Court Claim form received from CEL, please help

Coupon-mad

Please remove CCJ from your thread title as it is confusing and the correct title will help us to help you.

Can I just double check the process after we submit the defence. If CEL don't back down and we attend court the worst case scenario is the judge finds our defence weak and rules in favour of CEL. In that situation we'd have 30 days to pay the £300 in full and nothing is added to our credit history ?

Under £200, and whilst that's a worst case scenario, it won't happen.

CastorTroy

We have submitted the SAR a few weeks ago and completed the AOS. 
We've not received any response or acknowledgement of the SAR so unsure on the their detailed evidence. 
The outline of our defence will be
1) Original PCN and reminders sent to wrong address. (DVLA had old address) 
2) Excessive charge (initially £100) for 90 seconds over the 15mins free
3)  Poor signage at the entrance. 
4) Unclear on driver (two insured to drive vehicle). Long time ago, driver unknown.
5) No evidence (unless retuned in SAR) that the machine was working.
At this point are any of the above invalid for defence? 
1) is technically our fault for not informing DVLA after move ?
4) are they required at this stage to prove who was driving?

Thanks for your help

KeithP

Over two weeks ago I wrote...

...you have until 4pm on Wednesday 4th March 2020 to file your Defence.
That's over a month away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

You now have two weeks left. Do not miss your Defence filing target date.

CastorTroy

Thanks Keith, I understand that. I'm working on the defence at the moment. I was just hoping for some advice on the points above. 
I'll try to be more specific. I'm currently working on drafting the defence and am just trying to prioritise the main points and at this point just validate they should appear in the defence to avoid including anything that's not relevant. 

So for point (1) We never received the PCN and subsequent reminders, they went to an old address. The first notification we received was the 'Letter Before Action' which contained no detail (photos, anpr details etc) so we ignored as a scam. 
Is this valid or irrelevant at this stage?

Point (4) relates to the fact this action is against the keeper, the driver has not been identified and multiple drivers are insured. I see from previous posts that this can be a valid reason to appeal in the early stages but wasn't clear if this was still a valid defence at this stage?
  
 

Coupon-mad

Of course the POFA /'no keeper liability' is valid.  You see it in the example defences in the NEWBIES thread.

So for point (1) We never received the PCN and subsequent reminders, they went to an old address. The first notification we received was the 'Letter Before Action' which contained no detail (photos, anpr details etc) so we ignored as a scam. 
Is this valid or irrelevant at this stage?

Same as all the other cases exactly the same; this has been written a hundred times before by people in their defences and it gets really hard to keep going here when we have to keep saying the same stuff that's right here for you to read already.

Read some claim/defence threads from 2020 by just going back pages on this forum board, and copy them!

When did you do your SAR (as per the NEWBIES thread) to get the photos and letters from them?  You are planning to get it all well before WS & evidence stage we assume, albeit (like all the other cases...) not in time for the defence, as per usual.

CastorTroy

I sent the SAR at the beginning of Feb after we created this post then the AOS a week or so later. Not received any acknowledgement but expect we wont get a response for some time yet. 

I have been reading through the other cases to try and draft a defence way before the end of the month. If they supply any additional info that helps in the defence later or equally don't supply info which may help my defence I'll add that in later.
I had seen other examples where the keeper argument was used in the early appeal stage but had read elsewhere that it was perfectly fine for companies to prosecute the keeper and no longer a requirement to identify the driver.

Equally I would expect that the company  would argue that the PCN going to the wrong address is not their responsibility and is due to inaccurate data held by DVLA which is the keepers responsibility to keep updated.

Ultimately I would be mainly relying on a poor signage argument (have taken photos) and the fact the PCN is for 90 seconds over the parking limit and demonstrates the vehicle was clearly attempting to leave.

 
  
  

nosferatu1001

You misunderstand
No prosecution, just a civil claim
In order to chase the keeper, they have to follow requirements laid out in POFA2012. If they dont, only the driver is liable.  
You are cutting yourself off from a valid defence angle. Havent you found other threads discussing this claimants Notices to Keeper? If not, WHY NOT? Theyre a template. Find one matching near enough the date your PCN relates to, and see if that NtK meets POFA2012. If it doesnt ,theres a DAMNED good chance *your* one doesnt either. 

CastorTroy

Based on the examples for CEL (identical situation) I have drafted the following defence : 

1. The Claim Form issued on 17th December 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. It states that it has been issued by 'Civil Enforcement Limited' as the Claimant's Legal Representative. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer.

2. 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. 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.

4. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They merely state that “permit holders only” and referencing signs which can only be read by entering the car park, giving no definition of the term ‘permit holder', nor indicating where permits can be obtained.

5. 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. Furthermore, signs as you enter the access road claim you require pay and display, which is misleading.

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. Only one small sign is clearly visible, positioned directly in front of the car park entrance. Other signs in this car park are sporadically placed, out of the line of sight for a driver 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. Given this lack of clarity, no contract can be construed from the Claimant's signage, under the "contra proferentem" principle. Civil Enforcement Ltd are required to show evidence to the contrary.

7. 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.

8. The Defendant has the reasonable belief that the Claimant has not incurred £60 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.

9. 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 not with reference to the judgement in parking eye 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. Claim number is F0DP201T District Judge Taylor

Southampton Court, 10th June 2019

10. 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).

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

I believe the facts contained in this Defence are true.

Name

Signature

Date

I'm  unsure if point (9) should be in the witness statement rather than the initial defence? 
I have returned to the car park recently and photographed the entrance but I understand these should feature in the witness statement.
I'd like to include something to cover the fact that the claim form in December was the first notification we received, the initial PCN and ZZPS debt collectors went to an old address. Should this be mentioned here or in the witness statement?

I'm still hoping the SAR may return some additional info to help with the defence.
 
Any pointers would be appreciated 

Coupon-mad

Isn't this from an old 2019 defence, and not true?  Scott Wilson (ex WONGA)  signs them now doesn't he?

1. The Claim Form issued on 17th December 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. It states that it has been issued by 'Civil Enforcement Limited' as the Claimant's Legal Representative. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer.

https://forums.moneysavingexpert.com/discussion/6107425/anybody-knows-s-wilson-solicitor-for-civil-enforcement-ltd

I'm  unsure if point (9) should be in the witness statement rather than the initial defence? 

In fact the template defence I'm working on putting on the forum this week as one that hopefully, people can use and adapt for ALL cases (except ParkingEye) hits firstly with the above point really heavily at defence stage, with three attachments to try to convince Judges to strike more cases out without hearings in 2020.

CastorTroy

The claim form is printed with 'S Wilson, Head of Legal'. Not a signature as such just a printed name. I can remove (1) if a printed name counts as signature  
I have seen some other defences that also argue that the £50 added for legal costs on the claim form is not valid. Is this correct and should it be added in defence?