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CEL Claim
TutorMark
Posts: 19 Forumite
I am drafting my defence, please have a read to see if it’s good to go?
Its a claim from CEL.
Claim Form received through the post dated 21st June 2019.
I have submitted AOS and clicked defend all.
I have already acknowledge the claim. They are asking over £250 on the claim form.
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
Violation date:
Time in: Time our:
PCN ref: xxxxxx
Car Registration: xxxxxx
Car Park: xxxxx
Total due -
The claimant claims the sum of xxx.xx 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 --/06/2019. Same rate to judgement or (sooner) payment. Daily rate to judgement -0.04
Total debt and interest due: Over £190
Here is my draft defence:
Claim Number: xxxx
I am xxxxx, the defendant in this matter and the registered keeper of vehicle xxxxx.
The Claim should be struck out at this initial stage because:
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)”.
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.
3. There was no compliant “Letter before County Court Claim”, under the Practice Direction
4. 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).
5. Due to the length of time, 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 9 months later. The burden rests with the Claimant to identify the driver, who is the only party potentially liable in cases where a parking firm is unable to rely upon the POFA.
6. The Particulars of Claim does not state whether they believe the Defendant was the registered keeper and the driver of the vehicle. This indicates that the Claimant has failed to identify the driver and thus 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.
7. 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”.
8. 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.
9. 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
10. 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.
11.The Defendant denies that he 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.
11.1 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.
12. The Claimants costs on the claim are disproportionate and disingenuous.
12.1 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.
12.2. Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself.
12.3. The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.
12.4. Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.
12.5. 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.
13. The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.
14. 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:
14.1. ''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...''
15. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed mendacious in terms of the added costs alleged.
16. There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.
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 repeatedly attempting to claim fanciful costs which they are not entitled to recover
Statement of Truth:
I believe that the facts stated in this Defence are true.
Thank you so much for reading, and I appreciate any feedback!
Its a claim from CEL.
Claim Form received through the post dated 21st June 2019.
I have submitted AOS and clicked defend all.
I have already acknowledge the claim. They are asking over £250 on the claim form.
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
Violation date:
Time in: Time our:
PCN ref: xxxxxx
Car Registration: xxxxxx
Car Park: xxxxx
Total due -
The claimant claims the sum of xxx.xx 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 --/06/2019. Same rate to judgement or (sooner) payment. Daily rate to judgement -0.04
Total debt and interest due: Over £190
Here is my draft defence:
Claim Number: xxxx
I am xxxxx, the defendant in this matter and the registered keeper of vehicle xxxxx.
The Claim should be struck out at this initial stage because:
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)”.
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.
3. There was no compliant “Letter before County Court Claim”, under the Practice Direction
4. 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).
5. Due to the length of time, 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 9 months later. The burden rests with the Claimant to identify the driver, who is the only party potentially liable in cases where a parking firm is unable to rely upon the POFA.
6. The Particulars of Claim does not state whether they believe the Defendant was the registered keeper and the driver of the vehicle. This indicates that the Claimant has failed to identify the driver and thus 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.
7. 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”.
8. 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.
9. 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
10. 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.
11.The Defendant denies that he 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.
11.1 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.
12. The Claimants costs on the claim are disproportionate and disingenuous.
12.1 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.
12.2. Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself.
12.3. The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.
12.4. Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.
12.5. 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.
13. The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.
14. 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:
14.1. ''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...''
15. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed mendacious in terms of the added costs alleged.
16. There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.
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 repeatedly attempting to claim fanciful costs which they are not entitled to recover
Statement of Truth:
I believe that the facts stated in this Defence are true.
Thank you so much for reading, and I appreciate any feedback!
0
Comments
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Please take a quick read of this post. Despite blanking out the PCN number your claim can still be identified.
https://forums.moneysavingexpert.com/discussion/55326960 -
Thanks Monkey. I have deleted some details. My username bears no relevance to my real name.0
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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.You never know how far you can go until you go too far.0 -
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.Claim Form received through the post dated 21st June 2019.
I have submitted AOS and clicked defend all.
I have already acknowledge the claim.
That's less than 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.
- Sign it and date it.
- Scan the signed document back in and save it as a pdf.
- Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
- 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'.
- Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
- Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
- Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of [URL="https://forums.moneysavingexpert.com/discussion/4816822NEWBIES FAQ sticky thread[/URL] to find out exactly what to do with it.
0 - Sign it and date it.
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[FONT="]I have a amended my defence. What do you think? Is it good to submit it now?
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[/FONT]
[FONT="]
[/FONT]
[FONT="]
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[FONT="]I am XXXX, the defendant in this matter and the registered keeper of vehicle XXXX.[/FONT]
[FONT="]The Claim should be struck out at this initial stage because:[/FONT]
[FONT="]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).” Practice Direction 22 requires that a statement of case and truth on behalf of a company must be signed by a person holding a senior position and that person must state the office or position held. A legal representative who signs a statement of truth must sign in his own name and not that of his firm or employer.[/FONT]
[FONT="]2[/FONT][FONT="]. This Claimant has not complied with pre-court protocol (as outlined in the new Pre-Action Protocol for Debt Claims, 1 October 2017) and 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.[/FONT]
[FONT="]3. 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).[/FONT]
[FONT="]5. Due to the length of time, 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 9 months later. The burden rests with the Claimant to identify the driver, who is the only party potentially liable in cases where a parking firm is unable to rely upon the POFA.[/FONT]
[FONT="]6. [/FONT][FONT="]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.” [/FONT]
[FONT="]7. The Particulars of Claim does not state whether they believe the Defendant was the registered keeper and the driver of the vehicle. This indicates that the Claimant has failed to identify the driver and thus 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, paragraphs 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.[/FONT]
[FONT="]8. 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.[/FONT]
[FONT="]9. 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.[/FONT]
[FONT="]10. 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.[/FONT]
[FONT="]11. The Claimant is put to strict proof of full compliance that it has sufficient proprietary interest in the land under the correct address, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.[/FONT]
[FONT="]12.[/FONT] [FONT="]The Claimants costs on the claim are disproportionate and disingenuous. [/FONT][FONT="]CPR 44.3 (2) states: Where the amount of costs is to be assessed on the standard basis, the court will:[/FONT]
[FONT="](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[/FONT]
[FONT="](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.[/FONT]
[FONT="]13. Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself.[/FONT]
[FONT="]14. The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.[/FONT]
[FONT="]15. Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.[/FONT]
[FONT="]16. 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.[/FONT]
[FONT="]17. The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.[/FONT]
[FONT="]18. 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...''[/FONT]
[FONT="]19. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed mendacious in terms of the added costs alleged.[/FONT]
[FONT="]20. There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.[/FONT]
[FONT="]21. 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 repeatedly attempting to claim fanciful costs which they are not entitled to recover.[/FONT]
[FONT="]Statement of Truth:[/FONT]
[FONT="]I confirm that the contents of this Defence are true to the best of my knowledge and recollection.[/FONT]0 -
I have now added the following paragraphs:
[FONT="]3. There was no compliant “Letter before County Court Claim”, under the Practice Direction. The letter should include the basis on which the claim is made, a summary of the facts, what the claimant wants from the defendant, and if money, how the amount is calculated. The claimant states in the letter of the alleged debt: £XXX (Original Charge £100 + Additional Costs). There are no breakdown of the ‘Additional Costs’ and how they were calculated and as to what the alleged contract and terms and conditions were.[/FONT]
[FONT="] [/FONT]
[FONT="]4. The Defendant denies that he 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. The defendant did not receive a Notice to Keeper and absent such a notice served for 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.[/FONT]0 -
It's all good except I see no early paragraph telling the Judge anything about the car park, the event, what happened (or that you have no idea what it is about) and why you are not liable.
So you need an early paragraph like you see in other defences, that says 'the facts are...'PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Thanks Coupon-mad, I have this:
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[FONT="]5. Due to the length of time, 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 9 months later. The burden rests with the Claimant to identify the driver, who is the only party potentially liable in cases where a parking firm is unable to rely upon the POFA.[/FONT]
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Should I move it further up, maybe as paragraph 3?
Shou0 -
Yes, and can you shed no more light on it using your local knowledge, to at least say that you are aware it is a xxxxxxx car park with a terrible reputation for scam PCNs according to newspaper articles, but that you have no information about the alleged contravention at all (if true?).PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Coupon-mad, I know the car park, but its quite a distance from my home (one hour drive). No ticket was purchased on the car park and driver was away from car for a few hours. I found on the forum a defence on the same car park (titled CEL PCN - Court Papers)
I think I can add this (from that defence)?:
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4. 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 without having been furnished with the alleged signage, none of this applies in this material case.
5. 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
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. 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. 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
iii. 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
iv. The signs are believed to have no mention of any 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 £1000
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