CEL set aside hearing... Help please!

Castle

Did the Judge order CEL to pay your £255?

s1morgan

They have reserved costs until the Defence hearing. 

nosferatu1001

Defence - mostly written for you! You obviously add in the argumetn about the pcn not being valid that you included the evidence of this time round, but you dont append evidence yet - that comes later

Le_Kirk

Excellent news.  If CEL has added fake ££ to the claim in the form of debt collection fees, admin costs or contractual costs, then you can use the standard defence template and adapt it to suit your circumstances.  There are only two paragrphs that need changing.

s1morgan

Hi all, I'm currently drafting my defence and have used the dropbox attachment that has been provided on the directed thread.

In regards to section 17, if I have already stated I was the driver at the time how would I approach adapting this section?

....

**Include this template point below as your
#17 **ONLY IF TRUEFOR YOUR CASE -IF NOT, YOU MUST CHANGE IT TO SUIT YOUR FACTS. If it is all correct then change the red to black and remove this comment!17.The Defendant is not the only driver of this vehicle and the Particulars of Claim offer little to shed light on the alleged breach, which relates to an unremarkable date some time ago. It is not established thus far, whether there was a single parking event, or whether the vehicle was caught by predatory ticketing and/or by using unsynchronised timings and camera evidence to suggest a contravention. A compliant Notice to Keeper (‘NTK’) was not properly served in strict accordance with section 8 or 9 (as the case may be) of the POFA.**Add this denial, ONLY if you were NOTdriving (do not lie or leave it in by mistake!):Whilst it is admitted that the Defendant was the keeper, they were not the driver of the vehicle at the time. Further, the mandatory requirements to establish 'keeper liability' have not been met and the Defendant is not liable in law.If you have a good case otherwise and are sure that you are NOT able to (or wanting to) rely upon 'non-compliance with the POFA' (= especially relevant in 'non-POFA NTK' cases from Smart Parking, VCS, Excel, Civil Enforcement, CP Plus, Horizon, Highview, smaller PPCs and 'years old' cases from the likes of Britannia and OPS) and want to admit to being the driver (or if you already have ) change it to admit that the Defendant was the driver.**Continue with more facts here for point #18 –talk about the carpark and facts but not using ‘’I’’ or ‘’me’’** and remove this comment!

Le_Kirk

If you were the driver, then most, if not all, of that #17 should be removed and you will have to rely on other technical or legal arguments to be paced in your #18 - don't forget to renumber paragraphs.

Coupon-mad

You write that bit yourself about the car park and what happened, then.  Judges like that.  In fact, move it up and remove the stuff near the start that says a trial is not needed (because cases are now unlikely to be struck out). And:

An urgent task – deadline is MONDAY!

Please now make a real difference because not enough people have yet, and time is running out.  

The Government is consulting for just a few more days, about a new statutory code of practice (CoP) and framework intended to rein in the rogue parking firms. 

Does it go far enough?  Read and comment on the draft CoP proposal and the enforcement framework consultation (two separate consultation documents).

HOW TO DO THE SUBMISSIONS:

BSI PAS 232 – COMMENTING ON THE CODE OF PRACTICE AS DRAFTED :

1.    You will need to register then log in, to comment on the CoP and enter an occupation even if you are retired or a homemaker.  

 

2.    Register, log into the BSI page, and download & read the cover letter here:

https://standardsdevelopment.bsigroup.com/projects/2020-00193#/section

 

3.    Read the cover letter again and note the suggested extra questions... if you agree that, say, the 'loading/unloading and dropping off, asking for directions, and disabled people parking on double yellows as they can on street' activities listed should be exempt (not parking events, what do you think?) then please go to the Annexes at the end of the PAS Code and find the one about Exempt Vehicles and state what other activity you think should be added to the exempt list. 

 

4.    Download the PAS itself and start commenting on what you wish to say something about.  Quick links to each section appear on the left of your page. 

 

You don’t have to comment on everything, e.g. you might want to skip the definitions and focus on later sections, and certainly look at the Annex tables at the end that show things like consideration & grace periods and exemptions.

 

5.    Submit comments when you are happy with them. Don’t just ‘SAVE’ and forget!

 

THAT IS HALF THE JOB DONE!

THE MHCLG CONSULTATION IS EASIER AS IT IS JUST A LIST OF QUESTIONS. 

 

6.    You can do it first if preferred or pushed for time:

https://forms.office.com/Pages/ResponsePage.aspx?id=EGg0v32c3kOociSi7zmVqAVPfAOtwRxLhHRwQ610oElUMzhQSVo0WUQ4SERVSEZaUU9DTUhFQ1VMUy4u

If your answers exceed 4000 characters (approx. 500 words to a single question or 16000 words (approx. 2500 words) for all the questions below, you can email your answers to parking@communities.gov.uk as long as you state who you are.

 

THESE ARE THE QUESTIONS YOU WILL SEE, FOR RESPONSES TO THE FRAMEWORK:

Q1 Do you agree or disagree that members of APAs should be required to use a single appeals service appointed by the Secretary of State?

Strongly agree/Somewhat agree/Neither agree nor disagree/Somewhat disagree/Strongly disagree

 

Q1.1 Please explain your answer

(free text)

 

 

Q2 Please provide any other feedback on the determination of appeals, including the funding model and features that an appeal service should offer e.g. telephone or in-person hearings, the ability to submit evidence online

(free text)

 

Q3 Please provide any comments you have on the proposal to enforce the Code by combining the ATA’s existing audit procedures with additional safeguards.

(free text)

 

Q4 Please outline any alternative means by which the Code could be monitored and enforced. You may wish to cite evidence from other regulatory frameworks which are relevant.

(free text)

 

Q5 Please provide any feedback you have on the proposed governance arrangements for monitoring the new Code of Practice

(free text)

 

Q6 Which parking charge system is most appropriate for private parking?

 a) the Three-tiered system

 b) Mirroring the Local Authority system

(free text)

 

 Q6.1 Please explain your answer. You may, for example, wish to make reference to other deterrent frameworks (for example, for railway tickets or traffic violations)

(free text)

 

 

Q7 What level of discount is appropriate:

40% as is currently offered in private parking and suggested in the three-tiered system, or

50% as is offered in Local Authority parking?

a) 40%

b) 50%

 

Q7.1 Please explain your answer, including whether the discount should be set at a different level

(free text)

 

 

 Q8 How should the level of parking charges be set and how should the levels be revised in future?

(free text)

 

 

Q9 Do you agree or disagree in principle with the idea of the Appeals Charter?

Agree/Disagree

 

Q9.1 Please explain your answer

(free text)

 

 

Q10 Do you agree or not that the examples given in the Appeals Charter are fair and appropriate? Agree/Disagree

 

Q10.1 Please explain your answer.

You may wish, for example, to suggest additional cases to be covered in an Appeals Charter or query existing examples.

(free text)

 

Q11 Do you agree or disagree that the parking industry should contribute towards the cost of the regulation?

Agree/Disagree

 

Q11.1 Please explain your answer.

(free text)

 

YOU CAN INSTEAD GIVE MORE CONCISE ANSWERS ONLINE, USING THE MHCLG PAGE LINK.

Don’t forget that answering these questions is the easier bit…

Looking at the BSI PAS (the draft code of practice itself) involves logging in and submitting comments again, and again and again and takes more time!

There is a discussion about PAS submissions and what the pages look like, here:

https://forums.moneysavingexpert.com/discussion/6195417/am-i-doing-something-wrong/p1

s1morgan

Ok ... So, for my defence before I email this to the Court.. how does this look? should I write anymore into #17 or is this statement suffice along with the attached evidence?

17. On the date XXXXX the Defendant was a member of XXXX located at XXXXX and was entitled to free parking in the car park upon entering registration details. The defendant parked there on every occasion the Defendant used the gym (to which the Defendant has supplied photographic evidence), as was the case for all Gym members and customers to the establishment, the Defendant was not required to pay for parking. the Defendant was allowed the right to park without payment by the Gym membership agreement. Therefore, the Defendant was not in breach of any parking conditions as an express permission to park had been granted to the Defendant by the Terms & Conditions when using the gym.

Coupon-mad

I did tell you not to leave it down as low as #17, and what to remove:

You write that bit yourself about the car park and what happened, then.  Judges like that.  In fact, move it up and remove the stuff near the start that says a trial is not needed (because cases are now unlikely to be struck out). 

Then renumber it all and show us.

s1morgan

I had renumbered it all....
Section #17 was removed in total as it did not apply. So section #18 was moved to #17?

16. Should this poorly pleaded claim not be summarily struck out for any/all of the reasons stated above, it is the Defendant’s position that no contract was entered into with the Claimant, whether express, implied, or by conduct. Therefore, as a matter of contract as well as consumer law, the Defendant cannot be held liable to the Claimant for any charge or damages arising from any alleged breach of the purported terms. Whilst there is a lack of evidence from the Claimant, the Defendant sets out this defence as clearly as possible in the circumstances, insofar as the facts below are known.

17. On the date XXXXX the Defendant was a member of XXXX located at XXXXX and was entitled to free parking in the car park upon entering registration details. The defendant parked there on every occasion the Defendant used the gym (to which the Defendant has supplied photographic evidence), as was the case for all Gym members and customers to the establishment, the Defendant was not required to pay for parking. the Defendant was allowed the right to park without payment by the Gym membership agreement. Therefore, the Defendant was not in breach of any parking conditions as an express permission to park had been granted to the Defendant by the Terms & Conditions when using the gym.

18. The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Schedule 2 of the CRA. Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was agreed by the driver.

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

19. Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being struck out as punitive and unrecoverable. However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases. Their decision was specific to that ‘unique’ set of facts: the legitimate interest argued, the car park location, and the ‘brief and clear’ signs with the parking charge itself in bold and the largest text. The unintended consequence is that, rather than persuade courts considering other cases that all private PCNs are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and prominent signs) set a high bar that this Claimant has failed to reach.