URGENT Court Claim Form Received - Civil Enforcement Ltd (CEL)

TheDrummer

Coupon-mad wrote: »

You assume wrong. The opposite is true, this law REQUIRES enclosures with a NTH.

Thanks Coupon-mad, really appreciate all of your advice. I am still confused though and I hope the explanation below clarifies why

I've highlighted in bold, the phrases that lead me to think there is a requirement on either the hirer or lease company's to proactively send the creditor a hire agreement or statement for para 13 & 14 to apply.

POFA para 13(2)
The creditor may not exercise the right under paragraph 4 to recover from the keeper any unpaid parking charges specified in the notice to keeper if, within the period of 28 days beginning with the day after that on which that notice was given, the creditor is given—

It states the creditor has to be given a hire agreement / statement within 28 days of a notice to keeper being received for this to apply.

para 14(2)(a) then goes on to say if the creditor has received a hire agreement / statement the creditor has an additional 21 days after receipt to submit a notice to hirer along with the hire agreement / statement they received and the NTK.

the creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;

So if the creditor was not sent the hire agreement / statement (I didn't send them one, and I don't know if the hire company did) para 14 does not apply.

Hope that makes sense and apologies if I'm getting the wrong end of the stick

TheDrummer

Parkingparking wrote: »

Newbie to fighting parking tickets, but I have posted on MSE forums before. I have done a lot of reading up though to try to help out a friend with a parking ticket they received and no personal details was one that was repeated a lot on here haha.

Thanks for spotting it, I removed all of the personal details from the original but when I pasted the amendment I left in the reg number (whoops).

Coupon-mad

So if the creditor was not sent the hire agreement / statement (I didn't send them one, and I don't know if the hire company did) para 14 does not apply.

Yes, but either way the law cannot hold you liable. Either:

(a) The Hire firm gave the PPC the hire agreement / statement and the PPC failed to enclose it with the template NTH (no PPC gets this right, they all fail and always have, probably because their notices are issued pretty much with a few keystrokes and no human intervention). If this is true then the PPC has failed in their attempt to hold a hirer liable as 'keeper'.

or

(b) The Hire firm failed to give CEL the hire agreement / statement and the PPC didn't chase for it and just ran with your name, hoping they could tap you to pay anyway, as most people haven't a clue about the law. If this is true, then you have not been nominated as the 'keeper' (hirer) properly, in accordance with the law, because the Hire firm has failed to transfer liability to you, and so CEL has the wrong Defendant and you cannot be held liable.

It's not that the law doesn't apply. It's that CEL has failed to apply it.

They are probably hoping you know none of the above and will either pay or admit to being the driver, so that none of it will matter to them.

TheDrummer

Coupon-mad wrote: »

They are probably hoping you know none of the above and will either pay or admit to being the driver, so that none of it will matter to them.

When I first received the NTK I followed their dispute process to say that I had left a parking permit in the car while it was in the car park so I've already admitted to being the driver (wish I hadn't done that now obviously) so is this even a defence strategy that I can use now?

If so great, if not then it looks like my strongest defence is that I did not receive the NTK in the 14 day window and therefore its not legal anyway. Would you agree?

Coupon-mad

If so great, if not then it looks like my strongest defence is that I did not receive the NTK in the 14 day window and therefore its not legal anyway. Would you agree?

No, because:

(1) it is legal, and not 'void' to send that document, and

(2) that is NOT the deadline for a Notice to Hirer anyway (it's 21 days), and

(3) that deadline is from the POFA, which only applies if they do not know who was driving!

When I first received the NTK I followed their dispute process to say that I had left a parking permit in the car while it was in the car park...

Why does the fact the hirer/lessee took responsibility for the permit display, mean they were the actual driver? It doesn't necessarily (albeit a Judge might think it does, on the balance of probabilities).

Anyway, re your defence, add in what we talked about - the fact that the Claimant has failed to apply the applicable part of the POFA that might have allowed them to hold a hirer/lessee liable because they failed to comply with the mandatory requirement for lease/hire agreement enclosures with a compliant Notice to Hirer.

TheDrummer

Coupon-mad wrote: »

Anyway, re your defence, add in what we talked about - the fact that the Claimant has failed to apply the applicable part of the POFA that might have allowed them to hold a hirer/lessee liable because they failed to comply with the mandatory requirement for lease/hire agreement enclosures with a compliant Notice to Hirer.

Thank you Coupon-mad. This is my updated defence which I hope includes all of the relevant points


________________________________________
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 XXXXX, of which the Defendant is the hirer of the vehicle, was parked on the material date (30/12/2017) at Aurora Bar and Restaurant.

3. No notice to driver was affixed to the vehicle on the material date. A notice to keeper was issued on the 26/01/2018 and delivered on the 29/01/2018, a period of 29 days beginning with the day after that on which the specified period of parking ended until the notice was delivered. The notice period falls outside of the required period in which a notice to keeper must be delivered in accordance with the Protection of Freedoms Act 2012, paras. 6(1)(b) and 9(5).

4. The notice to keeper was not accompanied by any evidence as prescribed in the Protection of Freedoms Act 2012, paras. 9(7) and subsequently paras 10.

5. The Claimant failed to comply with the Protection of Freedoms Act 2012, paras. 14(2)(a) which mandates that the Claimant must provide the hirer with a copy of the lease/hire agreement enclosures mentioned in paras. 13(2) when they delivered the notice to keeper.

6. 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.

7. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

8. 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.

9. 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, in this case £100. The claim includes an additional £70, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

10. The Claimant is put to strict proof that it has incurred legal representation costs specifically related to this claim, for which a £50 cost has been included in the claim.

11. In summary, it is the Defendant's position that the notice to keeper is invalid as it does not meet the legal requirements through a failure to deliver the required evidence and lease / hire agreements and was not delivered in the required timescale, the claim discloses no cause of action, is without merit, have 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

Coupon-mad

As you are defending as hirer and not admitted driver, put this:

3. As far as the Defendant hirer is aware, no notice to driver was [STRIKE]affixed to[/STRIKE] served, because no PCN was found on the vehicle on the material date. The Claimant is put to strict proof.

Wrong citation of the wrong POFA paragraphs, as neither #9 nor #10 come into it (para 10 isn't even enacted!):

4. The notice to keeper was not accompanied by any evidence as prescribed in the Protection of Freedoms Act 2012, paras. 9(7) and subsequently paras 10.

You know which paras of the POFA relate to hirers...this has been discussed.

TheDrummer

Coupon-mad wrote: »

As you are defending as hirer and not admitted driver, put this:
Wrong citation of the wrong POFA paragraphs, as neither #9 nor #10 come into it (para 10 isn't even enacted!):.

Thanks, final copy below


________________________________________
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 XXXXX, of which the Defendant is the hirer of the vehicle, was parked on the material date (30/12/2017) at Aurora Bar and Restaurant.

3. As far as the Defendant hirer is aware, no notice to driver was served, because no PCN was found on the vehicle on the material date. The Claimant is put to strict proof.

4. A notice to keeper was issued on the 26/01/2018 and delivered on the 29/01/2018, a period of 29 days beginning with the day after that on which the specified period of parking ended until the notice was delivered. The notice period falls outside of the required period in which a notice to keeper must be delivered in accordance with the Protection of Freedoms Act 2012, paras. 6(1)(b) and 9(5).

5. The Claimant failed to comply with the Protection of Freedoms Act 2012, paras. 14(2)(a) which mandates that the Claimant must provide the hirer with a copy of the lease/hire agreement enclosures mentioned in paras. 13(2) when they delivered the notice to keeper.

6. 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.

7. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

8. 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.

9. 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, in this case £100. The claim includes an additional £70, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

10. The Claimant is put to strict proof that it has incurred legal representation costs specifically related to this claim, for which a £50 cost has been included in the claim.

11. In summary, it is the Defendant's position that the notice to keeper is invalid as it does not meet the legal requirements through a failure to deliver the required evidence and lease / hire agreements and was not delivered in the required timescale, the claim discloses no cause of action, is without merit, have 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

Coupon-mad

This isn't right for a NTH and as I said, Paragraph 9 doesn't come into it:

4. A notice to keeper was issued on the 26/01/2018 and delivered on the 29/01/2018, a period of 29 days beginning with the day after that on which the specified period of parking ended until the notice was delivered. The notice period falls outside of the required period in which a notice to keeper must be delivered in accordance with the Protection of Freedoms Act 2012, paras. 6(1)(b) and 9(5).

The relevant paragraphs are 13 & 14, re the timeline & enclosures for Notice to Hirers.