason to pursue a charge out of proportion with any loss or damages the true landowner could pursue.
  
  7. 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
  
  8. 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
  
  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 XXXX.
  
  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
  
  I confirm that the above facts and statements are true to the best of my knowledge and recollection.
  
  
  
  
  
  
  Defendant XXXX
  Signed XXXX
  Date XXXX

KeithP

Hi and welcome to the forum.

Can you please edit your opening post to change the thread title so that it doesn't mention CCJ. You do not have a County Court Judgment.

What is the Issue Date on your Claim Form?

gareth5590

All done - Thanks and I'm planning on keeping it that way!.......14th January 2019 - I have sent off the acknowledgement and by my calcs got until 14th February to submit my defence?

KeithP

gareth5590 wrote: »

All done - Thanks and I'm planning on keeping it that way!.......14th January 2019 - I have sent off the acknowledgement and by my calcs got until 14th February to submit my defence?

You have a few more days than you thought.

With a Claim Issue Date of 14th January, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 18th February 2019 to file your Defence.

That's three weeks away. Loads of time to produce a perfect Defence, 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 suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. 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'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
   
6. Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

gareth5590

Thanks Keith means I can concentrate on Valentines Day for the right reason!


I'm sure CEL will push it right to the end but I'm not phased by their bully boy tactics.......


My proposed defence is as above - not sure I should expand on the signs etc (or lack of them!) at this stage or just keep it fairly generic?

Coupon-mad

DEFENCE STATEMENT

Should be DEFENCE

That is an old and rambling template you found!

Take a look instead at bargepole's concise defence examples in the NEWBIES thread.

gareth5590

Ok thank you I will take a look.

The_Deep

The whole industry is a scam, relying on threats of court, and the public's ignorance of the Law, A bill is currently before parliament which will regulate the scammers, many of whom are ex-clampers.

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors. Is has been suggested by an MP that some of these companies may have connections to organised crime.

Parking Eye, CPM, Smart, (especially Smart}, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week), hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

The problem has become so widespread that MPs have agreed to enact a Bill to regulate these scammers.

Sir Greg Knight's Private Members Bill to curb the excesses, and perhaps close down, some of these companies passed its Second Reading in the Lords this month, and, with a fair wind, will l become Law later this year..

All three readings are available to watch on the internet, (some 6-7 hours), and published in Hansard. MPs have an extremely low opinion of the industry. Many are complaining that they are becoming overwhelmed by complaints from members of the public. Add to their burden, complain in the most robust terms about the scammers.

gareth5590

As per the above advice I have amended my proposed defence........any comments please?






IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

Civil Enforcement LTD (Claimant)

- and -

xxxxxxxxxxxx (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 XXXX, of which the Defendant is the registered keeper, was parked on the material date.

3. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claimant fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, 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.

4. 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. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

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 particularly late at night in a poorly lit area when it is alleged this took place. Additionally, the lay out of the car park, position of signage and geography of location is incapable of legally binding the defendant into any contract.

6. The sum pursued by the Claiment, £XXX, is manifestly excessive.

7. 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.

Name
Signature
Date

nosferatu1001

When you say you "sent off" your acknowlegdement, pelase say you didnt use the form but did it online??

gareth5590

......online