Civil Enforement Ltd Claim Form Advice

Acorn2012

Hello

My first time posting here, looking for some kind persons help to check over my draft defence before I send it off.

I have read Newbies thread and believe I have followed steps accordingly.

Bit of background......
Car registered to myself parked in a co-op & Barbados charity shop car park which used to be a free to use car park with no limited stay. Car was parked for 1hr 20mins completely unaware of this new limit! UNTIL pcn received some few days later. Upon returning to check car park for signage noticed very small inadequate signs! Anyway ignored all letters chasing from Civil Enforement, QDR hoping it would go away!
Claim Form received through the post dated 21st June 2019. Asking for £268.17. Made up of £193.17 claimed + £25 court fee + £50 legal representatives costs. I have submitted AOS and clicked defend all.

Particulars of claim are as follows:
Claim for monies relating to a Parking Charge for parking in a private car park managed by the claimant in breach of the terms + conditions (T+C’s). Drivers are allowed to park in accordance with T&C’s of use. ANPR cameras and/or manual patrols are used to monitor vehicles entering + exiting the site.
Debt + damages claimed the sum of 182.00
Violation date: 13/09/2018
Time in: 10:15 Time our: 11:38
PCN ref: xxxxxx
Car Registration: xxxxxx
Car Park: xxxxx

Total due - 182.00
The claimant claims the sum of 193.17 for monies relating to a parking charge per above including 11.17 interest persuant to S:69 of the County Courts Act 1984 Rate 8.00% pa from dates above to 20/06/2019. Same rate to judgement or (sooner) payment. Daily rate to judgement -0.04
Total debt and interest due 193.17

I have drafted my defence as follows:

In the County Court Business Centre
Between:
Civil Enforcement Limited V xxxx

Claim Number: xxxx

The Defendant admits that she is the registered keeper of the vehicle xxxxxxx but denies being the driver on 13th September 2018 and denies that she is liable for the entirety of the claim for each of the following reasons:

1. The Claim should be struck out at this initial stage because:

1.1 The Claim Form issued on the 21st June 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)”.

1.2 The Claimant failed to comply with its pre-action obligations set out in the Practice Direction - Pre-Action Conduct, because it has failed to provide any meaningful explanation as to what the alleged debt refers to or how it arose or any evidence to back up the claim (a breach of paragraphs 3, 6(a) and 6(c) of the Practice Direction). This puts the Defendant at a serious disadvantage because she is unable to file a full and proper defence - for example, a claim in respect of parking can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. In addition, if the claim is brought under contract, the Defendant is entitled to know and understand the terms of the contract relied upon and how it is alleged the driver entered into it (Practice Direction 16, paragraph 7 also provides that these matters must be included in the Particulars of Claim). The Claimant has never explained this nor provided a copy of the alleged contract, leaving the Defendant unaware of its terms or how the driver is alleged to have entered into it.

a) There was no compliant “Letter before County Court Claim”, under the Practice Direction

b) The Claimant is known to be a speculative serial litigant, issuing a large number of identical claims with Particulars of Claim so sparse as to be incoherent (as in this case). The Claimant is in fundamental breach of CPR 16.4 and paragraph 3.6 of Practice Direction 16 in failing to provide adequate particulars of the Claim. If the claim is for a breach of contract, no details have been provided about how the driver is alleged to have entered into a contract, or what its terms were (CPR Rule 16.4 and Practice Direction 16, paragraph 7).

c) The Claim Form Particulars were extremely sparse and divulge 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. The Claimant has never provided the Defendant, either in the Particulars of Claim nor in any Letter Before Claim, any information about how the claim is alleged to have arisen nor any evidence, such as photographs. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to “take stock”, pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:
i. “Early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute
ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure
iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and
iv. support the efficient management of proceedings that cannot be avoided”.

d) The Defence therefore asks the Court to strike out the claim pursuant to CPR Rule 3.4 by exercising its inherent powers under CPR Rule 1.4(2)(c) and Practice Direction 26, paragraph 5.1 as disclosing no cause of action and having no reasonable prospect of success as currently drafted.

e) Alternatively, the Defendant asks that the Court orders a stay of these proceedings until the Claimant has complied properly with its pre-action obligations (pursuant to paragraph 15(b) of the Practice Direction - Pre-Action Conduct) and providing for the Defendant to file an Amended Defence once it has done so

f) Alternatively the Defendant asks the court to order the Claimant to file Particulars which comply with the clear requirements of the CPR and include at least the following information, and providing for the Defendant to file an Amended Defence once it has done so;

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 the Defendant is being pursued as driver or as keeper and if the latter that it produces 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 and granting it such authority
vi. If charges over and above the initial charge are being claimed, the basis on which this is being claimed and how the charges have been calculated
vii. If interest charges are being claimed, the basis on which this is being claimed.

3.The Defendant denies that she can be liable as Registered Keeper of the vehicle because 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 the Defendant liable as Registered Keeper under the strict ‘keeper liability’ provisions.

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.

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 (or even admin) costs' were incurred. The Defendant denies that the Claimant has incurred such costs and puts it to full proof thereof. The Defendant also denies that the Claimant is entitled to any interest whatsoever.

5. The charges claimed are an unrecoverable penalty. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) in which it was held that the penalty rule was disengaged - that Claim 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 held to be paramount and the Defendant 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 the Defendant 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 contractually bound the Defendant then there can have been no contract and the Claimant has no case. The Defendant puts the Claimant to full proof thereof

a) The Claimant is put to strict proof at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs

b) Without such consent, 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

7.The Claimant has provided no information about what signage was displayed on the land at the relevant time. The Defendant puts the Claimant to full proof thereof and it is his defence that any such signage was inadequate and incapable for forming a contract nor of binding the driver for the following reasons (this again distinguishes this case from the Beavis case):

(i) Sporadic and illegible site/entrance signage (restrictions and any charge not prominent nor in large lettering) - breach of the POFA 2012 Schedule 4 and the BPA compulsory Code of Conduct 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 and any terms were not adequately illuminated 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 complaint landowner contract.

8. The Claimant has no legal standing to bring this Claim this again distinguishes this case from the Beavis case:
The Defendant does not believe that the Claimant is party to a legitimate contract to operate at this car park as it has provided no such evidence. 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.

9.Unless it has contractual authority, the Claimant has no right to pursue this claim. Otherwise, it is a simple trespass claim and only a landowner may pursue such a claim. The Defendant denies that the Claimant is the landowner of the relevant land.

10.Due to the length of time which has passed since the claim allegedly arose, the Defendant has little to no recollection of the day in question. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car months later. In any case, there is no such obligation in law for a Registered Keeper to name a driver, something which was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.

The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:
• Failed to disclose any cause of action in the incorrectly filed Claim Form issued on the 21st June 2019.
• 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.

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.


Thanks for taking time to read this and looking forward to any advice

Redx

Replace point 4 with the abuse of process paragraphs by coupon mad and renumber

Ie- The total should be around £175 including fees, not £268

Also add in the BPA Cop advice about the effect of new signs and starting period before enforcement ( the bedding in period )

beamerguy

Claim Form received through the post dated 21st June 2019. Asking for £268.17. Made up of £193.17 claimed + £25 court fee + £50 legal representatives costs.

CEL/QDR are trying to scam you for fake amounts. ???

QDR are a low cost outfit owned by the disgraced Wright Hassall solicitors

How did they make up £193.17

Anythng above £100 for the ticket is abuse of process and Judges are kicking out these fake claims

READ THIS ....
https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

See the post by coupon-mad #14 and use that

Also read the Jonnersh post on this thread # 36 regarding
"statement of truth"

CEL/QDR have signed as a "statement of truth"

The problem for them is their fake claim is not the truth ???

KeithP

Acorn2012 wrote: »

Claim Form received through the post dated 21st June 2019. I have submitted AOS and clicked defend all.

With a Claim Issue Date of 21st June, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Wednesday 24th July 2019 to file your Defence.

That's over two weeks away. Loads of time to produce a good Defence, but please don't leave 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.

The_Deep

£260 plus is far more than the Law allows for this sort of claim. The down market solicitors whom the PPCs engage know this, but, because they are solicitors, know that a lot of people will pay up.

It is in fact double charging and non claimable debt collectors' add ons. Imo, this is fraud, or, at the very least, improper conduct.

Were this to get to court and they won, the judge would be unlikely to award the claimant more than £175 - £200.

I urge you to report this grubby law firm to their regulatory body, the SRA.

https://www.sra.org.uk/solicitors/handbook/code/content.page

as I am sure they do not condone this conduct.

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

Acorn2012

Thank you so much for your advice. I have re-worked my defence to include a paragraph re abuse of process.

I cannot seem to find the post by BPA Cop about the bedding in period, I’d be really grateful in somebody could point me in the right direct/link it? Thanks

I have uploaded my new defence, I’d really appreciate your time if somebody could proof read and let me know if it’s good to go?

Many thanks for you help!

Acorn2012

In the County Court Business Centre
Between:
Civil Enforcement Limited V xxxx

Claim Number: xxxx

The Defendant admits that she is the registered keeper of the vehicle xxxxxxx but denies being the driver on 13th September 2018 and denies that she is liable for the entirety of the claim for each of the following reasons:

1. The Claim should be struck out at this initial stage because:

1.1 The Claim Form issued on the 21st June 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)”.

1.2 The Claimant failed to comply with its pre-action obligations set out in the Practice Direction - Pre-Action Conduct, because it has failed to provide any meaningful explanation as to what the alleged debt refers to or how it arose or any evidence to back up the claim (a breach of paragraphs 3, 6(a) and 6(c) of the Practice Direction). This puts the Defendant at a serious disadvantage because she is unable to file a full and proper defence - for example, a claim in respect of parking can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. In addition, if the claim is brought under contract, the Defendant is entitled to know and understand the terms of the contract relied upon and how it is alleged the driver entered into it (Practice Direction 16, paragraph 7 also provides that these matters must be included in the Particulars of Claim). The Claimant has never explained this nor provided a copy of the alleged contract, leaving the Defendant unaware of its terms or how the driver is alleged to have entered into it.

a) There was no compliant “Letter before County Court Claim”, under the Practice Direction

b) The Claimant is known to be a speculative serial litigant, issuing a large number of identical claims with Particulars of Claim so sparse as to be incoherent (as in this case). The Claimant is in fundamental breach of CPR 16.4 and paragraph 3.6 of Practice Direction 16 in failing to provide adequate particulars of the Claim. If the claim is for a breach of contract, no details have been provided about how the driver is alleged to have entered into a contract, or what its terms were (CPR Rule 16.4 and Practice Direction 16, paragraph 7).

c) The Claim Form Particulars were extremely sparse and divulge 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. The Claimant has never provided the Defendant, either in the Particulars of Claim nor in any Letter Before Claim, any information about how the claim is alleged to have arisen nor any evidence, such as photographs. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to “take stock”, pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:
i. “Early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute
ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure
iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and
iv. support the efficient management of proceedings that cannot be avoided”.

d) The Defence therefore asks the Court to strike out the claim pursuant to CPR Rule 3.4 by exercising its inherent powers under CPR Rule 1.4(2)(c) and Practice Direction 26, paragraph 5.1 as disclosing no cause of action and having no reasonable prospect of success as currently drafted.

e) Alternatively, the Defendant asks that the Court orders a stay of these proceedings until the Claimant has complied properly with its pre-action obligations (pursuant to paragraph 15(b) of the Practice Direction - Pre-Action Conduct) and providing for the Defendant to file an Amended Defence once it has done so

f) Alternatively the Defendant asks the court to order the Claimant to file Particulars which comply with the clear requirements of the CPR and include at least the following information, and providing for the Defendant to file an Amended Defence once it has done so;

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 the Defendant is being pursued as driver or as keeper and if the latter that it produces 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 and granting it such authority
vi. If charges over and above the initial charge are being claimed, the basis on which this is being claimed and how the charges have been calculated
vii. If interest charges are being claimed, the basis on which this is being claimed.

3.The Defendant denies that she can be liable as Registered Keeper of the vehicle because 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 the Defendant liable as Registered Keeper under the strict ‘keeper liability’ provisions.

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.

4.The Claimant, or their legal representatives, have added an additional substantial charge to the original £100 for which no explanation or justification has been provided. 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:
''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...''

5. The charges claimed are an unrecoverable penalty. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) in which it was held that the penalty rule was disengaged - that Claim 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 held to be paramount and the Defendant 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 the Defendant 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 contractually bound the Defendant then there can have been no contract and the Claimant has no case. The Defendant puts the Claimant to full proof thereof

a) The Claimant is put to strict proof at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs

b) Without such consent, 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

7.The Claimant has provided no information about what signage was displayed on the land at the relevant time. The Defendant puts the Claimant to full proof thereof and it is his defence that any such signage was inadequate and incapable for forming a contract nor of binding the driver for the following reasons (this again distinguishes this case from the Beavis case):

(i) Sporadic and illegible site/entrance signage (restrictions and any charge not prominent nor in large lettering) - breach of the POFA 2012 Schedule 4 and the BPA compulsory Code of Conduct 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 and any terms were not adequately illuminated 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 complaint landowner contract.

8. The Claimant has no legal standing to bring this Claim this again distinguishes this case from the Beavis case:
The Defendant does not believe that the Claimant is party to a legitimate contract to operate at this car park as it has provided no such evidence. 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.

9.Unless it has contractual authority, the Claimant has no right to pursue this claim. Otherwise, it is a simple trespass claim and only a landowner may pursue such a claim. The Defendant denies that the Claimant is the landowner of the relevant land.

10.Due to the length of time which has passed since the claim allegedly arose, the Defendant has little to no recollection of the day in question. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car months later. In any case, there is no such obligation in law for a Registered Keeper to name a driver, something which was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.

The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:
• Failed to disclose any cause of action in the incorrectly filed Claim Form issued on the 21st June 2019.
• 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.

11. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £xxx.xx, the Defendant avers that this inflation of the considered amount is a gross abuse of process

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

KeithP

Acorn2012 wrote: »

I cannot seem to find the post by BPA Cop about the bedding in period, I’d be really grateful in somebody could point me in the right direct/link it?

You are looking for the British Parking Association's Code of Practice - in particular, paragraph 18.10 which says:

18.10 Where there is a change in the terms and conditions that materially affects the motorist then you must make these terms and conditions clear on your signage. Where such changes impose liability where none previously existed then you must consider a transition to allow regular visitors to the site to adjust and familiarise themselves with the changes. Best practice would be the installation of additional/temporary signage at the entrance and throughout the site making it clear that new terms and conditions apply. This will ensure such that regular visitors who may be familiar with the previous terms become aware of the new ones.

Acorn2012

Thank you very much for the info. I will update my defence

Acorn2012

Hello, so I have added a couple of paragraphs. If somebody would kindly proof ready and let me know if you think it’s god enough to send off I’d me really grateful! Thank you

In the County Court Business Centre
Between:
Civil Enforcement Limited V xxxx

Claim Number: xxxx

The Defendant admits that she is the registered keeper of the vehicle xxxxxxx but denies being the driver on 13th September 2018 and denies that she is liable for the entirety of the claim for each of the following reasons:

1. The Claim should be struck out at this initial stage because:

1.1 The Claim Form issued on the 21st June 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)”.

1.2 The Claimant failed to comply with its pre-action obligations set out in the Practice Direction - Pre-Action Conduct, because it has failed to provide any meaningful explanation as to what the alleged debt refers to or how it arose or any evidence to back up the claim (a breach of paragraphs 3, 6(a) and 6(c) of the Practice Direction). This puts the Defendant at a serious disadvantage because she is unable to file a full and proper defence - for example, a claim in respect of parking can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. In addition, if the claim is brought under contract, the Defendant is entitled to know and understand the terms of the contract relied upon and how it is alleged the driver entered into it (Practice Direction 16, paragraph 7 also provides that these matters must be included in the Particulars of Claim). The Claimant has never explained this nor provided a copy of the alleged contract, leaving the Defendant unaware of its terms or how the driver is alleged to have entered into it.

a) There was no compliant “Letter before County Court Claim”, under the Practice Direction

b) The Claimant is known to be a speculative serial litigant, issuing a large number of identical claims with Particulars of Claim so sparse as to be incoherent (as in this case). The Claimant is in fundamental breach of CPR 16.4 and paragraph 3.6 of Practice Direction 16 in failing to provide adequate particulars of the Claim. If the claim is for a breach of contract, no details have been provided about how the driver is alleged to have entered into a contract, or what its terms were (CPR Rule 16.4 and Practice Direction 16, paragraph 7).

c) The Claim Form Particulars were extremely sparse and divulge 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. The Claimant has never provided the Defendant, either in the Particulars of Claim nor in any Letter Before Claim, any information about how the claim is alleged to have arisen nor any evidence, such as photographs. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to “take stock”, pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:
i. “Early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute
ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure
iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and
iv. support the efficient management of proceedings that cannot be avoided”.

d) The Defence therefore asks the Court to strike out the claim pursuant to CPR Rule 3.4 by exercising its inherent powers under CPR Rule 1.4(2)(c) and Practice Direction 26, paragraph 5.1 as disclosing no cause of action and having no reasonable prospect of success as currently drafted.

e) Alternatively, the Defendant asks that the Court orders a stay of these proceedings until the Claimant has complied properly with its pre-action obligations (pursuant to paragraph 15(b) of the Practice Direction - Pre-Action Conduct) and providing for the Defendant to file an Amended Defence once it has done so

f) Alternatively the Defendant asks the court to order the Claimant to file Particulars which comply with the clear requirements of the CPR and include at least the following information, and providing for the Defendant to file an Amended Defence once it has done so;

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 the Defendant is being pursued as driver or as keeper and if the latter that it produces 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 and granting it such authority
vi. If charges over and above the initial charge are being claimed, the basis on which this is being claimed and how the charges have been calculated
vii. If interest charges are being claimed, the basis on which this is being claimed.

3.The Defendant denies that she can be liable as Registered Keeper of the vehicle because 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 the Defendant liable as Registered Keeper under the strict ‘keeper liability’ provisions.

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.

4.The Claimant, or their legal representatives, have added an additional substantial charge to the original £100 for which no explanation or justification has been provided. 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:
''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...''

5. The charges claimed are an unrecoverable penalty. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) in which it was held that the penalty rule was disengaged - that Claim 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 held to be paramount and the Defendant 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 the Defendant 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 contractually bound the Defendant then there can have been no contract and the Claimant has no case. The Defendant puts the Claimant to full proof thereof

a) The Claimant is put to strict proof at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs

b) Without such consent, 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

7.The Claimant has provided no information about what signage was displayed on the land at the relevant time. The Defendant puts the Claimant to full proof thereof and it is his defence that any such signage was inadequate and incapable for forming a contract nor of binding the driver for the following reasons (this again distinguishes this case from the Beavis case):

(i) Sporadic and illegible site/entrance signage (restrictions and any charge not prominent nor in large lettering) - breach of the POFA 2012 Schedule 4 and the BPA compulsory Code of Conduct 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 and any terms were not adequately illuminated 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 complaint landowner contract.

8. The Claimant has no legal standing to bring this Claim this again distinguishes this case from the Beavis case:
The Defendant does not believe that the Claimant is party to a legitimate contract to operate at this car park as it has provided no such evidence. 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.

9.Unless it has contractual authority, the Claimant has no right to pursue this claim. Otherwise, it is a simple trespass claim and only a landowner may pursue such a claim. The Defendant denies that the Claimant is the landowner of the relevant land.

10.Due to the length of time which has passed since the claim allegedly arose, the Defendant has little to no recollection of the day in question. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car months later. In any case, there is no such obligation in law for a Registered Keeper to name a driver, something which was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.

The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:
• Failed to disclose any cause of action in the incorrectly filed Claim Form issued on the 21st June 2019.
• 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.

11. Where there is a change in the terms and conditions that materially affects the motorist then you must make these terms and conditions clear on your signage. Where such changes impose liability where none previously existed then you must consider a transition to allow regular visitors to the site to adjust and familiarise themselves with the changes. Best practice would be the installation of additional/temporary signage at the entrance and throughout the site making it clear that new terms and conditions apply. This will ensure such that regular visitors who may be familiar with the previous terms become aware of the new ones.


For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £xxx.xx, the Defendant avers that this inflation of the considered amount is a gross abuse of process

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

nosferatu1001

Highluight what youve added, otherwise youre asking people to reread it all.
You dont even say which numbers you added...