N1SDT Civil Enforcement Case

Coupon-mad

No you have read really old stuff.  Bin it (sorry).

When you search you must of course change to NEWEST results to avoid that trap.

JUST LOOK FOR RECENT CEL THREADS.

We had one last week and another only yesterday. You could just copy them.

Paulzx

Ok, here goes, hopefully starting to get somewhere near. 

1.  The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was in breach of any term.  Further, it is denied that this Claimant (understood to have a bare licence as agents) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the boilerplate text in the Particulars of Claim ('the POC').

 

The facts known to the Defendant:

2. The Defendant draws to the attention of the allocating Judge that there is now a persuasive Appeal judgment to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims, and the extant PoC seen here are far worse than the one seen on Appeal).  The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind.  Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction.  By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims based in the following persuasive authority.

 3. A recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5. On the 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The same is true in this case and in view of the Chan judgment (transcript below) the Court should strike out the claim, using its powers pursuant to CPR 3.4.

Four pics of CEL v Chan case

4. Additionally, the Claim should be struck out on the basis that it contravenes Schedule 4, Paragraph 4(5) of the Protection of Freedoms Act 2012 (PoFA). PoFA clearly stipulates that a creditor may not make a claim against the keeper of a vehicle for more than the amount of the unpaid parking charges as they stood when the notice to the driver was issued. The original Parking Charge Notice (PCN) issued by the claimant was for £100. The claimant's current claim is for £170, which exceeds the amount of the unpaid parking charges as stated in the original notice. The claimant’s attempt to claim an unlawful amount constitutes an abuse of process and should not be allowed to proceed. I respectfully request the allocating judge to dismiss the claim on the basis of the claimant’s contravention of Schedule 4, Paragraph 4(5) of PoFA and thereby CPR 1.1, CPR 3.4(2)(a) and (b) and CPR 27.14 and to award costs to the defendant for having to defend against this improper claim.

The facts known to the Defendant:

5. The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised but the defendant was not the driver or registered keeper at the time of the alleged offence.

6.    The Defendant was not the registered keeper of the vehicle or the Driver at the time and date of the alleged offence stated on the POC.  

7.  The Defendant is unaware of any written, oral or other agreement in place with the Claimant. Furthermore the POC, alleging a vague ‘breach of contract’ are not sufficient to set out the conduct relied upon by this notorious ex-clamper Claimant.

8. - 32. is the rest of the template defence.

Am I on the right lines?

Paulzx

Any advice on above? 
Thanks in advance 

LDast

That's the one. However, your first subheading should be titles "Preliminary Matter. The claim should be struck out".

Your para #6 is just a repeat of the last bit of your para #5. It should be your response to the cause of action on the PoC.

Coupon-mad

That's not 'the one' because it isn't taken from a CEL defence and doesn't include the extra point about the premature payment due date.

Also this is not right:

"(in these exact circumstances of typically poorly pleaded private parking claims, and the extant PoC seen here are far worse than the one seen on Appeal)."

Instead, that line should tell the Judge that this claim is from the same Claimant, about the exact same generic POC format.

Paulzx

Wow! thanks for the support Coupon Mad.

I feel pretty much word for word what 90Ninety stated in his thread
"Sorry but this isn't constructive , I can take criticism if its constructive but , you are just saying what I'm doing wrong, this is not going to cut it , if we are hoping to win again against these parasitic parking cowboys  .. In fact the overall tone on this post has been negative .. This is not how things get resolved , we dont naturally focus on' Not what to do' , but instead it is more tangible to focus on 'What to do! '

The template and guidance gave me hope though the execution and using of the template is being shot down at every attempt . It would of just been easier just to pay this at this rate  Instead of me just going around in circles .. 

Im no dummy , but this seems to be some kind of loosing saga .. .This would sadly be the first time to concede to any kind of parking charge  and I have several experiences of getting PCN being cancelled dropped , largely in part to these forums  

Worse case is that we just concede at this point since , I have lost hope of any kind of support here"

I only have until next week and still feeling pretty clueless on what I need. Ive search and read every thread that states CEL and ordered them from newest.

I feel at this stage I should have just paid the money, there would have been a lot less anxiety on my part. You dont know people's circumstances or what they are going through. A bit of positive and productive help would go a long way. I totally understand that you must get requests like this everyday but I think by now you can see I have tried to go through everything and dont expect it to be written out. Maybe you need to take a break from it if people coming for help are annoying you.

Anyway rant over.

Coupon-mad

I'm not annoyed at any poster - quite the opposite!  I wanted to stop you filing that defence hence 'that's not the one'.

I did a search for Civil Enforcement extra point defence premature date and a recent result was this one:

https://forums.moneysavingexpert.com/discussion/6522405/cel-mcol-defence/p2

That should help.
 

Paulzx

Thank you for that link, ive pretty much just copied and pasted with a few amendments relating to this case.
Hopefully this is correct.

Claim Number: xxxxxxx

Between

Civil Enforcement Ltd

(Claimant) 

- and -  

Defendant's name                        

 (Defendant)

_________________

DEFENCE

_________________

1.  The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was in breach of any term.  Further, it is denied that this Claimant (understood to have a bare licence as agents) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the boilerplate text in the Particulars of Claim ('the POC').

Preliminary matter: The claim should be struck out

2. The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action".  The Defendant draws to the attention of the allocating Judge that there is now a persuasive Appeal judgment involving the same Claimant as this case, which supports striking out the claim without a hearing.

3.  The Defendant believes that dismissing this poorly-pleaded claim is the correct course, with the Overriding Objective in mind.  Bulk litigators like this Claimant (which has an in-house legal team and barrister) should know better than to make little or no attempt to comply with the Practice Direction.  By continuing to plead cases with generic auto-fill unspecific wording, this Claimant in particular should not be surprised when courts continue to strike out their claims, based in the following persuasive authority.

3. Civil Enforcement Limited v Chan (Ref. E7GM9W44) holds that the POC fails to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5. On the 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The same is true in this case and in view of the Chan judgment (transcript below) the Court should strike out the claim, using its powers pursuant to CPR 3.4. 

Four pics of CEL v Chan case

In the alternative,

The facts known to the Defendant:

4.  The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s), what heads of cost are being pursued and how/why the Defendant is being held liable, making it difficult to respond. The vehicle is recognised, as is the shopping park location. In any event, the Equality Act 2010 applies to protect the driver/passenger, and any fixed policy term that may cause detriment to disabled persons 'at large' is illegal (indirect discrimination) under that legislation. 

5. The Defendant was not the registered keeper of the vehicle or the Driver at the time and date of the alleged offence stated on the POC.

6.  The Defendant does not believe that the Claimant complied with the strict requirements of the Protection of Freedoms Act 2012 (the POFA) in terms of 'adequate notice' of the parking charge and in terms of serving a compliant Notice to Keeper ('NTK').  The POC is unhelpfully silent about the supposed basis of liability. It does not state whether the Defendant is being pursued under the POFA nor where/how they obtained his data, nor does it even state (as parking claims usually do) that they are pursuing the Defendant as keeper/driver.  These POC seem even more defective than seen from this same Claimant in the Chan case.

7.  There is a further matter negating any cause of action, namely an incorrect 'payment due date' in the POC.  This point relies on Schedule 4 paragraph 9 of the POFA and the Defendant will raise various issues, including probable non-compliant NTK wording and an apparently incorrect statement in the POC regarding what appears to be the alleged date of keeper liability ('payment due date').  This has the object or effect of these pleadings attempting to allege keeper liability wrongfully, and/or earlier than the law would allow. The Claimant's POC has unreasonably shortened the statutory 28 day period by several days or even weeks, which has had the additional unreasonable effect of backdating interest incorrectly.  Even if posted 1st class on the same day as the alleged event (which it cannot have been) a NTK would be deemed served two working days later.  Adding the POFA's statutory 28 days starting with the day after service of the NTK, the soonest that the 'right to recover' might exist would have been several days later than this Claimant states in their POC. That is, if they are seeking keeper liability under the POFA at all, which the Court and Defendant are being forced to guess.

8.  This appears to be unreasonable conduct, and other similar cases in the public domain demonstrate that this Claimant's in-house legal team are stating a premature 'payment due date' calculation routinely, which inflates the interest as well as breaching the POFA. It is denied that the Defendant became liable for the parking charge on the date shown, or at all.

9.  Further, the POC only pleads for 'a parking charge for breach' yet it says 'charges of GBP196.12 claimed'.  Under the British Parking Association Code of Practice, parking charges are capped at £100 maximum and it cannot have been £196.12.  It is denied that exorbitant sum was due, properly incurred and/or displayed as the 'parking charge' on prominent signage. 

10.  The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

(i). a strong 'legitimate interest' extending beyond mere compensation for loss, and

(Ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.

11. The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.

The rest is the template renumbered to 36.

Does this defence fit what i require?

Thank you in advance.

KeithP

You have two paragraphs numbered '3'.

Coupon-mad

Nearly done!

Two paragraph 3s as KeithP says.

This is not an 'offence' so this word (in my bold) is wrong but is this para 5 correct anyway?  How come they are pursuing you if you were neither the keeper nor driver? Hired car?

"5. The Defendant was not the registered keeper of the vehicle or the Driver at the time and date of the alleged offence stated on the POC."