Court Claim form received from CEL, please help

nosferatu1001

Of course it does - it has to when its filed electronically> technically he shoul dput his FULL name, no initials allowed, but a court is unlikley to give two figs. 
It dpeends
The £50 for filing the claim IS allowable *if* incurred
Additional sums such as "initial legal costs" that are listed within the particulars should NOT be allowed, but it will depend in part on the signage. 

CastorTroy

nosferatu1001 Of course it does - it has to when its filed electronically
I'd taken this section as written from another defence which was issues just a few days before mine. Not an old defence but not to say that that post hadn't copied from an old defence. I will remove (1)  

Coupon-mad An 'official' template would be really helpful. The difficulty with copy/pasting from other posts is that you can end up copying an invalid defense. Many old ones have never updated to say if they were actually successful. 

As the first notification to the correct address was the letter before action followed by the claim form. Neither included any information with regards to photos, timings, or a copy of the contract/terms breached. 

With PCN I would expect they are relying on :
Civil Practice Direction 16, 7.5  Where a claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done.

As PCN includes an address, keepers identity, times in/out etc, but not the terms and conditions itself (free parking limit etc as this is different for each carpark). 


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.

Civil Practice Direction 16, paras. 7.3 to 7.4 don't seem to apply for a PCN as refer to written or oral agreement. 7.5 (by conduct ) seems to be valid.  

Is this basically, the PCN and subsequent notifications didn't contain 'conduct relied on' in relation to the terms and conditions. (eg. did the driver overstay their paid term?, did they overstay the free parking period? etc)  

I guess i'm just trying to understand in simpler terms what point (2) is trying to argue?

CastorTroy

I have updated the claim an removed the first point about the claim form but added an argument based on not allowing the for a grace period after the end of free parking (point 10). However I don't see anything on CEL paperwork that indicates they are a BPA member, only on the paperwork from ZZPS debit collectors acting for them so unsure if I'm really able to really include this in defence.
Point (8) and (7) argues that the additional £82 applied is excessive damages which they have not incurred by CEL, I understand the additional court fee are allowed.

What do you think?

1. 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.

2. 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.

3. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They 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.

4. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and 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.

5. 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 damaged sign is visible in one direction, positioned directly in front of the car park entrance. No sign is displayed if entering the car park from the south on approach to the main road. Other signs in this car park are sporadically placed, out of the line of sight for a driver and not clearly visible 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.

6. 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.

7. The Defendant has the reasonable belief that the Claimant has not incurred £82 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.

8. 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

9. 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).

10. The Claimant has also not allowed for a grace period. The BPA’s Code of Practice states (13) that there are two grace periods: one at the end and a separate 'observation period' at the start. For the avoidance of doubt this is NOT a single period with a ceiling of just ten minutes, and the authority for this view is in this BPA article by Kelvin Reynolds, BPA Director of Corporate Affairs where he states on behalf of the BPA that there is a difference between 'grace' periods and 'observation' periods in parking and that good practice allows for this:

British parking link (/News/good-car-parking-practice-includes-grace-periods)

“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. Our guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket,” he explains.

“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

BPA (18.5) states ''if a driver is parking with your permission they must have the chance to read the terms and conditions before they enter into the contract with you''.

BPA's Code of Practice (13.2) states: ''If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes.''

BPA (13.4) reiterates this fact: ''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.''

Given the timings on the claim form (and subtracting the reasonable time explained above, on arrival) the operator is alleging that the driver exceeded the parking time after the end of the parking event, by 90 seconds.

The Operator has displayed on their PCN only the entry and exit times from the car park. These are not the 'period of parking' although the law requires this to be stated, and to any right-thinking person the only reason for this is to engineer an 'outrageous scam' (Hansard 2.2.18 - the views of MPs during the Parking CoP Bill reading) by misleading POPLA. Taking into account the travel time to a parking space and travelling back out of the car park the period of parking here falls comfortably within the mandatory observation and grace periods as outlined above.

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

1505grandad

KeithP posted:-

"Having filed an AoS, you have until 4pm on Wednesday 4th March 2020 to file your Defence."

May I suggest therefore that you use the very latest template Defence  posted today by C-m  -  link is:-

https://forums.moneysavingexpert.com/discussion/6108153/suggested-template-defence-to-adapt-for-all-parking-charge-cases-where-they-add-false-admin-costs#

CastorTroy

Thanks I'll take a look at the new template first thing in the morning. 
Could you clarify if the BPA grace period argument I mentioned earlier is valid in a CEL defence? 
Although no badge on their paperwork they are listed as members on the BPA website so it feels a valid argument in this case.
I've seen it featured in some other defence statements but unclear if its ever been successful. The fact that the PCN is for 90 seconds over the Free parking period feels important  to me but not sure how a judge would view it?

Le_Kirk

According to the BPA website CEL are members; according to the IPC website CEL are not members.

Coupon-mad

A printed name on MCOL is OK, because the process is entirely automated.

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?

No that's old and unlikely to fly as the CPRs allow for capped costs of £50 for legal work.

You need to read the new thread I posted this week with the template defence to download & adapt.  Easy!  

And the BPA Grace Period rules certainly apply to CEL who are AOS members, and be aware, they will likely discontinue in the end, having put you to time & trouble, so consider a counter-claim if you want to take it to a hearing and try to get some compensation for their abuse of your DVLA data, and harassment.

CastorTroy

Thanks @Coupon-mad I'm using the new process abuse template just sorting out which red bits apply. 
This may be a stupid question.I'm still a little confused over what a notice to keeper actually is. Is it a document entitled 'notice to keeper ' or in ANPR cases is it simply the original PCN (as its delivered to keeper address).
From CEL 
1) PCN : Old Address 
2) Reminder : Letter of notification regarding keeper liability 6 weeks after PCN old address
3) Debt collection notice ZZPS 4 months after PCN later - old address
4) Letter before action - 11 months after - correct address
5) Claim form - 12 months after PCN - correct address. 
Letter (2) from CEL mentions 'failed to provide us with information requested in notice to keeper'  but not received a document entitled 'notice to keeper' from them unless the PCN by post is the same thing ?

CastorTroy

Looking through other ANPR cases it sounds like the original PCN serves as the notice to keeper so as far as I can see CEL's PCN covers everything in POFA so won't add that to the defence.
Will keep to the Abuse of process template with the addition of grace period as only 90 seconds over the free parking limit.

Coupon-mad

The first letter is the NTK (or PCN, same thing when it's issued by ANPR camera).

as only 90 seconds over the free parking limit...

Are you sure?  What I mean is, why believe the two separate unsynchronised in/out cameras were correct to the second?  We can tell you they were not.  So in the defence always put ''alleged but unproven 90 seconds, according to two separate cameras'' etc.

as I can see CEL's PCN covers everything in POFA

Are you sure (again)?  CEL didn't ever use POFA wording 'properly' until about 2018, then they used the wording for a while on some NTKs but not others (on the back in the top 'payment' paragraph) and now I think they seem to be back to not bothering again with the POFA.