CEL defence

Padre_Long

OK, have made the changes suggested. Do you guys think this is good to go please?

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

CIVIL ENFORCEMENT LIMITED (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

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

2. 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.

3. 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. They give no definition of the terms ‘our charge’ nor ‘additional charge’.

4. 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 In any event, this would constitute 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 an authorised party using the premises as intended

5. 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. The Claimant is not the landowner of the car park. This means that the Claimant, as a matter of law, will have no locus standi to litigate in their own name. As a third-party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. Furthermore, any such claim should be made in the name of the landowner.

6. The Claimant is put to strict proof their ability to issue and pursue charges at this location and that they have a valid contract in their name with the Landowner to instigate any legal action. The Defendant clarifies that this should be an actual copy of a contemporaneous contract with the landowner showing a clear chain of authority and not just a document that claims a contract/agreement exists.

7. 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. 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.

8. In paragraph 5 of the Amended Particulars of Claim, the Claimant has made the accusation that the Defendant was Driver of the vehicle in question at the time of the alleged parking offence without offering any evidence to prove this. The Defendant accepts being the registered Keeper of the vehicle, but cannot reasonably be expected to confirm or deny being the Driver on the date in question (XXXX) as it is now approximately 3 years and 3 months ago. No photographic evidence, such as copies of the APNR photographs, has been presented by the Claimant. The vehicle could have been driven by other family members or friends with fully comprehensive insurance at the time in question.

9. Henry Greenslade, lead adjudicator of POPLA in 2015 and an eminent barrister and parking law expert stated that "However keeper information is obtained, there is no reasonable presumption in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort."

10. The Defendant puts the Claimant to strict proof that it issued a compliant notice under Schedule 4 of the Protection of Freedoms Act 2012. No such Notice has been received by the Defendant.

11. There has been some question regarding whether private firms using ANPR synchronise the camera clock at the entrance with the timer at the exit. Some have been shown by Google Location to be several minutes out, suggesting an overstay with flawed evidence. The Claimant is put to strict proof that the ANPR clocks were synchronised, not just their own word that they were. The BPA do not 'audit' ANPR systems and have no capacity to check the workings so the Claimant must show other evidence of the timings they claim, not just some figures overlaid on a photo image.

12. 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 (which has not been seen by the Defendant), but appears from the Amended Particulars of Claim in this case to be £100. The claim includes an additional £152.91 which appears to be an attempt at double recovery.

13. It is implied that a portion of these additional costs relate to ‘Debt Recovery Costs.’ It was held in the Supreme Court in ParkingEye v Beavis (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters. Thus, there can be no 'costs' to pile on top of any parking charge claim. 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.

14. With regard to ‘Administrative costs’, according to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

15. Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Order was identical in striking out both claims without a hearing, as follows:

‘'IT IS ORDERED THAT The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...'

16. The costs on the claim are disproportionate and disingenuous. CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

17. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant, not least due to the abuse of process in attempting to claim fanciful costs which they are not entitled to recover.

18. In the event that 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

19. 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

Le_Kirk

Seems to have everything a good defence should have and looks like a lot of others seen on here recently.

Padre_Long

When I submit my defence do I just send it to the County Court or do I mark it for the attention of the DJ?

Le_Kirk

If you had read the NEWBIE sticky, you would have found the info your require, however, to assist you, I give you an extract of the post that KeithP normally posts: -

1. Print your Defence.
2. Sign it and date it.
3. Scan the signed document back in and save it as a pdf.
4. Send that pdf as an email attachment to [EMAIL="CCBCAQ@Justice.gov.uk"]CCBCAQ@Justice.gov.uk[/EMAIL]
5. 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'.
6. Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.

Padre_Long

Confused. Why would I send my defence to CCBC when I have already had a hearing at my local county court and the DJ based there was the person who ordered that I submit a defence, having already set aside my CCJ? Surely I should submit back to my local county court?

KeithP

Padre_Long wrote: »

Confused. Why would I send my defence to CCBC when I have already had a hearing at my local county court and the DJ based there was the person who ordered that I submit a defence, having already set aside my CCJ? Surely I should submit back to my local county court?

You are right. I think Le_Kirk is mistaken in this case.

Le_Kirk

I'm having a good day aren't I. Again didn't read back through the thread. Shouldn't try to do this as well as gardening!

Coupon-mad

Padre_Long wrote: »

Confused. Why would I send my defence to CCBC when I have already had a hearing at my local county court and the DJ based there was the person who ordered that I submit a defence, having already set aside my CCJ? Surely I should submit back to my local county court?

Yes send it to the named DJ and get proof of posting, and email it to CEL in the interests of openness.

You have a typo in #8:

APNR

And I would add a point near the end (two numbered paragraphs):

This matter has already cost the Defendant £255 in court fees plus £xx in wasted costs/loss of leave/salary for attending the set aside hearing that the Claimant failed to attend, despite this Claimant knowingly relying upon non-POFA compliant documents, and knowing they cannot lawfully hold this registered keeper liable at all. The claim was always destined to fail due to 'no keeper liability' and this basic failure to pursue the correct party, plus the failure to trace the Defendant's address after all these years to properly serve the claim, is wholly unreasonable conduct.

Given that the Claimant is now believed unlikely to attend the main hearing and usually discontinues cases after a CCJ is set aside, rather than have their meritless non-POFA case against a registered keeper heard, the Defendant asks the Judge to consider amending the post-set aside Order to include reserving the Defendant's costs thus far, in the total sum of £xxx.xx so that the Defendant can be recompensed in the event of a discontinuance or successfully defended hearing.

Padre_Long

Thank you all. This is very much appreciated

Coupon-mad

Also put those words about reserving your costs in a covering letter so the Judge reads them first. Maybe the Judge will agree, then that protects your wasted costs.

No harm in repeating that request so the Judge doesn't just file the defence for now.