Cel ltd - county court claim

Hi Coupon Mad,

Thanks very much for your help.

Hows this for a start? I'm still so confused by all the technical stuff so I could be way off, and I'm expecting this to be all wrong..

Your help is massively appreciated.

Thanks again.

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

Civil Enforcement Ltd (Claimant)

-and-

(Defendant)

________________________________________
DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Particulars of Claim are sparse. There is no information regarding the alleged contract, what the terms on signage actually said on the material date, or what the alleged breach was, or why/how the Claimant purports that the registered keeper is liable, given the facts that this Claimant has failed to evidence the identity of the driver and they do not use the keeper liability provisions in the Protection of Freedoms Act 2012 (the 'POFA').

2.1. Further, the Claim Form issued was not correctly filed under the Practice Direction, as it was not signed by any legal person but signed/printed as a company name only: “Civil Enforcement Limited” (Claimant’s Legal Representative).

3. The facts are that the vehicle, registration xxxx xxx, of which the Defendant is the registered keeper is a Motability vehicle which more than one person is authorised and insured to drive to fetch medication and/or provisions for the defendant. The defendant is disabled under the meaning in the Equality Act 2010, and the Claimant should have known this fact and avoided issuing a PCN to the car, as it is clearly flagged on DVLA data records as a Motability vehicle which has a specific meaning, and can only be used by disabled people with high level mobility needs. Disabled people who qualify for the high level of need that results in a Motability vehicle need more time to go about daily life, which means the claimant had a legal duty under statute (EA 2010, and the statutory EHRC Code of Practice) to make a reasonable adjustment, which does not stop at just painting a disabled bay or removing physical barriers to access, but also includes making adjustments to fixed time limits that would cause a disabled person loss, disadvantage or detriment.

4. 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. It is not known whether the Claimant is suggesting that the vehicle was 'unauthorised' or allegedly overstayed an arbitrary time period.

4.1. However, it is denied that the vehicle was - by any reasonable interpretation - unauthorised, or that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

5. The Claimant is likely to rely upon the completely different Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67. However, the Defendant avers that decision confirms the assertion that this charge is unconscionable, given the facts. To quote from the decision in Beavis:

Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

6. By contrast, this penalty represents neither a necessary deterrent, nor an understandable ingredient of a scheme serving legitimate interests, and the Beavis case is distinguished.

7. The POFA states that the maximum sum that may be potentially recovered from the keeper (subject to full compliance by the parking operator, which is not the case) is the charge stated on the Notice to Keeper, in this case £100. This claim attempts nearly triple recovery by adding purported but unsupported damages, admin, debt collector or other costs, which the Defendant submits have not actually been incurred at all. The Defendant avers that this inflation of the considered amount to some £260 is a gross abuse of process.

8. 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.



signed..............................

date...............

Is this any better?

Thanks

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

Civil Enforcement Ltd (Claimant)

-and-

l (Defendant)

________________________________________
DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Particulars of Claim are sparse. There is no information regarding the alleged contract, what the terms on signage actually said on the material date, or what the alleged breach was, or why/how the Claimant purports that the registered keeper is liable, given the facts that this Claimant has failed to evidence the identity of the driver and they do not use the keeper liability provisions in the Protection of Freedoms Act 2012 (the 'POFA').

2.1. Further, the Claim Form issued was not correctly filed under the Practice Direction, as it was not signed by any legal person but signed/printed as a company name only: “Civil Enforcement Limited” (Claimant’s Legal Representative).

3. The facts are that the vehicle, registration xxxx xxx, of which the Defendant is the registered keeper is a Motability vehicle. The defendant is disabled under the meaning in the Equality Act 2010, and the Claimant should have known this fact and avoided issuing a PCN to the car, because it's clearly flagged on DVLA data records as a Motability vehicle which has a specific meaning, and can only be used by disabled people with high level mobility needs. Disabled people who qualify for the high level of need that results in a Mot ability vehicle need more time to go about daily life, which means the claimant had a legal duty under statute (the EA 2010 itself, and the statutory EHRC Code of Practice) to make a reasonable adjustment, which does not stop at just painting a disabled bay or removing physical barriers to access, but also includes making adjustments to fixed time limits that would cause a disabled person loss, disadvantage or detriment.

4. 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. It is not known whether the Claimant is suggesting that the vehicle, at all material times at this location being used by authorised gym members, was 'unauthorised' or allegedly overstayed an arbitrary time period.

4.1. However, it is denied that the vehicle was - by any reasonable interpretation - unauthorised, or that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

5. The Claimant is likely to rely upon the completely different Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67. However, the Defendant avers that decision confirms the assertion that this charge is unconscionable, given the facts. To quote from the decision in Beavis:

Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

Para 107: ''...in our opinion the term imposing the £85 was not unfair. The term does not exclude any right which the consumer may be said to enjoy under the general law or by statute.''

6. By contrast, this penalty represents neither a necessary deterrent, nor an understandable ingredient of a scheme serving legitimate interests, and it does (in the Defendant's case) operate disadvantageously and actively interferes with and restricts the various disability rights which this consumer may be said to enjoy under the general law or by statute. The test of good faith is not met and with an absence of 'fair and open dealing' and a specifically illegal breach of the 'indirect' discrimination aspect of the EA 2010, this charge has no merit and the Beavis case is fully distinguished.


7. The POFA states that the maximum sum that may be potentially recovered from the keeper (subject to full compliance by the parking operator, which is not the case) is the charge stated on the Notice to Keeper, in this case £100. This claim attempts more than triple recovery by adding purported but unsupported damages, admin, debt collector or other costs, which the Defendant submits have not actually been incurred at all. The Defendant avers that this inflation of the considered amount to some £260 is a gross abuse of process.


8. 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.



signed..............................

date...............