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    • Rjones
    • By Rjones 10th Mar 17, 4:37 PM
    • 11Posts
    • 2Thanks
    CEL Defense for overstay @ Gym Car Park
    • #1
    • 10th Mar 17, 4:37 PM
    CEL Defense for overstay @ Gym Car Park 10th Mar 17 at 4:37 PM
    Hi All,

    In February last year i overstayed at the gym car park - there is a 3 hour limit and I stayed there for 4 hours.
    I've submitted my " I wish to defend all of my claim" on the MCOL and have my defense below.

    Would anyone be able to provide any useful feedback on either my defense or if I can go to the gym and ask for them to cancel the claim or contact CEL to cancel the charge etc?
    Defense is below

    ================================================== ======================
    ================================================== ======================
    ================================================== ======================

    I am ******* the defendant in this matter and registered keeper of vehicle *****. I currently reside at ***.

    The Claim Form issued on the **** by Civil Enforcement Limited was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by “The Legal Team”.

    I deny I am liable for the entirety of the claim for each and every one of the following reasons:

    1/ This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.

    2/ This Claimant has not complied with pre-court protocol:
    (a)There was no compliant ‘Letter before County Court Claim’, under the Practice Direction, despite the Defendant's requests for this and further information.
    (b) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information. The covering letter merely contains a supposed PCN number with no contravention nor photographs.
    (c) The Claim form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has no idea what the claim is about - why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information.!

    3/ I put the Claimant to strict proof that it issued a compliant notice under Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.!
    Henry Greenslade, lead adjudicator of POPLA in 2015 and an eminent barrister and parking law expert stated that “However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort.”!

    4/ Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
    (a) Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum.
    (b) Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
    (c) It is believed the signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from by an authorised party using the premises as intended.
    (d) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.

    5/ BPA CoP breaches - this distinguishes this case from the Beavis case:
    (a) the signs were not compliant in terms of the font size, lighting or positioning.
    (b) the sum pursued exceeds £100.
    (c) there is/was no compliant landowner contract.

    6/ No standing - this distinguishes this case from the Beavis case:
    It is believed Civil Enforcement do not hold a legitimate contract at this car park. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.

    7/ No legitimate interest - this distinguishes this case from the Beavis case:

    8/ The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.

    9/ The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.

    10/ The claimant has added unrecoverable sums to the original parking charge.

    The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:
    (a) failed to disclose any cause of action in the incorrectly filed Claim Form issued on 21 February 2017
    (b) failed to respond to a letter from the Defendant dated *** requesting further information and details of the claim

    The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

    I believe the facts contained in this Defence Statement are true.

Page 2
    • BarryStanyer
    • By BarryStanyer 19th Mar 17, 10:56 PM
    • 15 Posts
    • 11 Thanks
    Hi Rjones, your claim and mine seem very similar however you do say in your defence "10 (b) failed to respond to a letter from the Defendant dated *** requesting further information and details of the claim.
    If you don't mind my asking what did you ask?
    • Rjones
    • By Rjones 20th Mar 17, 6:02 PM
    • 11 Posts
    • 2 Thanks
    Thank you all for the above replies - is there anyway I can repay you for your time & energy?

    Fruitcake - I'm no longer a member at the gym and I haven't mentioned anything on social media, as i rarely use it.
    If I do get the next questionairre DQ then i will post back or go direct to the gym again and tell them that they do have the power to withdraw the claim and will then proceed with the social media feedback.

    • Lamilad
    • By Lamilad 20th Mar 17, 7:05 PM
    • 1,349 Posts
    • 2,698 Thanks
    Thank you all for the above replies - is there anyway I can repay you for your time & energy?

    Originally posted by Rjones
    You could make a donation to either the Parking Prankster or the British Motorist's Protection Agency (BMPA).

    Both are volunteer organisations committed to helping (for free) innocent motorists like yourself fightback against the bullying PPC scammers.
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