Your browser isn't supported
It looks like you're using an old web browser. To get the most out of the site and to ensure guides display correctly, we suggest upgrading your browser now. Download the latest:

Welcome to the MSE Forums

We're home to a fantastic community of MoneySavers but anyone can post. Please exercise caution & report spam, illegal, offensive or libellous posts/messages: click "report" or email forumteam@.

Search
  • FIRST POST
    • tonkasdog
    • By tonkasdog 19th Feb 18, 1:36 PM
    • 35Posts
    • 8Thanks
    tonkasdog
    Court Claim Form N1 Received for PCN 18 months ago
    • #1
    • 19th Feb 18, 1:36 PM
    Court Claim Form N1 Received for PCN 18 months ago 19th Feb 18 at 1:36 PM
    Hi guys,

    Hoping I can get some help regarding a county court claim form received on the 16 Feb from County Court Business centre in Northampton. The claimant is "Civil Enforcement Limited"

    It relates to one of our drivers (we are a Ltd company operating minibuses) who inadvertently parked at a retail park for just under 3 hours between jobs on the 27 Aug 2016

    The claim form has been issued to our company but they have the company name slightly wrong, for example:

    joe bloggs services Ltd instead of joe bloggs services (NW) Ltd (thought I'd mention this in case it could result in a get out of jail free card!)

    I have done an "Acknowledgement of service" online this morning to buy extra time and have stated that we dispute the whole claim.

    They are claiming £338.76 in total. I have made a note that I need to submit a defence by the 16 March 18, does this sound right?

    Any advice on how to compile our defence or what we should/shouldn't include would be very much appreciated.

    Look forward to any help you can offer.

    Thanks
Page 3
    • tonkasdog
    • By tonkasdog 9th Mar 18, 8:58 PM
    • 35 Posts
    • 8 Thanks
    tonkasdog
    Such as !!!8220;the defendant for xxxxx ltd!!!8221; .......
    • Coupon-mad
    • By Coupon-mad 9th Mar 18, 9:00 PM
    • 57,473 Posts
    • 71,064 Thanks
    Coupon-mad
    No, not ''for''. The Defendant IS the company, not a person.
    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.

    • tonkasdog
    • By tonkasdog 9th Mar 18, 9:22 PM
    • 35 Posts
    • 8 Thanks
    tonkasdog
    Ok gotcha, I!!!8217;ll amend & repost once done
    Thanks
    • tonkasdog
    • By tonkasdog 12th Mar 18, 4:16 PM
    • 35 Posts
    • 8 Thanks
    tonkasdog
    Hi guys, done another amendment of the document, would you say this is all good to go now?
    Thanks
    In the County Court Business Centre
    (Defendant)



    Defence

    The Defendant denies liability to the Claimant for the entirety of the claim on the following grounds, any of which are fatal to the Claimant’s case:

    1. The Claim Form issued on the 16th Feb 2018 by Civil Enforcement Limited was not correctly filed under The Practice Direction, as it was not signed by a legal person. The claim does not have a valid signature and is not a statement of truth. It states that it has been issued by “Civil Enforcement Limited” as the Claimant’s Legal Representative. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer.

    2. This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017) and as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

    a) There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.

    b) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.

    c) The Schedule of information is sparse of detailed information.

    d) 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. The Claim form Particulars did not contain any evidence of contravention or photographs.

    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.
    h) CEL cannot hold the company liable because they don't use POFA Notice to Keepers, and as the driver was at a retail park it's impossible that the driver was engaged in business on behalf of the company, they were going about their own private business, not under instruction from anyone, and as such their is no possibility that the keeper has liability.



    3. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012 (“POFA 2012”). 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 the defendant liable under the strict ‘keeper liability’ provisions:


    The Claimant did not comply with POFA 2012 and give the registered keeper opportunity, at any point, to identify the driver. A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered no later than 14 days after the vehicle was parked. No ticket was left on the windscreen and no notice to keeper was sent within the 14 days required to comply with POFA 2012 only a speculative invoice entitled “Parking Charge Notice” which was sent outside of the 14 day period, which did not comply with POFA 2012. This would exclude the registered keeper being liable for any charges.


    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. ”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) 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 £338.78 for outstanding debt and damages. The additional costs, which the defendant contests have not been incurred, are none of its concern.



    4. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee, who drew up the paperwork is remunerated by Civil Enforcement Ltd and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs' were incurred. The Defendant believes that Civil Enforcement Ltd has artificially inflated this claim. They are claiming legal costs when not only is this not permitted (CPR 27.14) but the Defendant believes that they have not incurred legal costs. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost. The Defendant denies that the Claimant is entitled to any interest whatsoever. The claimant has not explained how the claim has increased from the original parking notice to £338.78 If the Claimant alleges that they claim the cost of its in-house administration, these cannot be recovered - they are staff performing the task that they have been employed for and essential to the Claimant's business plan.

    5. 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.

    6. In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.


    a) The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.
    b) In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.
    c) Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
    (i) 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.
    (ii) Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
    (iii) 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.
    (iv) 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.
    (v) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.

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

    7. 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.

    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 Defendant has reasonable belief that the Claimant sent a letter claiming to be a final letter before court action, but then instead sent this to more debt collectors. As such the Claimants have artificially inflated the claim value by claiming to involve further debt collectors, the Defendant puts the Claimant to strict proof that all claimed costs were invoiced and paid

    11. Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable to expect a registered keepers representative to be able to recall the potential driver(s) of the vehicle over 18 months later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.

    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 16th Feb 2018.

    b) Sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.

    c) failed to issue a compliant notice to keeper within 14 days under Schedule 4 of the Protection of Freedoms Act 2012 such that Claimant is unable to hold the company liable under the strict ‘keeper liability’ provisions.
    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 confirm that the above facts and statements are true to the best of my knowledge and recollection.
    Last edited by tonkasdog; 12-03-2018 at 9:46 PM.
    • Coupon-mad
    • By Coupon-mad 12th Mar 18, 9:30 PM
    • 57,473 Posts
    • 71,064 Thanks
    Coupon-mad
    Remove the court claim number and the company name, urgent!

    The heading should just be 'DEFENCE'

    There is lots of repetition there. Cut it down, tons of waffle! Greenslade mentioned twice...

    And please please please spare us the same rubbishy bit we KEEP telling people not to use:

    http://forums.moneysavingexpert.com/showthread.php?p=73943093#post73943093


    Make your your company complies:
    Where a document is to be verified on behalf of a company or other corporation... the statement of truth must be signed by a person holding a senior position in the company or corporation. That person must state the office or position held.
    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.

    • tonkasdog
    • By tonkasdog 12th Mar 18, 9:53 PM
    • 35 Posts
    • 8 Thanks
    tonkasdog
    Thanks, I can't believe I didn't spot that'd and ended up posting it!
    I've taken those points out, below, and will recheck asap for repeated lines

    Defence

    The Defendant denies liability to the Claimant for the entirety of the claim on the following grounds, any of which are fatal to the Claimant’s case:

    1. The Claim Form issued on the 16th Feb 2018 by Civil Enforcement Limited was not correctly filed under The Practice Direction, as it was not signed by a legal person. The claim does not have a valid signature and is not a statement of truth. It states that it has been issued by “Civil Enforcement Limited” as the Claimant’s Legal Representative. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer.

    2. This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017) and as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

    a) There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.

    b) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.

    c) The Schedule of information is sparse of detailed information.

    d) 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. The Claim form Particulars did not contain any evidence of contravention or photographs.

    e) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.

    f) CEL cannot hold the company liable because they don't use POFA Notice to Keepers, and as the driver was at a retail park it's impossible that the driver was engaged in business on behalf of the company, they were going about their own private business, not under instruction from anyone, and as such their is no possibility that the keeper has liability.



    3. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012 (“POFA 2012”). 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 the defendant liable under the strict ‘keeper liability’ provisions:


    The Claimant did not comply with POFA 2012 and give the registered keeper opportunity, at any point, to identify the driver. A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered no later than 14 days after the vehicle was parked. No ticket was left on the windscreen and no notice to keeper was sent within the 14 days required to comply with POFA 2012 only a speculative invoice entitled “Parking Charge Notice” which was sent outside of the 14 day period, which did not comply with POFA 2012. This would exclude the registered keeper being liable for any charges.


    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. ”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) 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 £338.78 for outstanding debt and damages. The additional costs, which the defendant contests have not been incurred, are none of its concern.



    4. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee, who drew up the paperwork is remunerated by Civil Enforcement Ltd and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs' were incurred. The Defendant believes that Civil Enforcement Ltd has artificially inflated this claim. They are claiming legal costs when not only is this not permitted (CPR 27.14) but the Defendant believes that they have not incurred legal costs. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost. The Defendant denies that the Claimant is entitled to any interest whatsoever. The claimant has not explained how the claim has increased from the original parking notice to £338.78 If the Claimant alleges that they claim the cost of its in-house administration, these cannot be recovered - they are staff performing the task that they have been employed for and essential to the Claimant's business plan.

    5. 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.

    6. In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.


    a) The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.
    b) In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.
    c) Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
    (i) 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.
    (ii) Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
    (iii) 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.
    (iv) 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.
    (v) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.

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

    7. 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.

    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 Defendant has reasonable belief that the Claimant sent a letter claiming to be a final letter before court action, but then instead sent this to more debt collectors. As such the Claimants have artificially inflated the claim value by claiming to involve further debt collectors, the Defendant puts the Claimant to strict proof that all claimed costs were invoiced and paid

    11. Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable to expect a registered keepers representative to be able to recall the potential driver(s) of the vehicle over 18 months later.

    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 16th Feb 2018.

    b) Sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.

    c) failed to issue a compliant notice to keeper within 14 days under Schedule 4 of the Protection of Freedoms Act 2012 such that Claimant is unable to hold the company liable under the strict ‘keeper liability’ provisions.
    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 confirm that the above facts and statements are true to the best of my knowledge and recollection.
    • Coupon-mad
    • By Coupon-mad 12th Mar 18, 9:59 PM
    • 57,473 Posts
    • 71,064 Thanks
    Coupon-mad
    That's better. Maybe just change this:

    11. Due to the length of time, the Defendant company hold no records of vehicle drivers on has little to no recollection of the day in question. It would not be reasonable to expect a registered keepers representative to be able to recall the potential driver(s) of the vehicle over 18 months later. The burden rests with the Claimant to identify the driver, who is the only party potentially liable in cases where a parking firm is unable to rely upon the POFA.
    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.

    • tonkasdog
    • By tonkasdog 12th Mar 18, 10:32 PM
    • 35 Posts
    • 8 Thanks
    tonkasdog
    Yes that’s sounds better, I’ll get that amended tomorrow.
    Thanks
    • tonkasdog
    • By tonkasdog 14th Mar 18, 11:05 AM
    • 35 Posts
    • 8 Thanks
    tonkasdog
    Hi guys,

    I think this defence document is ready to go now. Can I just double check the correct procedure:

    Print, sign and scan defence in PDF format.

    Email to:

    ccbc@hmcts.gsi.gov.uk - County Court Business Centre
    OR
    ccbcaq@hmcts.gsi.gov.uk - Claim responses & directions

    Or neither of these? Couldn't find an email address on the paperwork so found these on their website.
    Is it wise to also send a hard copy in the post, this has to be in by the 16th March so would need to post 'special delivery' to ensure it get there on time.

    Thanks for your help and here is the final draft:

    Defence

    The Defendant denies liability to the Claimant for the entirety of the claim on the following grounds, any of which are fatal to the Claimant’s case:

    1. The Claim Form issued on the 16th Feb 2018 by Civil Enforcement Limited was not correctly filed under The Practice Direction, as it was not signed by a legal person. The claim does not have a valid signature and is not a statement of truth. It states that it has been issued by “Civil Enforcement Limited” as the Claimant’s Legal Representative. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer.

    2. This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017) and as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

    a) There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.

    b) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.

    c) The Schedule of information is sparse of detailed information.

    d) 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. The Claim form Particulars did not contain any evidence of contravention or photographs.

    e) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.

    f) CEL cannot hold the company liable because they don't use POFA Notice to Keepers, and as the driver was at a retail park it's impossible that the driver was engaged in business on behalf of the company, they were going about their own private business, not under instruction from anyone, and as such their is no possibility that the keeper has liability.



    3. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012 (“POFA 2012”). 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 the defendant liable under the strict ‘keeper liability’ provisions:


    The Claimant did not comply with POFA 2012 and give the registered keeper opportunity, at any point, to identify the driver. A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered no later than 14 days after the vehicle was parked. No ticket was left on the windscreen and no notice to keeper was sent within the 14 days required to comply with POFA 2012 only a speculative invoice entitled “Parking Charge Notice” which was sent outside of the 14 day period, which did not comply with POFA 2012. This would exclude the registered keeper being liable for any charges.


    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. ”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) 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 £338.78 for outstanding debt and damages. The additional costs, which the defendant contests have not been incurred, are none of its concern.



    4. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee, who drew up the paperwork is remunerated by Civil Enforcement Ltd and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs' were incurred. The Defendant believes that Civil Enforcement Ltd has artificially inflated this claim. They are claiming legal costs when not only is this not permitted (CPR 27.14) but the Defendant believes that they have not incurred legal costs. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost. The Defendant denies that the Claimant is entitled to any interest whatsoever. The claimant has not explained how the claim has increased from the original parking notice to £338.78 If the Claimant alleges that they claim the cost of its in-house administration, these cannot be recovered - they are staff performing the task that they have been employed for and essential to the Claimant's business plan.

    5. 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.

    6. In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.


    a) The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.
    b) In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.
    c) Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
    (i) 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.
    (ii) Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
    (iii) 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.
    (iv) 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.
    (v) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.

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

    7. 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.

    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 Defendant has reasonable belief that the Claimant sent a letter claiming to be a final letter before court action, but then instead sent this to more debt collectors. As such the Claimants have artificially inflated the claim value by claiming to involve further debt collectors, the Defendant puts the Claimant to strict proof that all claimed costs were invoiced and paid

    11. Due to the length of time, the Defendant Company hold no records of vehicle drivers on the day in question. It would not be reasonable to expect a registered keepers representative to be able to recall the potential driver(s) of the vehicle over 18 months later. The burden rests with the Claimant to identify the driver, who is the only party potentially liable in cases where a parking firm is unable to rely upon the POFA.

    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 16th Feb 2018.

    b) Sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.

    c) failed to issue a compliant notice to keeper within 14 days under Schedule 4 of the Protection of Freedoms Act 2012 such that Claimant is unable to hold the company liable under the strict ‘keeper liability’ provisions.
    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 confirm that the above facts and statements are true to the best of my knowledge and recollection.
    • KeithP
    • By KeithP 14th Mar 18, 12:55 PM
    • 7,210 Posts
    • 6,714 Thanks
    KeithP
    As you say, print, sign, scan as pdf and email to:
    ccbcaq@hmcts.gsi.gov.uk - Claim responses & directions

    Email before 4pm on 16th.

    No need to post a second copy.
    .
    • tonkasdog
    • By tonkasdog 14th Mar 18, 6:55 PM
    • 35 Posts
    • 8 Thanks
    tonkasdog
    Lovely, thanks Keith
    • tonkasdog
    • By tonkasdog 2nd May 18, 11:49 AM
    • 35 Posts
    • 8 Thanks
    tonkasdog
    Directions Questionnaire
    Hi guys, I have now received the Directions Questionnaire and have a couple of questions:

    1. Is bargepoles advice on this from 2016 still relevant? link here

    https://forums.moneysavingexpert.com/showthread.php?t=5546325

    2. The form states that copies must be served on all other parties as well as filed with the court, I'm guessing I can email this to the court as I did with the defence? The only address I have for CEL is on the original claim form so I guess this will need posting? I'm remember reading something on here about just sending first class and not record etc.. and something about a proof of postage receipt?

    3. Bargepole has the following for question D3 on the form:

    D3 = 1 witness (thats you) (or more if you are going to get another person to provide a statement)

    Would it be wise to see if the driver would provide a statement of some kind?

    4. Where the form is asking for "Your contact details" should I enter the company name under "Your full name" as it is the company that is the defendant or should I enter mine as the director?

    Was hoping I'd heard the last of this pantomime until this arrived

    Thanks in advance
    • nosferatu1001
    • By nosferatu1001 2nd May 18, 11:56 AM
    • 2,486 Posts
    • 3,038 Thanks
    nosferatu1001
    1) It isnt from 2016, thats when the thread is from. yes it is still correct.
    2) Yes, first class free proof of posting. Email to court is fine.
    3) WOuldnt that out the driver? Do you want to do that?
    4) Enter full name, so it ges to you, would be my sugestion.
    • tonkasdog
    • By tonkasdog 2nd May 18, 11:59 AM
    • 35 Posts
    • 8 Thanks
    tonkasdog
    Thanks, yes good point about revealing the driver, second thoughts I'll sack that. Cheers
Welcome to our new Forum!

Our aim is to save you money quickly and easily. We hope you like it!

Forum Team Contact us

Live Stats

2,029Posts Today

7,945Users online

Martin's Twitter
  • It's the start of mini MSE's half term. In order to be the best daddy possible, Im stopping work and going off line? https://t.co/kwjvtd75YU

  • RT @shellsince1982: @MartinSLewis thanx to your email I have just saved myself £222 by taking a SIM only deal for £7.50 a month and keeping?

  • Today's Friday twitter poll: An important question, building on yesterday's important discussions: Which is the best bit of the pizza...

  • Follow Martin