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CEL Court Claim form- Defence Letter
batlo8
Posts: 14 Forumite
Hi,
Total newbie helping my Mum out for a PCN she received way back in March 2018, this has now escalated to a court claim form. i have already submitted the acknowledgement of service.
I have drafted this as the defence but I have read so much stuff now I am not 100% sure I am on the right track, any guidance on what I have so far would be hugely appreciated.
In the County Court Business Centre
Claim Number:
Between:
Civil Enforcement Limited v
I am
, the defendant in this matter and previous registered keeper of vehicle
. I currently reside at
.
I deny I am liable for the entirety of the claim for each of the following reasons:
1. The Claim Form issued on 14/01/2019 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 (Claimant’s Legal Representative)”.
2. This Claimant has not complied with pre-court protocol. 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. 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’, under the Practice Direction.
b) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.
c) The Schedule of information is sparse of detailed information.
d) The Claim form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant is unaware of what the alleged breach was and how the original charge arose; the defendant has never been issued with a copy of the alleged contract.
e) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.
f) 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 (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 charges over and above the initial charge are being claimed, the basis on which this is being claimed
(vii) If Interest charges are being claimed, the basis on which this is being claimed
g) Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.
3. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions. Whilst the original PCN was dated 10/4/2018, this was not received until 25/4/2018, which makes it highly unlikely the date given is truthful or correct.
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 as there was no clear, transparent information about how to obtain a permit either inside or outside the site) 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 £193.41 for outstanding debt and damages.
4. The Claimant has added unrecoverable sums to the original parking charge. The debt has increased from £60 to £193.41 with no explanation or breakdown of this increase provided to the defendant. I deny the Claimant is entitled to any interest whatsoever.
5. 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. None of this applies in this material case.
6. 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 into between the driver and the Claimant.
c) 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.
7. No standing - this distinguishes this case from the Beavis case:
It is believed Civil Enforcement 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.
8. No legitimate interest - 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 and it believed this is one such case. This is not a legitimate reason to pursue a charge out of proportion with any loss or damages the true landowner could pursue.
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.
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 14th January 2019; whilst particulars of claim are stated as ‘Claim for monies relating to a Parking Charge’ there is again no mention of how the parking charge was incurred or in what way the defendant breached the alleged contract.
(b) Sent obviously generic template, cut and paste letters, stating no 'Particulars' of claim 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.
I confirm that the above facts and statements are true to the best of my knowledge and recollection.
Signed
Date
I am wondering if I should put more about signage? Unfortunately we are unable to go back to check as I don't drive and Mum's health has since deteriorated and she is unable to drive. I do remember looking around for a sign at the time though and not seeing any at all.
I have attached copies of all correspondence she has had, I am fairly confident they aren't POFA compliant but can someone just confirm this for me please?
Many Thanks in advance
Tinks
Sorry, the site wont let me upload images as I am a new user! Didnt realise that when I wrote the post
Total newbie helping my Mum out for a PCN she received way back in March 2018, this has now escalated to a court claim form. i have already submitted the acknowledgement of service.
I have drafted this as the defence but I have read so much stuff now I am not 100% sure I am on the right track, any guidance on what I have so far would be hugely appreciated.
In the County Court Business Centre
Claim Number:
Between:
Civil Enforcement Limited v
I am
, the defendant in this matter and previous registered keeper of vehicle
. I currently reside at
.
I deny I am liable for the entirety of the claim for each of the following reasons:
1. The Claim Form issued on 14/01/2019 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 (Claimant’s Legal Representative)”.
2. This Claimant has not complied with pre-court protocol. 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. 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’, under the Practice Direction.
b) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.
c) The Schedule of information is sparse of detailed information.
d) The Claim form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant is unaware of what the alleged breach was and how the original charge arose; the defendant has never been issued with a copy of the alleged contract.
e) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.
f) 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 (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 charges over and above the initial charge are being claimed, the basis on which this is being claimed
(vii) If Interest charges are being claimed, the basis on which this is being claimed
g) Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.
3. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions. Whilst the original PCN was dated 10/4/2018, this was not received until 25/4/2018, which makes it highly unlikely the date given is truthful or correct.
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 as there was no clear, transparent information about how to obtain a permit either inside or outside the site) 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 £193.41 for outstanding debt and damages.
4. The Claimant has added unrecoverable sums to the original parking charge. The debt has increased from £60 to £193.41 with no explanation or breakdown of this increase provided to the defendant. I deny the Claimant is entitled to any interest whatsoever.
5. 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. None of this applies in this material case.
6. 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 into between the driver and the Claimant.
c) 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.
7. No standing - this distinguishes this case from the Beavis case:
It is believed Civil Enforcement 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.
8. No legitimate interest - 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 and it believed this is one such case. This is not a legitimate reason to pursue a charge out of proportion with any loss or damages the true landowner could pursue.
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.
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 14th January 2019; whilst particulars of claim are stated as ‘Claim for monies relating to a Parking Charge’ there is again no mention of how the parking charge was incurred or in what way the defendant breached the alleged contract.
(b) Sent obviously generic template, cut and paste letters, stating no 'Particulars' of claim 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.
I confirm that the above facts and statements are true to the best of my knowledge and recollection.
Signed
Date
I am wondering if I should put more about signage? Unfortunately we are unable to go back to check as I don't drive and Mum's health has since deteriorated and she is unable to drive. I do remember looking around for a sign at the time though and not seeing any at all.
I have attached copies of all correspondence she has had, I am fairly confident they aren't POFA compliant but can someone just confirm this for me please?
Many Thanks in advance
Tinks
Sorry, the site wont let me upload images as I am a new user! Didnt realise that when I wrote the post
0
Comments
-
Get your mother's MP on board.
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 five readings are available to watch on the internet, (some 7-8 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.You never know how far you can go until you go too far.0 -
What is the Issue Date on the Claim Form?
Was it sent from the County Court Business Centre in Northampton, or from somewhere else?0 -
Issue date is 14/1/19 and it's from Northampton yes.0
-
Issue date is 14/1/19 and it's from Northampton yes.
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 nearly two weeks away. Loads of time to produce a good 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.
- Sign it and date it.
- Scan the signed document back in and save it as a pdf.
- Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
- 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'.
- Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
- Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
- 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.
0 - Sign it and date it.
-
Thank you so much0
-
Hi,
So Mum filed her defence and we have now had the the DQ. We decided today to drive back to the car park where this all happened and low and behold there are now signs all over the place saying 2 hour maximum stay.
These signs are new, I was with her the day this happened and we both walked up and down the car park to look for signs and non were there, I am 100% sure of that. But now they are, how are we supposed to move forward now? We are almost a year on from the alleged incident so the car park now is not reflective of how it was then.0 -
Complete the DQ as described in the NEWBIES thread.
Return it to the CCBC using the same manner and the same email address that you used to file your Defence.
Don't forget to send a copy to the Claimant - address on your Claim Form.
Have you looked on google street view for pics of the signs?
Or generally search both google and this forum for sign images using the name of the car park.0 -
Complete the DQ as described in the NEWBIES thread.
Return it to the CCBC using the same manner and the same email address that you used to file your Defence.
Don't forget to send a copy to the Claimant - address on your Claim Form.
Have you looked on google street view for pics of the signs?
Or generally search both google and this forum for sign images using the name of the car park.
Off to Google I go thank you so much0 -
Hi, just wondered if you had an update on this batlo8? did the case get struck off?0
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