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  • FIRST POST
    • Tintin27
    • By Tintin27 28th Jun 18, 10:00 PM
    • 17Posts
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    Tintin27
    Some questions and a check of CEL defence
    • #1
    • 28th Jun 18, 10:00 PM
    Some questions and a check of CEL defence 28th Jun 18 at 10:00 PM
    So.. incident occured on the 14/11/2017 in a doctors surgery carpark. (car registration needed to be entered inside surgey). As was waiting in the carpark for the patient, wasnt aware of this. The pcn from cel was sent on the 17/11/2017. It stated that the above vehicle was parked at... we therefore require payment of this pcn in accordance with the parking terms and conditions clearly stated on the signage: authorised vehicles only. Includes image of vehicle entering/exiting. Further correspondance was ignored.
    Now i have drafted out my defence below. My question is..i have obtained written proof from the surgery of the confirmation of appointment/times and also stating that there was a legitimate reason to be parked in the patient carpark. How do you think i should incorparate this in my defence and where? Or do i even put it in?

    I am xxx, the defendant in this matter and the registered keeper of vehicle xxx.

    I deny I am liable for the entirety of the claim on the following grounds:

    1. The Claim Form issued on the 19 June 2018 by Civil Enforcement Ltd 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 Claimants 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 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 why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information. Furthermore, the Claim Form Particulars did not contain any evidence of contravention or photographs. These documents, and the Letter before County Court Claim should have been produced, pursuant to paragraph 6 of the Practice Direction Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to take stock, pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:

    i. Early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute

    ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure

    iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and

    iv. support the efficient management of proceedings that cannot be avoided.

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

    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 333.81 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, and the particulars of claim are templates, so it is simply not credible that 50 legal representatives 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 333.81 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. As far as I can ascertain, based upon the very vague particulars of claim and complete lack of evidence and photographs, and without having been furnished with the alleged signage contract, none of this applies in this material case.

    6. In the absence of any proof of adequate signage 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 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. 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
    iii. 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
    iv. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
    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 Ltd 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. 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 19 June 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.

    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.

    STATEMENT OF TRUTH

    I confirm that the contents of this Defence are true to the best of my knowledge and recollection.



    xxx
    XX June 2018

    Also the particulars of claim were: claim for monies relating to a parking charge for parking in a private carpark managed by the claimant in breach of the ts & cs. Drivers are allowed to park in accordance with ts+cs of use.ANPR cameras and/or manual patrols are used to monitor vehicles entering+exiting the site.debt +damages claimed the sum of 236.00. (Total 322.17)
    I would apprectiate any help with this so i can send off my defense. It has already been acknowledged
    Many thanks
Page 2
    • Tintin27
    • By Tintin27 5th Jul 18, 10:51 PM
    • 17 Posts
    • 0 Thanks
    Tintin27
    Can someone please confirm that my defence is ok to send? Im not feeling confident about it , im not sure whether to take out bits that i dont understand or am not sure of as i feel i wont be able to portray them well in court if it comes to that.
    E.g ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure
    (Arn't all the letters they sent after the original pcn their way of doing the above^) therefore should this not be included in my defence?
    Theres other bits to that im unclear of or should i just go with it?
    • Coupon-mad
    • By Coupon-mad 6th Jul 18, 12:45 AM
    • 59,444 Posts
    • 72,604 Thanks
    Coupon-mad
    i feel i wont be able to portray them well in court if it comes to that.
    It won't.

    should i just go with it?
    Yes! It is fine.

    Email the signed/dated version to the CCBCAQ justice email address, as per the guidance posted on the loads of other CEL defence threads you will have found.
    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.

    • Tintin27
    • By Tintin27 6th Jul 18, 3:47 PM
    • 17 Posts
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    Tintin27
    Ok thankyou. Also can i send the attachment as a word document or should it be pdf?
    • KeithP
    • By KeithP 6th Jul 18, 5:19 PM
    • 8,026 Posts
    • 7,882 Thanks
    KeithP
    Ok thankyou. Also can i send the attachment as a word document or should it be pdf?
    Originally posted by Tintin27
    Why do you want to change a tried and tested process?

    Most, if not all, word processors or scanners can save as a pdf.

    The courts definitely can handle pdfs.
    You may need to check with the County Court Business Centre that they can handle your alternative.

    When you are happy with the content, your Defence should be filed via email as described here:

    1) print your Defence
    2) sign it
    3) scan the signed document back in and save it as a pdf.
    4) send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
    5) just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
    .
    • Tintin27
    • By Tintin27 9th Jul 18, 7:02 PM
    • 17 Posts
    • 0 Thanks
    Tintin27
    O ok i didnt know you could save it straight as a pdf from word, thought you might have to have a special program like adobe acrobat or something thanks.
    • Tintin27
    • By Tintin27 9th Jul 18, 8:03 PM
    • 17 Posts
    • 0 Thanks
    Tintin27
    All sent! Will keep you posted!
    • Tintin27
    • By Tintin27 9th Jul 18, 9:28 PM
    • 17 Posts
    • 0 Thanks
    Tintin27
    Oooo i forgot to put in the county court and defence at the top of my defence! Ahh does this matter to much or do i need to edit and resend? Mine just starts with the claim no. Claimant... and defendant... then the defence.
    • KeithP
    • By KeithP 9th Jul 18, 9:38 PM
    • 8,026 Posts
    • 7,882 Thanks
    KeithP
    You could send it again as they won't have processed your earlier Defence.
    Then ring the CCBC in the morning and ask then to discard the first version.

    If they can't or won't help, then it's not the end of the world.
    .
    • Coupon-mad
    • By Coupon-mad 9th Jul 18, 9:48 PM
    • 59,444 Posts
    • 72,604 Thanks
    Coupon-mad
    Should be fine, as long as the claim no. and parties are named at the top and you put the claim number in the subject line of your email, with the words 'DEFENCE, URGENT PLEASE' (as anyone would, no need for us to tell people the obvious, I think we do more than enough!).
    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.

    • Tintin27
    • By Tintin27 9th Jul 18, 10:13 PM
    • 17 Posts
    • 0 Thanks
    Tintin27
    ...am resending with along with the URGENT PLEASE !!!55357;!!!56904; will call them in the morning! Thanks
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