CEL Defense-Proofing

Deal_or_Not

Hi, Joined this amazing Community now. Thanks for all the guidance and threads which I have gone through as suggested.
As with many, I am also dealing with the CEL Claim form. I have already done the AoS online and in the process of preparing my defense. Please let me know if you notice anything NOT required or if something important is missed.


The wording goes like this:


***********************************
County Court Business Centre
Claim Number ****
Between: Civil Enforcement Limited v ******


Defense Statement

• The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
• 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 Claim 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.
• 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.
• The alleged breach, according to Civil Enforcement, is in contravention of terms and conditions; clearly displayed at the entrance to and throughout the car park. The signs in this car park are not at all prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself. At time of the alleged contravention, the one single small sign at the entrance could not be read fully and properly without stopping, and it is also possible to park in a bay without coming close to any other sign. Civil Enforcement are required to show evidence to the contrary. The signs in the car park are on exterior walls and are placed every fourth row and spaced with seven car parking spaces between them. Due to the distance and the orientation of the sign it is therefore possible to park and walk to the Morrisons Shopping Centre, particularly when parking in the middle two rows and not be able to see any clear signage which complies with BPA requirements. Here, the signs are sporadically placed. The wording is mostly illegible as it is so small in size, particularly notice of the actual parking charge itself.
• 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.
  
  
• The Claimant has not complied with pre-court protocol:
  a. There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.
  b. The Claim Form Particulars fail to comply with Civil Procedure Rule 16.4 – they are extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has no idea what the claim is about, why the charge arose, what the original charge was, what the alleged contract was; nothing that could be considered a fair exchange of information.
  c. The separate particulars of claim are vague and do not explain how the charge has been calculated as required by the Practice Direction - Pre-Action Conduct and Protocols.
  d. The Claimant has incorrectly calculated the interest from the date of the alleged parking event and not from the date of any cause of action or costs. No cause of action could possibly arise until 28 days after the Parking Notice was served as stated in the Protection Of Freedoms Act 2012, Schedule 4 .
  e. The Claim Form was not correctly filed under the Practice Direction as it was not signed by a legal person but signed by “Legal Team”.
  f. This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information. The covering letter merely contains a supposed PCN number with no contravention nor photographs.
  
  
• The Claim is for breach of contract; however, the Defendant denies any contract existed. The Claimant failed to establish a contract with the driver due to inadequate signage around the car park incapable of binding the driver. This distinguishes this case from the Beavis case, Specifically:
  a. Poorly worded signs which do not make it clear that charges apply for overstay.
  b. Poorly located signage at the entrance and around the car park which are out of the line of sight for a driver.
  c. No mention of any debt collection additional charge, which therefore cannot form part of any alleged contract.
  
  
• The Claimant has failed to comply with the strict requirements of the Protection Of Freedoms Act 2012, schedule 4 (PoFA 2012):
  a. The driver of the vehicle has not been identified. The Defendant is the registered keeper but was not the Driver. In order for the Claimant to transfer liability from the driver to the keeper, they must do so within the strict requirements of PoFA 2012. This too was confirmed by Mr Greenslade, POPLA Lead Adjudicator in page 8 of the 2015 POPLA Report: “If POFA 2012 Schedule 4 is not complied with then keeper liability does not generally pass.”
  b. The Claimant did not issue a “Notice to Driver” at the time of the alleged offence; therefore, the Claimant is put to strict proof that a “Notice to Keeper” was issued within the required timeframe of 14 days after the alleged offence in accordance with PoFA 2012 para. 9(5).
  c. In failing to comply with the PoFA 2012, the Claimant cannot hold the Keeper liable for any of the claim.
  
  
• The Claimant has no standing to bring a case - this distinguishes this case from the Beavis case.
  a. It is believed the Claimant does not hold a legitimate contract at this car park. The Defendant has no evidence that they have any proprietary interest in the car park/land in question. As an agent, the Claimant has no legal right to bring such a claim in their name. Any such claim should be in the name of the landowner.
  b. The Defendant asks the Claimant to provide a full, up-to date and signed/dated contract with the landowner (a statement saying someone has seen the contract is not enough). The contract needs to state that the Claimant is entitled to pursue matters such as these through the issue of Parking Charge Notices and in the courts in their own name. I clarify that this should be an actual copy and not just a document that claims a contract/agreement exists.
  
  
• Even if a contract had been established it would be void. The Defendant asserts that the Claimant was not acting in “good faith” and that the charges are unlawful, as they are in breach of the Consumer Rights Act 2015, specifically regulation 62(4).
  a. The Defendant believes that the charges added Legal Representative (£50) are fake and were not incurred by the Claimant and therefore cannot be recovered in Court as part of this claim.
  b. Even if the Legal representative’s cost of £50 is genuine it cannot be recovered in Court as this does not comply with Civil Procedure Rule 27.14
  c. If the £50 legal cost to prepare the claim was not incurred, the statement of truth must be false.
  d. The Claimant is put to strict proof that it paid any debt recovery agency or legal representative in escalating the matter. If incurred – the defendant believes this consists of the administration staff of the Claimant performing their normal duties. The Defendant believes this is another example of the Claimant artificially inflating the amount of the claim.
  
  
• The Claimants reference to the Beavis vs Parking Eye judgement is clearly included as an erroneous means to attempt to gain advantage by suggesting the judgement would seal this case.
  
  
• As the claimant has not identified the driver he cannot assume the keeper/driver are one and the same at the time of the supposed contravention. Reference POFA 2012
  
  In light of the reasons above, the Defendant respectfully asks the court to strike out this claim with immediate effect.
  
  
  STATEMENT OF TRUTH
  
  I believe that the facts stated in this defence are true.

*******************************************************

bargepole

"Defense Statement" is wrong on both counts.

This is the UK, not USA.

And it's just "Defence".

Take out the bullet points and replace with clearly numbered paragraphs.

Deal_or_Not

Done...modified version...
***************************
County Court Business Centre
Claim Number ****
Between: Civil Enforcement Limited v ******

Defence -

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. 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 Claim 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.

3. 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.

4. The alleged breach, according to Civil Enforcement, is in contravention of terms and conditions; clearly displayed at the entrance to and throughout the car park. The signs in this car park are not at all prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself. At time of the alleged contravention, the one single small sign at the entrance could not be read fully and properly without stopping, and it is also possible to park in a bay without coming close to any other sign. Civil Enforcement are required to show evidence to the contrary. The signs in the car park are on exterior walls and are placed every fourth row and spaced with seven car parking spaces between them. Due to the distance and the orientation of the sign it is therefore possible to park and walk to the Morrisons Shopping Centre, particularly when parking in the middle two rows and not be able to see any clear signage which complies with BPA requirements. Here, the signs are sporadically placed. The wording is mostly illegible as it is so small in size, particularly notice of the actual parking charge itself.

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. The Claimant has not complied with pre-court protocol:
a. There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.
b. The Claim Form Particulars fail to comply with Civil Procedure Rule 16.4 – they are extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has no idea what the claim is about, why the charge arose, what the original charge was, what the alleged contract was; nothing that could be considered a fair exchange of information.
c. The separate particulars of claim are vague and do not explain how the charge has been calculated as required by the Practice Direction - Pre-Action Conduct and Protocols.
d. The Claimant has incorrectly calculated the interest from the date of the alleged parking event and not from the date of any cause of action or costs. No cause of action could possibly arise until 28 days after the Parking Notice was served as stated in the Protection Of Freedoms Act 2012, Schedule 4 .
e. The Claim Form was not correctly filed under the Practice Direction as it was not signed by a legal person but signed by “Legal Team”.
f. This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information. The covering letter merely contains a supposed PCN number with no contravention nor photographs.

7. The Claim is for breach of contract; however, the Defendant denies any contract existed. The Claimant failed to establish a contract with the driver due to inadequate signage around the car park incapable of binding the driver. This distinguishes this case from the Beavis case, Specifically:
a. Poorly worded signs which do not make it clear that charges apply for overstay.
b. Poorly located signage at the entrance and around the car park which are out of the line of sight for a driver.
c. No mention of any debt collection additional charge, which therefore cannot form part of any alleged contract.

8. The Claimant has failed to comply with the strict requirements of the Protection Of Freedoms Act 2012, schedule 4 (PoFA 2012):
a. The driver of the vehicle has not been identified. The Defendant is the registered keeper but was not the Driver. In order for the Claimant to transfer liability from the driver to the keeper, they must do so within the strict requirements of PoFA 2012. This too was confirmed by Mr Greenslade, POPLA Lead Adjudicator in page 8 of the 2015 POPLA Report: “If POFA 2012 Schedule 4 is not complied with then keeper liability does not generally pass.”
b. The Claimant did not issue a “Notice to Driver” at the time of the alleged offence; therefore, the Claimant is put to strict proof that a “Notice to Keeper” was issued within the required timeframe of 14 days after the alleged offence in accordance with PoFA 2012 para. 9(5).
c. In failing to comply with the PoFA 2012, the Claimant cannot hold the Keeper liable for any of the claim.

9. The Claimant has no standing to bring a case - this distinguishes this case from the Beavis case.
a. It is believed the Claimant does not hold a legitimate contract at this car park. The Defendant has no evidence that they have any proprietary interest in the car park/land in question. As an agent, the Claimant has no legal right to bring such a claim in their name. Any such claim should be in the name of the landowner.
b. The Defendant asks the Claimant to provide a full, up-to date and signed/dated contract with the landowner (a statement saying someone has seen the contract is not enough). The contract needs to state that the Claimant is entitled to pursue matters such as these through the issue of Parking Charge Notices and in the courts in their own name. I clarify that this should be an actual copy and not just a document that claims a contract/agreement exists.

10. Even if a contract had been established it would be void. The Defendant asserts that the Claimant was not acting in “good faith” and that the charges are unlawful, as they are in breach of the Consumer Rights Act 2015, specifically regulation 62(4).
a. The Defendant believes that the charges added Legal Representative (£50) are fake and were not incurred by the Claimant and therefore cannot be recovered in Court as part of this claim.
b. Even if the Legal representative’s cost of £50 is genuine it cannot be recovered in Court as this does not comply with Civil Procedure Rule 27.14
c. If the £50 legal cost to prepare the claim was not incurred, the statement of truth must be false.
d. The Claimant is put to strict proof that it paid any debt recovery agency or legal representative in escalating the matter. If incurred – the defendant believes this consists of the administration staff of the Claimant performing their normal duties. The Defendant believes this is another example of the Claimant artificially inflating the amount of the claim.

11. The Claimants reference to the Beavis vs Parking Eye judgement is clearly included as an erroneous means to attempt to gain advantage by suggesting the judgement would seal this case.

12. As the claimant has not identified the driver he cannot assume the keeper/driver are one and the same at the time of the supposed contravention. Reference POFA 2012

In light of the reasons above, the Defendant respectfully asks the court to strike out this claim with immediate effect.

STATEMENT OF TRUTH

I believe that the facts stated in this defence are true.

********************************

KeithP

What is the Issue Date on your Claim Form?

Deal_or_Not

Issue Date - 14-JAN-2019

Deal_or_Not

Update:
Uploaded the Defense Claim Form last month and now received 'Notice of Proposed Allocation to the Small Claims Track'.

The_Deep

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 become so widespread that MPs agreed to enact a Bill to regulate these scammers. Hopefully, this will become law by Easter .

nosferatu1001

As per post 2 of newbies, this is expected

Have you read ahead to see what you MUST prepare next? Dont wait to be told, be proactive

Deal_or_Not

Ok So its been a while.
First received a letter from Court - Notice of Transfer of Proceedings which suggest the Court where the Claim has been transferred.
The defendent has filed a defence.
There is another Notice of Allocation to the Small Claims Track (Hearing).
Also received Witness statement (and copy) from the Defendents CEL.
I believe I have to send the CEL and Court the documents (??) not sure about this part. Please suggest or point me to the link I can refer to.

Quentin

#2 in the Newbies faq thread covers court claims right through from the issue of the claim to the hearing

KeithP

Deal_or_Not wrote: »

Please suggest or point me to the link I can refer to.

Again, it is post #2 of the NEWBIES thread that you need to be reading. In particular, look at bargepole's 'what happens when' post linked from there.

What is the date that your Witness Statement and evidence is due?