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    • bapster
    • By bapster 10th May 18, 10:58 AM
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    bapster
    CEL county court claim Help
    • #1
    • 10th May 18, 10:58 AM
    CEL county court claim Help 10th May 18 at 10:58 AM
    Hi,
    I have received a county court claim form for PCN / ANPR January 2017.
    I intend to defend this claim but would kindly appreciate some help.
    I have no knowledge of their claim but I am the registered keeper of the vehicle, not the driver at the time. The only notice I received was the Letter before action and frankly thought it was a scam so I binned it. I did email ZZPS Ltd to enquire and they sent me a copy of the original PCN.
    I filed the acknowledgement of service online, i did tick the box to contest jurisdiction by mistakingly after reading some posts here. My question is what is my best defence ? I read a post regarding sending a request to CEL for all the evidence of their claim but I cant find again. I thought that would be a good place to start.
Page 1
    • Quentin
    • By Quentin 10th May 18, 11:24 AM
    • 36,346 Posts
    • 20,595 Thanks
    Quentin
    • #2
    • 10th May 18, 11:24 AM
    • #2
    • 10th May 18, 11:24 AM
    Best place to start is the newbies faq thread near the top of the forum


    #2 covers court claims right from issue to hearing


    Contact the court and tell them you made a mistake over jurisdiction!
    • Loadsofchildren123
    • By Loadsofchildren123 10th May 18, 11:41 AM
    • 2,224 Posts
    • 3,728 Thanks
    Loadsofchildren123
    • #3
    • 10th May 18, 11:41 AM
    • #3
    • 10th May 18, 11:41 AM
    Read the newbies walk through for starters (go back to the list of threads on this forum, it's in the top 3)


    Your defence will be that you were not driving so did not enter into any agreement with the Claimant to pay any parking charge.


    You admit you are the registered keeper of the vehicle, but as keeper you cannot be liable because you never received a NtK so the strict requirements of POFA 2012 were not met.


    I think you had better put in supplemental defences because they may claim they did send you the NtK. Having said that, I don't think CEL complies with POFA anyway, so their approach will be to say you were driving.


    Your other defences would be that if it is decided that a compliant NtK was properly served on you, then:
    [eg inadequate signage incapable of forming a contract? Driver did comply with the t&cs?]


    At WS stage you need to provide evidence you weren't driving (eg your insurance cert showing other named drivers and you'd say that your car is regularly driven by a number of family members either on your insurance or their own, evidence you were at work that day and miles away from the car park in question etc) and will need to demonstrate the POFA point.


    To argue the other points you need to go to the carpark and look at the signage and what it says, how it is positioned etc.


    The good news is that (to date at least) CEL always discontinues a properly defended claim. It doesn't waste its time on taking lossleaders to court with the risk of losing (even if it wins, the cost of going to court exceeds what they recover, so CEL tends to focus on the weak, vulnerable and uneducated who pay up once they've been threatened enough times rather than on people who have the balls/time/wherewithal to defend)
    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.
    • bapster
    • By bapster 10th May 18, 11:40 PM
    • 5 Posts
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    bapster
    • #4
    • 10th May 18, 11:40 PM
    • #4
    • 10th May 18, 11:40 PM
    Thanks will do email or phone?
    • Coupon-mad
    • By Coupon-mad 10th May 18, 11:50 PM
    • 59,555 Posts
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    Coupon-mad
    • #5
    • 10th May 18, 11:50 PM
    • #5
    • 10th May 18, 11:50 PM
    Just read ANY other CEL thread, a child could copy a CEL defence and win.
    Last edited by Coupon-mad; 10-05-2018 at 11:57 PM.
    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.

    • bapster
    • By bapster 10th May 18, 11:52 PM
    • 5 Posts
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    bapster
    • #6
    • 10th May 18, 11:52 PM
    Defence
    • #6
    • 10th May 18, 11:52 PM
    Thank you for your reply.

    I've spent hours trawling through the threads for a defence, do you think this one will be adequate? im an absolute novice with this legal stuff

    Do i need to send a request to CEL for disclosure at this stage?

    I didnt receive a separate PoC only the small filled out box on the N1 claim form, that was over 14 days ago.

    How do i attach word doc?

    County Court Business Centre
    Claim Number: XXXXXXX

    Between:

    Civil Enforcement Limited v XXX

    Defence Statement

    I am XX, the defendant in this matter and was the registered keeper of vehicle XXXX XXX at the time of the alleged offence. I currently reside at XXX.


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

    The Claim Form issued on the xxxxxx 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.
    © 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.
    © 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.
    © 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.

    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 3rd October 2017.

    (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.

    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.

    Signed



    Date:
    • KeithP
    • By KeithP 10th May 18, 11:55 PM
    • 8,089 Posts
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    KeithP
    • #7
    • 10th May 18, 11:55 PM
    • #7
    • 10th May 18, 11:55 PM
    What is the date of issue on your Claim Form?
    When did you do the Acknowledgement of Service?
    .
    • bapster
    • By bapster 10th May 18, 11:58 PM
    • 5 Posts
    • 0 Thanks
    bapster
    • #8
    • 10th May 18, 11:58 PM
    • #8
    • 10th May 18, 11:58 PM
    I was referring to contacting the court about the mistake with jurisdiction.
    Its late and I'm a bit frazzled.
    • Coupon-mad
    • By Coupon-mad 10th May 18, 11:59 PM
    • 59,555 Posts
    • 72,716 Thanks
    Coupon-mad
    • #9
    • 10th May 18, 11:59 PM
    • #9
    • 10th May 18, 11:59 PM
    Its late and I'm a bit frazzled.
    Originally posted by bapster
    Me too, sorry, I had a very busy day at work and it looked like you were going to phone about your defence!


    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.

    • bapster
    • By bapster 11th May 18, 12:00 AM
    • 5 Posts
    • 0 Thanks
    bapster
    issue date 16. 04.18
    Acknowledgement of service MCOL 24.04.18
    • KeithP
    • By KeithP 11th May 18, 12:10 AM
    • 8,089 Posts
    • 7,963 Thanks
    KeithP
    Then you have until 4pm on Monday 21st May 2018 to file your Defence.
    .
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