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Court Claim CEL Ltd

Sun1234
Sun1234 Posts: 19 Forumite
edited 22 October 2018 at 8:50PM in Parking tickets, fines & parking
Hi
I have now compiled a defence and would appreciate any comments

Thanks

Statement of Defence

I xxx, defendant in this matter was the authorised registered keeper of the vehicle in question at the time of the alleged incident. I deny liability for the entirety of this claim for the following reasons:

1. The Claim Form issued on 01/10/2018 by Civil Enforcement Limited was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by “Civil Enforcement Limited”. 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 Claimants Legal Representative. Practice Direct 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. CLAIM FORM SIGNED CEL (CLAIMANTS LEGAL REP)

2. The Particulars of Claim state that Drivers are allowed to park in accordance with T+Cs of use. 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 allows employees of a third party (xxxx) to vary its terms and conditions as stated in their POPLA response. The defendant was advised verbally by this third party on the day as stipulated in the POPLA appeal that they would be fine to park, without penalty, for the whole duration of the stay on the evening in question.
4. The defendant refutes that full terms and conditions for parking are displayed on the site.
i. The claimant cannot fully display terms and conditions for parking on their signage when they acknowledge in the response to the defendants POPLA appeal that they allow a third party to decide whether or not to advertise additional terms and conditions relating to the exemption of the 3 hour maximum parking term.
ii. The defendant believes that the signage relating to terms and conditions is incomplete and misleading as the 3 hour maximum term does not exist for members and no contract can legally be formed on this basis.
iii. The signage is poorly maintained, the defendant has proof the lighting is not in full working order and the font barely legible especially in low light.
5. The Claimant did not identify the driver
The Defendant has no liability, as they are the Keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to hold the defendant responsible for the driver’s alleged breach.
The Defendant parked in the same car park at the same time as xxxxx but in another vehicle, evidencing that the defendant was not the driver of xxxxx at the time.

In the claimants response to POPLA they stated the defendant had admitted to being the driver.
The defendant strongly refutes this allegation and is able to provide the full details of the make, model and registration of the vehicle he was driving that was parked in the same carpark at a similar time along with confirmation that this vehicle was for the sole use of the defendant from his employer.
6. The claimant claims on their POPLA statement that signs must be placed throughout the site so the drivers are given chance to read them, however the claimant has chosen to ignore the BPA CoPs in relation to grace and observation periods 13.2 and 13.4 which state:
“You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.”
And
“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.”

The driver had only overstayed by 13 minutes and believes that this is not an unreasonable grace period for entering the car park, waiting for a space, parking in that space, finding and reading the terms and conditions, and a “reasonable period” to leave the car park.

7. The defendant was not in receipt of a compliant “Letter Before Court Claim”, under the Practice Direction, meaning the Defendant could not compile a Formal Response. There was no response form provided, nor was the amount owed specified on the letter. This is in direct contradiction with paragraph 7 of the particulars where the Claimant’s solicitor states ‘The Claimant has complied with the requirements of the Pre-Action Protocol for Debt Claims’ and the Defendant believes that this is a deliberate attempt to mislead the court. The Defendant invites the Claimant to provide proof of their compliance.

8. Civil Enforcement Ltd are not the lawful occupier of the land. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring this case.
a) The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
b) The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
c) The Claimant is put to 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. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.


9. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 as per the PCN issued on 04/10/2017. This appears to be an added cost with no apparent qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

10. i.No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs.
ii. The Defendant also disputes that the Claimant has incurred £50 legal representative costs. CPR 27.14 does not permit these to be recovered in the Small Claims Court. In Ladak v DRC Locums UKEAT/0488/13/LA the Claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost.
iii. The Defendant has the reasonable belief that the Claimant is a serial litigant has therefore not incurred £136 costs to pursue an alleged £100 debt.

iv. Notwithstanding the Defendant's belief, the costs are in any case not recoverable.


11. When Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) or alternatively, for the hearing fee to be ordered to be paid before exchange of documents between the parties, because where a claim from this serial Claimant is robustly defended, this Claimant routinely discontinues after seeing a Defendant's Witness Statement and never pays the court hearing fee.
The defendant believes that the claim has no merit or reasonable prospects of success and invites the court to strike out the claim.

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

  • System
    System Posts: 178,077
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    Community Admin
    My thoughts were that obviously the leisure center is able to vary the terms of the contract as they have an ipad

    That is a very good point. Can you get the Gym to give you evidence of being there and at the same time see if they can get it cancelled.

    Still work on the defence though which will revolve around the lack of clarity of the terms of the parking contract plus an explanation of why more than 3 hours e.g. induction period ran over.
  • KeithP
    KeithP Posts: 37,432
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    Sun1234 wrote: »
    I received a court papers dated the 1st October and immediately filed an AOS.
    With a Claim Issue Date of 1st October, and having done the AoS in a timely manner, you have until until 4pm on Monday 5th November 2018 to file your Defence.

    Still two weeks to produce a perfect Defence, but don't leave it to the very last minute.


    When you are happy with the content, your Defence should be filed via email as described here:

    1) Print your Defence.
    2) Sign it and date it.
    3) Scan the signed document back in and save it as a pdf.
    4) Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
    5) Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
    6) Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
    7) Wait for your Directions Questionnaire and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.
  • Sun1234
    Sun1234 Posts: 19 Forumite
    I was wondering if anyone had any advice on including the Consumer rights act and the fact that the hidden term render the contract unfair in any case and contrary to requirements of good faith?
    (different to Beavis as that case didnt mention any hidden terms?)
    Thanks
  • Coupon-mad
    Coupon-mad Posts: 130,634
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    Yes that gets mentioned in quite a few defences. To see some, search for POSTS (never 'threads') with:

    good faith Consumer Rights Act 2015 true
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • Sun1234
    Sun1234 Posts: 19 Forumite
    Hi All

    So ive filed my defence by email just now, can anyone advise what i do with the MCOL filing defence box?

    Im just a little concerned the end of the AOS will be this monday and they may enter judgement if CCBC havent update to day defended by then?

    Can i defend and write in the online box please see defence emailed 1st November?
    Thanks
  • KeithP
    KeithP Posts: 37,432
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    Sun1234 wrote: »
    Hi All

    So ive filed my defence by email just now, can anyone advise what i do with the MCOL filing defence box?

    Im just a little concerned the end of the AOS will be this monday and they may enter judgement if CCBC havent update to day defended by then?

    Can i defend and write in the online box please see defence emailed 1st November?
    Thanks
    Do not write anything in the Defence box on MCOL.

    That message is clearly spelt out in post #2 of the NEWBIES FAQ sticky thread.


    In fact, do not do anything on MCOL other that the checking mentioned in post #3.
  • Sun1234
    Sun1234 Posts: 19 Forumite
    So with the acknowledgement of service expiring on Monday but the CCBC saying they take 10 days to acknowledge an email - is the claimant able to enter a default judgment on tuesday if they havent updated MCOL?
  • KeithP
    KeithP Posts: 37,432
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    edited 1 November 2018 at 4:57PM
    The simple answer to your question is - yes.

    [STRIKE]Nothing will now happen until Monday morning[/STRIKE], so I suggest you keep checking MCOL on Monday morning and if it hasn't been marked as defended by say lunchtime then phone the CCBC and ask that they process it.

    You should've received an automatic reply to your email.
  • Sun1234
    Sun1234 Posts: 19 Forumite
    Yes i have thanks for your help
  • KeithP
    KeithP Posts: 37,432
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    Sorry, my earlier post is wrong.

    I was dreaming that today is Friday - of course it isn't.

    Your Defence may well be processed tomorrow, i.e. Friday.

    Check MCOL for 'defended' on Friday and Monday.
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