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    • Farmer BarrleyMow
    • By Farmer BarrleyMow 21st Oct 17, 5:00 PM
    • 13Posts
    • 11Thanks
    Farmer BarrleyMow
    CEL draft Defence
    • #1
    • 21st Oct 17, 5:00 PM
    CEL draft Defence 21st Oct 17 at 5:00 PM

    id like to post my draft defence for a court claim from CEL, i have had no corespondance fro CEL apart from initial PCN over a 18 months ago,in the court claim they state they will send further details within 14 days of issue but ihave recieved nothing yet.
    I have read the Newbies board and studied a fair few draft defence posts and would be gratefull for any advice on the following.
    Many thanks

    In the County Court Business Centre
    Claim Number: ___


    Civil Enforcement Limited v ___


    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 of the following reasons:

    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 “Civil Enforcement Limited”.

    This Claimant has not complied with pre-court protocol:
    (a)There was no compliant ‘Letter before County Court Claim’.
    (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.
    e) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.

    f) Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;

    (i) Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
    (ii) A copy of any contract it is alleged was in place (e.g. copies of signage)
    (iii) How any contract was concluded (if by performance, then copies of signage maps in place at the time)
    (iv) Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
    (v) Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
    (vi) If charges over and above the initial charge are being claimed, the basis on which this is being claimed
    (vii) If Interest charges are being claimed, the basis on which this is being claimed

    g) Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

    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 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.

    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.

    The Claimant has no standing to bring a case - this distinguishes this case from the Beavis case.
    a. It is believed the Claimant does not hold a legitimate contract at this car park. The Defendant has no evidence that they have any proprietary interest in the car park/land in question. As an agent, the Claimant has no legal right to bring such a claim in their name. Any such claim should be in the name of the landowner.
    b. The Defendant asks the Claimant to provide a full, up-to date and signed/dated contract with the landowner (a statement saying someone has seen the contract is not enough). The contract needs to state that the Claimant is entitled to pursue matters such as these through the issue of Parking Charge Notices and in the courts in their own name. I clarify that this should be an actual copy and not just a document that claims a contract/agreement exists.

    The Defendant avers that the Claimant has issued proceedings inappropriately, prematurely and without complying with the practice directions on pre-action conduct.

    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.

    The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

    The Claimant has failed to comply with the strict requirements of the Protection Of Freedoms Act 2012, schedule 4 (PoFA 2012):
    a. The driver of the vehicle has not been identified. The Defendant is the registered keeper but was not the Driver. In order for the Claimant to transfer liability from the driver to the keeper, they must do so within the strict requirements of PoFA 2012. This too was confirmed by Mr Greenslade, POPLA Lead Adjudicator in page 8 of the 2015 POPLA Report: “If POFA 2012 Schedule 4 is not complied with then keeper liability does not generally pass.”
    b. The Claimant did not issue a “Notice to Driver” at the time of the alleged offence; therefore, the Claimant is put to strict proof that a “Notice to Keeper” was issued within the required timeframe of 14 days after the alleged offence in accordance with PoFA 2012 para. 9(5).
    c. In failing to comply with the PoFA 2012, the Claimant cannot hold the Keeper liable for any of the claim.

    Grace periods
    The BPA Code of Practice (CoP) makes it mandatory for operators to allow grace periods at the start and end of parking, before enforcement action can be taken.
    The CoP states:

    13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go...
    13.4 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. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.
Page 3
    • Redx
    • By Redx 27th Nov 17, 8:33 PM
    • 18,354 Posts
    • 23,244 Thanks
    isnt recorded elivery the best option as you then have proof of delivery ?
    Originally posted by Farmer BarrleyMow
    only if it is "signed for"

    if it is not "signed for" (its new name by the way) then it is proof of non-delivery

    sending by first class post with the royal mail with a free certificate of posting at the P.O. is the correct and often used legal method of posting , because in law it is deemed "delivered" by royal mail 2 days later

    the only proof you need is the free proof of posting receipt
    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
    • Farmer BarrleyMow
    • By Farmer BarrleyMow 26th Dec 17, 3:36 PM
    • 13 Posts
    • 11 Thanks
    Farmer BarrleyMow
    Replied to DQ first week in December and a few weeks later my paper work was moved to my local court of preference for them to take over.
    Just before xmas holidays received a letter from CEL disscontinuing the claim, hallelujah !
    It does seem a shame that the courts are allowed to be used in this way by a company purley in pursuit of profit.
    • Coupon-mad
    • By Coupon-mad 26th Dec 17, 3:40 PM
    • 58,471 Posts
    • 71,975 Thanks
    Yay, that's the fifth one in the week before Christmas on here! Loads of CEL threads like yours!

    Now complain to your MP so they support the new Bill in 2018.
    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.

    • beamerguy
    • By beamerguy 26th Dec 17, 4:34 PM
    • 7,552 Posts
    • 10,040 Thanks
    Replied to DQ first week in December and a few weeks later my paper work was moved to my local court of preference for them to take over.
    Just before xmas holidays received a letter from CEL disscontinuing the claim, hallelujah !
    It does seem a shame that the courts are allowed to be used in this way by a company purley in pursuit of profit.
    Originally posted by Farmer BarrleyMow
    CEL are complete a***holes

    When the court opens, just confirm this with them.
    CEL are morons and cannot be trusted

    Yes complain to your MP and ask him/her to support
    the upcoming members bill

    Take it further regarding the timewasting methods of CEL

    • Loadsofchildren123
    • By Loadsofchildren123 5th Jan 18, 1:07 PM
    • 2,140 Posts
    • 3,593 Thanks

    this OP is applying for costs - you could try it, use her letters/skeleton and costs schedule as a base, adapt them to your facts. It's worth half an hour of your time to try.
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
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