Defence statement - please review

middo2019

Hey everyone,

I'm starting a new thread as I think my defence statement got lost in my other post. Would people mind taking a look over this defence statement and giving me their opinion please?

IN THE COUNTY COURT

CLAIM NO: XXXXXXXXXXX

BETWEEN:

Civil Enforcement Ltd (Claimant)

-and-

XXXXXXXXXXX (Defendant)

________________________________________
DEFENCE STATEMENT
________________________________________

In the matter of court claim, XXXXXXXXXXX, I am XXXXXXXXXXX, the defendant in this matter and the registered keeper of vehicleXXXXXXXXXXX. I can be served at the address on the claim form. I deny I am liable for the entirety of the claim on the following grounds:

1. The Claim Form issued on 18 July 2019 by Civil Enforcement Ltd was not correctly filed under The Practice Direction as it was not signed by a legal person. The claim does not have a valid signature and is not a statement of truth. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in their own name and not that of their firm or employer.

2. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify 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.

3. The Claimant has failed to comply with the strict requirements of the Protection Of Freedoms Act 2012, schedule 4 (PoFA 2012). The driver of the vehicle has not been identified. The Defendant admits to being the registered keeper of the vehicle on the material date, but there is no evidence of who was driving. As the Claimant has not identified the driver, it cannot be assumed the keeper/driver are one and the same at the time of the supposed contravention (POFA 2012).

4. Frustration of contract

The alleged contract was frustrated by an unexpected incident involving another vehicle reversing into the car park and knocking down a sign post. The vehicle in question was a lorry and they had parked directly behind the driver of the Defendants vehicle whilst they got out the lorry to inspect the damage. The lorry had blocked the Defendant from not only making a safe exit from the car park, but also an exit within the 15 allowed free minutes.

Photographs held on the Claimants system showing the Defendant parking clearly show the signpost before (undamaged) and after (damaged) the lorry incident.

If required, two witness statements can also be provided to prove this frustration of contract.

In Jolly v Carmel Ltd (2000) 2 – EGLR – 154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach.

5. Grace periods

Please refer to the BPA Approved Operator Code of Practice.
13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.

In this case the driver had an entry time of XXXXXXXXXXX and exit time of XXXXXXXXXXX, meaning just 3 minutes over the allowed 15 minutes of free parking.

6. The alleged breach, according to Civil Enforcement Ltd, is in contravention of terms and conditions. The signs in this car park are not at all prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself. Other signs in this car park are sporadically placed and not clearly visible, especially in the evening when it's dark with no sufficient lighting. It is therefore possible to park and not be able to see any clear signage which complies with BPA requirements. Civil Enforcement Ltd are required to show evidence to the contrary.

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

8. The Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

9. The Defendant has the reasonable belief that the Claimant has not incurred £XXXXXXXXXXX costs to pursue an alleged £100 debt. The Protection of Freedoms Act 2012, in Schedule 4, Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100, as per the Defendants terms.

10. The Claimant is a serial abuser of the courts, filing over 3,000 claims in 2014. However, it is widely reported that the Claimant fails to turn up to defended cases, wasting the court’s and the defendant’s time. The Claimant is a serial litigant whose business model is to file large numbers of spurious claims and pressure defendants into paying up by sending letters increasing costs. In a preliminary hearing for a number of cases in Bristol, HHJ Denyer expressed his concern at the way CEL were conducting their cases and described the letters as a disgrace.

In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

STATEMENT OF TRUTH

I believe that the facts stated in this defence are true.

Redx

Don't start another thread, you won't get replies but you will get people's backs up

My heart sinks when I see the words defence statement, because it means an out of date post was used

Read recent 2019 defences which only contain the single word DEFENCE

Post your draft in your ongoing thread, not this one, let this new thread die by editing your post above to say

Duplicate thread please ignore