Defence Statement - Civil Enforcement

Franksmith

Hi everyone, I want to begin by thanking everyone on this forum, without your continued support individuals like myself would be lost in the world of ppcs.

Some context:
- the pcn is for a lease car - date of alleged offence 06/05/2018
- the first letter I recieved was on 17/07/18, a "final reminder" letter to which i was perplexed as there was no images of the alleged offence or location. (I'm assuming the original letter went to the hire company and CEL sent me the subsequent letter after the company named me as the hirer, so the hirer has been out of the loop)
- although it was a final reminder, the letter still stated appeals were still possible with 28 days. As such I submitted an appeal online, stating the vehicle is a lease car and CEL have not followed correct procedure i.e. giving me hire contract documents etc. (luckily i have a print screen of succesful submission of this appeal).

-subsequently received a templated letter from CEL saying I was too late with my appeal (although the final reminder said it was possible and a print screen of succesfull submission)
-along with the templated letter, CEL attached a "copy of the original" letter that I never received which was not dated (arguably edited by CEL)

- I also sent a recorded letter stating the 28 days in the final reminder, with an image of successful appeal submission - no response

I have ignored all other correspondence debt collectors etc.

Received CCBC letter issue date 14/05/19, submitted AOS on 20/05/19. Below is the defence I have formulated based on templates I have read on this thread. Please let me know any suggestions or questions. Thank you very much

In the County Court Business Centre
Between:
Civil Enforcement Limited
V
xxxxx
Claim Number: xxxx
I am xxxxx, the defendant in this matter and the hirer of the lease car in question. The registered keeper and owner of the vehicle is and was xxxx Financial Services during the alleged matter.

The Defendant puts the Claimant to full proof of every element of the Claim.

I deny I am liable for the entirety of the claim for each of the following reasons:
1. The Claim Form issued on the 14th May 2019 by Civil Enforcement Ltd 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)”. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. 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.

2. This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017). 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 complaint “Letter before County Court Claim”, under the Practice Direction
(b) This is a speculative serial litigant, issuing many “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 has no idea what the claim is about – why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information. Furthermore, the Claim Form Particulars did not contain any evidence of contravention or photographs.
(e) 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
f) 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. Notice to keeper and notice to hirer non-compliances.
(a) I was not the driver on the day of the parking event and this claimant cannot hold me liable under any applicable rule of law.
(b) The driver has not been evidenced and I put the Claimant to strict proof that it issued a compliant notice under Schedule 4 of the Protection of Freedoms Act 2012 (POFA)
b. Schedule 4 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.
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 £xxxx for “outstanding charge”.
c. Furthermore, as this is a lease car, the claimant will have enquired the registration with the DVLA who will have named xxxxx Financial Services as the registered keeper. The claimant will have had to enquire with xxxxx Financial Services as to the hirer is. Notice to Hirer did not comply with POFA 2012 Schedule 4 Paragraphs 13(2) and 14(2) and (3). Documents were not sent in accordance to the aforementioned paragraphs including:
(i) A statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;
(ii) A copy of the hire agreement; and
(iii) A copy of a statement of liability signed by the hirer under that hire agreement.

4. 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” costs were incurred.

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. 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.

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) 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) Non-existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
(iii) 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.
(iv) 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.
(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.

7. 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.

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.

11. 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 May 2019.
(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.
(c) The defendant attempted to contact the claimant prior to court proceedings to resolve the matter, pointing out that they have not met POFA 2012 requirements for a lease vehicle.

12. When Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) or alternatively, for the hearing fee to be ordered to be paid before exchange of documents between the parties, because where a claim from this serial Claimant is robustly defended, this Claimant routinely discontinues after seeing a Defendant's Witness Statement and never pays the court hearing fee.

13. It is an unfair burden and a complete waste of time for the Defendant to spend hours on their defence against a vexatious litigant who then discontinues. Research shows that this Claimant is regularly observed as being in pursuit of default judgments to use as an aggressive form of debt collection, with no intention of paying for or attending the majority of hearings

14. 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 confirm that the above facts and statements are true to the best of my knowledge and recollection.

^thrown it all in there!

KeithP

With a Claim Issue Date of 14th May, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 17th June 2019 to file your Defence.

That's three weeks away. Loads of time to produce a perfect Defence and it is good to see that you are not leaving it to the 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 "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep 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.

Also, have you based your forum username on your real name?

If so, you would be wise to get your forum username changed to something very much more anonymous.

To help with that, you might like to read this short extract from The MSE Forum Guide - Frequently Asked Questions & Rules:

Q. How can I change my username?

A. In most circumstances, this is not permitted.

The only reason we will change your username is if it puts your privacy at risk. This usually means you've inadvertently registered using your name, email address or something that gives away your identity within your username.

If you fall into this category, email forumteam@moneysavingexpert.com and request that it is changed, giving three alternative usernames in order of preference.

Coupon-mad

That's a pretty old defence template and IMHO it's too waffly at the start.

Search the forum for Civil Enforcement defence and see what others have posted in 2019, and copy from a more concise version.

And first of all, by email to the DPO contact shown on their privacy page, send a SAR for all letters and photos and watch them fail to produce the fake letter!

-subsequently received a templated letter from CEL saying I was too late with my appeal (although the final reminder said it was possible and a print screen of succesfull submission)
-along with the templated letter, CEL attached a "copy of the original" letter that I never received which was not dated (arguably edited by CEL)

Franksmith

KeithP, thanks and my username is not related to my real identity.

Coupan-mad, okay thanks I will look at 2019 defences.

I'll upload when I am happy with it and keep this thread updated.

Coupon-mad

SAR first, should have been done already by email to the DPO contact shown on their privacy page.

The_Deep

Nine times out of ten these tickets are scams so complain to your MP.

Parliament is well aware of the MO of these private parking companies, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

Franksmith

hi, guys I made a sar request and received all documents to my pcn.

1. Some of the letters are dated, others are not

2. They sent a copy of the "original" pcn that they sent to my lease company where it says pcn issue date 14/05/2018. However, on the pcn I received the issue date is 15/06/2018, which doesn't make sense how can you have two issue dates?

3. They haven't given any copies of contract hire agreements which they have to do according to pofa - which is good, another failure on their part.

4. They have included the "final reminder" letter which was the first letter I received which clearly says appeals within 28 days. I was thinking about complaining to the bpa by showing them this letter and my proof of appeal within the timeframe of the letter, yet CEL say my appeal was too late.
Would anyone advise me to do this?

5. Interestingly, they included copies of letters from debt collectors zzps. However, they decided to exclude letters from QDR solicitors (which I have retained). Can this be of any help to me?

KeithP

In 2. - the Issue Date they are referring to is the Issue Date of that particular letter.

In 5. - Perhaps the PPC doesn't have copies of those QDR letters. Do you know that QDR sent copies of those letters to the PPC?

Coupon-mad

They have included the "final reminder" letter which was the first letter I received which clearly says appeals within 28 days. I was thinking about complaining to the bpa by showing them this letter and my proof of appeal within the timeframe of the letter, yet CEL say my appeal was too late.
Would anyone advise me to do this?

Yes. Email Gemma Dorans:

gemma.d@britishparking.co.uk

Ask her to confirm that the BPA CoP required CEL to send a hirer a POPLA code.

Franksmith

@KeithP
I don't know if QDR sent those letters to the PPC. However, the QDR letters do mention " We are instructed by ZZPS Lmited on behalf of Civil Enforcement Limited"

KeithP

Franksmith wrote: »

@KeithP
I don't know if QDR sent those letters to the PPC. However, the QDR letters do mention " We are instructed by ZZPS Lmited on behalf of Civil Enforcement Limited"

Then the answer to your question "Can this be of any help to me?" must be - no.