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    • Alexe527
    • By Alexe527 15th May 18, 3:54 PM
    • 4Posts
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    Alexe527
    Civil Enforcement Court Claim, Defence Help Needed!
    • #1
    • 15th May 18, 3:54 PM
    Civil Enforcement Court Claim, Defence Help Needed! 15th May 18 at 3:54 PM
    Hi there,

    I am hoping someone can help me and my mum put together a defence for a parking charge notice she received last year from Civil Enforcement that she has now received a claim form for the Northampton County Court Business Centre.

    She has received the claim form and has returned the acknowledgement of service. It was issued on the 17th April 18 and I understand we now have 28 days from 5 days after that date to file a defence so the clock is ticking!

    The driver says they know 100% that they paid for the parking - it is £1 if you intend to stay over 15 minutes and they knew they would go over this time, they had to enter her registration in and remember doing so. Nothing has been sent to Civil Enforcement in response to date. The only thing I don't know is if maybe they put their registration in incorrectly but they say they definitely got a ticket from the machine. Unfortunately they don't have this anymore as the PCN arrived nearly 2 months after the car was parked there (by ANPR) and there was no parking ticket on the windscreen when they got back to alert them that there was a problem. There have been a couple of similar letters since that one arrived.

    She then received a Letter Before Action in Aug 17 with the draft particulars of claim that seem to be sent out to every one of CELs cases from reading this forum and others - not signed but from their "Legal Team". They were originally asking for £100, the claim for states £330.55 including legal representative's costs of £50 (they have signed Civil Enforcement Limited as their legal representative)and £25 court fee.

    I have been reading a lot of the other threads and have a draft defence put together (mostly pilfered from another one on here) but was wondering if there was any advice about what we else we could put in it based on the above information? To me it seems completely unreasonable that she received the first PCN 2 months after the car was parked there (no notice on the windscreen) as no one would realistically keep a parking ticket for that long! I am just not sure how much to argue the fact that it was paid as we have no proof now - or whether to just stick to the technicalities.

    Thanks so much in advance for any help

    Alex

    Draft Defence

    The Claim Form issued on the 17th April 2018 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
    (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 photographs showing a car entering and leaving the car park with supposed times of entry and exit but no such time stamp on the 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 £255.55 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/ 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.

    8/ 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.

    9/ The claimant has added unrecoverable sums to the original parking charge. Civil Enforcement Ltd have signed themselves as their legal representative and so it is not credible that £50 legal costs were incurred. I deny the Claimant is entitled to any interest whatsoever.


    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.
    Last edited by Alexe527; 16-05-2018 at 10:06 AM. Reason: Take out specific details regarding the case
Page 1
    • Quentin
    • By Quentin 15th May 18, 4:00 PM
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    Quentin
    • #2
    • 15th May 18, 4:00 PM
    • #2
    • 15th May 18, 4:00 PM
    You say you want to rely on POFA, and they cannot assume it was the keeper who was driving


    Throughout here you are advised never to reveal who was driving


    The ppcs monitor this forum and can use your posts against you


    You need to edit your OP to remove details of who was driving
    • Loadsofchildren123
    • By Loadsofchildren123 15th May 18, 4:10 PM
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    Loadsofchildren123
    • #3
    • 15th May 18, 4:10 PM
    • #3
    • 15th May 18, 4:10 PM
    Just a couple of questions/points:


    1. has driver identified themselves?


    2. As you got no NtK within the specified time limit under POFA (think with ANPR that's 14 days) then unless they can identify the driver then this is going nowhere because neither can they sue the keeper.


    3. If answer to 1 is no, edit your post #1 to remove all reference to who was driving. Refer to "the driver" and "the keeper" on the off chance CEL read this thread.


    4. Where the keeper and driver were the same, this is a dangerous game because you can't lie and deny being the driver, all you can do is put them to proof of who was driving. The judge may simply lean over on the day and ask the defending keeper whether they were driving.


    5. The obsession with not identifying the driver and defending as keeper, especially where driver/keeper are the same, is that you very often can't see the wood for the trees and don't focus on the fact that you have a good driver's defence. So sometimes it's just better to admit to being the driver, saying that you complied with all the T&Cs and putting them to full proof that you didn't and there was a breach of any contract.


    6. In your case driver is adamant they complied with the T&Cs so perhaps this is the way to go. Put them to full proof that a ticket was not purchased. Driver can make a statement saying they know they bought a ticket, they remember it clearly.


    7. What you need to understand about CEL is that they have a slightly different MO to other PPCs. Other PPCs will proceed with suing all ticketed keepers/drivers, regardless of whether there's a defence. They end up winning less than they've spent on a lawyer, they just treat it as a loss leader. Of the people who don't pay up at the threatening letter stage, there are lots more who will pay up once there's a claim, and others who start off defending but then are too chicken to turn up on the day. There are very few, relatively speaking, who go ahead and defend, and some of them defend badly and lose. So the going to court regardless is the business model. CEL don't do this. They proceed up to the wire, but then realise it isn't worth the money of proceeding against drivers/keepers who are obviously going to turn up at court and are putting up more than a half-ar**d effort to defend, and then they withdraw. This business model may change, but that's what we've seen to date - not a single properly defended CEL claim has been pursued. However, they do not withdraw until the nth hour, usually when the hearing fee has to be paid (after Defences and WSs are filed). So you need to be ready to jump through all these hoops.


    8. I note that they are claiming legal rep expenses of £50. That's pretty outrageous since they have no legal reps but keep it all in house. Not sure if this is something new CEL are doing or whether they've always tried to claim this. That's a point to include in the defence (plus all the other add-ons, which are not a properly defined contractual term).
    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.
    • Loadsofchildren123
    • By Loadsofchildren123 15th May 18, 4:22 PM
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    Loadsofchildren123
    • #4
    • 15th May 18, 4:22 PM
    • #4
    • 15th May 18, 4:22 PM
    we have no proof now or whether to just stick to the technicalities. the driver is her own proof, she signs a statement to say she paid and remembers doing it and entering her reg. Claimant then has to prove otherwise.
    If there was an error in the reg then it's probably de minimis (google this and search for posts on here about it, it is often discussed).

    Draft Defence

    The Claim Form issued on the 17th April 2018 by Civil Enforcement Limited was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by “The Legal Team”.



    The Defendant puts the Claimant to full proof of every element of the Claim.

    I deny I am liable [Defence must be written in the third person - so "The Defendant denies that she is liable.....please make the relevant changes] for the entirety of the claim for each and every one of the following reasons:

    1/ The charge is an unenforceable penalty. 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. Not sure this applies: isn't the argument that the driver DID see the signs and DID comply with them?

    2/ This Claimant has not complied with pre-court protocol:
    (a)There was no compliant ‘Letter before County Court Claim’, under the Practice Direction [unless the LBC was received before October the PD no longer applies and was replaced on 1.10.17 with a specific Protocol for Debt Claims]
    (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 photographs showing a car entering and leaving the car park with supposed times of entry and exit but no such time stamp on the photographs and no evidence that a ticket was not purchased and/or displayed.
    (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 ‘keeper liability’ provisions. [This is a good defence, but requires keeper to deny being the driver - where you can't deny it you can put C to full proof thereof, but there's trouble ahead if there is a hearing and the judge asks directly "were you driving?" if you were]
    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.” [ditto comment above]

    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 £255.55 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. [inconsistent if you are going to argue that driver complied with the t&cs which must mean driver saw the signs and understood what they were obliged to do.....]

    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 the Claimant does 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. The Claimant is put to full proof of what rights it has in relation to operating on the land in question.


    7/ 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.

    8/ 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.

    9/ The claimant has added unrecoverable sums to the original parking charge. [refer to them as The Claimant, not by name]Civil Enforcement Ltd have signed themselves as their legal representative and so it is not credible that £50 legal costs were incurred. I deny the Claimant is entitled to any interest whatsoever.
    you've missed out the claim that the driver did comply by purchasing a ticket.....

    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.
    Originally posted by Alexe527

    It needs reworking.


    It may be that you just leave everything in, even the arguments I think cause you some trouble (if driver and keeper are the same), because of what we know about CEL's modus operandi. ie Just shove every conceivable argument in there and they'll back down. If it was me defending, I wouldn't do that, I'd do something much more simple with "Defendant did comply with the t&cs and puts the Claimant to full proof thereof"
    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.
    • Alexe527
    • By Alexe527 16th May 18, 8:52 AM
    • 4 Posts
    • 1 Thanks
    Alexe527
    • #5
    • 16th May 18, 8:52 AM
    • #5
    • 16th May 18, 8:52 AM
    Thanks so much for your response. It seemed simplest just to argue that it had been paid for but I didn't know if the burden of proof was on us or them. I think you are spot on with your comment about not seeing the wood for the trees. There is just so much information on here and you feel like you need to have as good a defence as possible when really the fact she paid should be enough.

    Thanks again, just needed a bit of guidance which route to take so that is spot on!
    • Quentin
    • By Quentin 16th May 18, 9:33 AM
    • 37,323 Posts
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    Quentin
    • #6
    • 16th May 18, 9:33 AM
    • #6
    • 16th May 18, 9:33 AM
    Your OP needs more editing

    Only refer to the Driver or the Keeper as in "the driver did this....." etc
    • nosferatu1001
    • By nosferatu1001 16th May 18, 9:38 AM
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    nosferatu1001
    • #7
    • 16th May 18, 9:38 AM
    • #7
    • 16th May 18, 9:38 AM
    Burdne is on them to prove their case, and all elements of it

    CEL so far have not shown up to a single hearing where we have asisted with te defence. Not one.

    Personally I would leave everything in, because that increases the chances CEL mark it as "too hard" and eventually discontinue

    If you are REALLY confident, then you can consider a countercalim, paying the relevant fee. Make sure you are totally confident on this. Harasment and breach of DPA would be one - they had no reasonable cause as the contract was fulfilled.
    • Alexe527
    • By Alexe527 16th May 18, 10:09 AM
    • 4 Posts
    • 1 Thanks
    Alexe527
    • #8
    • 16th May 18, 10:09 AM
    • #8
    • 16th May 18, 10:09 AM
    Thanks! We are considering a counterclaim but wanted to be sure about our defence first, really appreciate the help
    • Loadsofchildren123
    • By Loadsofchildren123 16th May 18, 4:08 PM
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    Loadsofchildren123
    • #9
    • 16th May 18, 4:08 PM
    • #9
    • 16th May 18, 4:08 PM
    Burdne is on them to prove their case, and all elements of it

    CEL so far have not shown up to a single hearing where we have asisted with te defence. Not one.

    Personally I would leave everything in, because that increases the chances CEL mark it as "too hard" and eventually discontinue

    If you are REALLY confident, then you can consider a countercalim, paying the relevant fee. Make sure you are totally confident on this. Harasment and breach of DPA would be one - they had no reasonable cause as the contract was fulfilled.
    Originally posted by nosferatu1001


    For that sole reason, you may decide it's better to throw everything in. If this was another PPC and you were going to court, I wouldn't include those other arguments, but it's different with CEL.


    There would only be a counterclaim with teeth if it's already been pointed out clearly to them that driver paid and there's no claim (and preferably with a cease and desist request). I haven't gone back to your first post to check whether that's been done.
    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.
    • Alexe527
    • By Alexe527 16th May 18, 4:45 PM
    • 4 Posts
    • 1 Thanks
    Alexe527
    As far as I know there has been no communication with them at all, the letters have just been ignored so seems like it would be a waste of time to counterclaim anything
    • Loadsofchildren123
    • By Loadsofchildren123 17th May 18, 10:09 AM
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    Loadsofchildren123
    I agree re. harassment - to win that you need to show you considered it harassment and were distressed by it - asking them to stop is such evidence. It's not dead in the water, but I think it's much weaker if you ignored everything.


    DPA breach is technically unaffected although again it would be much stronger if you could show you were telling them they had no claim and to cease processing/handling your data. But hardly any DPA counterclaims win, the judges just don't want to address it and you would need to really do your homework and argue it forcefully.


    I don't really focus on these sorts of counterclaims so see if anyone else has any words of wisdom.
    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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