Civil enforcement limited claim form received

Stuck2017 · 19 April 2017 at 2:18PM

Hi.

I've recently received a claim form from County court business centre following a PCN from CEL now totalling £322.90. The original invoice was for £100, which (having read through lots of newbie advice on these forums) I now know that I was stupid to ignore.
I received debt collector letter which referred to a PCN of £140 ?? The car was only in the car park for 20 minutes but no ticket was purchased.

I have acknowledged service on the MCOL website and am going to prepare my defence. I now only have until 5th May to provide a defence. I'm in a bit of a panic and even though I've read through so much online i still would really appreciate some specific advice.

For information, I am the registered keeper but was not the driver and can potentially prove that with a letter from my work. I haven't received a NTK.

Please can someone confirm whether I am too late to write to CEL with the following questions?

Re PCN number: xxxxxxxx

I am the keeper of the vehicle and am aware of your purported 'parking charge'. The driver will not be identified. I require the following information so that I can make an informed decision:

1. Who is the party that contracted with your company and are the the landowner?
2. Is your charge based on damages for breach of contract? Answer yes or no.
3. Please provide photos of the signs that were in place on the 19 August 2016 which specified the parking rules.
4. Please provide all photographs taken of this vehicle on 19 August 2016.
5. Please provide proof that the timing of any camera or timer used was synchronised with all other cameras and was sufficiently calibrated.
6. Please confirm whether the Parking charge notice was a notice to the driver or the registered keeper.

I deny liability for any sum at all. I will keep a copy of this email and look forward to your reply.

Yours faithfully,
NAME AND ADDRESS

Redx · 19 April 2017 at 2:29PM

by all means ask the questions as a part 18 type letter , but assume they will ignore it so dont rely on getting anything back

but still acknowledge the claim and start drafting your defence based on recent examples on here and on pepipoo forums

read post #2 of the NEWBIES sticky thread too

Stuck2017 · 19 April 2017 at 3:31PM

Thanks.

Having read more examples, I now also think that the PCN/NTK is not POFA compliant as it was served almost a month after the parking incident, and doesn't include some of the necessary wording as specified in POFA.

So that might be my main defence. Would that be enough along with the fact that I wasn't the driver?

Would it be worth writing to CEL to point to this out now (although it sounds like they'd ignore it)? Or should I just wait to submit it as my defence?

Thanks again for anyone who can help.

Redx · 19 April 2017 at 4:00PM

gather ALL legal points and include them in your defence

and as before , ask the PPC to clarify the points you have raised like NTK, paperwork and suchlike (gather evidence and particulars of claim)

your task now is to prepare your defence and submit it within the 28 days from the date of claim on the MCOL , nothing else matters because they have started the court proceedings and paid the initial court charge

Stuck2017 · 19 April 2017 at 4:17PM

Ok, thanks again, your comments are really helpful for me.

I'll email CEL with my questions today, then will do more research and draft my defence. I will post it on this forum before I submit it formally. Not only will it help me to receive comments, it may be helpful for others in the same boat!

Coupon-mad · 19 April 2017 at 4:27PM

Stuck2017 wrote: »

Ok, thanks again, your comments are really helpful for me.

I'll email CEL with my questions today, then will do more research and draft my defence. I will post it on this forum before I submit it formally. Not only will it help me to receive comments, it may be helpful for others in the same boat!

You will find loads of CEL defences already written on here, all are discontinued, no hearings. This is relatively easy and you are lucky it is CEL.

To find shedloads of (fairly generic but effective) defences written already for you to crib from, search this parking forum (not MSE itself) for 'CEL defence' as well as doing the AOS on MCOL as described in post #2 of the NEWBIES thread (all about court defence stage).

Stuck2017 · 23 April 2017 at 6:50AM

I've finally drafted my first version of a defence. I have a couple of questions which I've put in capital letters within the text below. Any comments or suggestions would be welcomed. .........

In the County Court Business Centre
Claim Number ****
Between:
Civil Enforcement Limited v ******
Defence Statement

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

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

1. The Claim Form issued on the xxxxxx 2017 by Civil Enforcement Limited was not correctly filed under the Practice Direction nor has the Claimant complied with pre-court protocol:
The Claim form is not signed by the Claimant’s Legal Representative as stated and therefore isn't a Statement of Truth. (IS THIS STILL CORRECT IF THEY SENT A SIGNED STATEMENT OF TRUTH ALONG WITH DETAILS OF THE CLAIM SEPARATELY FROM THE CLAIM FORM?)
The vague Particulars of Claim (which were sent separately) disclose no clear cause of action nor sufficient detail.The defendant has requested further details from the claimant and has not yet received a response.
The due date of the £236 debt listed on the claim form is listed as 19/8/16, but the debt did not exist on that date as the PCN was not issued until 15/9/16.

2. There was no compliant ‘Letter before County Court Claim’ under the Practice Direction. Several details required by the practice direction were not included in this letter. (DO I NEED TO LIST ALL THE DEFICIENCIES HERE??)

3. I was not the driver on the day of the parking event, the driver has not been evidenced and I put the Claimant to strict proof that it issued a compliant notice under Schedule 4 of the Protection of Freedoms Act 2012 (POFA). Such a notice was not served within 14 days of the parking event and when the notice was served, did not fully comply with statutory wording. The Claimant is therefore 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. No standing:
(a) There is/was no compliant landowner contract. It is believed Civil Enforcement do not hold a legitimate contract at this car park. (DO I INCLUDE THIS IF I DON'T KNOW FOR CERTAIN? IVE ASKED CEL FOR DETAILS BUT RECEIVED NOTHING) 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.
(b) 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.

5. Schedule 4 of POFA states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not) is the sum on the Notice to Keeper. They cannot pluck another sum from thin air and bolt that on as well when neither the signs, nor the parking charge notice mentioned a possible £236 for outstanding debt and damages.

6. Inadequate signs incapable of binding the driver :
(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 Codes of Practice.

7. The claimant has added unrecoverable sums to the original parking charge. I challenge the claimed amount of £322.90. a) The particulars of claim dated 1st December 2016 are templates, so it is not credible that £50 legal costs were incurred.
b) I put the Claimant to strict proof and of the additional £60 allegedly paid to ZZPS. I deny the Claimant is entitled to any interest whatsoever.
c) Wright Hassall was appointed by ZZPS not CEL, and I put to the claimant for strict proof of the £36 allegedly paid to Wright Hassall.

8. 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. Point 6 above, explains why strict compliance with the BPA Code of Practice signage has not been met by the defendant. No contract formed to pay any clearly stated sum.

The court is invited to strike out the claim for failure to include a valid Statement of Truth ( IS THIS THE CASE IF THE DEFENDANT SENT A SIGNED STATEMENT OF TRUTH AS A SEPARATE DOCUMENT FROM THE CLAIM FORM???) , failure to include a cause of action or order particulars that comply with Practice Directions.

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

Signed
Date

Thanks in advance to anyone who can help.

Coupon-mad · 23 April 2017 at 1:10PM

The Claim form is not signed by the Claimant’s Legal Representative as stated and therefore isn't a Statement of Truth. (IS THIS STILL CORRECT IF THEY SENT A SIGNED STATEMENT OF TRUTH ALONG WITH DETAILS OF THE CLAIM SEPARATELY FROM THE CLAIM FORM?)

I would just change it to:

The Claim form is not signed by the Claimant’s Legal Representative nor a named employee/Director, nor any legal person.

Never acknowledge that this unwarranted charge is a 'debt':

The due date of the purported £236 [STRIKE]debt[/STRIKE] sum listed on the claim form is listed as 19/8/16, but the alleged/denied debt did not exist on that date as the PCN was not issued until 15/9/16 and was for £100.

2. There was no compliant ‘Letter before County Court Claim’ under the Practice Direction. Several details required by the practice direction were not included in this letter. (DO I NEED TO LIST ALL THE DEFICIENCIES HERE??)

I wouldn't bother.

I would make #3 stronger because this is a killer blow:

3.1 I was not the driver on the day of the parking event and this claimant cannot hold me liable under any applicable rule of law.

3.2 The driver has not been evidenced and I put the Claimant to strict proof that it issued a compliant notice under Schedule 4 of the Protection of Freedoms Act 2012 (POFA).

3.3 Such a notice was not served within 14 days of the parking event and when the notice was served, did not fully comply with statutory wording. The Claimant is therefore unable to hold me liable under the strict ‘keeper liability’ provisions.

3.4 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.”

3.5 Therefore, since I was not the driver, this Claimant has no basis of liability against me nor cause of action and the Court is invited to use discretion to strike this case out or put the Claimant to strict proof of their cause of action against a registered keeper.

And here I would remind the court that a main difference is you were not the Driver:

8. 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. Point 6 above, explains why strict compliance with the BPA Code of Practice signage has not been met by the defendant. No contract was formed to pay any clearly stated sum. In the Supreme Court case Mr Beavis was the admitted driver. Crucially, unlike in Beavis, I was not the driver in this case and so there is an absence of any liability and a failure to establish any cause of action.

4. No standing:
(a) There is/was no compliant landowner contract. It is believed Civil Enforcement do not hold a legitimate contract at this car park. (DO I INCLUDE THIS IF I DON'T KNOW FOR CERTAIN? IVE ASKED CEL FOR DETAILS BUT RECEIVED NOTHING)

Yes. Any claim is the burden of the claimant to prove.

The court is invited to strike out the claim for failure to include a valid Statement of Truth ( IS THIS THE CASE IF THE DEFENDANT SENT A SIGNED STATEMENT OF TRUTH AS A SEPARATE DOCUMENT FROM THE CLAIM FORM???) , failure to include a cause of action or order particulars that comply with Practice Directions.

I would remove the above because I've already suggested the Court might use its discretion to strike out, earlier on above. Don't push the point twice and it's better aligned to the fact that you simply are not liable in law.

Stuck2017 · 23 April 2017 at 1:16PM

Thank you Coupon mad. Your time and advice is MUCH appreciated, and I'll ensure that I make the suggested changes to my defence statement.

I'll keep you all posted on what happens next.

Stuck2017 · 2 July 2017 at 11:37AM

Hi. Just an update on my case. I submitted my defense and it went quiet for a couple of months. I've now received a small claims directions questionnaire (N180).
I'm going to complete this and send it back to the court using the advice that is already available on this forum.
Does the receipt of the form suggest that this case will be heard in court?

Redx · 2 July 2017 at 12:46PM

no , it does not suggest that at all, its simply the next part of the court process

once done , a local court is allocated , possibly a judge too, then a lot of other hurdles are overcome BEFORE a court hearing date and time and judge are set

I think the claimant may have to pay a certain fee before it goes even further (a filing fee ?) - even after that they may well discontinue at some point prior to the actual court date

so even then there is no suggestion that a court hearing appearance will actually be made (yes it might go all the way , but we have seen a discontinuance issued many times prior to the court hearing , seen a few that have been discontinued just this last week (like a MINSTER BAYWATCH one)

plan for it , but never assume it will go all the way , but have all your ducks in a row in case it actually does go all the way to an actual court hearing

Civil enforcement limited claim form received

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