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  • FIRST POST
    • cdwood
    • By cdwood 12th Oct 17, 11:01 AM
    • 15Posts
    • 5Thanks
    cdwood
    CEL overstay claim
    • #1
    • 12th Oct 17, 11:01 AM
    CEL overstay claim 12th Oct 17 at 11:01 AM
    Hi all

    The driver of my car overstayed in a carpark during 2015 by 10 minutes. Claim has come through for £359.62 inc costs from the county court business centre.

    As per sticky #2 I have aknowledged the claim online and selected a full defence. I have spend many hours plodding through likewise template letters and have come up with the following for my circumstance:



    In the County Court Business Centre
    Claim Number XXXX
    Between:
    Civil Enforcement Limited v XXXX

    Defence Statement

    The Claim Form issued on the XXXX 2017 by Civil Enforcement Limited was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by !!!8220;The Legal Team!!!8221;.

    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 !!!8216;Letter before County Court Claim!!!8217;, 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 !!!8216;keeper liability!!!8217; provisions.
    Henry Greenslade, lead adjudicator of POPLA in 2015 and an eminent barrister and parking law expert stated that !!!8220;However keeper information is obtained, there is no !!!8216;reasonable presumption!!!8217; in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort.!!!8221;
    Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and relevant contract' fairly and adequately communicated, which there was not as there was no clear, transparent information about how to obtain a permit either inside or outside the site) 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 NTK, nor the permit information mentioned a possible £££££££ for outstanding debt and damages.

    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 xxxx 2017
    (b) failed to respond to a letter from the Defendant dated xxxxxx 2017 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.

    Signed
    Date


    Any comments before i get this sent? Is this fit for purpose? It there any merit in getting this in ASAP or better to leave until closer to the deadline?

    One question on 10.2 - do i need to write to CEL to get this? or should i simply remove this line from my defence.

    Many thanks in advance for any help.
    CD
    Last edited by cdwood; 12-10-2017 at 11:13 AM. Reason: remove details
Page 1
    • Quentin
    • By Quentin 12th Oct 17, 11:07 AM
    • 35,808 Posts
    • 20,059 Thanks
    Quentin
    • #2
    • 12th Oct 17, 11:07 AM
    • #2
    • 12th Oct 17, 11:07 AM
    Throughout here you will have seen never to reveal who was the driver


    You want to use POFA in your defence yet you have given details in your OP about who was driving! Are you sure you haven't done so in other correspondence/contact etc


    If you are then edit your post to remove details of who was driving


    Also if you have inadvertently used your real name as your forum name then ask MSE to change it to something anonymous - the ppcs monitor this forum and can use your posts against you
    • Redx
    • By Redx 12th Oct 17, 11:07 AM
    • 18,304 Posts
    • 23,185 Thanks
    Redx
    • #3
    • 12th Oct 17, 11:07 AM
    • #3
    • 12th Oct 17, 11:07 AM
    edit the above post and remove any hint of who was driving

    ie:- it was THE DRIVER that may have overstayed
    Last edited by Redx; 12-10-2017 at 11:16 AM.
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • beamerguy
    • By beamerguy 12th Oct 17, 11:13 AM
    • 7,506 Posts
    • 9,991 Thanks
    beamerguy
    • #4
    • 12th Oct 17, 11:13 AM
    • #4
    • 12th Oct 17, 11:13 AM
    Hi all

    The driver of my car overstayed in a carpark during 2015 by 10 minutes. Claim has come through for £359.62 inc costs from the county court business centre.
    Originally posted by cdwood
    When was the claim dated and £359.62 is OTT for a parking
    ticket. Have they given a breakdown ?

    What about the grace period that should be allowed entering
    and leaving a car park
    Last edited by beamerguy; 12-10-2017 at 11:35 AM.
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • cdwood
    • By cdwood 12th Oct 17, 11:16 AM
    • 15 Posts
    • 5 Thanks
    cdwood
    • #5
    • 12th Oct 17, 11:16 AM
    • #5
    • 12th Oct 17, 11:16 AM
    Thanks for the quick response. I have edited the post to say the driver.

    The forum name is not my real name.

    Thanks
    CD
    • Umkomaas
    • By Umkomaas 12th Oct 17, 11:17 AM
    • 17,971 Posts
    • 28,445 Thanks
    Umkomaas
    • #6
    • 12th Oct 17, 11:17 AM
    • #6
    • 12th Oct 17, 11:17 AM
    What about the grace period that should be allowed entering
    and leaving a car park
    Date of the 2015 parking event may have been prior to the requirement being placed on operators by the BPA in the Autumn of 2015 (from memory!).
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • Redx
    • By Redx 12th Oct 17, 11:17 AM
    • 18,304 Posts
    • 23,185 Thanks
    Redx
    • #7
    • 12th Oct 17, 11:17 AM
    • #7
    • 12th Oct 17, 11:17 AM
    @ Beamer please edit the quote above to reflect the new wording in post #1

    thank you
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • cdwood
    • By cdwood 12th Oct 17, 11:19 AM
    • 15 Posts
    • 5 Thanks
    cdwood
    • #8
    • 12th Oct 17, 11:19 AM
    • #8
    • 12th Oct 17, 11:19 AM
    the court claim was dated 5th oct 17 but the original claim was march 2015.

    the 359 cost is inc of 284 costs plus court cost and legal. Total 359.

    Thanks
    CD
    • Quentin
    • By Quentin 12th Oct 17, 11:19 AM
    • 35,808 Posts
    • 20,059 Thanks
    Quentin
    • #9
    • 12th Oct 17, 11:19 AM
    • #9
    • 12th Oct 17, 11:19 AM
    Thanks for the quick response. I have edited the post to say the driver.

    The forum name is not my real name.

    Thanks
    CD
    Originally posted by cdwood
    You need to pm beamerguy and ask him to edit the quote he has inserted in his post #4
    • beamerguy
    • By beamerguy 12th Oct 17, 11:28 AM
    • 7,506 Posts
    • 9,991 Thanks
    beamerguy
    Date of the 2015 parking event may have been prior to the requirement being placed on operators by the BPA in the Autumn of 2015 (from memory!).
    Originally posted by Umkomaas
    Good point, question is would a judge accept that £359.62
    for 10 mins is reasonable ?
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • beamerguy
    • By beamerguy 12th Oct 17, 11:32 AM
    • 7,506 Posts
    • 9,991 Thanks
    beamerguy
    @ Beamer please edit the quote above to reflect the new wording in post #1

    thank you
    Originally posted by Redx
    done, is that ok
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • Redx
    • By Redx 12th Oct 17, 11:33 AM
    • 18,304 Posts
    • 23,185 Thanks
    Redx
    no , because it was THE DRIVER that overstayed, the KEEPER is defending the claim

    cheers
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • cdwood
    • By cdwood 13th Oct 17, 9:12 AM
    • 15 Posts
    • 5 Thanks
    cdwood
    Indeed, the driver overstayed by 10 minutes on a 2 hour stay, the cost to park was £2 for 2 hours - so at worse the PPC was out of pocket by £1. Ironically the car park is now free as people started to vote with their feet.

    Can i ask if the defence letter in my first post looks good enough for my needs?

    Should this be submitted immediately or closer to the deadline?

    Many thanks.
    • cdwood
    • By cdwood 25th Feb 18, 1:10 PM
    • 15 Posts
    • 5 Thanks
    cdwood
    Witness statement
    Hi Guys

    My defence was submitted back in Otober / November and i have now received papers from the court to say that this case will be heard. CEL have sent their Witness statement and i now need to send mine, to the court and CEL.

    I have looked at Sticky #2 and hunted round on the forum for hw to write the Witness statement. There are many defences but few witness statements. Those that i have found have copies of when NTK were recieved, photos of the signage and all that kind of stuff.
    I didnt keep a record of any of that and when i nipped to teh car park last week i found that the car park in question doesnt have any restrictions anymore so i cannot get any photos of signage etc.

    One interesting point is thta CEL in the pack, had a covering letter offering to settle in full prior to the court date, if i pay now £160. They are clearly (hopefully) about to discontinue.

    How might i construct a WS? Should i simply resubmit the defence, which seems to sum the case up? any other pointers?

    Thanks
    CD
    • The Deep
    • By The Deep 25th Feb 18, 1:23 PM
    • 9,449 Posts
    • 9,188 Thanks
    The Deep
    This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences.

    Parking Eye, Smart and a smaller company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (who take hundreds of these cases to court, and nearly always lose), who have also been reported to the regulatory authority.

    The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.

    http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

    and complain in the most robust terms to your MP. With a fair wind most of these companies may well be put out of business by Christmas.
    You never know how far you can go until you go too far.
    • Quentin
    • By Quentin 25th Feb 18, 5:49 PM
    • 35,808 Posts
    • 20,059 Thanks
    Quentin

    I have looked at Sticky #2 and hunted round on the forum for hw to write the Witness statement.......

    How might i construct a WS? Should i simply resubmit the defence, which seems to sum the case up?
    Originally posted by cdwood
    No. Don't just resubmit your defence!!


    Read up the section on the WS again in the Newbies FAQ #2.

    Lots of suggestions there.
    • Coupon-mad
    • By Coupon-mad 25th Feb 18, 8:01 PM
    • 58,322 Posts
    • 71,851 Thanks
    Coupon-mad
    One interesting point is that CEL in the pack, had a covering letter offering to settle in full prior to the court date, if i pay now £160. They are clearly (hopefully) about to discontinue.
    Standard now it seems, just before discontinuing, Nice try but no cigar, CEL:

    http://forums.moneysavingexpert.com/showthread.php?p=73936300#post73936300

    ...keep the faith!

    I wrote the bit about WS/evidence stage in the NEWBIES thread, to help people at WS stage!
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • cdwood
    • By cdwood 26th Feb 18, 10:14 PM
    • 15 Posts
    • 5 Thanks
    cdwood
    Witness statemnt
    Thanks all - please find below my first stab at the Witness statement.

    In the matter of

    Civil Enforcement Limited (Claimant)
    v
    me (defendant)

    Claim no: 123456

    Witness statement of Mrs *******, defendant


    I am the Defendant in this matter, I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience.
    In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.


    1. Whilst I was the Registered Keeper of the vehicle concerned, there is no evidence of the driver and as this event has been resurrected from Three years ago, it is impossible to expect a keeper to recall who might have been driving. Further this car park is used regularly by more than one driver of the vehicle.

    2. The Defendant denies being the driver at the time of the supposed event, and therefore puts CEL to strict proof that any contract can exist between the Claimant and themselves.

    3. At the time in 2015, the insurance covered more than one family member, whom I have no obligation to name to a private parking firm. It remains the burden of the Claimant to prove their case.

    4. There was no requirement upon me as keeper to respond to what appeared to be junk mail / unspeculative invoice, in early 2015, and in any event was not a matter where a registered keeper could be in any way legally liable as the law stood at that time. No adverse inference can be drawn from my lawful decision to ignore the colourful letter, impersonating a parking ticket yet with no basis in law.

    5. Having not heard about this matter in years, suddenly in 2015 I received a letter and a court claim out of the blue and I have researched this and discovered that CEL are issuing robo-claims for archive 'parking charges' in their thousands. Both the Particulars of Claims dated 11th October 2017 and the Witness statement dated 23rd February 2018 are computer generated that have not been signed or a computer generated signature is apparent.
    6. The claimant suggest there is ANPR cameras capturing images of the car and its number plates at entry and egress of the car park. No copies of these images have yet been supplied despite being requested. There is none of the same, in the particulars of claims nor the Witness statement from the claimant.
    7. Paragraph point Seven within the Claimants Witness statement suggests that there is an exhibit One – a copy of the sign that was displayed in the car park. There is no such exhibit one in the Witness pack.
    8. Paragraph point 15 within the claimants Witness statement suggests that there is a exhibit One – a copy of the PCN and subsequent reminder. There is no such exhibit one in the Witness pack.

    9. I am no more liable now than I was then, but this unwarranted harassment and baseless litigation has caused me significant alarm and distress, such that I intend to report CEL my local MP noting that harassment was discussed in the Houses of Commons as an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences.

    10. The claimant has failed to properly respond to my request made on XXX by royal mail postal service, requesting any documentation and relevant contracts with the land owners that allow the claimant to issue claims upon the landowners’ behalf. My request was not actioned appropriately. It is noted that this relevant contract is not provided in the claimants ‘particulars of claims’ nor is this in the Witness Statement.

    I believe that the facts stated in this Witness Statement are true.



    Signed xxxxxxxxxxxxxxxx


    Dated xxxxxxxxxxx


    How does that fare?

    Thnsk

    CD
    • KeithP
    • By KeithP 26th Feb 18, 10:20 PM
    • 7,649 Posts
    • 7,343 Thanks
    KeithP
    4. you are wrong to say that in 2015 there was no way to hold a keeper liable. Transference of liability to the keeper became possible with the introduction of The Protection of Freedoms Act in 2012.
    .
    • cdwood
    • By cdwood 27th Feb 18, 10:11 AM
    • 15 Posts
    • 5 Thanks
    cdwood
    Thanks - if i remove point 4 is that WS now satisfactory?

    Cheers
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